It proposed a tax on certain
legal instruments, and was objected to because it was par-
tial in its operation affecting the members of the law.
legal instruments, and was objected to because it was par-
tial in its operation affecting the members of the law.
Hamilton - 1834 - Life on Hamilton - v2
He
observed, also, that the Roman Catholics were not the only
society affected--that some of the Dutch Reformed church-
es held a species of ecclesiastical foreign jurisdiction; he
alluded to the classes of Amsterdam. "But," he asked,
"is the natural subject, the man born among us, educated
with us, possessing our habits, possessing our manners,
with an equal ardent love of his native country, to be re-
quired to take the same oath of abjuration? What has he
to abjure? He owes no fealty to any other power upon
earth. There is no probability that his mind will be led
astray by bigotiy or foreign influence. Then why give
him cause of dissatisfaction, by bringing forward a test
which will not add to his fidelity? "
He stated that the clause in the constitution confined the
test to foreigners, and that it was adopted after much de-
bate, and by a small majority, and that even as to them, he
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? HAMILTON.
415
questioned whether the test ought to be proposed. That
he was decidedly against going so far as to extend it to ec-
clesiastical matters. "Why should we wound the tender
conscience of any man? and why present oaths to those
who are known to be good citizens? why alarm them?
why set them upon inquiry that is useless and unnecessary 1
You give them reason to suppose that you request too
much of them, and they cannot but refuse compliance.
"The constitution does not require such a criterion to try
the fidelity of any citizen. It is solely intended for aliens
and foreigners, coming from abroad with manners and
habits different from our own, and whose intentions are
concealed. The oath should be confined to civil matters.
It is all that we ought or can require. A man will not
then be alarmed in his interpretation. It will not set his
mind to inquire if his religious tenets are affected, and much
inconvenience would be avoided. We should be cautious
how we carry the principle of requiring and multiplying
tests upon our fellow-citizens, so far as to practise it to
the exclusion or disfranchisement of any. " The clause
was, nevertheless, in part retained.
"A further provision was proposed, excluding pensioners
and officers holding under congress, from seats in the
senate and assembly. This clause gave rise to the discussion
of a most important question, whether the legislature pos-
sessed the power of abridging the constitutional rights of
the people.
By the state party it was contended, that while the con-
stitution protected the rights of the electors, it was silent as
to the elected, and that therefore the legislature had the
right to annex qualifications to the elected.
Colonel Hamilton observed, " that they were going on
dangerous ground; that the best rule to follow was the
rule of the constitution, which it would be safest to adhere
to without alteration or addition. If we once depart from
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? 416
THE LIFE OF
this rule, it is impossible to see where we would end.
To-day, a majority of the persons sitting here, from a par-
ticular mode of ihinking, disqualify one description of men;
a future legislature, from a particular mode of thinking on
another point, disqualify another set of men. One prece-
dent is the pretext of another, till we narrow the ground
of qualifications to a degree subversive of the constitution.
It is impossible to suppose that the convention who framed
the constitution were inattentive to this point. It is a mat-
ter of too much importance not to have been well considered.
"They have fixed the qualification of electors with pre-
cision. They have defined those of senator and governor,
but they have been silent as to the qualifications of mem-
bers of assembly. It may be said that, being silent, they
have left the matter to the discretion of the legislature.
But is not the language of the framers of the constitution
rather this--We will fix the qualifications of electors;
we will take care that persons absolutely indigent shall be
excluded; we will provide that the right of voting shall be
on a broad and secure basis, and we will trust to the dis-
cretion of the electors themselves the choice of those who
are to represent them in assembly 1
"Every qualification implies a disqualification. The per-
sons who do not possess the qualification required, become
ineligible. Is not this to restrain the freedom of choice
allowed by the constitution to the body of electors? An
improper exercise of this liberty cannot constitutionally be
presumed. Why, therefore, should we circumscribe it
within limits unknown to the constitution? Why should
we abridge the rights of any citizens in so important an
article? By the constitution, every citizen is eligible to a
seat in the assembly. If we say certain descriptions of
persons shall not be so eligible, what is this but to deprive
:dl those who fall within that description, of an essential
right allowed them by the constitution?
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? HAMILTON.
417
"If we once break the ground of departing from the sim-
ple plan of the constitution, it may lead us much farther
than we intend.
"From the prevalency of a certain system, it is now
proposed to exclude all persons from seats who hold offices
under congress; the pretence is, to guard against an im-
proper influence. I may think another species of influ-
ence more dangerous. To preserve consistency, we should
declare that no member of congress should hold a seat.
For, surely, if it be dangerous that the servants of congress
should have a seat in this house, it is more dangerous that
the members themselves should be allowed this privi-
lege. *
"There are officers who have been wounded in the ser-
vice, and who now have pensions under the United States
as the price of their blood; would it be just, would it not
be cruel on this account to exclude men from a share in
the administration of that government which they have at
every hazard contributed to establish? From the silence
of the constitution, it is inferred that it was intended to
leave this point to the discretion of the legislature. I rather
infer that the intention of the constitution was to leave the
qualifications of their representatives wholly to the electors
themselves. The language of the constitution seems to be
this: Let us take care that the persons to elect are pro-
perly qualified; that they are in such a situation in point
of property as not to be absolutely indigent and dependent,
and let us trust to them the care of choosing proper per-
sons to represent them.
"I hold it to be a maxim which ought to be sacred in
our form of government, that no man ought to be deprived
of any right or privilege which he enjoys under the consti-
* John Lansing and John Haring were recently appointed by the legis.
lature in which they had seats delegates to congress.
53
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? 418
THE LIFE OF
tution, but for some offence proved in due course of law.
To declare qualifications or disqualifications by general
descriptions in legislative acts, would be to invade this im-
portant principle. It would be to deprive, in the gross, all
those who had not the requisite qualifications, or who were
objects of those disqualifications, of that right to a share in
the administration of the republic which the constitution
gives them; and thus, without any offence, to nicur a for-
feiture. As to the objection that the electors might even
choose a foreigner to represent them within the latitude
of the constitution, the answer is, that common sense
would not tolerate such a construction. The constitution,
from the fundamental policy of a republican government,
must be understood to intend citizens.
"Let us pursue the subject a little further. Commerce,
it will be admitted, leads to an increase of individual pro-
perty. Property begets influence. Though a legislature,
composed as we arc, will always take care of the rights
of the middling and lower classes, suppose the majority
of the legislature at a future day to consist of wealthy men,
what could hinder them, if the right of innovating on the
constitution be admitted, from declaring that no man not
worth ten thousand pounds should be eligible to a seat in
either house? Would not this introduce a principle of
aristocracy fatal to the genius of our present constitu-
tion?
"In making this observation, I cannot be suspected of
wishing to increase the jealousy already sufficiently high
of men of property. My situation, prospects, and connec-
tions, forbid the supposition; but I mean honestly to lay
before you the dangers to which we expose ourselves, by
letting in the principle which the clause under considera-
tion rests upon. I give no opinion on the expediency of
the exclusion proposed. I only say, in my opinion, the
constitution does not permit it; and 1 shall be against any
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? HAMILTON.
419
qualification or disqualification, either of electors or elect-
ed, not prescribed by the constitution.
"The qualifications both of the electors and the elected
ought to be fundamental in a republican form of govern-
ment, not liable to be varied or added to by the legislature,
and they should for ever remain where the constitution
left them. It is to be lamented that men, to carry some fa-
vourite point in which their party or their prejudices are
interested, will inconsiderately introduce principles and
precedents which lead to successive innovations destruc-
tive of the liberty of the subject and the safety of the gov-
ernment. " The clause was stricken out.
The candour, the simplicity of his truth, and the strict
regard to the liberties of the citizen displayed on these oc-
casions, entered deeply into the mind of the house, and
every question where state pride was not concerned,or offi-
cial influence not exerted, he carried by a large majority.
He opposed with great force an amendment of the senate,
making a hostile discrimination as to persons who had been
engaged in privateering during the war, on the ground that
all legislative disfranchisements were unconstitutional. "In
one article of the constitution it is said--No man shall be
disfranchised or deprived of any right he enjoys under the
constitution, but by the law of the land or the judgment of
his peers. Some gentlemen hold that 'the law of the
land' will include an act of the legislature; but Lord Coke,
that great luminary of the law, in his comment on a simi-
lar clause in Magna Charta, interprets the law of the land
to mean presentment, and indictment, and process of out-
lawry, as contradistinguished from trial by jury.
"But if there were any doubt upon the constitution, the
bill of rights enacted in this very session removes it. It is
there declared that no man shall be disfranchised or de-
prived of any right but by due process of law or the judg-
ment of his peers. The words ' due process,' have a pre-
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? 420
THE LIFE OF
cise technical import, and are only applicable to the pro-
cess and proceedings of the courts of justice. They can
never be referred to an act of the legislature.
"Are we willing then to endure the inconsistency of pass-
ing a bill of rights, and committing a direct violation of it
in the same session? In short, are we ready to destroy its
foundations at the moment they are laid?
"When the discriminating clauses admitted into the bill
by this house were introduced, he was restrained by mo-
tives of respect for the sense of a respectable part of the
house, from giving it any other opposition than a simple
vote. The limited operation they would have, made him
less anxious about their adoption, but he could not recon-
cile it to his judgment or feelings to observe a like silence
on the amendment proposed by the senate. Its operation
would be very extensive; it would include almost every
man in the city concerned in navigation during the war.
"Let us, then, distinct from constitutional considerations,
consider the expediency and justice of the clause. The
word privateer is indefinite, and may include letters of
marque. The merchants of this city during the war, ge-
nerally speaking, must abandon their means of livelihood or
be concerned in navigation. If concerned in navigation,
they must of necessity have their vessels armed for de-
fence. They would naturally take out letters of marque.
If every owner of a letter of marque is disfranchised, the
body of your merchants will probably be in this situation.
Is it politic or wise to place them in it? Is it expedient to
force by exclusions and discriminations a numerous and pow-
erful class of citizens to be unfriendly to the government?
"He knew many individuals who would be comprehend-
ed, who are well affected to the prosperity of the country,
who are disposed to give every support to the govern-
ment, and who, some of them at least, even during the
war, had manifested an attachment to the American cause.
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? HA MILTON.
421
But there is one view in which the subject merits consider-
ation, that must lay hold on all our feelings of justice.
By the maritime law, a majority of the owners have
a right to dispose of the destination of the vessel. The
dissent of the minority is of no avail. It may have hap-
pened, and probably has happened in many instances, that
vessels have been employed as privateers, or letters of
marque, by a majority of the owners contrary to the sense
of the minority.
"Would it be just to punish the innocent with the guilty,
--to take away the rights of the minority, for an offence
committed by the majority without their participation, per-
haps contrary to their inclinations? He would mention a
further case, not equally strong, but of considerable force,
to incline the house against the amendment. He had been
informed that in one or more instances during the war,
some zealous people had set on foot subscriptions for fit-
ting out privateers, perhaps at the instigation of the Brit-
ish government; and had applied to persons suspected
of an attachment to us to subscribe, making their com-
pliance a test of their loyalty. Several individuals well
disposed to our cause, to avoid becoming the objects of
persecution, had complied; would it not be too rigorous to
include them in so heavy a penalty?
"It may be said they were guilty of a culpable want of
firmness. But if there are any of us who are conscious
of greater fortitude, such persons should not on that ac-
count be too severe on the weaknesses of others. They
should thank nature for its bounty to them, and should be
indulgent to human frailty. How few are there who would
have had strength of mind enough in such circumstances
to hazard, by a refusal, being marked out as the objects of
military resentment!
"I hope, as well from motives of justice as a regard to
the constitution, we shall stop where we are, and not go
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? 422
THE LIFE OF
any farther into the dangerous practice of disqualifying
citizens by general descriptions. "
"Though," a member replied, " he held Colonel Hamil-
ton in high estimation, and had a very great respect for
his candour, abilities, and knowledge of mankind, yet he
believed him much mistaken. He laid it down as a maxim,
that the man who was once an enemy will always remain
so. It was prudent to guard against admitting these peo-
ple to a participation of the . rights of citizens. He would
not operate on those who had taken up arms unwillingly.
The exclusion was constitutional,'because the constitution
must warrant every thing necessary for its own support. "
He appealed to that section of it which prohibited attain-
ders, except for crimes committed during the war.
Hamilton denied the distinction, and explained the inten-
tion and meaning of this clause of the constitution. He
defined acts of attainder, "as laws confiscating for treason
and misprision of treason all the property and estate of
the attainted traitor, and forfeiting his life unless he ap-
peared to take his trial. " This was the construction of it
by the country from which we derive our knowledge of
jurisprudence, and he believed no example could be ad-
duced, wherein it had been extended or applied in any
other manner. He was positive it could not be exercised
to disfranchise a whole party; for this obvious reason, that
it would involve the innocent with the guilty. This clause
in the constitution was only intended to apply in particular
cases, where an exception to the established mode of com-
mon law became necessary by the persons absenting
themselves, and did not apply to the subject before the
house. Precedents of this kind laid the foundation for the
subversion of the liberties of the people. He hoped they
would not be established. " He again prevailed. *
* Nays 32 to 21.
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? HAMILTON.
423
It has been stated that in the year seventeen hundred
and eighty-two, while Hamilton was continental receiver,
he had digested a system of taxation, the great object of
which was to exclude arbitrary valuations; that he also
had sought to engraft the same principle in the continental
revenue system, framed in the following year.
Having been placed on the committee of ways and
means, he now brought forward and enforced at much
length similar views. His great objects were to substitute
a mode by which every individual could himself estimate
what he had to pay, without being dependent on the ca-
prices, the affections, or the enmities of another; and to
approximate as near as possible to certainty and equality,
the two great objects to be aimed at in every system of
taxation.
One of the clauses of the bill raising taxes deviated from
a general and safe principle.
It proposed a tax on certain
legal instruments, and was objected to because it was par-
tial in its operation affecting the members of the law.
Hamilton declared his opinion, "that it was not proper to
tax any particular class of men for the benefit of the state
at large; but in the present instance it was to answer a
very important purpose. It was putting in force that most
excellent part of the constitution, which declares that the
judges should be independent of the legislature. This, at
present, was not the case. He therefore supported the
paragraph, observing that the salaries of the judges should
be permanent; that they should neither fear the powers
nor court the favour of the legislature. He believed it
was right that this independence should arise from the tax
proposed. " He succeeded in sustaining this provision, but
the plan, after a very full consideration, was defeated by
a small majority.
A discussion arose upon the objections of the council of
revision to a bill for settling intestate estates, proving wills,
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? 424
THE LIFE OF
and granting letters of administration. Jones advocated
the enactment of the law. Hamilton, after stating that he
should probably vote with him, remarked, " that he did not
view the matter in quite so clear a light as that gentleman
appeared to do. There appeared to him to be difficulties
in the case, which he would candidly lay before the house
to assist its judgment.
"The objection is, that a new court is erected, or an old
one invested with a new jurisdiction, in which it is not
bound to proceed according to the course of the common
law. The question is, what is meant in the constitution by
this phrase,' the common law V These words have, in a
legal view, two significations--one more extensive, the
other more strict. In their most extensive sense, they
comprehend the constitution of all those courts which were
established by immemorial custom; such as the court of
chancery, the ecclesiastical court, &c. ; though these courts
proceed according to a peculiar law.
"In their more strict sense, they are confined to the
course of proceedings in the courts of Westminster, in
England, or in the supreme court in this state. If the words
are understood in the first sense, the bill under consider-
ation is not unconstitutional. In the last it is unconstitu-
tional, for it gives to an old court a new jurisdiction, in
which it is to proceed according to the course of the com-
mon law in this last sense. And to give new jurisdiction
to old courts, not according to the course of the common
law, is, in my opinion, as much of an infringement, in sub-
stance, of this part of the constitution, as to erect new
courts with such jurisdiction. To say the reverse, would
be to evade the constitution.
"But, though I view it as a delicate and difficult question,
yet I am inclined to think that the more extensive sense
may be fully adopted, with this limitation--that such new
jurisdictions must proceed according to the course of those
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? HAMILTON.
425
courts, having, by the common law, cognizance of the sub-
ject matter. They ought, however, never to be extended
to objects which, at common law, belonged to the jurisdic-
tion of the courts at Westminster, and which in this state
are of the peculiar cognizance of the supreme court. At
common law, the ecclesiastical courts, not the courts of
Westminster, had cognizance of intestacies and testament-
ary cases. The bill proposes that the court of probates
shall have cognizance of the same causes and proceed in
the same manner as the ecclesiastical courts, except as to
inflicting ecclesiastical penalties. The distinction I have
taken will, I am inclined to think, bear us out in passing
the bill under consideration. But it is certainly a point
not without considerable difficulty. " The bill was passed.
If the precise and profound knowledge of the great prin-
ciples of jurisprudence here evinced, commands the respect
of that important class of men whose profession educates
and constitutes them the guardians of human rights, his
tolerant spirit more attracts the commendation of all those
who justly value freedom of conscience, without which the
law is chiefly known by her fetters and her scourge.
In the question, the solemn question, " Why should we
wound the tender conscience of any man? " the sternest
rebuke is given to him who would control religious opinion
by the secular arm, as if man had any power over the soul
of man. Nor is it less pleasing to remark the caution and
the heart with which he watched over the rights of the
numerous and less favoured body of men. In the statute
regulating elections, it is the poor and " the illiterate" elect-
or who is to be protected, as well as 'i his more instructed
fellow-citizen," in the right of suffrage, and in the right
of choosing as his representative whom he pleased; that
right to be enjoyed as the constitution gave it, not to be
infringed by any legislative act, but to be judged by the
law of the land " in its due process. "
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? 426
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As a matter affecting the poor, he prepared a bill to
regulate the circulation of copper coin, founded on a re-,
port which showed a depreciated copper currency, and
framed a resolution directing the delegates in congress to
move for an alteration in the ordinance as to the mint, so
that the copper coin should not pass for more than the ac-
"tual value of the copper and the expense of coinage.
While discussing an act to exempt from imprisonment
the smaller classes of debtors, his only apprehension was,
that this exemption would prevent the poor from obtain-
ing assistance from the rich. "He would wish," he said,
"that every man in distress would meet relief--he would
enter into any measure that would effect this purpose.
But the clause as it stood, was not proper; it might be
right to say what shall be done in respect to future con-
tracts, but it would be wrong to meddle with the past. "
The law to diminish the expense of the collection of
small debts, and those in relation to the descent and dis-
tribution of property, are all in a similar equal spirit.
At the previous session, an act had been passed abolish-
ing entails, and dividing the inheritance in equal parts
among the lawful issue of the intestate. This principle
was now extended to personal property, with an equitable
reference to previous settlements or advances. Freehold-
ers were, by another act, empowered to alien at their
pleasure, and the feudal badges abolished; all charges in-
cident to wardships, liveries, values, and forfeitures of mar-
riages being taken away, and the tenures so held, turned
into free and common socage. Lands exempt in other
states were here made liable to be sold by executions for
debt, and the process in personal actions was simplified.
Having thus given the law a free course, he drafted an
act of bankruptcy.
Criminal jurisprudence was also an object of his atten-
tion. While he sought to secure the rights of society, a
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? HAMILTON.
427
spirit of lenity marked his course. He introduced an act
for the speedy trial of small offenders, and while condemning
the severity of some of the penal laws of England, he sus-
tained those which had in view the protection of the sub-
ject from arbitrary power. The law of treason was de-
fined, by declaring it to consist only in levying war against
the people of the state, or in adhering to their enemies,
giving them aid and comfort. It must be established "by
good proof of open deed," and no person could be indicted
for or convicted of it except on the oaths of " two lawful
witnesses," or upon confession "without violence, in open
court. "
The various other crimes in their successive gradations
were also defined, and their punishment prescribed. Amid
the disorders following a revolution, frequent violations of
personal liberty would take place. To remedy this great evil,
a bill was passed to prevent delays in obtaining the evasion
of the writ of habeas corpus, entitled " An act for the bet-
ter securing the liberty of the citizens of the state. "
Litigation had become rife, and there was a violent cla-
mour against the members of the bar, by the many against
whom the arm of justice was raised. A bill was brought
forward to reduce their compensation: with the respect
due to the profession of which he was a member, and with
a discriminating regard to the true interests of the public,
he resisted it as a mere lure for popularity, and demon-
strated the folly of reducing their compensation below a
reasonable standard. With the same regard to justice, he
earnestly opposed a proposition which had been made in
a former legislature, and was now renewed, for a discrimi-
nation between the different classes of the public creditors,
and urged a general and equal provision for them all.
"The state," he declared, " ought to give all the relief pos-
sible to every class of public claimants. There should be
no discrimination with respect to possessors of certificates.
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? 428
THE LIFE OF
There was no propriety in a partial relief; justice should
alike be administered to all. " Thus, in a session of the
legislature the most distinguished in the annals of this state,
he is seen usefully employed in guarding against excess of
every kind, and in a revisal and cautious modification of
most of the great statutes fundamental to its polity.
Had a desire for personal distinction influenced him, in-
stead of this careful observance of ancient landmarks and
established precedents, the social system might have been
disturbed to gratify the ambition of being the author of a
code; but his was of another kind. *
At this time was also passed an act for the encourage-
ment of navigation by steam, and thus an incitement was
given to discoveries which form an era in the annals of
this country. This was also an epoch in another branch
of legislation, which must largely and happily control its
future destinies.
The proposed provisions in the law governing elections
for the protection of the rights of illiterate persons, show
the want of education at this time. The evil was one of
an extent and magnitude worthy the cares of a statesman
employed in laying the foundations of an empire.
When studying closely, as Hamilton had done, the intel-
lect of the ancient world, while the wonderful advances it
had made with its feeble aids attracted his admiration, the
pervading defect of its polity could not have escaped his
observation. Its institutions were for the fewj the pro-
gressive nature of society was overlooked, and hence their
frequent and sudden, violent and total subversion. A sys-
tem of general education was unknown, and consequently
when the civilized world was overrun, forming no part
* It would be a great injustice to omit the name of Samuel Jones as a chief
coadjutor in this important duty. To his profound learning, this state is
much indebted as a reviser of its laws.
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? HAMILTON.
429
of the state, learning was buried amid the ruins of empires,
or was compelled to take refuge in the cloister. Emerg-
ing from this asylum by slow degrees, it came into a rude
world, obscured by the dogmas of the contending sects,
which, admitting the theory, refused the right of free in-
quiry, and at the same time assumed the high office of
teaching nations.
The United States being settled at this time, felt these
influences, and the early colonies, in their religious preju-
dices and political speculations, exhibit conspicuously the
coexistence of the most adverse principles; in questions
of faith, a narrow tyranny ; in questions of government, the
largest liberty. With the distinguished exception of parts
of New-England, the only education proceeded from reli-
gious endowments; a happy provision for a people too
poor and sparse to educate themselves. But these endow-
ments were inadequate to the purpose.
Hamilton resolved to supply this deficiency; guarding
against sectarian or other influences foreign to it, he de-
termined to build up a great system of public instruction
upon comprehensive principles; to make it so essential a
part of the public policy, that it would endure through
every change of government; to render it by habit a want
of society, a necessary part of its aliment that must and
will be satisfied.
His first great object was to place a book in the hand
of every American child. As, in his enlarged views, each
branch of knowledge had its place and value in reference
to the various natural indications of the mind, the next
was to provide for each individual, and each degree and
variety of talent, a progressive culture. Thus, from the
broad basis of common education was to rise in due gra-
dation a system of order and of beauty, to be cemented
with, to pervade, to sustain, to overarch, and to embellish
the whole moral and political frame of society.
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? 430
THE LIFE OF
Only one literary foundation of magnitude existed in
the colony of New-York, known as King's College; an
endowment by the church of England in the year seven-
teen hundred and fifty-four, on condition of conformity
with its tenets. This college was dispersed at the begin-
ning of the revolution. Its professors fled, its library
was plundered, and the edifice, which had been occupied
by the British soldiery, alone remained. In the interior
of the state the few schools which had been sustained by
private resources were abandoned; a fact of moment to
show the character of the generation which grew up du-
ring this civil war. Soon after the peace, the attention
of the legislature was directed to this subject, and in May,
seventeen hundred and eighty-four. an act was passed to
create a university, of which the great officers of the
state, with twenty-four others to be appointed by the gov-
ernor and council of appointment, and one to represent
the clergy, were constituted the regents, upon whom was
conferred the government and visitation of the colleges
and schools that should be established. This act also
provided, in addition to the regents appointed by the state,
that every religious society might institute a professorship,
and that every founder of a college or school might elect
a representative, who, with the president of each institu-
tion, was to be a member of the board of regents, of which
all professors, tutors, and fellows, were also to be members
in virtue of their offices.
Thus, the control of education would soon have been
wrested from the state, and would have passed into the
hands of those either least apt to detect, or most interested
in concealing abuses, and who would not have kept pace
with the advances of society. This act also violated a
great principle of justice, despoiling King's College of its
property and vesting it in the university. At the next
meeting of the legislature an amendatory act was passed,
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? HAMILTON.
431
which extended the error of the original law by giving
to the clergy of each denomination the right of represen-
tation in the regency. It also constituted a new board of
regents, of which Hamilton was appointed a member.
No beneficial results were attained by this legislation;
the college languished, and the severe blow which it had
received by the violation of its charter left little prospect
of its renovation, while the precedent would deter other
similar efforts of munificence. It also essentially deviated
from Hamilton's views, which contemplated a state estab-
lishment for public instruction, excluding all clerical and
individual influence.
Soon after the excitement which had arisen at the
opening of the session was quieted, he introduced "an
act to institute a university, and for other purposes. "
This act repealed the previous laws, and established a
university by the style of the " Regents of the University
of the State of New-York;" who were incorporated with
perpetual succession, with power to hold property yielding
a limited income. It provided, that there should be al-
ways twenty-one regents, "of which the governor and
lieutenant-governor of the state, for the time being, were
always, in virtue of their offices, to be two;" and it ap-
pointed the other regents by name, who, with all future
regents, were to continue in place during the pleasure of
the legislature, which was to supply vacancies. Thus, it
was hoped that the supervision of education would not be
perverted to party purposes.
The regents were to be convened by the governor, in
the first instance, and were to elect a chancellor and vice-
chancellor, to hold their offices during their pleasure.
The regents were constituted the visiters of all the col-
leges and academies of the state, with the duty of visiting
every college once in each year. They were enjoined to
meet annually at the seat of government, to report the state
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? 432
THE LIFE OF
of education and discipline to the legislature, with power to
supply vacancies occurring in the offices of presidents of
the colleges, or of the principals of the academies, through
the neglect of their trustees. They were also to confer de-
grees, to apply their funds at their discretion, "in a man-
ner most conducive to the promotion of useful knowledge
within the state," and to authorize the founding of colleges
and academies by individuals, the trustees of which, whose
number was defined, after a declaration under the common
seal of the regents to that effect, became incorporated
with perpetual succession, but always subject to their visi-
tation.
The annual revenue of the academies was also limited.
The scholars educated in those, whose plan of education
should be approved by the regents, were entitled, upon
examination, to be admitted into either college.
Provisions were made for the government of these
academies by their trustees, and for their elevation to the
rank of a college when deemed expedient by the regents.
No president or professor was to be ineligible by reason
of his religious tenets--all test-oaths were prohibited. No
professor or tutor could be a trustee of any of these es-
tablishments, nor could any presiding officer have a vote
as to his salary, nor were any of the officers or founders
of these institutions eligible as regents of the university.
These were the general provisions of this important act.
It also repaired the wrong to King's College, ratifying its
charter under the previously selected name of Columbia
College, expressly abrogating all provisions in it requiring
test-oaths or declarations of religious conformity, limiting
the number of the trustees, when reduced by death or re-
signation, to twenty-four persons, who were vested with
the original property of the college. By this system, all
the seminaries of instruction became a part of the univer-
sity, and were subject to its visitation. Every institution
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? HAMILTON.
4L'8
had a government of its own, and a strong inducement to
improvement was held out to each academy, by the prom-
ise of advancement to the rank of a college.
The privilege to the scholars of academies of admission
into the colleges, would secure a uniformity of discipline and
of education, and, that which Hamilton deemed of the great-
est importance under a popular government, every founda-
tion of learning was secured from legislative interference
by a perpetual charter.
Justly as New-York may boast her provision for the ed-
ucation of her citizens, yet from a want of perseverance
and comprehensive energy in its administration, this im-
portant act has not yet produced all the beneficial results
anticipated by its author.
It is only by a comparison of his system with those of
the autocratic monarchies of Europe, and of their success
in extending and raising the popular intelligence, that a
just estimate can be formed of its merits.
Thus viewed, it will be deemed not a little remarkable
that Hamilton should have anticipated, by a bold effort of
his genius, a plan of public instruction that will bear com-
parison with those which in Europe have been the results
of long usage, and of successive acts of legislation, at last
moulded into a form that would seem not to be suscepti-
ble of improvement. *
While his mind had been in part occupied with these
various subjects of interest, his thoughts were chiefly di-
rected to the great object which had induced him to accept
a seat in the assembly. Would New-York still obsti-
nately withhold from congress the power of raising a na-
tional revenue, was the question he resolved to determine.
* It is stated that the imperial decree of March, 1808, must, from its anal.
ogy with this law, have been " seen and copied " by the statesmen of France.
--Am. Qr. Rev.
observed, also, that the Roman Catholics were not the only
society affected--that some of the Dutch Reformed church-
es held a species of ecclesiastical foreign jurisdiction; he
alluded to the classes of Amsterdam. "But," he asked,
"is the natural subject, the man born among us, educated
with us, possessing our habits, possessing our manners,
with an equal ardent love of his native country, to be re-
quired to take the same oath of abjuration? What has he
to abjure? He owes no fealty to any other power upon
earth. There is no probability that his mind will be led
astray by bigotiy or foreign influence. Then why give
him cause of dissatisfaction, by bringing forward a test
which will not add to his fidelity? "
He stated that the clause in the constitution confined the
test to foreigners, and that it was adopted after much de-
bate, and by a small majority, and that even as to them, he
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? HAMILTON.
415
questioned whether the test ought to be proposed. That
he was decidedly against going so far as to extend it to ec-
clesiastical matters. "Why should we wound the tender
conscience of any man? and why present oaths to those
who are known to be good citizens? why alarm them?
why set them upon inquiry that is useless and unnecessary 1
You give them reason to suppose that you request too
much of them, and they cannot but refuse compliance.
"The constitution does not require such a criterion to try
the fidelity of any citizen. It is solely intended for aliens
and foreigners, coming from abroad with manners and
habits different from our own, and whose intentions are
concealed. The oath should be confined to civil matters.
It is all that we ought or can require. A man will not
then be alarmed in his interpretation. It will not set his
mind to inquire if his religious tenets are affected, and much
inconvenience would be avoided. We should be cautious
how we carry the principle of requiring and multiplying
tests upon our fellow-citizens, so far as to practise it to
the exclusion or disfranchisement of any. " The clause
was, nevertheless, in part retained.
"A further provision was proposed, excluding pensioners
and officers holding under congress, from seats in the
senate and assembly. This clause gave rise to the discussion
of a most important question, whether the legislature pos-
sessed the power of abridging the constitutional rights of
the people.
By the state party it was contended, that while the con-
stitution protected the rights of the electors, it was silent as
to the elected, and that therefore the legislature had the
right to annex qualifications to the elected.
Colonel Hamilton observed, " that they were going on
dangerous ground; that the best rule to follow was the
rule of the constitution, which it would be safest to adhere
to without alteration or addition. If we once depart from
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? 416
THE LIFE OF
this rule, it is impossible to see where we would end.
To-day, a majority of the persons sitting here, from a par-
ticular mode of ihinking, disqualify one description of men;
a future legislature, from a particular mode of thinking on
another point, disqualify another set of men. One prece-
dent is the pretext of another, till we narrow the ground
of qualifications to a degree subversive of the constitution.
It is impossible to suppose that the convention who framed
the constitution were inattentive to this point. It is a mat-
ter of too much importance not to have been well considered.
"They have fixed the qualification of electors with pre-
cision. They have defined those of senator and governor,
but they have been silent as to the qualifications of mem-
bers of assembly. It may be said that, being silent, they
have left the matter to the discretion of the legislature.
But is not the language of the framers of the constitution
rather this--We will fix the qualifications of electors;
we will take care that persons absolutely indigent shall be
excluded; we will provide that the right of voting shall be
on a broad and secure basis, and we will trust to the dis-
cretion of the electors themselves the choice of those who
are to represent them in assembly 1
"Every qualification implies a disqualification. The per-
sons who do not possess the qualification required, become
ineligible. Is not this to restrain the freedom of choice
allowed by the constitution to the body of electors? An
improper exercise of this liberty cannot constitutionally be
presumed. Why, therefore, should we circumscribe it
within limits unknown to the constitution? Why should
we abridge the rights of any citizens in so important an
article? By the constitution, every citizen is eligible to a
seat in the assembly. If we say certain descriptions of
persons shall not be so eligible, what is this but to deprive
:dl those who fall within that description, of an essential
right allowed them by the constitution?
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? HAMILTON.
417
"If we once break the ground of departing from the sim-
ple plan of the constitution, it may lead us much farther
than we intend.
"From the prevalency of a certain system, it is now
proposed to exclude all persons from seats who hold offices
under congress; the pretence is, to guard against an im-
proper influence. I may think another species of influ-
ence more dangerous. To preserve consistency, we should
declare that no member of congress should hold a seat.
For, surely, if it be dangerous that the servants of congress
should have a seat in this house, it is more dangerous that
the members themselves should be allowed this privi-
lege. *
"There are officers who have been wounded in the ser-
vice, and who now have pensions under the United States
as the price of their blood; would it be just, would it not
be cruel on this account to exclude men from a share in
the administration of that government which they have at
every hazard contributed to establish? From the silence
of the constitution, it is inferred that it was intended to
leave this point to the discretion of the legislature. I rather
infer that the intention of the constitution was to leave the
qualifications of their representatives wholly to the electors
themselves. The language of the constitution seems to be
this: Let us take care that the persons to elect are pro-
perly qualified; that they are in such a situation in point
of property as not to be absolutely indigent and dependent,
and let us trust to them the care of choosing proper per-
sons to represent them.
"I hold it to be a maxim which ought to be sacred in
our form of government, that no man ought to be deprived
of any right or privilege which he enjoys under the consti-
* John Lansing and John Haring were recently appointed by the legis.
lature in which they had seats delegates to congress.
53
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? 418
THE LIFE OF
tution, but for some offence proved in due course of law.
To declare qualifications or disqualifications by general
descriptions in legislative acts, would be to invade this im-
portant principle. It would be to deprive, in the gross, all
those who had not the requisite qualifications, or who were
objects of those disqualifications, of that right to a share in
the administration of the republic which the constitution
gives them; and thus, without any offence, to nicur a for-
feiture. As to the objection that the electors might even
choose a foreigner to represent them within the latitude
of the constitution, the answer is, that common sense
would not tolerate such a construction. The constitution,
from the fundamental policy of a republican government,
must be understood to intend citizens.
"Let us pursue the subject a little further. Commerce,
it will be admitted, leads to an increase of individual pro-
perty. Property begets influence. Though a legislature,
composed as we arc, will always take care of the rights
of the middling and lower classes, suppose the majority
of the legislature at a future day to consist of wealthy men,
what could hinder them, if the right of innovating on the
constitution be admitted, from declaring that no man not
worth ten thousand pounds should be eligible to a seat in
either house? Would not this introduce a principle of
aristocracy fatal to the genius of our present constitu-
tion?
"In making this observation, I cannot be suspected of
wishing to increase the jealousy already sufficiently high
of men of property. My situation, prospects, and connec-
tions, forbid the supposition; but I mean honestly to lay
before you the dangers to which we expose ourselves, by
letting in the principle which the clause under considera-
tion rests upon. I give no opinion on the expediency of
the exclusion proposed. I only say, in my opinion, the
constitution does not permit it; and 1 shall be against any
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? HAMILTON.
419
qualification or disqualification, either of electors or elect-
ed, not prescribed by the constitution.
"The qualifications both of the electors and the elected
ought to be fundamental in a republican form of govern-
ment, not liable to be varied or added to by the legislature,
and they should for ever remain where the constitution
left them. It is to be lamented that men, to carry some fa-
vourite point in which their party or their prejudices are
interested, will inconsiderately introduce principles and
precedents which lead to successive innovations destruc-
tive of the liberty of the subject and the safety of the gov-
ernment. " The clause was stricken out.
The candour, the simplicity of his truth, and the strict
regard to the liberties of the citizen displayed on these oc-
casions, entered deeply into the mind of the house, and
every question where state pride was not concerned,or offi-
cial influence not exerted, he carried by a large majority.
He opposed with great force an amendment of the senate,
making a hostile discrimination as to persons who had been
engaged in privateering during the war, on the ground that
all legislative disfranchisements were unconstitutional. "In
one article of the constitution it is said--No man shall be
disfranchised or deprived of any right he enjoys under the
constitution, but by the law of the land or the judgment of
his peers. Some gentlemen hold that 'the law of the
land' will include an act of the legislature; but Lord Coke,
that great luminary of the law, in his comment on a simi-
lar clause in Magna Charta, interprets the law of the land
to mean presentment, and indictment, and process of out-
lawry, as contradistinguished from trial by jury.
"But if there were any doubt upon the constitution, the
bill of rights enacted in this very session removes it. It is
there declared that no man shall be disfranchised or de-
prived of any right but by due process of law or the judg-
ment of his peers. The words ' due process,' have a pre-
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? 420
THE LIFE OF
cise technical import, and are only applicable to the pro-
cess and proceedings of the courts of justice. They can
never be referred to an act of the legislature.
"Are we willing then to endure the inconsistency of pass-
ing a bill of rights, and committing a direct violation of it
in the same session? In short, are we ready to destroy its
foundations at the moment they are laid?
"When the discriminating clauses admitted into the bill
by this house were introduced, he was restrained by mo-
tives of respect for the sense of a respectable part of the
house, from giving it any other opposition than a simple
vote. The limited operation they would have, made him
less anxious about their adoption, but he could not recon-
cile it to his judgment or feelings to observe a like silence
on the amendment proposed by the senate. Its operation
would be very extensive; it would include almost every
man in the city concerned in navigation during the war.
"Let us, then, distinct from constitutional considerations,
consider the expediency and justice of the clause. The
word privateer is indefinite, and may include letters of
marque. The merchants of this city during the war, ge-
nerally speaking, must abandon their means of livelihood or
be concerned in navigation. If concerned in navigation,
they must of necessity have their vessels armed for de-
fence. They would naturally take out letters of marque.
If every owner of a letter of marque is disfranchised, the
body of your merchants will probably be in this situation.
Is it politic or wise to place them in it? Is it expedient to
force by exclusions and discriminations a numerous and pow-
erful class of citizens to be unfriendly to the government?
"He knew many individuals who would be comprehend-
ed, who are well affected to the prosperity of the country,
who are disposed to give every support to the govern-
ment, and who, some of them at least, even during the
war, had manifested an attachment to the American cause.
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? HA MILTON.
421
But there is one view in which the subject merits consider-
ation, that must lay hold on all our feelings of justice.
By the maritime law, a majority of the owners have
a right to dispose of the destination of the vessel. The
dissent of the minority is of no avail. It may have hap-
pened, and probably has happened in many instances, that
vessels have been employed as privateers, or letters of
marque, by a majority of the owners contrary to the sense
of the minority.
"Would it be just to punish the innocent with the guilty,
--to take away the rights of the minority, for an offence
committed by the majority without their participation, per-
haps contrary to their inclinations? He would mention a
further case, not equally strong, but of considerable force,
to incline the house against the amendment. He had been
informed that in one or more instances during the war,
some zealous people had set on foot subscriptions for fit-
ting out privateers, perhaps at the instigation of the Brit-
ish government; and had applied to persons suspected
of an attachment to us to subscribe, making their com-
pliance a test of their loyalty. Several individuals well
disposed to our cause, to avoid becoming the objects of
persecution, had complied; would it not be too rigorous to
include them in so heavy a penalty?
"It may be said they were guilty of a culpable want of
firmness. But if there are any of us who are conscious
of greater fortitude, such persons should not on that ac-
count be too severe on the weaknesses of others. They
should thank nature for its bounty to them, and should be
indulgent to human frailty. How few are there who would
have had strength of mind enough in such circumstances
to hazard, by a refusal, being marked out as the objects of
military resentment!
"I hope, as well from motives of justice as a regard to
the constitution, we shall stop where we are, and not go
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? 422
THE LIFE OF
any farther into the dangerous practice of disqualifying
citizens by general descriptions. "
"Though," a member replied, " he held Colonel Hamil-
ton in high estimation, and had a very great respect for
his candour, abilities, and knowledge of mankind, yet he
believed him much mistaken. He laid it down as a maxim,
that the man who was once an enemy will always remain
so. It was prudent to guard against admitting these peo-
ple to a participation of the . rights of citizens. He would
not operate on those who had taken up arms unwillingly.
The exclusion was constitutional,'because the constitution
must warrant every thing necessary for its own support. "
He appealed to that section of it which prohibited attain-
ders, except for crimes committed during the war.
Hamilton denied the distinction, and explained the inten-
tion and meaning of this clause of the constitution. He
defined acts of attainder, "as laws confiscating for treason
and misprision of treason all the property and estate of
the attainted traitor, and forfeiting his life unless he ap-
peared to take his trial. " This was the construction of it
by the country from which we derive our knowledge of
jurisprudence, and he believed no example could be ad-
duced, wherein it had been extended or applied in any
other manner. He was positive it could not be exercised
to disfranchise a whole party; for this obvious reason, that
it would involve the innocent with the guilty. This clause
in the constitution was only intended to apply in particular
cases, where an exception to the established mode of com-
mon law became necessary by the persons absenting
themselves, and did not apply to the subject before the
house. Precedents of this kind laid the foundation for the
subversion of the liberties of the people. He hoped they
would not be established. " He again prevailed. *
* Nays 32 to 21.
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? HAMILTON.
423
It has been stated that in the year seventeen hundred
and eighty-two, while Hamilton was continental receiver,
he had digested a system of taxation, the great object of
which was to exclude arbitrary valuations; that he also
had sought to engraft the same principle in the continental
revenue system, framed in the following year.
Having been placed on the committee of ways and
means, he now brought forward and enforced at much
length similar views. His great objects were to substitute
a mode by which every individual could himself estimate
what he had to pay, without being dependent on the ca-
prices, the affections, or the enmities of another; and to
approximate as near as possible to certainty and equality,
the two great objects to be aimed at in every system of
taxation.
One of the clauses of the bill raising taxes deviated from
a general and safe principle.
It proposed a tax on certain
legal instruments, and was objected to because it was par-
tial in its operation affecting the members of the law.
Hamilton declared his opinion, "that it was not proper to
tax any particular class of men for the benefit of the state
at large; but in the present instance it was to answer a
very important purpose. It was putting in force that most
excellent part of the constitution, which declares that the
judges should be independent of the legislature. This, at
present, was not the case. He therefore supported the
paragraph, observing that the salaries of the judges should
be permanent; that they should neither fear the powers
nor court the favour of the legislature. He believed it
was right that this independence should arise from the tax
proposed. " He succeeded in sustaining this provision, but
the plan, after a very full consideration, was defeated by
a small majority.
A discussion arose upon the objections of the council of
revision to a bill for settling intestate estates, proving wills,
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? 424
THE LIFE OF
and granting letters of administration. Jones advocated
the enactment of the law. Hamilton, after stating that he
should probably vote with him, remarked, " that he did not
view the matter in quite so clear a light as that gentleman
appeared to do. There appeared to him to be difficulties
in the case, which he would candidly lay before the house
to assist its judgment.
"The objection is, that a new court is erected, or an old
one invested with a new jurisdiction, in which it is not
bound to proceed according to the course of the common
law. The question is, what is meant in the constitution by
this phrase,' the common law V These words have, in a
legal view, two significations--one more extensive, the
other more strict. In their most extensive sense, they
comprehend the constitution of all those courts which were
established by immemorial custom; such as the court of
chancery, the ecclesiastical court, &c. ; though these courts
proceed according to a peculiar law.
"In their more strict sense, they are confined to the
course of proceedings in the courts of Westminster, in
England, or in the supreme court in this state. If the words
are understood in the first sense, the bill under consider-
ation is not unconstitutional. In the last it is unconstitu-
tional, for it gives to an old court a new jurisdiction, in
which it is to proceed according to the course of the com-
mon law in this last sense. And to give new jurisdiction
to old courts, not according to the course of the common
law, is, in my opinion, as much of an infringement, in sub-
stance, of this part of the constitution, as to erect new
courts with such jurisdiction. To say the reverse, would
be to evade the constitution.
"But, though I view it as a delicate and difficult question,
yet I am inclined to think that the more extensive sense
may be fully adopted, with this limitation--that such new
jurisdictions must proceed according to the course of those
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? HAMILTON.
425
courts, having, by the common law, cognizance of the sub-
ject matter. They ought, however, never to be extended
to objects which, at common law, belonged to the jurisdic-
tion of the courts at Westminster, and which in this state
are of the peculiar cognizance of the supreme court. At
common law, the ecclesiastical courts, not the courts of
Westminster, had cognizance of intestacies and testament-
ary cases. The bill proposes that the court of probates
shall have cognizance of the same causes and proceed in
the same manner as the ecclesiastical courts, except as to
inflicting ecclesiastical penalties. The distinction I have
taken will, I am inclined to think, bear us out in passing
the bill under consideration. But it is certainly a point
not without considerable difficulty. " The bill was passed.
If the precise and profound knowledge of the great prin-
ciples of jurisprudence here evinced, commands the respect
of that important class of men whose profession educates
and constitutes them the guardians of human rights, his
tolerant spirit more attracts the commendation of all those
who justly value freedom of conscience, without which the
law is chiefly known by her fetters and her scourge.
In the question, the solemn question, " Why should we
wound the tender conscience of any man? " the sternest
rebuke is given to him who would control religious opinion
by the secular arm, as if man had any power over the soul
of man. Nor is it less pleasing to remark the caution and
the heart with which he watched over the rights of the
numerous and less favoured body of men. In the statute
regulating elections, it is the poor and " the illiterate" elect-
or who is to be protected, as well as 'i his more instructed
fellow-citizen," in the right of suffrage, and in the right
of choosing as his representative whom he pleased; that
right to be enjoyed as the constitution gave it, not to be
infringed by any legislative act, but to be judged by the
law of the land " in its due process. "
54
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THE LIFE OF
As a matter affecting the poor, he prepared a bill to
regulate the circulation of copper coin, founded on a re-,
port which showed a depreciated copper currency, and
framed a resolution directing the delegates in congress to
move for an alteration in the ordinance as to the mint, so
that the copper coin should not pass for more than the ac-
"tual value of the copper and the expense of coinage.
While discussing an act to exempt from imprisonment
the smaller classes of debtors, his only apprehension was,
that this exemption would prevent the poor from obtain-
ing assistance from the rich. "He would wish," he said,
"that every man in distress would meet relief--he would
enter into any measure that would effect this purpose.
But the clause as it stood, was not proper; it might be
right to say what shall be done in respect to future con-
tracts, but it would be wrong to meddle with the past. "
The law to diminish the expense of the collection of
small debts, and those in relation to the descent and dis-
tribution of property, are all in a similar equal spirit.
At the previous session, an act had been passed abolish-
ing entails, and dividing the inheritance in equal parts
among the lawful issue of the intestate. This principle
was now extended to personal property, with an equitable
reference to previous settlements or advances. Freehold-
ers were, by another act, empowered to alien at their
pleasure, and the feudal badges abolished; all charges in-
cident to wardships, liveries, values, and forfeitures of mar-
riages being taken away, and the tenures so held, turned
into free and common socage. Lands exempt in other
states were here made liable to be sold by executions for
debt, and the process in personal actions was simplified.
Having thus given the law a free course, he drafted an
act of bankruptcy.
Criminal jurisprudence was also an object of his atten-
tion. While he sought to secure the rights of society, a
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? HAMILTON.
427
spirit of lenity marked his course. He introduced an act
for the speedy trial of small offenders, and while condemning
the severity of some of the penal laws of England, he sus-
tained those which had in view the protection of the sub-
ject from arbitrary power. The law of treason was de-
fined, by declaring it to consist only in levying war against
the people of the state, or in adhering to their enemies,
giving them aid and comfort. It must be established "by
good proof of open deed," and no person could be indicted
for or convicted of it except on the oaths of " two lawful
witnesses," or upon confession "without violence, in open
court. "
The various other crimes in their successive gradations
were also defined, and their punishment prescribed. Amid
the disorders following a revolution, frequent violations of
personal liberty would take place. To remedy this great evil,
a bill was passed to prevent delays in obtaining the evasion
of the writ of habeas corpus, entitled " An act for the bet-
ter securing the liberty of the citizens of the state. "
Litigation had become rife, and there was a violent cla-
mour against the members of the bar, by the many against
whom the arm of justice was raised. A bill was brought
forward to reduce their compensation: with the respect
due to the profession of which he was a member, and with
a discriminating regard to the true interests of the public,
he resisted it as a mere lure for popularity, and demon-
strated the folly of reducing their compensation below a
reasonable standard. With the same regard to justice, he
earnestly opposed a proposition which had been made in
a former legislature, and was now renewed, for a discrimi-
nation between the different classes of the public creditors,
and urged a general and equal provision for them all.
"The state," he declared, " ought to give all the relief pos-
sible to every class of public claimants. There should be
no discrimination with respect to possessors of certificates.
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THE LIFE OF
There was no propriety in a partial relief; justice should
alike be administered to all. " Thus, in a session of the
legislature the most distinguished in the annals of this state,
he is seen usefully employed in guarding against excess of
every kind, and in a revisal and cautious modification of
most of the great statutes fundamental to its polity.
Had a desire for personal distinction influenced him, in-
stead of this careful observance of ancient landmarks and
established precedents, the social system might have been
disturbed to gratify the ambition of being the author of a
code; but his was of another kind. *
At this time was also passed an act for the encourage-
ment of navigation by steam, and thus an incitement was
given to discoveries which form an era in the annals of
this country. This was also an epoch in another branch
of legislation, which must largely and happily control its
future destinies.
The proposed provisions in the law governing elections
for the protection of the rights of illiterate persons, show
the want of education at this time. The evil was one of
an extent and magnitude worthy the cares of a statesman
employed in laying the foundations of an empire.
When studying closely, as Hamilton had done, the intel-
lect of the ancient world, while the wonderful advances it
had made with its feeble aids attracted his admiration, the
pervading defect of its polity could not have escaped his
observation. Its institutions were for the fewj the pro-
gressive nature of society was overlooked, and hence their
frequent and sudden, violent and total subversion. A sys-
tem of general education was unknown, and consequently
when the civilized world was overrun, forming no part
* It would be a great injustice to omit the name of Samuel Jones as a chief
coadjutor in this important duty. To his profound learning, this state is
much indebted as a reviser of its laws.
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? HAMILTON.
429
of the state, learning was buried amid the ruins of empires,
or was compelled to take refuge in the cloister. Emerg-
ing from this asylum by slow degrees, it came into a rude
world, obscured by the dogmas of the contending sects,
which, admitting the theory, refused the right of free in-
quiry, and at the same time assumed the high office of
teaching nations.
The United States being settled at this time, felt these
influences, and the early colonies, in their religious preju-
dices and political speculations, exhibit conspicuously the
coexistence of the most adverse principles; in questions
of faith, a narrow tyranny ; in questions of government, the
largest liberty. With the distinguished exception of parts
of New-England, the only education proceeded from reli-
gious endowments; a happy provision for a people too
poor and sparse to educate themselves. But these endow-
ments were inadequate to the purpose.
Hamilton resolved to supply this deficiency; guarding
against sectarian or other influences foreign to it, he de-
termined to build up a great system of public instruction
upon comprehensive principles; to make it so essential a
part of the public policy, that it would endure through
every change of government; to render it by habit a want
of society, a necessary part of its aliment that must and
will be satisfied.
His first great object was to place a book in the hand
of every American child. As, in his enlarged views, each
branch of knowledge had its place and value in reference
to the various natural indications of the mind, the next
was to provide for each individual, and each degree and
variety of talent, a progressive culture. Thus, from the
broad basis of common education was to rise in due gra-
dation a system of order and of beauty, to be cemented
with, to pervade, to sustain, to overarch, and to embellish
the whole moral and political frame of society.
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? 430
THE LIFE OF
Only one literary foundation of magnitude existed in
the colony of New-York, known as King's College; an
endowment by the church of England in the year seven-
teen hundred and fifty-four, on condition of conformity
with its tenets. This college was dispersed at the begin-
ning of the revolution. Its professors fled, its library
was plundered, and the edifice, which had been occupied
by the British soldiery, alone remained. In the interior
of the state the few schools which had been sustained by
private resources were abandoned; a fact of moment to
show the character of the generation which grew up du-
ring this civil war. Soon after the peace, the attention
of the legislature was directed to this subject, and in May,
seventeen hundred and eighty-four. an act was passed to
create a university, of which the great officers of the
state, with twenty-four others to be appointed by the gov-
ernor and council of appointment, and one to represent
the clergy, were constituted the regents, upon whom was
conferred the government and visitation of the colleges
and schools that should be established. This act also
provided, in addition to the regents appointed by the state,
that every religious society might institute a professorship,
and that every founder of a college or school might elect
a representative, who, with the president of each institu-
tion, was to be a member of the board of regents, of which
all professors, tutors, and fellows, were also to be members
in virtue of their offices.
Thus, the control of education would soon have been
wrested from the state, and would have passed into the
hands of those either least apt to detect, or most interested
in concealing abuses, and who would not have kept pace
with the advances of society. This act also violated a
great principle of justice, despoiling King's College of its
property and vesting it in the university. At the next
meeting of the legislature an amendatory act was passed,
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? HAMILTON.
431
which extended the error of the original law by giving
to the clergy of each denomination the right of represen-
tation in the regency. It also constituted a new board of
regents, of which Hamilton was appointed a member.
No beneficial results were attained by this legislation;
the college languished, and the severe blow which it had
received by the violation of its charter left little prospect
of its renovation, while the precedent would deter other
similar efforts of munificence. It also essentially deviated
from Hamilton's views, which contemplated a state estab-
lishment for public instruction, excluding all clerical and
individual influence.
Soon after the excitement which had arisen at the
opening of the session was quieted, he introduced "an
act to institute a university, and for other purposes. "
This act repealed the previous laws, and established a
university by the style of the " Regents of the University
of the State of New-York;" who were incorporated with
perpetual succession, with power to hold property yielding
a limited income. It provided, that there should be al-
ways twenty-one regents, "of which the governor and
lieutenant-governor of the state, for the time being, were
always, in virtue of their offices, to be two;" and it ap-
pointed the other regents by name, who, with all future
regents, were to continue in place during the pleasure of
the legislature, which was to supply vacancies. Thus, it
was hoped that the supervision of education would not be
perverted to party purposes.
The regents were to be convened by the governor, in
the first instance, and were to elect a chancellor and vice-
chancellor, to hold their offices during their pleasure.
The regents were constituted the visiters of all the col-
leges and academies of the state, with the duty of visiting
every college once in each year. They were enjoined to
meet annually at the seat of government, to report the state
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THE LIFE OF
of education and discipline to the legislature, with power to
supply vacancies occurring in the offices of presidents of
the colleges, or of the principals of the academies, through
the neglect of their trustees. They were also to confer de-
grees, to apply their funds at their discretion, "in a man-
ner most conducive to the promotion of useful knowledge
within the state," and to authorize the founding of colleges
and academies by individuals, the trustees of which, whose
number was defined, after a declaration under the common
seal of the regents to that effect, became incorporated
with perpetual succession, but always subject to their visi-
tation.
The annual revenue of the academies was also limited.
The scholars educated in those, whose plan of education
should be approved by the regents, were entitled, upon
examination, to be admitted into either college.
Provisions were made for the government of these
academies by their trustees, and for their elevation to the
rank of a college when deemed expedient by the regents.
No president or professor was to be ineligible by reason
of his religious tenets--all test-oaths were prohibited. No
professor or tutor could be a trustee of any of these es-
tablishments, nor could any presiding officer have a vote
as to his salary, nor were any of the officers or founders
of these institutions eligible as regents of the university.
These were the general provisions of this important act.
It also repaired the wrong to King's College, ratifying its
charter under the previously selected name of Columbia
College, expressly abrogating all provisions in it requiring
test-oaths or declarations of religious conformity, limiting
the number of the trustees, when reduced by death or re-
signation, to twenty-four persons, who were vested with
the original property of the college. By this system, all
the seminaries of instruction became a part of the univer-
sity, and were subject to its visitation. Every institution
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? HAMILTON.
4L'8
had a government of its own, and a strong inducement to
improvement was held out to each academy, by the prom-
ise of advancement to the rank of a college.
The privilege to the scholars of academies of admission
into the colleges, would secure a uniformity of discipline and
of education, and, that which Hamilton deemed of the great-
est importance under a popular government, every founda-
tion of learning was secured from legislative interference
by a perpetual charter.
Justly as New-York may boast her provision for the ed-
ucation of her citizens, yet from a want of perseverance
and comprehensive energy in its administration, this im-
portant act has not yet produced all the beneficial results
anticipated by its author.
It is only by a comparison of his system with those of
the autocratic monarchies of Europe, and of their success
in extending and raising the popular intelligence, that a
just estimate can be formed of its merits.
Thus viewed, it will be deemed not a little remarkable
that Hamilton should have anticipated, by a bold effort of
his genius, a plan of public instruction that will bear com-
parison with those which in Europe have been the results
of long usage, and of successive acts of legislation, at last
moulded into a form that would seem not to be suscepti-
ble of improvement. *
While his mind had been in part occupied with these
various subjects of interest, his thoughts were chiefly di-
rected to the great object which had induced him to accept
a seat in the assembly. Would New-York still obsti-
nately withhold from congress the power of raising a na-
tional revenue, was the question he resolved to determine.
* It is stated that the imperial decree of March, 1808, must, from its anal.
ogy with this law, have been " seen and copied " by the statesmen of France.
--Am. Qr. Rev.
