Title: To Alexander Hamilton from George W. P. Custis, 5 December 1801
From: Custis, George W. P.
To: Hamilton, Alexander

Dr General
Mount Vernon Decr, 5th, 1801

With the utmost sorrow have I lately perused the unhappy fate of your son, and among the many that have come forward to condole with you on so afflicting an event, I beg I may be permitted, to make one of the number. We were brought up as it were, together in our earlier years and that mutual friendship which then existed between us, would I have no doubt have at a future time ripened into esteem.
But my Dr Sir, he has fallen in the field of honour, & altho it has not pleased the Almighty Ruler to prolong his days, yet as he lived respected, & admired, so has he died lamented, & beloved. “How sleep the brave &c.”
Permit me to offer you my best wishes for your happiness & prosperity. May the shafts of faction fall harmless upon the shield of your integrity & should occasion require may Alexander Hamilton again appear as an American soldier.
My Compliments &c

George W P Custis


Title: Introductory Note: The Examination Number I, [17 December 1801]
From:
To:

[New York, December 17, 1801]

This is the first of a series of eighteen articles entitled “The Examination” and signed by “Lucius Crassus.” They appeared in the New-York Evening Post during the winter of 1801–1802 and were designed to refute the points raised by Thomas Jefferson in his first annual message to Congress on December 8, 1801. The New-York Evening Post printed  the first installment of “The Examination” on December 17, 1801, and reprinted it on December 18. The other seventeen installments appeared in the Post on the following dates:

No.
II
December 21, 1801
XI
February 3, 1802

III
December 24, 1801
XII
February 23, 1802

IV
December 26, 1801
XIII
February 27, 1802

V
December 29, 1801
XIV
March 2, 1802

VI
January 2, 1802
XV
March 3, 1802

VII
January 6, 1802
XVI
March 19, 1802

VIII
January 12, 1802
XVII
March 20, 1802

IX
January 18, 1802
XVIII
April 8, 1802

X
January 19, 1802

On March 30, 1802, the Post advertised a pamphlet containing all eighteen issues of “The Examination.”

Although no manuscript copies of any of the various issues of “The Examination” have been found, the available evidence indicates that Hamilton was the author. On January 11, 1802, the [New York] American Citizen and General Advertiser stated that the “pieces [by Lucius Crassus] bear some resemblance to the letters of Camillus,” and a week later John Quincy Adams wrote that the author of “The Examination” was “said to be Genl: Hamilton.” Of greater significance is the fact that John C. Hamilton, who had access to some Hamilton manuscripts that have not survived, included “The Examination” in his edition of his father’s papers. Finally—and perhaps most important—on December 21, 1801, Robert Troup wrote to Rufus King: “Two of the papers [which Troup enclosed to King] contain strictures by Hamilton on the President’s late message. He means to go through the message; but I doubt whether he can complete it till after his return from Albany. We are soon to go there to attend the Court of errors & Supreme Court.”
The fact that “The Examination” first appeared in the New-York Evening Post was both appropriate and understandable, for Hamilton was one of the paper’s principal founders, and he was a close friend of its editor, William Coleman. At the same time this point should not be overemphasized, for without evidence from contemporaries there is no way to be certain who wrote the many different essays in the Post which were either unsigned or were signed with pseudonyms. Allen McLane Hamilton discussed the problem when he wrote: “So close was Hamilton’s connection with the Post that pretty much everything in it relating to politics was ascribed to him, for it mercilessly attacked the Jeffersonians. Its columns were filled, not only with signed letters, but unsigned editorials and communications covering every political situation, and Coleman and Hamilton were ever on the outlook for the tricks of the other side. As illustrating the deliberation of their methods Hudson in his valuable work refers to the delay between the receipt of Thomas Jefferson’s annual message in December, 1801, and its critical discussion five days later. After it had been digested it was gravely and forcibly torn to pieces in a letter signed Lucius Crassus, which was probably written by Hamilton.”

“The Examination” attracted almost no attention from Hamilton’s contemporaries, and most scholars have ignored it. Although John Quincy Adams stated that Hamilton’s “doctrines” in “The Examination” “find great approbation among the federalists and among all those who consider themselves as the profound thinkers of the nation,” little evidence has been found to substantiate this conclusion, and more attention was devoted to speculation concerning the possibility of Hamilton’s authorship than to the contents of the essays he had written. Among the historians and biographers of the period who do not even mention “The Examination” are Henry Adams, Marshall Smelser, Noble Cunningham, Broadus Mitchell, and Merrill Peterson. Dumas Malone quotes a few sentences from “The Examination” concerning presidential war powers and financial policy, but he does so only to refute criticisms of Jefferson, and he does not even refer to the arguments concerning the judiciary, a subject to which Hamilton devotes more attention than any other topic.
The relative neglect of “The Examination” by contemporaries and scholars can probably be attributed to three factors. In the first place, “The Examination” was by almost any standard of measurement inferior to most of Hamilton’s earlier polemical essays. Many of his points are petty or inconsequential; his reasoning is at times more superficial than profound; and his repetitiveness and verbosity stand in marked contrast to his usual incisiveness. In the second place, when one considers his contributions to the Federalist, his “Camillus” essays, and his major reports to Congress, it is difficult to avoid the conclusion that Hamilton was far more effective as an advocate than as a critic of an opponent or his policies. Finally, because Hamilton was no longer a significant force in national politics, his views were of comparatively little interest to either Republicans or Federalists, and historians, as so often happens, have tended to adopt the views of those whom they are studying.


Title: The Examination Number I, [17 December 1801]
From: Hamilton, Alexander,“Lucius Crassus”
To:

Instead of delivering a speech to the House of Congress, at the opening of the present session, the President has thought fit to transmit a Message. Whether this has proceeded from pride or from humility, from a temperate love of reform, or from a wild spirit of innovation, is submitted to the conjectures of the curious. A single observation shall be indulged—since all agree, that he is unlike his predecessors in essential points, it is a mark of consistency to differ from them in matters of form.
Whoever considers the temper of the day, must be satisfied that this message is likely to add much to the popularity of our chief magistrate. It conforms, as far as would be tolerated at this early stage of our progress in political perfection, to the bewitching tenets of that illuminated doctrine, which promises man, ere long, an emancipation from the burdens and restraints of government; giving a foretaste of that pure felicity which the apostles of this doctrine have predicted. After having, with infinite pains and assiduity, formed the public taste for this species of fare, it is certainly right for those whom the people have chosen for their caterers, to be attentive to the gratification of that taste. And should the viands, which they may offer, prove baneful poisons instead of wholesome aliments, the justification is both plain and easy—Good patriots must, at all events, please the People. But those whose patriotism is of the Old School, who differ so widely from the disciples of the new creed, that they would rather risk incurring the displeasure of the people, by speaking unpalatable truths, than betray their interest by fostering their prejudices; will never be deterred by an impure tide of popular opinion, from honestly pointing out the mistakes or the faults of weak or wicked men, who may have been selected as guardians of the public weal.
The Message of the President, by whatever motives it may have been dictated, is a performance which ought to alarm all who are anxious for the safety of our Government, for the respectability and welfare of our nation. It makes, or aims at making, a most prodigal sacrifice of constitutional energy, of sound principle, and of public interest, to the popularity of one man.
The first thing in it which excites our surprise, is the very extraordinary position, that though Tripoli had declared war in form against the United States, and had enforced it by actual hostility, yet that there was not power, for want of the sanction of Congress, to capture and detain her cruisers with their crews.
When the newspapers informed us, that one of these cruisers, after being subdued in a bloody conflict, had been liberated and permitted quietly to return home, the imagination was perplexed to divine the reason. The conjecture naturally was, that pursuing a policy, too refined perhaps for barbarians, it was intended by that measure to give the enemy a strong impression of our magnanimity and humanity. No one dreampt of a scruple as to the right to seize and detain the armed vessel of an open and avowed foe, vanquished in battle. The enigma is now solved, and we are presented with one of the most singular paradoxes, ever advanced by a man claiming the character of a statesman. When analyzed, it amounts to nothing less than this, that between two nations there may exist a state of complete war on the one side—of peace on the other.
War, of itself, gives to the parties a mutual right to kill in battle, and to capture the persons and property of each other. This is a rule of natural law; a necessary and inevitable consequence of the state of war. This state between two nations is completely produced by the act of one—it requires no concurrent act of the other. It is impossible to conceive the idea, that one nation can be in full war with another, and this other not in the same state with respect to its adversary. The moment therefore that two nations are, in an absolute sense, at war, the public force of each may exercise every act of hostility, which the general laws of war authorise, against the persons and property of the other. As it respects this conclusion, the distinction between offensive and defensive war, makes no difference. That distinction is only material to discriminate the aggressing nation from that which defends itself against attack. The war is offensive on the part of the state which makes it; on the opposite side it is defensive: but the rights of both, as to the measure of hostility, are equal.
It will be readily allowed that the Constitution of a particular country may limit the Organ charged with the direction of the public force, in the use or application of that force, even in time of actual war: but nothing short of the strongest negative words, of the most express prohibitions, can be admitted to restrain that Organ from so employing it, as to derive the fruits of actual victory, by making prisoners of the persons and detaining the property of a vanquished enemy. Our Constitution happily is not chargeable with so great an absurdity. The framers of it would have blushed at a provision, so repugnant to good sense, so inconsistent with national safety and inconvenience. That instrument has only provided affirmatively, that, “The Congress shall have power to declare War;” the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to War. But when a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary. This inference is clear in principle, and has the sanction of established practice. It is clear in principle, because it is self-evident, that a declaration by one nation against another, produce[s] at once a complete state of war between both; and that no declaration on the other side can at all vary their relative situation: and in practice it is well known, that nothing is more common, than when war is declared by one party, to prosecute mutual hostilities, without a declaration by the other.
The doctrine of the Message includes the strange absurdity, that, without a declaration of war by Congress, our public force may destroy the life, but may not restrain the liberty, or seize the property of an enemy. This was exemplified in the very instance of the Tripolitan corsair. A number of her crew were slaughtered in the combat, and after she was subdued she was set free with the remainder. But it may perhaps be said, that she was the assailant, and that resistance was an act of mere defence, and self-preservation. Let us then pursue the matter a step further. Our ships had blockaded the Tripolitan Admiral in the bay of Gibraltar; suppose, he had attempted to make his way out, without first firing upon them: if permitted to do it, the blockade was a farce; if hindered by force, this would have amounted to more than a mere act of defence; and if a combat had ensued, we should then have seen an unequivocal illustration of the unintelligible right, to take the life but not to abridge the liberty, or capture the property of an enemy.
Let us suppose an invasion of our territory, previous to a declaration of war by Congress. The principle avowed in the Message would authorize our troops to kill those of the invader, if they should come within the reach of their bayonets, perhaps to drive them into the sea, and drown them; but not to disable them from doing harm, by the milder process of making them prisoners, and sending them into confinement. Perhaps it may be replied, that the same end would be answered by disarming and leaving them to starve. The merit of such an argument would be complete by adding, that should they not be famished, before the arrival of their ships, with a fresh supply of arms, we might then, if able, disarm them a second time, and send them on board their fleet, to return safely home.
The inconvenience of the doctrine in practice, is not less palpable than its folly in theory. In every case it presents a most unequal warfare. In the instance which has occurred, the vanquished Barbarian got off with the loss of his guns. Had he been victorious, the Americans, whose lives might have been spared, would have been doomed to wear out a miserable existence in slavery and chains. Substantial benefits would have rewarded his success; while on our side, life, liberty and property, were put in jeopardy, for an empty triumph. This, however, was a partial inconvenience—cases may arise in which evils of a more serious and comprehensive nature wou’d be the fruits of this visionary and fantastical principle. Suppose that, in the recess of Congress, a foreign maritime power should unexpectedly declare war against the United States, and send a fleet and army to seize Rhode-Island, in order from thence to annoy our trade and our seaport towns. Till the Congress should assemble and declare war, which would require time, our ships might, according to the hypothesis of the Message, be sent by the President to fight those of the enemy as often as they should be attacked, but not to capture and detain them: If beaten, both vessels and crews whould be lost to the United States: if successful, they could only disarm those they had overcome, and must suffer them to return to the place of common rendezvous, there to equip anew, for the purpose of resuming their depredations on our towns and our trade.
Who could restrain the laugh of derision at positions so preposterous, were it not for the reflection that in the first magistrate of our country, they cast a blemish on our national character? What will the world think of the fold when such is the shepherd?

Lucius Crassus.


Title: To Alexander Hamilton from Charles Carroll of Carrollton, 19 December 1801
From: Carroll, Charles (of Carrollton)
To: Hamilton, Alexander

Annapolis [Maryland] December 19, 1801. Encloses three drafts of eight thousand dollars each payable to Isaac Bronson.


Title: The Examination Number II, [21 December 1801]
From: Hamilton, Alexander,“Lucius Crassus”
To:

[New York, December 21, 1801]

The next most prominent feature in the Message, is the proposal to abandon at once all the internal revenue of the country. The motives avowed for this astonishing scheme, are that “there is reasonable ground of confidence that this part of the revenue may now be safely dispensed with—that the remaining sources will be sufficient to provide for the support of government, to pay the interest of the public debt, and to discharge the principal in shorter periods than the laws or the general expectation had contemplated—and that though wars and untoward events might change this prospect of things, and call for expences which the impost could not meet—yet that sound principles would not justify our taxing the industry of our fellow citizens to accumulate treasure for wars to happen we know not when, and which might not perhaps happen but from the temptations offered by that treasure.”
If we allow these to be more than ostensible motives, we shall be driven to ascribe this conduct to a deficiency of intellect, and to an ignorance of our financial arrangements, greater than could have been suspected: if but ostensible, it is then impossible to trace the suggestion to any other source than the culpable desire of gaining or securing popularity at an immediate expence of public utility, equivalent, on a pecuniary scale to a million of dollars annually; and at the greater expence of a very serious invasion of our system of public credit.
That these at least, are the certain consequences of the measure, shall be demonstrated by arguments which are believed to be unanswerable.
To do this the more effectually, it is necessary to premise, that some of the revenues now proposed to be relinquished, are with every solemnity of law pledged for paying the interest and redeeming the principal of our public debt, foreign and domestic. As to the interest, and such parts of the principal, as by the original constitution of the debt, are payable by annual instalments, the appropriation is absolute. As to the residue it is qualified. On the 3d of March 1795, was passed an act of Congress which forms a main pillar in the fabric of our public credit—which, maturing and perfecting the establishment of a Sinking Fund, endeavors with peculiar solicitude to render it adequate, effectual and inviolable: by the 8th section of this act it is provided, “That all surplusses of the revenue, which shall remain at the end of any year, and which at the next session of Congress shall not be otherwise appropriated or reserved by law, shall ipso facto become a part of the Sinking Fund.” This fund, by other provisions of the same act, is vested in commissioners in trust, to be applied to the redemption of the debt, by reimbursement or by purchase, until the whole shall be extinguished: and the faith of the United States is expressly engaged, that the monies which are to constitute the fund shall inviolably remain so appropriated and vested, until the redemption of the debt shall be completely effected.

The simple statement of these provisions goes far to confirm the character which we have given to the proposition. But a distinct examination of the reasons by which it is supported, will, when taken in connection with those provisions, place beyond doubt, its absurd and pernicious tendency.
The first inducement offered for relinquishing the internal revenue, is a reasonable ground of confidence that it may safely be dispensed with.
When it is considered that we are in the very crisis of an important change of situation; passing from a state in which neutrality had procured to our commerce and to the revenue depending on it, a great artificial increase—with good reason to look for a diminution, and without satisfactory data to enable us to fix the extent of this dimunition: can any thing be more rash, more empirical, than voluntarily to abandon a valuable and growing branch of income of which we are already in possession? Can it be said that merely “a reasonable ground of confidence” is a sufficient warrant for so important a surrender? Surely we ought to have been told that there was at least a moral certainty of the fact. But even this would not have been deemed enough by a prudent statesman. Nothing less than experimental certainty ought to have been relied upon. There was no pressure of circumstances making it proper to precipitate the measure. It would have been ridiculous to pretend that the burden is so heavy as to demand immediate relief, and without this incentive to relinquishment, experience ought undoubtedly to have been taken as the only fit and sure guide.
Not only is it problematical what the present duties on imports will, for succeeding years produce; but it is in a degree questionable, whether it may not be found necessary to reduce the rates. That they are now high when compared with the commercial capital of our country is not to be denied, and whether they may not be found too high for a beneficial course of our trade, is yet to be decided by experiment. The latter augmentations of the rates of duty, were made at times and under circumstances in the situations of this and of other countries, which forbid us to regard past experience as conclusive on the point.

Should it be said in answer, that the revenues can hereafter be renewed, if on trial it shall be found that they have been prematurely abandoned, the decisive reply is, that this is to invert the natural order of just reasoning. Were it now the question, whether such revenues should be created in anticipation of a possible deficiency, the correct answer would be, let experiment first ascertain the necessity: as they already exist, on a question to abolish them, the answer equally ought to be, let experience first shew them to be unnecessary.
But how can they be unnecessary? Let us grant that the remaining sources will be equal to the purposes enumerated in the Message, does it follow that it will not still be wise to retain the internal revenue? Is it not desirable that government should have it in its power to discharge the debt faster than may have been contemplated? Is not this a felicity in our situation which ought to be improved? A precious item in the public fortune which ought not rashly to be squandered? But it is not even true that the laws have exclusively contemplated a definite period for the ultimate redemption of the entire debt. They have only made a determinate provision for its extinguishment, at all events, within a given term of years; but, anxious to shorten the period, they, in the clause which has been quoted respecting the surplusses of revenue, have made an auxiliary provision for the purpose of abridging that term. The Message, while it goes to impair the efficacy of the principal provision, proposes formally to renounce the auxiliary, and thus to disappoint the provident care of the laws to accelerate the discharge of the debt.
How reconcileable is this with the wanton and unjust clamours heretofore vented against those who projected and established our present system of public credit; charging them with a design to perpetuate the debt under the pretext that a public debt was a public blessing? It is not to be forgotten, that in these clamours Mr. Jefferson liberally participated! Now, it seems, the tone is entirely changed. The past administrations who had so long been calumniated by the imputation of that pernicious design, are of a sudden discovered to have done too much for the speedy discharge of the debt, and its duration is to be prolonged by throwing away a part of the fund destined for its prompt redemption. Wonderful union of consistency and wisdom!
Before we yield our approbation to the proposal, we ought to have a guarrantee for the continuance of our peace, long enough to give effect to the leisurely opperation of that residue of the fund, which it is intended to retain: else war, which never fails to bring with it an accumulation of debt, may intervene, and we may then rapidly hasten to that period when the exigencies of government may render it necessary to appropriate too large a portion of the earnings of labor. To guard against so unfortunate a result, towards which there is always too great a tendency in the affairs of nations, our past administrations have evinced a deep foresight, and exercised a truly patriotic care. Unhappy will it be, if any succeeding projector shall be permitted to frustrate their salutary plan.
It has been seen that the Message anticipates and attempts to answer objections to the dereliction of revenue: the answer is, that “sound principles will not permit us to tax the industry of our citizens to accumulate treasure for wars to happen we know not when, and which might not perhaps happen but for the temptations offered by that treasure.” Unless, however, the accumulation of treasure be the necessary consequence of retaining the revenue, this argument is evidently futile. But the President had only to open our statute book to learn, that this consequence is chimerical. All future surpluses of revenue, being already eventually appropriated to the discharge of the public debt, it follows that till the whole debt shall have been extinguished, there could be no accumulation of treasure—no spoil from that source to tempt the rapacity of a greedy invader. Here we fix the charge of ignorance of our financial arrangements: to which there can be no alternative but a deliberate design to delude the people. Between the two, let the worshippers of the Idol make their option.

Lucius Crassus.


Title: The Examination Number IV, [26 December 1801]
From: Hamilton, Alexander,“Lucius Crassus”
To:

[New York, December 26, 1801]

It is a matter of surprise to observe a proposition to diminish the revenue, associated with intimations which appear to contemplate war. The suggestions in the Message respecting the Barbary States, plainly enough imply, that treaties are found to be too feeble cords to bind them; and that a resort to coercive means will probably be requisite to enforce a greater sense of justice towards us. Accordingly, as a comment on this hint, we have seen a resolution brought into the House of Representatives, authorising the President to take measures effectually to protect our commerce against those states. Believing it to be a sound position, that these predatory nations will never be brought to respect sufficiently the rights of this country, whether derived from nature or from compact, without first being made to feel its power, there is no disposition to condemn the effacious employment of force. Yet, considering the maxims by which those states are governed, and the obstinacy which they have evinced upon other occasions, it is likely that a policy of this sort will be attended with considerable, and with no very temporary expence. This alone is conceived to be a conclusive reason against parting with any portion of our present income: nothing could be less adviseable, at a moment when there is the prospect, if not the project, of a general rupture with them.
Hitherto the proposal for sacrificing the internal revenue, has been tried almost wholly by the test of expediency; it is time to put it to a severer test: to that of Right. Can the proposed abolition take effect without impairing the Public Faith?
This is a question of infinite moment to the character of our Government—to the prosperity of our nation. If it is to be answered in the negative, it must be matter of profound regret, that a proposal which could give to it, should have come from the first Magistrate of the United States.
It is hardly necessary to premise, by way of explanation, that to pledge or appropriate funds for a public debt, is, in effect, to mortgage them to the public creditors for their security. Retracing our financial system to its commencement, we find the impost and the excise on distilled spirits, repeatedly and positively pledged, first, for the payment and interest of the debt, next, for the reimbursement of certain instalments of the principal. It is true, the appropriation is qualified by the words, “so much as may be necessary,” but the public faith is engaged in express terms, that both the funds shall continue to be levied and collected, until the whole debt shall be discharged; with the single reserve, that the government shall be at liberty to substitute other funds of equal amount. It follows, that these two items of revenue constitute a joint fund for the security of the public creditor, co-extensive in duration with the existence of any portion of the debt: and it is to be inferred, that the Government, contemplating the possibility of a deficiency in one, intended that the other should serve as an auxiliary, and that the co-operation of the two should effectually guard the creditor against the fluctuations and casualties to which either singly, might be exposed. Anticipating, however, the possibility that the one or the other, in whole or in part, might in practice be found inconvenient, a right was reserved to exchange either for an adequate substitute. But it is conceived, that this does not imply the right to exchange the one for the other. The effect would be essentially different in the two cases: in the first there would always be two funds, aggregately of the same or similar force and value, to secure the creditor; in the last there wou’d be only one: from being double, the security would become single.
This mode of reasoning is the only one, upon which the rights and the interests of the creditors can safely rest: It is plain and intelligible, and avoids the danger of erroneous speculations about the separate sufficiency of the respective funds. Admitting, however, for the sake of the argument, that this is too rigid a construction of the contract, and that when one of the two funds should have acquired a stable increase, which would render it equal to the purpose of the pledge, it might then be made to stand in the place of both: yet, surely, neither the purity of the public faith, nor the safety of the creditor, will endure the application of this principle to any other, than an ascertained result. Neither, certainly, will tolerate, that merely a reasonable ground of confidence shall authorise so material an alteration in the essence of the security which protects the debt.
The foregoing reasoning as to the question of right, may be further elucidated by the particular provision in the Act
   Passed March 3d, 1791
 which introduced the excise on distilled spirits. After a permanent appropriation of the proceeds of the tax to the interest of the debt, it provides, that the surplus if any there shall be, at the end of each year shall be applied to the reduction of the principal; unless that surplus or any part of it should be required for public exigencies of the United States, and should be so appropriated by special “Acts of Congress.” While at this early period of our finances it was not thought expedient to appropriate this surplus absolutely to the Sinking Fund, it was contemplated that it shou’d not be diverted except for public exigencies. Gratuitously to relinquish it, is therefore contrary to the letter as well as to the spirit of the original institution of the fund. The like observations, though with less force, apply to the provision noticed in another number, respecting the surplusses of the revenue generally, which, as we have seen, are all appropriated to the Sinking Fund. At the session of Congress immediately succeeding any year in which such surplusses may accrue, they may be specially appropriated or reserved by law, for other purposes; but if this be not done, they are then to go of course to the Sinking Fund. To appropriate or to reserve, plainly, can never mean to relinquish. The true meaning of the provision appears, therefore, to be that, though Congress under the restriction expressed as to time, may appropriate or reserve those surplusses for other objects of the public service, yet if not wanted for such other objects, they shall continue to enure to the fund for the reduction of the debt, so long as by the laws regulating their duration they are to continue to be levied.
Thus, on whatever side it is viewed, there is a temerity and a levity in the proposition which confounds and amazes. If, unhappily, it shall receive the sanction of Congress, there will remain nothing in principle of our system of Public Credit—nothing on which the confidence of the creditor can safely repose. The precedent of a fatal innovation will have been established; and its extension to a total annihilation of the security, would be a step, not much more violent, than that by which the inroad had commenced. But it is devoutly to be hoped, that the delirium of party spirit will not so far transport the Legislative Representatives of the nation, as to induce them to put the seal to a measure, as motiveless—as precipitate—as impolitic—as faithless—as could have been dictated, even by a deliberate hostility to the vital principles of our national credit. Peculiarly the guardians of the Public Faith, and of the Public Purse, they surely will not consent to impoverish the one, and the other, through an abject and criminal complaisance.

It is a fact not unknown to himself, that abroad as well as at home, a diffidence has been entertained of the opinions and views of the person now at the head of our government, with regard to our system of public credit. This undoubtedly ought to have been with him a strong reason for caution, especially at so early a stage of his administration as to any step which might strengthen that diffidence; which was in the least equivocal in its tendency. Nor ought it to have been overlooked, that the interest of the State, and a regard for his own reputation demanded this caution. The appearance of instability in the plans of a government, particularly respecting its finances, can never fail to make injurious impressions. To a government, the character of which has not yet been established by time, the example of sudden and questionable innovations, may be expected to be in the highest degree detrimental. Prudent men every where are apt to take the alarm at great changes not manifestly beneficial and proper; a disposition which has been much increased by the terrible events of the present revolutionary æra. Yet, disregarding these salutary and obvious reflections, the President has ventured, in the very infancy of his administration, upon the bold and unjustifiable step of recommending to the legislative body, a renunciation of the whole internal revenue of the country; though the nation is at this moment encumbered with a considerable public debt; and though that very revenue, is, by the existing laws, an established fund for its discharge.
What then are we to think of the ostentatious assurance in the Inagural Speech as to the preservation of Public Faith? Was it given merely to amuse with agreeable, but deceptive sounds? Is it possible that it could have been intended to conceal the insidious design of aiming a deadly blow at a System which was opposed in its origin, and has been calumniated in every stage of its progress?
Alas! How deplorable will it be, should it ever become proverbial, that a President of the United States, like the Wierd Sisters in Macbeth, “Keeps his promise to the ear, but breaks it to the sense!”

Lucius Crassus.


Title: To Alexander Hamilton from James A. Bayard, 29 December 1801
From: Bayard, James A.
To: Hamilton, Alexander

Washington, December 29. 1801. States that “the cause of Messrs. Graves & Barnwell in which you were so obliging to mention my name as Counsel to the Plaintiffs” was argued in the Supreme Court of the United States and decided in favor of the defendant.


Title: From Alexander Hamilton to Pierre Charles L’Enfant, [1801]
From: Hamilton, Alexander
To: L’Enfant, Pierre Charles

[1801]

Mr. Hamilton called at Major L’Enfant’s this Afternoon, with intent to communicate something interesting. He will be glad to see the Major, at his house, this Evening or tomorrow Morning.
Monday


Title: From Alexander Hamilton to Robert Troup, 1801
From: Hamilton, Alexander
To: Troup, Robert

[New York, 1801. The dealer’s catalogue description of this letter reads: “in regard to the case of the Ringwood Iron Co.” Letter not found.]


Title: The Examination Number VI, [2 January 1802]
From: Hamilton, Alexander,“Lucius Crassus”
To:

[New York, January 2, 1802]

In answer to the observations in the last number it may perhaps be said that the Message meant nothing more than to condemn the recent multiplication of Federal Courts, and to bring them back to their original organization: considering it as adequate to all the purposes of the Constitution; to all the ends of justice and policy.
Towards forming a right judgment on this subject, it may be useful to those who are not familiar with the subject, to state briefly what was the former and what is the present establishment.
The former consisted of one Supreme Court with six judges, who, twice a year made the tour of the United States, distributed into three circuits, for the trial of causes arising in the respective districts of each circuit; and of fifteen District Courts, each having a single judge. The present consists of one Supreme Court with the like number of judges, to be reduced on the first vacancy happening, to five; of six Circuit Courts, having three distinct judges each, excepting one circuit which has only a single Circuit judge; and of twenty-two District Courts with a judge for each as before: In both plans the Supreme Court is to hold two terms at the scat of government, and the Circuit Courts to be holden twice a year in each district. The material difference in the two plans, as it respects the organs by which they are executed is reducible to the creation of twenty-three additional Judges; sixteen for the six Circuits Courts, seven for the superadded District Courts, and the addition of the necessary clerks, marshals, and subordinate officers of seven Courts. This shews at a single view that the difference of expence as applied to the United States is of trifling consideration.
But here an enquiry naturally presents itself; why was the latter plan substituted to the former and more economical one? The solution is easy and satisfactory. The first was inadequate to its object, and incapable of being carried into execution. The extent of the United States is manifestly too large for the due attendance of the six Judges in the Circuit Courts. The immense journies they were obliged to perform, kept them from their families for several successive months in every year; this rendered the office a grievous burden, and had a strong tendency to banish or exclude men of the best talents and characters, from these important stations. It is known to have been no light inducement with one Chief Justice, whose health was delicate, to quit that office for another attended with less bodily fatigue; and it is well understood that other important members of the Supreme Court were prepared to resign their situations, if there had not been some alteration of the kind which has taken place. It was also no uncommon circumstance for temporary interruptions in the health of particular judges, of whom only one was attached to a Circuit, to occasion a failure in the sessions of the Courts, to the no small disappointment, vexation and loss of the suitor. At any rate the necessity of visiting, within a given time, the numerous parts of an extensive circuit, unavoidably rendered the sessions of each Court so short, that where suits were in any degree multiplied, or intricate, there was not time to get through the business with due deliberation. Besides all this, the incessant fatigues of the judges of the Supreme Court, and their long and frequent absences from home, prevented that continued attention to their studies, which even the most learned will confess to be necessary for those, entrusted in the last resort with questions frequently novel, always of magnitude, affecting not only the property of individuals, but the rights of foreign nations, and the constitution of the country.
For these reasons it became necessary either to renounce the Circuit Courts, or to constitute them differently: the latter was preferred. The United States were divided into six Circuits, with a proper number of Judges to preside over each. No man of discernment will pretend that the number of circuits is too great. Surely three states forming an area of territory equal to that possessed by some of the first powers of Europe, must afford a quantity of business fully sufficient to employ three Judges on a Circuit, twice a year, and certainly not less than this will suffice for the dispatch of business, whether the number of causes be small or great. The inconsiderable addition made to the number of the District Courts will hardly excite criticism, and does not, therefore, claim a particular discussion, nor will their necessity be generally questioned. They are almost continually occupied with revenue, and admiralty causes; besides the great employment collaterally given to the Judges, in the execution of the Bankrupt Act, which probably must encrease instead of being diminished.
Perhaps it may be contended, that the Circuit Courts ought to be abolished altogether, and the business for which they are designed, left to the State Courts, with a right of appeal to the Supreme Court of the United States. Indeed, it is probable that this was the true design of the intimation in the Message. A disposition to magnify the importance of the particular States, in derogation from that of the United States, is a feature in that communication, not to be mistaken. But to such a scheme there are insuperable objections. The right of appeal is by no means equal to the right of applying, in the first instance, to a Tribunal agreeable to the suitor. The desideratum is to have impartial justice, at a moderate expence, administered “promptly and without delay;” not to be obliged to seek it through the long and tedious and expensive process of an appeal. It is true, that in causes of sufficient magnitude, an appeal ought to be open; which includes the possibility of going through that process: but when the Courts of original jurisdiction are so constituted as not only to deserve but to inspire confidence, appeals, from the inevitable inconvenience attached to them, are exceptions to the general rule of redress; where the contrary is the situation, they become the general rule itself. Appeals then multiplied to a pernicious extent; while the difficulties to which they are liable, operate in numerous instances as a preventative of justice, because they fall with most weight on the least wealthy suitor. It is to be remembered, that the cases in which the Federal Courts would be preferred, are those, where there would exist some distrust of the State Courts; and this distrust would be a fruitful source of appeals. To say that there could be no good cause for this distrust, and that the danger of it is imaginary, is to be wiser than experience, and wiser than the constitution. The first officer of the Government, when speaking in his official capacity, has no right to attempt to be thus wise. His duty exacts of him that he should respectfully acquiesce in the spirit and ideas of that instrument under which he is appointed.
The detail would be invidious, perhaps injurious; else it would be easy to shew, that however great the confidence to which the tribunals in some of the States are entitled, there is just cause for suspicion as to those of others; and that in respect to a still greater number, it would be inexpedient to delegate to them the care of interests which are specially and properly confided to the Government of the United States.
The plan of using the State Courts as substitutes for the Circuit Courts of the Union, is objectionable in another view. The citizens of the United States have a right to expect from those who administer our Government, the effacious enjoyment of those privileges as suitors for which the Constitution has provided. To turn them round, therefore, from the enjoyment of those privileges, in originating their causes to the eventual and dilatory resource of an appeal, is in a great degree to defeat the object contemplated. This is a consideration of much real weight, especially to the merchants in our Commercial States.
In the investigation of our subject, it is not to be forgotten, that the right to employ the agency of the State Courts for executing the laws of the Union, is liable to question, and has, in fact, been seriously questioned. This circumstance renders it the more indispensible, that the permanent organization of the Federal Judiciary should be adapted to the prompt and vigorous execution of those laws.
The right of Congress to discontinue judges, once appointed, by the abrogation of the Courts for which they were appointed, especially as it relates to their emoluments, offers matter for a very nice discussion, but which shall now be but superficially touched.
On the one head it is not easy to maintain that Congress cannot abolish Courts, which having been once instituted, are found in practice to be inconvenient and unnecessary: On the other, if it may be done, so as to include the annihilation of existing Judges, it is evident that the measure may be used to defeat that clause of the Constitution which renders the duration and emoluments of the judicial office coextensive with the good behavior of the officer; an object essential to the independence of the Judges, the security of the citizen and the preservation of the government.
As a medium which may reconcile opposite ideas and obviate opposite inconveniences, it would perhaps, be the best and safest practical const[r]uction to say, that though Congress may abolish the Courts, yet shall the actual Judges retain their character and their emoluments, with the authorities of office, so far as they can be exercised elsewhere than in the courts. For this construction a precedent exists in the last arrangement of the Judiciary. Though the number of Judges of the Supreme Court is reduced from six to five, yet the actual reduction is wisely deferred to the happening of a vacancy. The expence of continuing the salaries of the existing incumbent, cannot prudently, be put in competition with the advantage of guarding from invasion, one of the most precious provisions in the Constitution. Nor ought it to be without its weight, that this modification will best comport with good faith on the part of Government, towards those who had been invited to accept offices, not to be held by an uncertain tenure, but during good behavior.
Weighing maturely all the very important and very delicate considerations, which appertain to the subject, would a wise or prudent statesman hazard the consequences of immediately unmaking at one session, Courts and Judges which had only been called in into being at the one preceding? Delectable indeed must be the work of disorganization to a mind which can thus rashly advance in its prosecution! Infatuated must that people be, who do not open their eyes to projects so intemperate—so mischievous! Who does not see what is the ultimate object? “Delenda est Carthago”—ill-fated Constitution, which Americans had fondly hoped would continue for ages, the guardian of public liberty, the source of national prosperity!

Lucius Crassus.


Title: To Alexander Hamilton from Philip Schuyler, 2 January 1802
From: Schuyler, Philip
To: Hamilton, Alexander

My Dear Sir
Albany Saturday Jany 2d: 1802

Your letter of Mondays date only reached me this Morning.
My Coachman Toby is very Much Indisposed. My other Servants abroad on their holyday frolick, that I can only send Anthony to morrow morning he will carry a pair of horses to relieve yours, or If a Snow falls in the course of the night he will go in my Sleigh.
When You arrive at the Ferry at greenbush, Stop at the tavern and Send Anthony over to me, that I may send down a Sleigh to draw you, my Eliza & Children across the River by hand, for It will be Imprudent to Venture either in the Wheel Carriage or in a Sleigh with horses before It.
I am much, very much better and hope soon to be on my legs. All here Unite in Love
from My Dear Sir   Ever Yours most affectionately

Ph: Schuyler
Gen. Hamilton


Title: To Alexander Hamilton from Chevalier de Colbert, 4 January 1802
From: Colbert, Chevalier de
To: Hamilton, Alexander

Paris, January 4, 1802. Expresses condolences on the death of Philip Hamilton. Requests Hamilton, as his attorney, to take action to secure for him the lands in Georgia granted to Comte d’Estaing. Also requests Hamilton to settle his accounts with Robert Morris to whom he had advanced money that was secured by some of Morris’s holdings in the Genesee country.


Title: The Examination Number VIII, [12 January 1802]
From: Hamilton, Alexander,“Lucius Crassus”
To:

[New York, January 12, 1802]

Resuming the subject of our last paper we proceed to trace still farther, the consequences that must result from a too unqualified admission of foreigners, to an equal participation in our civil, and political rights.

The safety of a republic depends essentially on the energy of a common National sentiment; on a uniformity of principles and habits; on the exemption of the citizens from foreign bias, and prejudice; and on that love of country which will almost invariably be found to be closely connected with birth, education and family.
The opinion advanced in the Notes on Virginia is undoubtedly correct, that foreigners will generally be apt to bring with them attachments to the persons they have left behind; to the country of their nativity, and to its particular customs and manners. They will also entertain opinions on government congenial with those under which they have lived, or if they should be led hither from a preference to ours, how extremely unlikely is it that they will bring with them that temperate love of liberty, so essential to real republicanism? There may as to particular individuals, and at particular times, be occasional exceptions to these remarks, yet such is the general rule. The influx of foreigners must, therefore, tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. In the composition of society, the harmony of the ingredients is all important, and whatever tends to a discordant intermixture must have an injurious tendency.
The United States have already felt the evils of incorporating a large number of foreigners into their national mass; it has served very much to divide the community and to distract our councils, by promoting in different classes different predilections in favor of particular foreign nations, and antipathies against others. It has been often likely to compromit the interests of our own country in favor of another. In times of great public danger there is always a numerous body of men, of whom there may be just grounds of distrust; the suspicion alone weakens the strength of the nation, but their force may be actually employed in assisting an invader.
In the infancy of the country, with a boundless waste to people, it was politic to give a facility to naturalization; but our situation is now changed. It appears from the last census, that we have increased about one third in ten years; after allowing for what we have gained from abroad, it will be quite apparent that the natural progress of our own population is sufficiently rapid for strength, security and settlement. By what has been said, it is not meant to contend for a total prohibition of the right of citizenship to strangers, nor even for the very long residence which is now a prerequisite to naturalization, and which of itself, goes far towards a denial of that privilege. The present law was merely a temporary measure adopted under peculiar circumstances and perhaps demands revision. But there is a wide difference between closing the door altogether and throwing it entirely open; between a postponement of fourteen years and an immediate admission to all the rights of citizenship. Some reasonable term ought to be allowed to enable aliens to get rid of foreign and acquire American attachments; to learn the principles and imbibe the spirit of our government; and to admit of at least a probability of their feeling a real interest in our affairs. A residence of at least five years ought to be required.
If the rights of Naturalization may be communicated by parts, and it is not perceived why they may not, those peculiar to the conducting of business and the acquisition of property, might with propriety be at once conferred, upon receiving proof, by certain prescribed solemnities, of their intention to become citizens; postponing all political privileges to the ultimate term. To admit foreigners indiscriminately to the rights of citizens, the moment they put foot in our country, as recommended in the Message, would be nothing less, than to admit the Grecian Horse into the Citadel of our Liberty and Sovereignty.

Lucius Crassus.


Title: To Alexander Hamilton from Rufus King, 12 January 1802
From: King, Rufus
To: Hamilton, Alexander

My dear Sir
London January 12. 1802

Both as a friend and a father I do most unfeignibly participate and condole with you in the heavy affliction that has fallen upon your family. It would be altogether vain for me to have recourse to the usual Topics of consolation, in so severe a Calamity: it must be sought for among the treasures of your own Mind, which nature has so eminently endowed; and after a while, it will likewise be found in the promising Branches of your family, which remain to recall to your remembrance, as well as to console you for, the loss you have suffered.
with the most faithful Regard and attachment.   I am My Dr Sir Yr. affectionate Friend

Rufus King
A. Hamilton Esqr


Title: To Alexander Hamilton from Charles W. Hare, 14 January 1802
From: Hare, Charles W.
To: Hamilton, Alexander

Philadelphia, January 14, 1802. Describes the arrangement he “made with Col. Burr on the subject of Mr Angersteins debt.” States: “I have paid 20 Dlls 67 to the keeper of the city tavern on account of your son’s bill and have taken a receipt in full. I enquired for other bills, but could not find any, and I believe he owed nothing more.”


Title: To Alexander Hamilton from William Henderson, 15 January 1802
From: Henderson, William
To: Hamilton, Alexander

Dear sir.
New york Jany. 15th. 1802

The Committee which has been appointed here, to act on behalf of the Sufferrers by French Captures, have requested me to write to you, for the draft of such a memorial as you think would be proper to present to Congress on the subject of their claims. it is probable that similar applications for relief, will be made from all the trading Towns in the Union; & perhaps from an united effort some good may be obtained. it has been suggested, that as this is a business of great consequence and of National concern, whether it would not be right to request in the Memorial, that Congress would allow the Memorialists to be hear’d by Council in support of their claims. you can best judge how far such a request would be proper. it is desireable that no time should be lost in making the application; and it will be considered as a particular favor, if you will forward me the draft of the memorial, as soon as the business you are engaged in will permit.
I am with the utmost esteem your very Hume. st.

Wm Henderson
Genl. Hamilton


Title: The Examination Number X, [19 January 1802]
From: Hamilton, Alexander,“Lucius Crassus”
To:

[New York, January 19, 1802]

The same Subject continued.
As to Holland being the second power which acknowledged our Independence, and made a treaty with us, a step which involved her in war with Great Britain, it was deemed proper to treat her with a marked respect. Besides this, from the time of our revolution to the present, we have had large money concerns with her people. A trusty and skilful public agent was for a long time necessary to superintend those concerns. If in a different capacity, it could not have cost much less, and by the annexation of a diplomatic character, a double purpose was answered. The honourable nature of the station enabled the Government to find an agent at a less expence than would have been requisite to procure one merely for the money object. It is not meant to deny, that the great change which has lately happened in the affairs of that country, making it in effect a dependency on France, rendered a removal of the minister proper; but it does not follow that it ought to have been done sooner. It is also known, that Mr. Murray, the late envoy, has been for a considerable time past, employed in our negociations with France; which probably was a collateral reason for not recalling him sooner. In respect to one, if not to both these ministers, it may be observed, that a time of war was not the most eligible moment for the removal of a minister.
As to Berlin, the inducements for keeping a minister there, have never been fully explained. It is only known, that our commercial treaty with Prussia had expired, and that a renewal has been effected by the envoy sent thither; but influental as was the Court of Prussia in the affairs of Europe during the late dreadful storm, it may have been conceived, that a cultivation of the good will of the Prussian Monarch was not a matter of indifference to the peace and security of this country. If this was the object of the mission, though there may have been too far-fetched a policy in the case, it offers a defence of the measure which, exculpates the executive at least from the charge of a desire to multiply officers improvidently.
On the most unfavourable supposition then, here was one diplomatic agent too many, and two others were continued longer than was absolutely necessary. This surely is not of magnitude sufficient to constitute a serious charge, where malevolence did not inspire a spirit of accusation. In considering this question, it ought to be remembered, that it is the prevailing policy of Governments to keep diplomatic agents at all Courts where they have important relations.
As to the navy agents it is sufficient to say, that they were temporary persons who grew up out of our rupture with France; who when they were appointed, were useful to accelerate naval preparations at as many points as could be advantageously occupied, and that it was only proper to discontinue them when an accomodation had been effected, and after they had had time enough to wind up the affairs of their agency. This was not the case previous to Mr. Jefferson’s administration. In other instances of removal he only did it to make way for members of his own sect, and it will not be pretended that here there was any foundation for the charge under examination.
As to the inspectors of the Revenue, the case in brief stands thus—When the excise on distilled spirits was established, three different descriptions of officers were instituted to carry it into effect. Supervisors, Inspectors and Collectors were distributed to districts, surveys and divisions, one to each. A district comprehends an entire state: a survey some large portion of it or a number of counties; a division for the most part a single county. In some of the small states there were no district officers for the surveys—the duties of inspector being annexed to those of supervisor; in larger ones there were Inspectors more or less numerous according to their extent. As other internal revenues were established, they were put under the management of the same officers. The bare statement of the fact shews the necessity of these officers. The revenues of no government were perhaps ever collected under a more simple organization, or through a smaller number of channels. It is not alleged that the first and last classes of officers were unnecessary. It is only to the middle class that any specious objection can be made. Let us conjecture the reasons for employing them.
In some of the States great opposition was expected, and was actually experienced. In such States especially it was evidently useful to have the exertions of some men of weight and character in their sphere of moderate extent, to reconcile the discontented; to arrange the details of business, and to give energy to the measures for collection. In others similar officers were probably useful in the early stages, for the purpose of establishing the details simply. The subdivision was in all cases favourable to an active and vigilant superintendence. Nor does it require extraordinary penetration to discern that the policy was wise at the time when the measures were adopted. It is possible that upon the complete establishment of the plan, when all opposition had been vanquished, and when the collection has become an affair of mere routine, that this intermediate class may have ceased to be essential. But till this had become perfectly evident, it would have been premature to alter the original plan. Though it be true, that some years have elapsed since the excise law was passed, it is not very long since it has been in full and uninterrupted operation. Other laws introducing other branches of internal revenue, have been subsequently passed from time to time, and the agency of the same officers have probably been found useful on their first introduction and execution. Hence it is easily accounted for that they were not before discontinued, if indeed experience has shewn that they are not still necessary, which is itself problematical. Nothing is more easy than to reduce the number of agents employed in any business, and yet for the business to go on with the reduced number. But before the reduction is applauded, it ought to be ascertained that the business is as well done as it was before. There is a wide difference between merely getting along with business and doing it well and effectually.
These observations sufficiently shew that in the instances which have been cited, there is no evidence of a disposition in the preceding Administrations, improperly to multiply Offices and Officers. Acting under different circumstances, they conducted as those circumstances dictated, and in all probability, in a manner the best adapted to the advancement of the public service. A change of circumstances, may in some instances have rendered a continuance of some of the agents thus employed unnecessary; and the present Chief Magistrate may even be right in discontinuing them; but it is not therefore right to attempt to derive from this any plea of peculiar merit with the people; and it is very far from right to make it a topic of slander on predecessors. Perhaps however this is too rigorous a construction and that nothing more was intended than to set off to the best advantage, the petty services of petty talents.
If this was the true aim, it is be regretted that it was not so managed as to avoid the appearance of a design to depreciate in the public estimation, the men who went before. Had this delicacy or caution been observed, the attempt would have attracted neither notice nor comment.

“Commas and points he sets exactly right,
And ’twere a sin to rob him of his mite.”

Lucius Crassus.


Title: Draft of a Resolution for the Legislature of New York for the Amendment of the Constitution of the United States, [29 January 1802]
From: Clinton, DeWitt,Hamilton, Alexander
To: Legislature of New York State

[Albany, January 29, 1802]

Resolved, as the sense of the Legislature, that the following amendments ought to be incorporated into the Constitution of the United States as a necessary safeguard in the choice of a President and Vice President against pernicious dissensions as the most eligible mode of obtaining a full and fair expression of the public will in such election.
1st. That Congress shall from time to time divide each State into Districts equal to the whole number of Senators and Representatives from such state in the Congress of the United States, and shall direct the mode of choosing an Elector of President and Vice President in each of the said Districts, who shall be chosen by Citizens who have the qualifications requisite for Electors of the most numerous branch of the State Legislature, and that the districts shall be formed, as nearly as may be, with an equal proportion of population in each, and of Counties and, if necessary, parts of Counties contiguous to each other, except when there may be any detached portion of territory not sufficient of itself to form a District which then shall be annexed to some other part nearest thereto.
2nd. That in all future elections of President and Vice President the persons voted for shall be particularly designated by declaring which is voted for as President and which as Vice President.
Resolved that the President of the Senate and Speaker of the Assembly transmit a copy of the preceding Resolutions to the Senators and Representatives in Congress from this State with an earnest request that they would use their best exertions for obtaining the adoption of the above amendments or other amendments in substance equivalent so as that the President and Vice President may be separately designated in voting for them and that the electors for both may be chosen in distinct Districts.


Title: Alexander Hamilton and Richard Harison to Charles Williamson, 1 February 1802
From: Hamilton, Alexander,Harison, Richard
To: Williamson, Charles

Albany, February 1, 1802. Urge Williamson to avoid litigation by settling his dispute with William Hornby and Patrick Colquhoun out of court.


Title: Remarks on the Repeal of the Judiciary Act, First Version, [11 February 1802]
From: Hamilton, Alexander
To:

[New York, February 11, 1802]
After some pause, Gen. Hamilton rose. He began with stating his own decided opinion, that the contemplated repeal of the late act, taken in connexion with the known and avowed object of that repeal, was an unequivocal violation of the constitution in a most vital part. However, he did expect that on that point, the gentlemen present would be unanimous. Neither had he any hope that any representations whatever, would arrest the contemplated blow. In this opinion, and because he thought the Bar ought to hold themselves too high to idly commit their own dignity by an opposition which they must know would be fruitless, he was opposed to the idea of memorializing Congress at all. He observed also, that the reception which the petition of the Pennsylvania Bar had met with, and the manner in which the bill had been immediately afterwards hastened in its progress, gave no encouragement to the hope that ours would be better received. He then said that from respect to our brethren of Philadelphia, and since we were called upon to express an opinion, he inclined to the idea of a letter to those gentlemen, rather than a memorial. In this view he submitted the draft of a letter to the meeting, in which it had been endeavoured so to express, as that gentlemen of every political opinion might join in.…
Mr. Harison and Gen. Hamilton followed, and in a very able, dispassionate and conclusive manner, demonstrated the inefficacy of the former Judiciary system—the importance of an independent Federal Judiciary—and the trivial amount of its expence, compared with the benefits resulting from it, to every individual in the community.…
Gen. Hamilton again rose. He felt little zeal upon this subject, because he believed that no possible exertions could arrest the blow aimed at the constitution. Respecting what was observed of secret popular societies, he said, the baneful effects of them were not confined to modern times, but had been felt in some of the ancient republics, as was noticed by Montesquieu. He repeated, that they were the most dangerous engines ever employed against free governments. He mentioned the example of a great kingdon subverted by their influence, and which had found no relief but in the horrid calm of despotism. An occasional and public meeting of individuals to petition the legislature, have no resemblance to a secret, organized and extensive combination of political societies. He declared in the most emphatic manner, that if the bill for the repeal passed, and the independence of the Judiciary was destroyed, the constitution was but a shadow, and we should, e’er long, be divided into separate confederacies, turning our arms against each. He solemnly called heaven to witness his devout desire that the system of government adopted among us might prosper; but his hope in their prosperity was much weakened, when he perceived them becoming the spoil of popular intrigue, and one after another “crumbling beneath him.” Between a government of laws, administered by an independent Judiciary, or a despotism supported by an army, there was no medium. If we relinquish one, we must submit to the other. He pathetically deplored the event to which we hasten, but intimated no hope that any human exertions could avert it.…


Title: Remarks on the Repeal of the Judiciary Act, Second Version, [11 February 1802]
From: Hamilton, Alexander
To:

He [Hamilton] confessed with seeming sincerity, he felt little zeal on the present occasion. He could prove that to repeal the judiciary law and to with-hold the salaries of the judges, would be an infringement of the constitution. He did not intend, however, to dwell on the constitutionality of the question. He allowed that gentlemen might have different opinions concerning it. His primary object was to obtain the unanimous vote of the Bar against the expediency of the repeal. He admitted that the present, as well as the old judiciary system, were defective. He was well disposed, nevertheless, towards the present one, since he thought it an improvement on the old judiciary law. He was averse to presenting a memorial to Congress on the subject. Still he thought that the opinions of the gentlemen of the Bar of this city on it ought to be made known. He conceived that the gentlemen of the Bar of Philadelphia had been indecorously treated by the Senate. And he thought the profession in this city ought more duly to appreciate their worth, than to subject themselves, by memorializing Congress, to that ill treatment which the Bar of Philadelphia had received from the Senate.… He was solicitous to unite the profession in one sentiment. To this end, he had, with much caution, formed an answer to the letter received from Philadelphia, and submitted it to the consideration of the gentlemen as a basis of a resolution. (This letter was approbatory of the proceedings of the profession in Philadelphia.) …
General Hamilton delivered what is termed a most eloquent speech. He found that the gentlemen of the Bar were nearly equally divided. He therefore threw off that imposing but veiled modesty with which he commenced the business of the evening: attacked the passions, but kept aloof from the understanding, although addressing the profession. He declared that he would “give one drop of blood from his heart to unite them in sentiment on that occasion.” The want of zeal which he felt in the early part of the evening, vanished when he found the pretended absence answered not the intended end. He said that if the judiciary law should be repealed he should consider the constitution as a dead letter. He had long foreseen what had come to pass. He hinted that he often doubted the practicability of a government like ours. He dreaded the consequences of a repeal. He desired them to remember what he was about to say, to wit, that we should soon see State “arrayed against State to embrue their hands in each other’s blood.” In which case, some daring usurper (he did not mention himself) would arise, seize the reins of government, and, like Bonaparte, establish a despotism. In this threatening manner he harangued about twenty minutes, intending to produce by terror, what he could not effect by reason.


Title: The Examination Number XII, [23 February 1802]
From: Hamilton, Alexander,“Lucius Crassus”
To:

[New York, February 23, 1802]

From the manner in which the subject was treated in the fifth and sixth numbers of The Examination, it has been doubted, whether the writer did or did not entertain a decided opinion as to the power of Congress to abolish the offices and compensations of Judges, once instituted and appointed pursuant to a law of the United States. In a matter of such high constitutional moment, it is a sacred duty to be explicit. The progress of a bill lately brought into the Senate for repealing the law of the last session, entitled, “An act to provide for the more convenient organization of the courts of the U. States,” with the avowed design of superceding the judges, who were appointed under it, has rendered the question far more serious than it was while it rested merely on the obscure suggestion of the Presidential Message. ’Till the experiment had proved the fact, it was hardly to have been imagined, that a majority of either house of Congress, whether from design or error, would have lent its sanction to a glaring violation of our national compact, in that article, which of all others is the most essential to the efficiency and stability of the Government; to the security of property; to the safety and liberty of person. This portentous and frightful phenomenon has, nevertheless, appeared. It frowns with malignant and deadly aspect upon our constitution. Probably before these remarks shall be read, that Constitution will be no more! It will be numbered among the numerous victims of Democratic phrenzy; and will have given another and an awful lesson to mankind—the prelude perhaps of calamities to this country, at the contemplation of which imagination shudders!
With such a prospect before us, nothing ought to be left unessayed, to open the eyes of thinking men to the destructive projects of those mountebank politicians, who have been too successful in perverting public opinion, and in cheating the people out of their confidence; who are advancing with rapid strides in the work of disorganization—the sure fore-runner of tyranny; and who, if they are not arrested in their mad career, will, ere long, precipitate our nation into all the horrors of anarchy.
It would be vanity to expect to throw much additional light upon a subject which has already exhausted the logic and eloquence of some of the ablest men of our country; yet it often happens, that the same arguments placed in a new attitudes, and accompanied with illustrations which may have escaped the ardor of a first research, serve both to fortify and to extend conviction. In the hope that this may be the case, the discussion shall be pursued with as much perspicuity and brevity, as can be attained.
The words of the constitution are, “The Judges both of the Supreme and Inferior Courts shall hold their offices during good behaviour, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.”
Taking the literal import of the terms as the criterion of their true meaning, it is clear, that the tenure or duration of the office is limited by no other condition than the good behaviour of the incumbent. The words are imperative, simple, and unqualified: “The Judges shall hold their offices during good behaviour.” Independent therefore of any artificial reasoning to vary the nature and obvious sense of the words, the provision must be understood to vest in the Judge a right to the office, indefeasible but by his own misconduct.
It is consequently the duty of those who deny this right, to shew either that there are certain presumptions of intention deducible from other parts of the constitutional instrument, or certain general principles of constitutional law or policy, which ought to control the literal and substitute a different meaning.

As to presumptions of intention different from the import of the terms, there is not a syllable in the instrument from which they can be inferred; on the contrary, the latter member of the clause cited, affords very strong presumption the other way.
From the injunction, that the compensation of the Judges shall not be diminished, it is manifest, that the Constitution intends to guard the Independence of those Officers against the Legislative Department: Because, to this department alone would have belonged the power of diminishing their compensations.
When the Constitution is thus careful to tie up the Legislature, from taking away part of the compensation, is it possible to suppose that it can mean to leave that body at full liberty to take away the whole? The affirmative imputes to the Constitution the manifest absurdity of holding to the Legislature this language, “You shall not weaken the Independence of the Judicial character, by exercising the power of lessening his emolument, but you may destroy it altogether, by exercising the greater power of annihilating the recompence with the office.” No mortal can be so blind as not to see, that by such a construction, the restraint intended to be laid upon the Legislature by the injunction not to lessen the compensations, becomes absolutely nugatory.
In vain is a justification of it sought in that part of the same article which provides that “The Judicial power of the United States shall be vested in one Supreme Court and in such Inferior Courts as the Congress may from time to time ordain and establish.” The position that a discretionary power to institute Inferior Courts includes virtually a power to abolish them, if true, is nothing to the purpose. The abolition of a Court does not necessarily imply that of its Judges. In contemplation of law, the Court and the Judge are distinct things. The Court may have a legal existence, though there may be no Judge to exercise its powers. This may be the case either at the original creation of a Court, previous to the appointment of a Judge, or subsequently by his death, resignation or removal: In the last case, it could not be pretended that the Court had become extinct by the event. In like manner, the office of the Judge may subsist, though the Court in which he is to officiate may be suspended or destroyed. The duties of a Judge, as the office is defined in our Jurisprudence, are two fold—judicial and ministerial. The latter may be performed out of Court, and often without reference to it. As conservator of the peace, which every judge is ex officio, many things are done not connected with a judicial controversy, or to speak technically, with a lis pendens. This serves to illustrate the idea, that the office is something different from the Court; which is the place or situation for its principal action, yet not altogether essential to its activity. Besides, a Judge is not the less a Judge when out of Court than when in Court. The law does not suppose him to be always in Court, yet it does suppose him to be always in office; in vacation as well as in Term. He has also a property or interest in his office, which entitles him to civil actions and to recompence in damages for injuries that affect him in relation to his office; but he cannot be said to have a property or interest in the Court of which he is a member. All these considerations confirm the hypothesis, that the Court and the Judge are distinct legal entities, and therefore may exist the one independently of the other.
If it be replied, that the office is an incident to the Court, and that the abolition of the principal includes that of the incidents—The answer to this is, that the argument may be well founded as to all subsequent appointments; but not as to those previously made. Though there be no office to be filled in future, it will not follow that one already vested in an individual by a regular appointment and commission, is thereby vacated and divested. Whether this shall or shall not happen must depend on what the Constitution or the law has declared with regard to the tenure of the office. Having pronounced that this shall be during good behavior, it will preserve the office, to give effect to that tenure for the benefit of the possessor. To be consistent with itself, it will require and prescribe such a modification and construction of its own acts, as will reconcile its power over the future, with the rights which have been conferred as to the past.
Let it not be said that an office is a mere trust for public benefit, and excludes the idea of a property or a vested interest in the individual. The first part of the proposition is true—the last false. Every office combines the two ingredients of an interest in the possessor, and a trust for the public. Hence it is that the law allows the officer redress by a civil action for an injury in relation to his office, which presupposes property or interest. This interest may be defeasible at the pleasure of the government, or it may have a fixed duration, according to the constitution of the office. The idea of a vested interest holden even by a permanent tenure, so far from being incompatible with the principle that the primary and essential end of every office is the public good, may be conducive to that very end by promoting a diligent, faithful, energetic, and independent execution of the office.
But admitting, as seems to have been admitted by the speakers on both sides the question, that the judge must fall with the court, then the only consequence will be, that Congress cannot abolish a court once established. There is no rule of interpretation better settled than that different provisions in the same instrument, on the same subject, ought to be so construed, as, if possible, to comport with each other, and give a reasonable effect to all.
The provision that “The Judiciary Power shall be vested in one Superior Court and in such inferior courts as the Congress may from time to time ordain and establish” is immediately followed by this other provision, “The judges both of the Supreme and Inferior Courts shall hold their offices during good behaviour.”
The proposition, that a power to do, includes virtually, a power to undo, as applied to a legislative body, is generally but not universally true. All vested rights form an exception to the rule. In strict theory, there is no lawful or moral power to divest by a subsequent statute, a right vested in an individual by a prior: And accordingly it is familiar to persons conversant with legal studies, that the repeal of a law does not always work the revocation or divestiture of such rights.
If it be replied, that though a legislature might act immorally and wickedly in abrogating a vested right, yet the legal validity of its act for such a purpose could not be disputed; it may be answered that this odious position, in any application of it, is liable to question in every limited Constitution; (that is, in every Constitution which, in its theory, does not suppose the Whole Power of the Nation to be lodged in the legislative body;
   As in the Parliament of Great-Britain
)—and that it is certainly false in its application to a legislature, the authorities of which are defined by a positive written Constitution, as to every thing which is contrary to the actual provisions of that Constitution. To deny this is to affirm that the delegated is paramount to the constituent power.  It is in fact to affirm there are no constitutional limits to the Legislative Authority.
The enquiry then must be, whether the power to abolish Inferior Courts, if implied in that of creating them, is not abridged by the clause which regulates the tenure of Judicial office.
The first thing which occurs in this investigation, is, that the power to abolish is at most, an implied or incidental power, and as such will the more readily yield to any express provision with which it may be inconsistent.
The circumstance of giving to Congress a discretionary power to establish Inferior Courts instead of establishing them specifically in the Constitution, has, with great reason, been ascribed to the impracticability of ascertaining beforehand the number and variety of Courts, which the developement of our national affairs might indicate to be proper; especially in relation to the progress of new settlements, and the creation of new states. This rendered a discretionary power to institute Courts indispensable; but it did not alike render indispensable a power to abolish those which were once instituted. It was conceived, that with intelligence, caution, and care, a plan might be pursued in the institution of Courts, which would render abolitions unnecessary. Indeed it is not presumable with regard to establishments of such solemnity and importance, making part of the organization of a principal department of the Government, that a fluctuation of plans was anticipated. It is therefore not essential to suppose, that the power to destroy was intended to be included in the power to create: Thus the words “to ordain and establish,” may be satisfied by attributing to them only the latter effect.
Consequently when the grant of the power to institute Courts, is immediately succeeded by the declaration that the Judges of those Courts shall hold their offices during good behaviour; if the exercise of the power to abolish the Courts cannot be reconciled with the actual holding or enjoyment of the office, according to the prescribed tenure, it will follow that the power to abolish is interdicted. The implied or hypothetical power to destroy the office must give way to the express and positive right of holding it during good behaviour. This is agreeable to the soundest rules of construction; the contrary is in subversion of them.

Equally in vain is a justification of the construction adopted by the advocates of the repeal, attempted to be derived from a distinction between the Supreme and Inferior Courts. The argument, that as the former is established by the Constitution, it cannot be annulled by a legislative act, though the latter which must owe their existence to such an act may by the same authority be extinguished, can afford no greater stability to the office of a Judge of the Supreme Court than to that of a Judge of an Inferior Court. The Constitution does indeed establish the Supreme Court; but it is altogether silent as to the number of the Judges. This is as fully left to legislative discretion as the institution of Inferior Courts; and the rule that a power to undo is implied in the power to do, is therefore no less applicable to the reduction of the number of the Judges of the Supreme Court than to the abolition of the Inferior Courts. If the former are not protected by the clause, which fixes the tenure of office, they are no less at the mercy of the legislature than the latter: And if that clause does protect them, its protection must be equally effectual for the Judges of the Inferior Courts. Its efficacy in either case must be founded on the principle that it operates as a restraint upon the legislative discretion; and if so, there is the like restraint in both cases, because the very same words in the very same sentence define conjunctly the tenure of the offices of the two classes of Judges. No sophistry can elude this conclusion.
It is therefore plain to a demonstration, that the doctrine which affirms the right of Congress to abolish the Judges of the Inferior Courts is absolutely fatal to the independence of the Judiciary department. The observation that so gross an abuse of power as would be implied in the abolition of the Judges of the Supreme Court, ought not to be supposed, can afford no consolation against the extreme danger of the doctrine. The terrible examples before us forbid our placing the least confidence in that delusive observation. Experience, sad experience warns us to dread every extremity—to be prepared for the worst catastrophe that can happen.

Lucius Crassus.