Alexander Hamilton, Speeches in the New York Assembly, 1787
[The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 8.]
February 6th
[Discussion on amendment to exclude all British adherents who had been engaged in privateering in war.]
Mr. Hamilton observed that, when the discriminating clauses, admitted into the bill by that House were introduced, he was restrained, by motives of respect for the sense of a respectable part of the House, from giving it any further opposition than a simple vote. The limited operation they would have, made him less anxious about their adoption. But he could not reconcile 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 engaged in navigation during the war.
We had, in a former debate, travelled largely over the ground of the Constitution, as applied to legislative disqualifications. He would not repeat what he had said, but he hoped to be indulged by the House in explaining a sentence in the Constitution, which seems not well understood by these gentlemen. In one article it says, that 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 upon a similar clause in Magna Charta, interprets the law of the land to mean presentment and indictment and process of outlawry, 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 deprived of any right but by due process of law, or the judgment of his peers. The words “due process” have a precise technical import, and are only applicable to the process and proceedings of courts of justice; they can never be referred to an act of the Legislature.
Are we willing, then, to endure the inconsistency of passing 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?
Our having done it, to a certain degree, is to be lamented; but it is no argument for extending it.
He would now make some remarks on the expediency and justice of the clause, distinct from constitutional considerations.
The word privateer is indefinite. It may include letters of marque. The merchants of this city during war must, generally speaking, abandon their means of livelihood or be concerned in navigation. If concerned in navigation, they must of necessity have their vessels armed for defence. 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 t7his situation. Is it politic or wise to place them in it? Is it expedient to force, by exclusions and discriminations, a numerous and powerful class of citizens to be unfriendly to the government?
He knew many individuals who would be comprehended, who are well affected to the prosperity of the country, who are disposed to give every support to the government, and who, some of them at least, even during the war had manifested an attachment to the American cause. But there is one view in which the subject merits consideration, 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 happened, and probably has happened in many instances, that vessels have been employed as privateers on 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, perhaps contrary to their inclination?
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 fitting out privateers, perhaps at the instigation of the British Government; and had applied to persons suspected of an attachment to us to subscribe, making their compliance a test of their loyalty. Several individuals, well disposed to our cause, to avoid becoming objects of persecution, had complied; would it not be too rigorous to include them in so heavy a penalty? But if there are any of us who are conscious of greater fortitude, such persons should not on that account be too severe on the weakness 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, Mr. Speaker, as well from motives of justice, as a regard to the Constitution, we shall stop where we are, and not go any farther into the dangerous practice of disqualifying citizens by general descriptions. I hope we shall reject the amendment, sir!
[Question was determined in the negative.]
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