New York Assembly. First Speech on the Address of the
Legislature to Governor George Clinton’s Message1
[New York, January 19, 1787]
Col. Hamilton’s Speech in the House of Assembly, delivered on the 19th instant, and which appeared in our paper of the 20th, being represented as not doing sufficient justice to his Arguments; we have obtained of him a revision of the same, and with the highest pleasure present it to the Public.2
Mr. Hamilton—This now leads us to examine the important question presented to us by the proposed amendment.3 For my own part I have seen with regret the progress of this business, and it was my earnest wish to have avoided the present discussion. I saw with regret the first application of Congress to the Governor; because it was easy to perceive that it involved a delicate dilemma: Either the Governor from considerations of inconvenience might refuse to call the Assembly; which would derogate from the respect due to Congress; or he might call them, and by being brought together at an unseasonable period before the time appointed by law for the purpose, they would meet with reluctance, and perhaps with a disposition less favourable than might be wished to the views of Congress themselves. I saw with equal regret the next step of the business. If a conference had been desired with Congress, it might have been had—circumstances might have been explained; reasons might have been assigned satisfactory to them for not calling the legislature, the affair might have been compromised. But instead of this, the Governor thought proper to answer by a flat denial, founded on a constitutional impediment, and the idea of an invasion of the right of free deliberation was brought into view. I earnestly wished the matter to have rested here. I might appeal to gentlemen in this house, and particularly to the honorable Member who is so zealous in support of the amendment,4 that before the speech appeared I discovered a solicitude that, by passing the subject over in silence, it might not give occasion to the present discussion. It however came before us in a form very different from that which I should have thought adviseable; for there was no need of an appeal to the legislature. The next step was to appoint a committee to prepare an answer to the speech. It fell to my lot to be a member of that committee.5 My object still was to avoid the interference of this house in a matter, about which there was a difference of opinion between the United States, and the Governor of this state on constitutional ground. The best way to effect this, was to frame the answer in the most general terms. This has been done; not a word is said even about the Revenue System, which occasioned the request of Congress to convene the legislature.6 The answer is generally, that the house will take into consideration the different acts of Congress, and make such provisions as appear to them compatible with the abilities and constitution of the state. By not touching at all on the topic connected with the origin of the controversy, I thought we might safely be silent without any implication of censure on the Governor. It was neither my wish to condemn, nor to approve. I was only desirous of avoiding an interference in a constitutional question, which belonged entirely to the province of the executive authority of the state, and about which I knew there would be a difference of opinion, even in this house. I submit it to the house, whether this was not a prudent course, and whether it is not to be lamented, that the proposed amendment forces the discussion upon us. Constitutional questions are always delicate, they should never be touched but from necessity.
But, though I shall be readily acquitted of having had any agency in bringing the house into this disagreeable situation, since the question is brought forward, I shall with freedom meet the discussion. This my duty demands from me, and, whoever may be affected by it, I shall proceed under an impression that my constituents expect from me the free exercise of my judgment, and the free declaration of my sentiments on the matters deliberated upon in this house.
The question, by the honorable member on my right,7 has been wrongly stated. He says it is this; whether a request of Congress to convene the legislature is conclusive upon the governor of the state? or whether a bare intimation of that honorable body, lays him under a constitutional necessity of convening the legislature? But this is not the true question; From the shape in which the business comes before us, the enquiry truly is, whether a solemn application of the United States to the executive of this state to convene the legislature, for the purpose of deliberating on a matter, which is considered by that body, as of essential importance to the union; and which has been viewed in a similar light by most of the other states individually, is such an extraordinary occasion, as left the governor under no constitutional impediment to a compliance? And it may be added, whether that application, under all the circumstances was an attempt to invade the freedom of deliberation in this house?
Here let us ask what does the constitution say upon the subject? Simply this, that the governor “shall have power to convene the assembly and senate on extraordinary occasions.”
But what is an extraordinary occasion? what circumstances are to concur, what ingredients combine, to constitute one? what general rule can be imagined by which, to define the precise meaning of these vague terms and draw the line, between an ordinary and extraordinary occasion? Will the gentleman on my right (Mr. Jones) furnish us with such a criterion? Profoundly skilled as he is in law (at least in the local laws of this state) I fancy it will be difficult for him to invent one that will suit his present purpose. Let him consult his law books, they will not relieve his embarrassment. It is easy to see that the clause allows the greatest latitude to opinion. What one may think an very extraordinary occasion, another may think a very ordinary one, according to his bias, his interest, or his intellect.
If there is any rule at all, it is this—the governor shall not call the legislature with a view to the ordinary details of the state administration. Whatever does not fall within this description, and has any pretensions to national importance in any view, leaves him at liberty to exercise the discretion vested in him by the constitution. There is at least no constitutional bar in the way.
The United States are entrusted with the management of the general concerns and interests of the community: They have the power of war and peace, they have the power of treaty.
Our affairs with respect to foreign nations, are left to their direction. We must entertain very diminutive ideas of the Government of the Union, to conceive that their earnest call on a subject which they deem of great national magnitude, which affects their engagements with two respectable foreign powers, France and the United Netherlands, which relates to the preservation of their faith at home and abroad, is not such an occasion as would justify the executive upon the terms of the constitution in convening the legislature.
If this doctrine is maintained, where will it lead to? what kind of emergency must exist before the constitution will authorise the governor to call the legislature? Is the preservation of our national faith a matter of such trivial moment? Is the fulfilment of the public engagements, domestic and foreign, of no consequence? Must we wait for the fleets of the United Netherlands, or of France, to enforce the observance of them, before the executive will be at liberty to give the legislature an opportunity of deliberating on the means of their just demand?
This is straining the indefinite words of the constitution to a most unreasonable extreme. It would be a tenable position to say, that the call of the United States is alone sufficient to satisfy the idea of an extraordinary occasion. It is easy to conceive, that such a posture of European affairs might exist, as would render it necessary to convene the different legislatures to adopt measures for the public safety, and at the same time inexpedient to disclose the object ’till they were assembled. Will we say, that Congress would be bound to communicate the object of their call to the executive of every state; or that the executive of this state, in complying with their request, would be guilty of a violation of the constitution?
But the present case is not that of a mere general request; it is specifically to deliberate upon an object of acknowledged importance, in one view or another. On one hand it is alledged to be a measure essential to the honor, interest, and perhaps, the existence of the union; on the other, it is said to be on principles subversive of the constitution, and dangerous to the liberty of the subject. It is therefore a matter of delicacy and moment. And the earnest call of the union, to have it considered, cannot fall within the notion of so common, so ordinary an occasion as would prohibit the executive from summoning a meeting of the legislature.
The only argument urged to denominate it such, is, that it had been recently determined upon by the legislature. But there is an evident fallacy in this position. The call was addressed to a new and different body, totally different in the contemplation of the constitution, and materially different in fact, with respect to the members who compose it. A large proportion of the members of the present house were not members of the last. For aught that either Congress or the governor could officially know there might have been a total change in the individuals, and therefore a total difference in the sentiments. No inference of course could be fairly drawn from the conduct of the last legislature to that of the present. Indeed, however, it might be wished to prepossess the minds of the members of the former house with a contrary idea, it is plain that there is no necessary connection between what they did, at that time, and what it may be proper for them to do now. The act of the last session proves the conviction of the house then, that the grant of the impost was an eligible measure. Many of the members were led to suppose that it would answer the purpose and might have been accepted by Congress. If the experiment has shewn that they were mistaken in their expectations, and if it should appear to them that Congress could not for good reasons accept it, the same motives, which induced them to the grant already made, would determine them to consent to such alterations, as would accommodate it to the views of Congress and the other States, and make it practicable to carry the system into execution.
It may be observed, that as Congress accompanied their request with an explanation of the object, they by that mode of proceeding, submitted the whole matter to the discretion of the governor to act according to the estimate formed in his own mind of its importance.
It is not denied, that the governor had a discretion upon the occasion. It is not contended, that he was under a constitutional necessity to convene the legislature. The resolution of Congress itself does not imply or intimate this. They do not pretend to require, they only earnestly recommend. The governor might at his peril, refuse, responsible however for any ill consequences that might have attended his refusal. But the thing contended for is, that the call of the United States, under all the circumstances, was sufficient to satisfy the terms of the constitution empowering him to convene the legislature, on extraordinary occasions; and left him at full liberty to comply.
The admission of his discretion does not admit that it was properly exercised, nor does it admit that the footing upon which he placed his refusal was proper.
It does not admit, that the constitution interposed an obstacle in his way, or that the request of Congress implied any thing hostile to the right of free deliberation.
This is the aspect under which the business presents itself to our consideration, as well from the correspondence between Congress and the governor, as from the manner in which it is ushered to us in the speech.8 A general approbation of his conduct, is an approbation of the principle, by which it is professed to have been actuated.
Are we ready to say, that the constitution would have been violated by a compliance? are we ready to say that the call upon us to deliberate is an attempt to infringe the freedom of deliberation. If we are not ready to say both, we must reject the amendment.
In particular I think it must strike us all, that there is something singularly forced in intimating, that an application of Congress to the governor of the state to convene a new legislature to consider a very important national subject, has any thing in it dangerous to the freedom of our deliberations. I flatter myself we should all have felt ourselves, as much at liberty to have pursued our sentiments, if we had met upon an extraordinary call, as we now do when met according to our own appointment.
There yet remains an important light, in which the subject merits consideration, I mean as it respects the executive authority of the state itself. By deciding that the application of Congress upon which the debate turns was not such an extraordinary occasion as left the governor at liberty to call the legislature, we may form a precedent of a very dangerous tendency; we may impose a sense on the constitution very different from the true meaning of it—and may fetter the present, or a future executive with very inconvenient restraints. A few more such precedents may tie up the hands of a governor in such a manner, as would either oblige him to act at an extreme peril or to omit acting when public exigencies required it. The mere sense of one governor would be no precedent for his successor, but that sense approved by both houses of the legislature would become a rule of conduct. Suppose a few more precedents of the kind on different combinations of circumstances equally strong, and let us ask ourselves what would be the situation of a governor, whenever he came to deliberate on the propriety of exercising the discretion in this respect vested in him by the constitution? Would he not be apt to act with a degree of caution, or rather timidity, which in certain emergencies might be productive of very pernicious consequences? A mere intimation of the constitution to him not to call the legislature in their recess upon every triffling affair, which in its true import would be turned into an injunction not to do it but upon occasions of the last necessity.
We see therefore that the question upon which we are pressed to decide is not less delicate, as it respects the constitution of the state itself, than as it respects the union. And that in every possible view it is most prudent to avoid the determination. Let the conduct of the governor stand on its own merits: If he was right our approbation will not make him more right; if he was wrong, it would be improper to give sanction to his error.
Several things have been said in the debate which have no connection with it, but to prevent their making improper impressions, it may not be amiss to take some notice of them. The danger of a power in Congress to compel the convening of the legislature at their pleasure has been strongly insisted upon: It has been urged, that if they possessed it, they might make it an engine to fatigue the legislature into a compliance with their measures. Instances of an abuse of the like power in the crown, under the former government have been cited.9
It is a sufficient answer to all this, to say that no such power is contended for. I do not assert that their request obliged the governor to convene the legislature, I only maintain, that their request on an important national subject was such an occasion, as left him at liberty to do it without any color for imputing to him a breach of the constitution. And that from motives of respect to the union and to avoid any further degradation of its authority, already at too low an ebb, he ought to have complied.
Admitting in the fullest extent that it would be dangerous to allow to Congress the power of requiring the legislature to be convened at pleasure, yet no injury nor inconvenience can result from supposing the call of the United States on a matter by them deemed of importance to be an occasion sufficiently extraordinary to authorise, not to oblige the governor to comply with it.
I cannot forbear remarking, that it is a common artifice to endeavour to insinuate a resemblance between the king under the former government, and Congress; though no two things can be more unlike each other. Nothing can be more dissimilar10 than a monarch, permanent, hereditary,11 the source of honor and emolument; and a republican body composed of a number of individuals appointed annully, liable to be recalled within the year, and subject to a continual rotation, which with few exceptions, is the fountain neither of honor nor emolument. If we will exercise our judgments we shall plainly see that no such resemblance exists, and that all inferences deducted from the comparison must be false.
Upon every occasion, however foreign such observations may be, we hear a loud cry raised about the danger of intrusting power to Congress, we are told it is dangerous to trust power any where; that power is liable to abuse with a variety of trite maxims of the same kind. General propositions of this nature are easily framed, the truth of which cannot be denied, but they rarely convey any precise idea. To these we might oppose other propositions equally true and equally indefinite. It might be said that too little power is as dangerous as too much, that it leads to anarchy, and from anarchy to despotism. But the question still recurs, what is this too much or too little? where is the measure or standard to ascertain the happy mean?
Powers must be granted, or civil Society cannot exist; the possibility of abuse is no argument against the thing; this possibility is incident to every species of power however placed or modified. The United States for instance have the power of war and peace: it cannot be disputed that conjectures might occur in which that power might be turned against the rights of the citizen. But where can we better place it? In short where else can we place it all?
In our State constitutions, we might discover powers, liable to be abused to very dangerous purposes. I shall instance only the council [of] appointment: In that council the governor claims and exercises, the power of nominating to all offices.
This power of nomination, in its operation amounts to a power of appointment, for it can always be so managed as to bring in persons agreeable to him, and exclude all others. Suppose a governor disposed to make this an instrument of personal influence and aggrandizement, suppose him inclined to exclude from office all independent men, and to fill the different departments of the state with persons devoted to himself, what is to hinder him from doing it? who can say how far the influence arising from such a prerogative might be carried?
Perhaps this power, if closely inspected, is a more proper subject of republican jealousy, than any power possessed, or asked by the United States—fluctuating and variable as that body is.
But as my intention is not to instil any unnecessary jealousies, I shall prosecute these observations no further. They are only urged to shew the imperfection of human institutions, and to confirm the principle, that the possibility of a power being abused is no argument against its existence.
Upon the whole, let us venture with caution upon constitutional ground. Let us not court, nor invite discussions of this kind—let us not endeavour, still more to weaken and degrade the federal government, by heaping fresh marks of contempt on its authority. Perhaps the time is not far remote, when we may be inclined to disapprove, what we now seem eager to commend; and may wish we had cherished the union with as much zeal, as we now discover apprehension, of its encroachments.
I hope, Mr. Chairman, the house will not agree to the amendment. In saying this I am influenced by no other motive than a sense of duty. I trust my conduct will be considered in this light. I cannot give my consent to put any thing upon our minutes which it appears to me we may one day have occasion to wish obliterated from them.
The [New York] Daily Advertiser, January 23, 1787.
1. For the background to H’s speech on Governor Clinton’s address, see “Remarks on the Answer to Governor George Clinton’s Message to the Legislature,” January 17, 1787, note 1.
The immediate context of H’s speech was a motion by Richard Varick, speaker of the House, that the following words be inserted in the legislature’s answer to the governor’s message: “We the Representatives of the People of the State of New-York in Assembly, beg leave … to express our approbation of your Excellency’s conduct in not convening the Legislature at an earlier period, and at the same time” (New York Assembly Journal description begins Journal of the Assembly of the State of New York (Publisher and place vary, 1782–1788). description ends , 1787, 15).
2. On January 19, H made two speeches which were interrupted by remarks of Samuel Jones. The first speech (that printed above) is the revised version printed by The Daily Advertiser on January 23, 1787. For the version of H’s first speech, as reported on January 20, 1787, see The Daily Advertiser for that date. For the second speech, of which no revised version appeared, see “Second Speech on the Address of the Legislature to Governor George Clinton’s Message,” January 19, 1787.
3. See note 1.
4. Samuel Jones of Queens County who, in a speech preceding H’s, had insisted that the governor be commended for refusing to calf a special session.
5. On January 13, Samuel Jones, H, and James Gordon had been appointed a committee to prepare the draft of an address in reply to the governor’s message.
7. Samuel Jones.
8. In his message to the legislature, Clinton said that he had refused to call a special session of the legislature because of “an anxiety to preserve unimpaired the right of free deliberation on matters not stipulated by the Confederation” (New York Assembly Journal description begins Journal of the Assembly of the State of New York (Publisher and place vary, 1782–1788). description ends , 1787, 6).
9. Samuel Jones had argued on January 17 that the governor should have refused to comply with the request of Congress to convene the legislature because “Congress might, by reiterated requisitions, perhaps once a month, teaze and worry the Legislature into a compliance with their measures; nor was this exaggerating, for such had been the practice under the former government” (The Daily Advertiser, January 18, 1787>). In the debate on January 19, he repeated at greater length the same argument.
10. In original, “dissimular.”
11. In original, “heroditary.”