New York Assembly. Remarks on an
Act for Regulating Elections1
[New York, February 6, 1787]
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 other 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, concerned 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 some gentlemen. In one article of it, it is said 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.2 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 the courts of justice; they can never be referred to an act of 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 the war, generally speaking, must 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 this 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, or 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 the objects of persecution, had complied; would it not be too rigorous to include them in so heavy a penalty? It may be said they were guilty of a culpable want of firmness. 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 weaknesses 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!3
Mr. Hamilton explained the intention and meaning of this clause in the constitution. He defined the act of attainder, as being a law, confiscating for treason and misprison of treason, all the property and estate of the attainted traitor, and forfeiting his life unless he appears to take his trial. This was the construction put upon it by the country from which we draw our knowledge of jurisprudence; and he believed an example could not be produced, w[h]ere it had been extended or applied in any other manner, he was positive it could not be exercised to disfranchise a whole party, for this plain reason that it would involve the innocent with the guilty.
This clause therefore in the constitution, was only intended to apply in particular cases w[h]ere an exception to the established mode of common law, became necessary by the persons absenting himself; and did not apply at all into the subject before the house.
He concluded, by observing that precedents of this kind laid the foundation for the subversion of the liberty of the people, and he therefore hoped the amendment would not be agreed to.4
The [New York] Daily Advertiser, February 8, 1787.
1. “An Act for Regulating Elections” was returned from the Senate on February 6, 1787. For information on this act, see H’s “Remarks on an Act for Regulating Elections,” January 23, 24, 27, 29, and 30, 1787. Among the amendments proposed by the Senate was one which altered the section of the act disqualifying certain persons from holding offices of trust. The act, as passed by the Assembly, stated that among those disqualified from holding any office in the state were “persons who shall have acted as captain, lieutenant, or master, of any privateer or privateers, or vessels of war, to cruise against or commit hostilities upon vessels, property or persons of any of the citizens of this State, or any other of the United States” (Laws of the State of New York, I description begins Laws of the State of New York Passed at the Sessions of the Legislature Held in the Years 1777, 1778, 1779, 1780, 1781, 1782, 1783 and 1784 Inclusive, being the First Seven Sessions (Albany, 1886). description ends I, 383). The Senate amendment provided that this section should be changed also to include “owner or owners of such privateers or vessels of war” (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, 36).
2. On January 26 the legislature had passed “AN ACT concerning the rights of the citizens of this State” (Laws of the State of New York, I description begins Laws of the State of New York Passed at the Sessions of the Legislature Held in the Years 1777, 1778, 1779, 1780, 1781, 1782, 1783 and 1784 Inclusive, being the First Seven Sessions (Albany, 1886). description ends I, 344–45).
3. H’s remarks were at this point answered by several members of the Assembly who favored the proposed amendment (The New-York Journal, and Weekly Register, February 15, 1787). William Harper, noting the assertion that the proposed amendment was contrary to the New York constitution, read Section 41 of the constitution which prescribed trial by jury and prohibited acts of attainder.
4. The amendment proposed by the Senate was defeated by a vote of 32 to 21.