New York Assembly. Remarks on an
Act for Regulating Elections1
[New York, January 27, 1787]
Mr. Hamilton observed they were going on dangerous ground. The best rule the committee could follow was that held out in the constitution; which it would be safest to adhere to without alteration or addition. If we once depart from this rule, there is no saying where it will end. To-day, a majority of the persons sitting here from a particular mode of thinking disqualify one description of men. A future legislature from a particular mode of thinking in another point, disqualify another set of men. One precedent is the pretext of another, ’till we narrow the ground of qualifications to a degree subversive of the spirit of the constitution.
It is impossible to suppose that the Convention who framed the constitution were inattentive to this point. It is a matter of too much importance not to have been well considered, they have fixed the qualification of electors with precision; they have defined those of Senator and Governor; but they have been silent as to the qualifications of Members 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 discretion of the electors themselves the choice of those who are to represent them in assembly. Every qualification implies a disqualification: The persons 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 class of 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 all those who fall within that description of an essential right allowed them by the constitution?
I have observed that if we once break the ground of departing from the simple plan of the constitution it may lead us much farther than we now 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 improper influence. I may think another species of influence more dangerous. I have taken notice upon a former occasion of the decisive agency of the executive in the appointment to all offices. If the persons who derive their official existence from that source sit in this house, it cannot be denied that it might give the executive an undue influence in the legislative deliberations. If in the vicissitude of human events, a majority of a future legislature should view the subject in this light, and if the principle of a right to annex disqualifications unknown to the constitution be admitted in practice, all persons holding offices under the state would then be excluded. I wish here to be clearly understood. I mean only to reason on general principles, without any particular reference whatever. I have hitherto confined my self to the general principle of the clause. There are however particular objections, one just occurs to me—there are officers who have been wounded in the service, 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?
This instance strikes me: Other members may probably think of other cases equally strong against the exclusion—further reflections may suggest others that do not now occur.
If the committee however should resolve to adopt it; for the sake of consistency, they must carry it one step further—they must say that no member of Congress shall 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 privilege.
But I would not be understood to advocate this extention of the clause. I am against the whole business. I am for adhering strictly to the present provisions of the constitution, I repeat it if we once break the ground of innovation, we may open a door to mischiefs what we neither know nor think of.2
Mr. Hamilton—I still continue Mr. Chairman of the same opinion on this subject. The more I consider the matter, the more forcibly am I struck that it will be dangerous to introduce qualifications unknown to the constitution. Is it possible to suppose the framers of the constitution were inattentive to this important subject, or that they did not maturely consider the propriety of annexing qualifications to the elected?
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 me to be this—Let us take care that the persons to elect are properly 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 persons to represent them.
The constitution will not presume that whole districts and counties of electors duly qualified will choose men improper for the trust.
Let us on our part be cautious how we abridge the freedom of choice allowed them by the constitution or the right of being elected, which every citizen may claim under it.
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 constitution; 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 important principle. It would be to deprive in the gross all those who had not the requisite qualifications, or who were objects of those disqualifications to that right to a share in the administration of the republic which the constitution gives them, and that without any offence to incur a forfeiture.
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. But the gentleman, (Mr. Jones) has not adverted that the same difficulty would attend the case of electors where he admits there is no power in the legislature to make alterations—the expression there is, every male inhabitant possessed of certain property shall vote; but there surely could never be a doubt that such male inhabitant must also be a citizen.
But let us pursue the subject a little further; commerce it will be admitted leads to an increase of individual property, property begets influence. Though a legislature composed as we are, will always take care of the rights of the middling and lower classes, suppose the majority of the legislature to consist at a future day, of wealthy men, what would 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? and would not this introduce a principle of aristocracy fatal to the genius of our present constitution.
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 connections forbid the supposition. But I mean to lay honestly before you the dangers to which we expose ourselves by letting in the principle which the clause under consideration 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 I shall be against any qualification or disqualification either of electors or elected, not prescribed by the constitution.
To me it appears that the qualifications of both ought to be fundamental in a republican government; not liable to be varied or added to by the legislature, and that they should for ever remain where the constitution has left them. I see no other safe ground.
It is to be lamented that men to carry some favorite point in which their party or their prejudices are interested, will inconsiderately introduce principles and precedents, which lead to successive innovations destructive of the liberty of the subject and the safety of the government.
For my part, I shall uniformly oppose every innovation not known in the provisions of the constitution. I therefore move that the clause be struck out.3
The [New York] Daily Advertiser, January 30, 1787.
Debate on the proposed act was continued on January 27 when a section on the qualifications of assemblymen was debated. The disputed section read: “And be it further enacted by the authority aforesaid, that no person receiving a pension from, or holding any office or place under the United States of America, shall at any time hereafter have a seat in, or sit or vote as a member of, the Senate or Assembly of this State” (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, 26). According to the account of the debate in The New-York Journal, and Weekly Register (February 1, 1787), “the foregoing clause gave rise to the discussion of an important question, viz: Whether the legislature possesses the power of abridging the constitutional rights of the people? Mr. Hamilton, Mr. Jones, and Mr. Malcom, were the chief speakers on this occasion, and the debates were very lengthy.”
2. At this point H’s speech was answered by William Harper and Samuel Jones. Harper contended that he had no objection to excluding members of Congress from the legislature. Jones, in a speech which attempted to refute the arguments made by H, stated that the legislature could not impose disqualifications on electors but that it did have the authority to prescribe regulations for those seeking elections to office.
3. After several other members of the Assembly had spoken on the clause, H moved that it be obliterated. His motion was carried.