Alexander Hamilton Papers
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Remarks on the Repeal of the Judiciary Act, Third Version, [11 February 1802]

Third Version12

To these remarks General Hamilton rose again to reply—he remarked in substance that he had fostered the hope, that on this occasion, by cautiously avoiding to say any thing on the point of the constitutionality of the proposed repeal, and stating only the opinion of the New-York bar on that of its inexpediency, there would have been but one sentiment—He regretted, deeply regretted, that on this point there was a diversity of sentiment; he foresaw the unhappy effects that would hence result; he deplored them, not from any private or contracted view, but turning his eye inward on his heart, and looking to heaven as the witness of his motives, he declared he knew of none that influenced him but the sincerest attachment to the public good. So far as respected the unconstitutionality of the proposed repeal, he had no hesitation in avowing his own opinion. He considered it a most direct, and fatal violation of the most essential, the most vital principle of the constitution. The independence of the judges once destroyed, the constitution is gone, it is a dead letter; it is a vapor which the breath of faction in a moment may dissipate, and this boasted union the labor of true patriots, the hope of our country, which in the last 12 years has raised us to the most enviable height of prosperity, dissolves and dies.

He had cherished the idea, he said, that this part of the Constitution was the last that party violence would attack. That although certain extensions of executive authority, certain changes in the finances, or in diplomatic arrangements abroad might take place, yet that the essential rights of the judiciary in which foreigners and citizens, but more especially the mercantile interests of the U. States are so deeply concerned, would have been preserved inviolate. He had looked forward to many evils that he thought likely to flow from the known principles of the leading characters now in authority, but indeed, he had not calculated on such a rapid progression of evil. He had little hope that any thing that could now be said or done, would assist in averting the impending blow. He [k]new full well that the plan now going into effect had long been meditated and resolved on, and hence, his zeal was much abated, yet could any thing he could do have any effect in saving the constitution from the fatal blow that now menaced it, he would labor day and night; he would not give ‘sleep to his eyes, nor slumber to his eye-lids,’13 while he had hope to support his exertions; nay, ‘I would give a drop of my heart’s blood,’ said he, to save this vital principle of the constitution. There is no motive which induced me to put my life at hazard through our revolutionary war, that would not now as powerfully operate on me, to put it again in jeopardy, in defence of the independence of the judiciary; for remember what is said this night; if this fatal measure is not by some means arrested, if the laws are not suffered to controul the passions of individuals, thro the organs of an extended, firm and independant judiciary, the bayonet must. There is no alternative; we must be ruled by municipal law, or by—a military force: and I beg gentlemen to recollect what I now say, without aspiring to the character of a prophet, that if this rash unadvised repeal takes place, mutual confidence will be destroyed—the union will gradually crumble to pieces and in a few, very few years, the present confederation will either be parcelled out into separate territories, with clashing interests, and you will see the hand of brother, raised to shed a brother’s blood, or you will see this country become the prey of a usurper, and sink into the calm of a military despotism. On those gentlemen, then, who truly value our republican government, I call, to banish for an instant, the influence of party-spirit, and to lend their aid in extinguishing a rising conflagration, which threatens to involve this devoted country in miseries incalculable. On the point of expediency, he observed, that he could, in no one point of view, consider the proposed repeal as defensible. Every gentleman present, who had been concerned in business depending in the circuit court of the United States, knew, without his going into details, the vices of the old system. Many of its defects were indeed removed by the present, which, however, was not to be considered as perfect. On this, certain improvements could be advantageously engrafted—which would render it a very eligible and convenient system. But he was surprised, greatly surprised indeed, to hear any gentleman who had any respect to his own character, risk an opinion, that the district courts, with the supreme court of the United States, were fully competent to all the business of the United States. The business of the former he said, from revenue and admiralty causes, and from what arose under the late bankrupt law,14 furnished full employ for the most industrious judge. Beside, if all suits were originally to be commenced in the district courts, no suitor would rest satisfied with the decision of a single man, but would remove the cause for a final hearing to the supreme court of the United States, in which case parties would be constantly obliged to travel with papers and vouchers from the extremities of the Union to the seat of government, there to retain new counsel, be at heavy expences, and far from their families, which would produce inconveniences that would not long be submitted to.

12[New York] Commercial Advertiser, February 26, 1802.

13Proverbs 4:4.

14“An Act to establish an uniform System of Bankruptcy throughout the United States” (2 Stat. description begins The Public Statutes at Large of the United States of America, II (Boston, 1850). description ends 19–36 [April 4, 1800]).

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