Remarks on an Extract from Hamilton’s Report Published in the Richmond Enquirer, 25 January 1826
Remarks on an Extract from Hamilton’s Report
Published in the Richmond Enquirer
Jany. 25. 1826
In the Richmond Enquirer of the 21st. is an Extract from the Report of Secretary Hamilton, on the Constitutionality of the Bank,1 in which he opposes a resort, in expounding the Constitution, to the rejection of a proposition in the Convention, or to any evidence extrinsic to the text. Did he not advise, if not draw up, the Message refusing to the House of Reps. the papers relating to Jay’s Treaty,2 in which President Washington combats the right of their Call, by appealing to his personal knowledge of the intention of the Convention having been himself a member of it—to the authority of a rejected proposition appearing on the Journals of the Convention—and to the opinions entertained in the State Conventions (Waits State papers Vol. 2. p. 102–5).3 Unfortunately the President had forgotten his sanction to the Bank, which disregarded a rejected proposition on that subject. This case too was far more in point, than the proposition in that of the Treaty papers. Whatever may be the degree of force in some of the remarks of the Secretary, he pushes them too far. But the contradictions between the Report & the Message are palpable.
Ms (DLC). JM appears not to have sent this to the Richmond Enquirer for publication.
1. This three-paragraph extract from Alexander Hamilton’s Opinion on the Constitutionality of an Act to Establish a Bank, 23 Feb. 1791 (Syrett and Cooke, Papers of Alexander Hamilton, 8:110–11) begins: “Another argument made use of by the Secretary of State, is, the rejection of a proposition by the convention to empower Congress to make corporations, either generally, or for some special purpose.” It ends: “If then a power to erect a corporation, in any case, be deducible by fair inference from the whole or any part of the numerous provisions of the constitution of the United States, arguments drawn from extrinsic circumstances, regarding the intention of the convention, must be rejected.”
2. In a 30 Mar. 1796 message to the U.S. House of Representatives, George Washington declined that body’s request for John Jay’s instructions and other documents related to the negotiation of Jay’s Treaty (Fitzpatrick, Writings of George Washington, 35:2–5). While Hamilton was consulted by the president, it was Timothy Pickering who drafted the message (, 16:287 n. 5).
3. JM referred here to three points made by Washington in his 30 Mar. 1796 message: (1) “Having been a member of the General Convention, and knowing the principles on which the constitution was formed, I have ever entertained but one opinion on this subject; … that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate”; (2) “If other proofs than these, and the plain letter of the constitution itself, be necessary to ascertain the point under consideration, they may be found in the journals of the General Convention, … In those journals it will appear that a proposition was made, ‘that no treaty should be binding on the United States which was not ratified by law’; and that the proposition was explicitly rejected”; and (3) “There is also reason to believe that this construction [of the treaty power] agrees with the opinions entertained by the state conventions, when they were deliberating on the constitution” (State Papers and Public Documents of the United States, 2d ed., 2:102–5).