Title: The Examination Number XIII, [27 February 1802]
From: Hamilton, Alexander,“Lucius Crassus”
To:

[New York, February 27, 1802]
The advocates of the power of Congress to abolish the Judges, endeavor to deduce a presumption of intention favorable to their doctrine, from this argument—The provision concerning the tenure of office (say they) ought to be viewed as a restraint upon the Executive Department, because, to this Department belongs the power of removal; in like manner as the provision concerning the diminution of compensations ought to be regarded as a restraint upon the Legislative Department, because, to this Department belongs the power of regulating compensations: The different members of the clause ought to be taken distributively in conformity with the distribution of power to the respective Departments.
This is certainly the most specious of the arguments which have been used on that side. It has received several pertinent and forcible answers. But it is believed to be susceptible of one still more direct and satisfactory; which is not recollected to have been yet given.
If, in the theory of the Constitution, there was but one way of defeating the tenure of office, and that exclusively appertaining to the Executive Authority, it would be a natural and correct inference that this authority was solely contemplated in a constitutional provision upon the subject. But the fact is clearly otherwise. There are two modes known to the Constitution, in which the tenure of office may be affected—one the abolition of the office; the other the removal of the officer. The first is a legislative act, and operates by removing the office from the person—the last is an Executive act and operates by removing the person from the office. Both equally cause the tenure, enjoyment, or holding of the office to cease.
This being the case, the inference which has been drawn, fails. There is no ground for the presumption, that the Constitution, in establishing the tenure of an office, had an exclusive eye to one only of the two modes in which it might be affected. The more rational supposition is, that it intended to reach and exclude both; because, this alone can fulfil the purpose which it appears to have in view: And it ought neither to be understood to aim at less than its language imports, nor to employ inadequate means for accomplishing the end which it professes. Or, the better to elucidate the idea by placing it in another form, it may be said, that since in the nature of things the Legislative, equally with the Executive organ, may by different modes of action affect the tenure of office; when the Constitution undertakes to prescribe what that tenure shall be, it ought to be presumed to intend to guard that which shall have been prescribed against the interference of either department.
In an instrument abounding with examples of restrictions on the Legislative discretion, there is no difficulty in supposing that one was intended in every case in which it may be fairly inferred, either from the words used, or from the object to be effected.
While the reason which has been stated, refers the provision respecting the tenure of judicial office as well to the Executive as to the Legislative department, were it necessary to examine to which, if to either of them, it ought to be deemed most appropriate, there could be no difficulty in selecting the latter, rather than the former. The tenure of an office is one of its essential qualities. A provision, therefore, which is destined to prescribe or define this quality, may be supposed to have a more peculiar reference to that department which is empowered to constitute the office; either as directory to it in the exercise of its power, or as fixing what otherwise would be left to its discretion.
It is constantly to be recollected that the terms of the provision do not look particularly to either department. They are general, “The Judges shall hold their offices during good behavior.” ’Tis not from the terms, therefore, that an exclusive applicability to the Executive Organ can be inferred. On the contrary, they must be narrowed to give them only this effect.
It is different as to the provision concerning compensations. Though equally general in the terms, this can have no relation but to the Legislative department; because, as before observed, that Department alone would have had power to diminish the compensations. But this reason for confining that provision to one Department, namely, the power of affecting the compensations, so far from dictating a similar appropriation of the other provision, looks a different way, and requires by analogy that the latter should be applied to both the Departments, each having a power of affecting the tenure of office, in a way peculiar to itself. Nor can it be too often repeated, because it is a consideration of great force, that the design so conspicuous in the former of those two provisions, to secure the Independence of the Judges against Legislative influence, is a powerful reason for understanding the latter in a sense calculated to advance the same important end, rather than in one which must intirely frustrate it.
A rule of constitutional law opposed to our construction, is attempted to be derived, from the maxim, that the power of legislation is always equal; and that a preceding can never bind or controul a succeeding legislature by its acts, which therefore must always be liable to repeal at the discretion of the successor.
The misapplication, or too extensive application of general maxims or propositions, true in their genuine sense, is one of the most common and fruitful sources of false reasoning. This is strongly exemplified in the present instance. The maxim relied upon, can mean nothing more, than, that as to all those matters which a preceding legislature was free to establish and revoke, a succeeding legislature will be equally free. The latter may do what the former could have done, or it may undo what the former could have undone. But unless it can be maintained, that the power of ordinary legislation is in itself illimitable, incontroulable, incapable of being bound either by its own acts, or by the injunctions or prohibitions of a constitution, it will follow, that the body invested with that power, may bind itself, and may bind its successor; so that neither itself nor its successor can of right revoke acts which may have been once done. To say that a legislature may bind itself, but not its successor, is to affirm, that the latter has not merely an equal, but a greater power than the former, else it could not do what the former was unable to do. Equality of power only will not suffice for the argument. On the other hand, to affirm that a legislature cannot bind itself, is to assert, that there can be no valid pledge of the public faith, that no right can be vested in an individual or collection of individuals, whether of property or of any other description, which may not be resumed at pleasure.
Without doubt a legislature binds itself by all those acts which engage the public faith; which confer on individuals permanent rights; either gratuitously or for valuable consideration; and in all these instances a succeeding one is not less bound. As to a right which may have been conferred by an express provision of the Constitution defining the condition of the enjoyment; or as to an institution or matter in its nature permanent, which the Constitution may have confided to an act of the legislature; its authority terminates with the act that vests the right or makes the establishment. A case, of the first sort, is exemplified in the office of a Judge; of the last, in the creation of a new state, which has been very pertinently mentioned as a decisive instance of power in a legislature to do a thing which being done is irrevocable.
But whatever may be the latitude we assign to the power of a legislature over the acts of a predecessor, it is nothing to the purpose, so long as it shall be admitted that the constitution may bind and controul the legislature. With this admission, the simple inquiry must always be—has or has not the Constitution in the particular instance, bound the legislature? And the solution must be sought in the language, nature, and end of the provision. If these warrant the conclusion that the legislature was intended to be bound, it is perfect nonsense to reply that this cannot be so because a legislature cannot bind itself by its own acts; or because the power of one legislature is equal to that of another. What signifies this proposition, if the Constitution has power to bind the legislature, and has in fact bound it in a given case? Can a general rule disprove the fact of an exception which it is admitted may exist? If so, the argument is always ready, and equally valid to disprove any limitation of the legislative discretion.
Compelled, as they must be, to desist from the use of the argument in the extensive sense in which it has been employed, if its inventors should content themselves with saying, that at least, the principle adduced by them ought to have so much of force, as to make the exception to it depend on an express provision—it may be answered, that in the case under consideration, there is an express provision. No language can be more precise or peremptory than this, “The Judges, both of the Supreme and Inferior Courts, shall hold their offices during good behaviour.” If this be not an express provision, it is impossible to devise one. But the position, that an express provision is necessary to form an exception, is itself unfounded. Wherever it is clear, whether by a circumstance expressed, or by one so implied as to leave no reasonable doubt, that a limitation of the authority of the legislature was designed by the Constitution, the intention ought to prevail.
A very strong confirmation of the true intent of the provision respecting the tenure of Judicial office results from an argument by analogy. In each of the articles which establishes any branch of the government, the duration of office is a prominent feature. Two years for the House of Representatives, six for the Senate, four for the President and Vice President, are the respective terms of duration; and for the Judges the term of good behaviour is allotted. It is presumable that each was established in the same spirit, as a point material in the organization of the government and of a nature to be properly fundamental. It will not be pretended that the duration of office prescribed as to any other department, is within the reach of Legislative discretion. And why shall that of Judicial Officers form an exception? Why shall the Constitution be supposed less tenacious of securing to this organ of the sovereign power, a fixed duration than to any other? If there be any thing which ought to be supposed to be peculiarly excepted out of the power of the ordinary Legislature, it is emphatically the organization of the several constituent departments of the Government, which in our system are the Legislative, Executive and Judiciary. Reasons of the most cogent nature recommend that the stability and independence of the last of these three branches should be guarded with particular circumspection and care.
Lucius Crassus.


Title: From Alexander Hamilton to Gouverneur Morris, [29 February 1802]
From: Hamilton, Alexander
To: Morris, Gouverneur

[New York, February 29, 1802]
My Dr. Sir
Your letter of the 22d is the third favour for which I am indebted to you since you left N York.
Your frankness in giving me your opinion as to the expediency of an application of our bar to Congress obliges me. But you know we are not readily persuaded to think we have been wrong. Were the matter to be done over I should pursue the same course. I did not believe the measure would be useful as a preventative, and for the people an expression of an opinion by letter would be as good as in a memorial. It appeared to me best because it saved our delicacy and because in the abstract I am not over fond of the precedent of the bar addressing Congress. But I did what I thought likely to do more good—I induced the Chamber of Commerce to send a memorial.
As to the rest, I should be a very unhappy man, if I left my tranquillity at the mercy of the misinterpretations which friends as well as foes are fond of giving to my conduct.
Mine is an odd destiny. Perhaps no man in the UStates has sacrificed or done more for the present Constitution than myself—and contrary to all my anticipations of its fate, as you know from the very begginning I am still labouring to prop the frail and worthless fabric. Yet I have the murmurs of its friends no less than the curses of its foes for my rewards. What can I do better than withdraw from the Scene? Every day proves to me more and more that this American world was not made for me.
The suggestions with which you close your letter suppose a much sounder state of the public mind than at present exists. Attempts to make a show of a general popular dislike of the pending measures of the Government would only serve to manifest the direct reverse. Impressions are indeed making but as yet within a very narrow sphere. The time may ere long arrive when the minds of men will be prepared to make an offer to recover the Constitution, but the many cannot now be brought to make a stand for its preservation. We must wait awhile.
I have read your speech⟨es⟩ with great pleasure. They are truly worthy of you. Your real friends had many sources of satisfaction on account of them. The conspiracy of Dulness was at work. It chose to misinterpret your moderation in certain transactions of a personal reference. A public energetic display of your talents and principles was requisite to silence the Cavillers. It is now done. You, friend Morris, are by birth a native of this Country but by genius an exotic. You mistake if you fancy that you are more a favourite than myself or that you are in any sort upon a theatre s⟨uited⟩ to you.
Adieu   Yrs. ever
A H
Feby 29.


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

[New York, March 2, 1802]
In the course of the debate in the Senate, much verbal criticism has been indulged; many important inferences have been attempted to be drawn from distinctions between the words shall and may. This species of discussion will not be imitated, because it is seldom very instructive or satisfactory. These terms, in particular cases, are frequently synonymous, and are imperative or permissive, directing or enabling, according to the relations in which they stand to other words. It is however certain that the arguments even from this source, greatly preponderate against the right of Congress to abolish the Judges.
But there has been one argument, rather of a verbal nature, upon which some stress has been laid, which shall be analized; principally, to furnish a specimen of the wretched expedients to which the supporters of the repeal are driven. It is this, “The tenure of an office is not synonymous with its existence. Though Congress may not annul the tenure of a Judicial Office, while the office itself continues; yet it does not follow that they may not destroy its existence.
The constituent parts of an office are its authorities, duties and duration. These may be denominated the elements of which it is composed. Together they form its essence or existence.
   The renumeration or recompence is not added, because it is most properly an accessory.
 It is impossible to separate even in idea the duration from the existence: The office must cease to exist when it ceases to have duration. Let it be observed, that the word tenure is not used in the constitution, and that in the debate it has been the substitute for duration. The words “The Judges shall hold their offices during good behavior,” are equivalent to these other words; The offices of the Judges shall endure or last so long as they behave well.
The conclusions from these principles are that existence is a whole which includes tenure or duration as a part; that it is impossible to annul the existence of an office without destroying its tenure; and consequently that a prohibition to destroy the tenure is virtually and substantially a prohibition to abolish the office. How contemptible then the sophism that Congress may not destroy the tenure; but may annihilate the office!
It has now been seen, that this power of annihilation is not reconcileable with the language of the constitutional instrument, and that no rule of constitutional law, which has been relied upon, will afford it support. Can it be better defended by any principle of constitutional policy?
To establish the affirmative of this question it has been argued, that if the Judges hold their offices by a title absolutely independent of the Legislative will, the Judicial Department becomes a colossal and overbearing power, capable of degenerating into a permanent tyranny, at liberty, if audacious and corrupt enough, to render the authority of the Legislature nugatory, by expounding away the laws, and to assume a despotic controul over the rights of person and property.
To this argument (which supposes the case of a palpable abuse of power) a plain and conclusive answer is, that the constitution has provided a complete safeguard in the authority of the House of Representatives to impeach; of the Senate to condemn. The Judges are in this way amenable to the public Justice for misconduct; and upon conviction, removeable from office. In the hands of the Legislature itself is placed the weapon by which they may be put down and the other branches of the government protected. The pretended danger, therefore, is evidently imaginary—the security perfect!
Reverse the Medal. Concede to the Legislature a legal discretion to abolish the Judges, where is the defence? where the security for the Judicial Department? There is absolutely none. This most valuable member of the government, when rightly constituted, the surest guardian of person and property, of which stability is a prime characteristic; losing at once its most essential attributes, and doomed to fluctuate with the variable tide of faction, degenerates into a disgusting mirror of all the various, malignant and turbulent humors of party-spirit.
Let us not be deceived. The real danger is on the side of that foul and fatal doctrine, which emboldens its votaries, with daring front and unhallowed step, to enter the holy temple of Justice and pluck from their seats the venerable personages, who, under the solemn sanction of the Constitution, are commissioned to officiate there; to guard that sacred compact with jealous vigilance; to dispense the laws with a steady and impartial hand; unmoved by the storms of faction, unawed by its powers, unseduced by its favors; shielding right and innocence from every attack; resisting and repressing violence from every quarter. ’Tis from the triumph of that execrable doctrine that we may have to date the downfall of our Government and with it, of the whole fabric of Republican Liberty. Who will have the folly to deny that the definition of despotism is the concentration of all the powers of Government in one person or in one body? Who is so blind as not to see that the right of the Legislature to abolish the Judges at pleasure destroys the independence of the Judicial Department, and swallows it up in the impetuous vortex of Legislative influence? Who is so weak as to hope that the Executive, deprived of so powerful an auxiliary will long survive? What dispassionate man can withstand the conviction that the boundaries between the departments will be thenceforth nominal; and that there will be no longer more than one active and efficient department?
It is a fundamental maxim of free government, that the three great departments of power, Legislative, Executive and Judiciary, shall be essentially distinct and independent the one of the other. This principle, very influential in most of our state constitutions, has been particularly attended to in the Constitution of the United States; which, in order to give effect to it, has adopted a precaution peculiar to itself, in the provisions that forbid the Legislature to vary in any way the compensation of the President to diminish that of a Judge.
It is a principle equally sound, that though in a government like that of Great Britain, having an hereditary chief with vast prerogatives, the danger to Liberty, by the predominance of one department over the other, is on the side of the Executive; yet in popular forms of government, this danger is chiefly to be apprehended from the Legislative branch.
The power of legislation is in its own nature the most comprehensive and potent of the three great subdivisions of sovereignty. It is the will of the government; it prescribes univerally the rule of action, and the sanctions which are to enforce it. It creates and regulates the public force, and it commands the public purse. If deposited in an elective representative of the people, it has, in most cases, the body of the nation for its auxiliary, and generally acts with all the momentum of popular favor. In every such government it is consequently an organ of immense strength. But when there is an hereditary chief magistrate, cloathed with dazzling prerogatives and a great patronage, there is a powerful counterpoise; which, in most cases, is sufficient to preserve the equilibrium of the government; in some cases to incline the scale too much to its own side.
In governments wholly popular or representative, there is no adequate counterpoise. Confidence in the most numerous, or Legislative Department, and jealousy of the Executive Chief, form the genius of every such government. That jealousy, operating in the constitution of the Executive, causes this organ to be intrinsically feeble; and withholding in the course of administration accessary means of force and influence, is for the most part vigilant to continue it in a state of impotence. The result is that the Legislative body, in this species of government, possesses additional resources of power and weight; while the Executive is rendered much too weak for competition; almost too weak for self defence.
A third principle, not less well founded than the other two, is that the Judiciary department is naturally the weakest of the three. The sources of strength to the Legislative branches have been briefly delineated. The Executive by means of its several active powers; of the dispensations of honors and emoluments and of the direction of the public force is evidently the second in strength. The Judiciary, on the other hand, can ordain nothing. It commands neither the press nor the sword. It has scarcely any patronage. Its functions are not active but deliberative. Its main province is to declare the meaning of the laws; and in extraordinary cases it must even look up to the Executive aid for the execution of its decisions. Its chief strength is in the veneration which it is able to inspire by the wisdom and rectitude of its judgments.
This character of the Judiciary clearly indicates that it is not only the weakest of the three departments of power; but, also as it regards the security and preservation of civil liberty by far the safest. In a conflict with the other departments it will be happy if it can defend itself—to annoy them is beyond its power. In vain would it singly attempt enterprises against the rights of the citizen. The other departments could quickly arrest its arm, and punish its temerity. It can only then become an effectual instrument of oppression, when it is combined with one of the more active and powerful organs; and against a combination of this sort, the true and best guard is a complete independence on each and both of them. Its dependence on either will imply and involve a subserviency to the views of the department on which it shall depend. Its independence of both will render it a powerful check upon the others, and a precious shield to the rights of persons and property. Safety, Liberty, are therefore inseparably connected with the real and substantial Independence of the Courts and Judges.
It is plainly to be inferred from the instrument itself, that these were governing principles in the formation of our Constitution: that they were in fact so, will hereafter be proved by the cotemporary exposition of persons who must be supposed to have understood the views with which it was framed, having been themselves members of the body that framed it. Those principles suggest the highest motives of Constitutional policy against that construction, which places the existence of the Judges at the mercy of the Legislature. They instruct us, that to prevent a concentration of powers, the essence of despotism, it is essential that the departments among which they shall be distributed, should be effectually independent of each other; and that it being impossible to reconcile this independence with a right in any one or two of them to annihilate at discretion the organs of the other, it is contrary to all just reasoning to imply or infer such a right. So far from its being correct, that an express interdiction is requisite to deprive the Legislature of the power to abolish the Judges, that the very reverse is the true position. It would require a most express provision, susceptible of no other interpretation, to confer on that branch of the government an authority, so dangerous to the others, in opposition to the strong presumptions, which in conformity with the fundamental maxims of free government, arise from the care taken in the Constitution, to establish and preserve the reciprocal and complete independence of the respective branches, first by a separate organization of the departments, next by a precise definition of the powers of each, lastly by precautions to secure to each a permanent support.
Lucius Crassus.


Title: The Examination Number XV, [3 March 1802]
From: Hamilton, Alexander,“Lucius Crassus”
To:

[New York, March 3, 1802]
It is generally understood that the Essays under the Title of the Federalist, which were published at New York, while the plan of our present Federal Constitution was under the consideration of the people, were principally written by two persons
   James Madison, now Secretary of State, Alexander Hamilton, formerly Secretary of the Treasury.
 who had been members of the Convention which devised that plan, and whose names are subscribed to the instrument containing it. In these Essays
   Particularly Nos. XLVII to LI inclusive, and Nos. LXXVIII to LXXXII inclusive.
 the principles advanced in the last number of this Examination are particularly stated and strongly relied upon in defence of the proposed Constitution; from which it is a natural inference that they had influenced the views with which the plan was digested. The full force of this observation will be best perceived by a recurrence to the work itself; but it will appear clearly enough from the following detached passages.
“One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim that the Legislative, Executive and Judiciary Departments ought to be separate and distinct.” “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all power, Legislative, Executive, and Judiciary, in the same hands, whether of one, a few, or many; whether hereditary, self appointed or elective, may justly be pronounced the very definition of tryanny.”
   No. XLVII.
 “Neither of the three Departments ought to possess directly or indirectly an overruling influence over the others in the administration of their respective powers.” “But the most difficult task is to provide some practical security for each against the invasion of the others.”
“Experience assures us that the efficacy of parchment barriers has been greatly overrated, and that some more adequate defence is indispensably necessary for the more feeble against the more powerful members of the government. The Legislative Department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” “In a representative republic, where the executive magistracy is carefully limited both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions.” Again, “The tendency of Republican Governments is to an aggrandizement of the Legislature at the expence of the other Departments.”

These passages recognise as a fundamental maxim of free government, that the three departments of power, ought to be separate and distinct; consequently that neither of them ought to be able to exercise, either directly or indirectly, an overruling influence over any other. They also recognize as a truth, indicated by the nature of the system and verified by experience, that in a Representative Republic, the Legislative Department is the “Aaron’s Rod” most likely to swallow up the rest, and therefore to be guarded against with particular care and caution: And they inculcate that parchment barriers, (or the formal provisions of a constitution designating the respective boundaries of authority) having been found ineffectual for protecting the more feeble against the most powerful members of the government, some more adequate defence, some practical security is necessary. What this was intended to be will appear from subsequent passages.
“To what expedient shall we finally resort for maintaining in practice the necessary partition of power among the several Departments as laid down in the Constitution?” “As all exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of the government as that its several constituent Departments may, by their mutual relations, be the means of keeping each other in their proper places.”
   No. LI.

These passages intimate the “practical security” which ought to be adopted for the preservation of the weaker against the stronger members of the Government. It is so to contrive its interior structure that the constituent organs may be able to keep each other in their proper places; an idea essentially incompatible with that of making the existence of one dependent on the will of another. It will be seen afterwards how this structure is to be so contrived.
“In order to lay a foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty; it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. This principle rigorously adhered to would require that all the appointments for the several departments should be drawn from the same fountain of authority, the people.” But “In the constitution of the Judiciary Department it might be inexpedient to insist rigorously on the principle; first, because peculiar qualifications being essential in the members, the primary consideration ought to be [to] select that mode of choice, which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that Department, must soon destroy all sense of dependence on the authority conferring them.”
“It is equally evident that the members of each Department should be as little dependent as possible on those of the others for the emoluments annexed to their offices. Were the Executive Magistrate or the Judges not independent of the Legislature in this particular, their Independence in every other would be merely nominal.” “The great security against a concentration of the several powers in the same Department consists in giving to those who administer each Department the necessary constitutional means and personal motives, to resist encroachments of the others.” “But it is not possible to give to each Department an equal power of self-defence. In Republican Governments the Legislative authority necessarily predominates.”
The means held out as proper to be employed, for enabling the several departments to keep each other in their proper places, are:
1. To give to each such an organization as will render them essentially independent of one another. 2. To secure to each a support which shall not be at the discretionary disposal of any other. 3. To establish between them such mutual relations of authority as will make one a check upon another, and enable them reciprocally to resist enroachments, and confine one another within their proper spheres.
To accomplish the first end, it is deemed material that they should have as little agency as possible in the appointment of one another, and should all emanate directly from the same fountain of authority—the people: And that it being expedient to relax the principle, in respect to the Judiciary Department, with a view to a more select choice of its organs; this defect in the creation ought to be remedied by a permanent tenure of office; which certainly becomes nominal and nugatory, if the existence of the office rests on the pleasure of the Legislature. The principle that the several organs should have as little agency as possible in the appointment of each other, is directly opposed to the claim in favour of one of a discretionary agency to destroy another. The second of the proposed ends, is designed to be effected by the provisions for fixing the compensations of the Executive and Judicial Departments—The third, by the qualified negative of the Executive, or the acts of the two houses of Congress; by the right of one of these houses to accuse; of the other to try and punish the Executive and Judicial officers; and lastly, by the right of the Judges, as interpreters of the laws, to pronounce unconstitutional acts void.
These are the means contemplated by the Constitution, for maintaining the limits assigned to itself, and for enabling the respective organs of the Government to keep each other in their proper places, so that they may not have it in their power to domineer the one over the other, and thereby in effect, though not in form, to concentrate the powers in one department, overturn the Government, and establish a Tyranny. Unfortunate if these powerful precautions shall prove insufficient to accomplish the end, and to stem the torrent of the Imposter—Innovation disguised in the specious garb of Patriotism!
The views which prevailed in the formation of the Constitution are further illustrated by these additional comments from the same source.
   No. LXXVIII

“As liberty can have nothing to fear from the Judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such an union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as from the natural feebleness of the Judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution; and in a great measure as the citadel of the public justice and the public security.”
“The complete Independence of the Courts of Justice is peculiarly essential in a limited constitution. Limitations can be preserved in practice no other way, than through the medium of the Courts of Justice to declare all acts contrary to the manifest tenor of the Constitution void.”
Then follows a particular discussion of the position, that it is the right and the duty of the Courts to exercise such an authority: to repeat which, would swell this number to an improper size.
The essence of the argument is, that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised is void; consequently that no legislative act, inconsistent with the Constitution, can be valid. That it is not a natural presumption that the Constitution intended to make the legislative body the final and exclusive judges of their own powers; but more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the bounds assigned to its authority. That the interpretation of the laws being the peculiar province of the Courts, and a Constitution being in fact a fundamental law, superior in obligation to a statute, if the Constitution and the statute are at variance, the former ought to prevail against the latter; the will of the people against the will of the agents; and the Judges ought in their quality of interpreters of the laws, to pronounce and adjudge the truth, namely, that the unauthorised statute is a nullity.
“Nor (continues the commentator) does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statute, stands in opposition to that of the people declared in the constitution, the Judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
“If then the Courts of Justice are to be considered as the bulwarks of a limited constitution, against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of Judicial offices.”
But no proposition can be more manifest, than that this permancy of tenure must be nominal, if made defeasible at the pleasure of the Legislature, and that it is ridiculous to consider it as an obstacle to encroachments of the Legislative Department; if this department has a discretion to vacate or abolish it directly or indirectly.
In recurring to the comments which have been cited, it is not meant to consider them as evidence of any thing but of the views with which the Constitution was framed. After all, the Instrument must speak for itself. Yet to candid minds, the co-temporary explanation of it, by men, who had had a perfect opportunity of knowing the views of its framers, must operate as a weighty collateral reason for believing the construction agreeing with this explanation to be right, rather than the opposite one. It is too cardinal a point, to admit readily the supposition, that there was misapprehension; and whatever motives may have subsequently occurred to bias the impressions of the one or the other of the purposes alluded to, the situation in which they wrote, exempts both from the suspicion of an intention to misrepresent in this particular. Indeed a course of argument more accommodating to the objections of the adversaries of the Constitution would probably have been preferred as most politic, if the truth, as conceived at the time, would have permitted a modification. Much trouble would have been avoided by saying, “The Legislature will have a complete controul over the Judges, by the discretionary power of reducing the number of those of the Supreme Court, and of abolishing the existing Judges of the Inferior Courts, by the abolition of the Courts themselves.” But this pretension is a novelty reserved for the crooked ingenuity of after discoveries.
Lucius Crassus.


Title: To Alexander Hamilton from Gouverneur Morris, 11 March 1802
From: Morris, Gouverneur
To: Hamilton, Alexander

Washington 11 March 1802
Alexander Hamilton Esqr.New York
My dear Sir
I have your two Letters of the 27th. of Feby. and the 4th. Instant. I thank you for them. In Reply to what you tell me in the Close of the former I can only say that your Talents if not your Birth entitle you to the Rank of an American Citizen. To be born in America seems to be a Matter of Indifference at New York, an advantage in New England, a Disadvantage in Pensilvania. You say I am not. more a favorite than you are—I believe that I am much less a favorite.
When the Demos got into Power I ventured to foretell that they would do more to exalt the Executive in six months than the federalists would in as many years. The fact has verified the Prediction. They who have constantly cherished State Sovereignty have by their Repeal of the judiciary Law laid the broad foundation for a consolidated government and the first national Scuffle will erect that Edifice. I acknowlege to you that I do not like it, and tho I have always seen that it must come unless we should loose our national Existence yet I hoped it’s Progress would be so gentle as that our manners and materials would be reasonably fitted for it.

Our Senate is much too feeble, and indeed when we consider the Manner of it’s Composition we cannot expect that it should be a dignified Body. Yet at present it is the only Part of our Government which has the Semblance of Dignity. The House of Representatives have talked themselves out of Self Respect and at Headquarters there is such an Abandonment of Manner & such a Pruriency of Conversation as would reduce even Greatness to the Level of Vulgarity.
As to the State of Parties, the federalists are become a Column of Steel and have such a Sense of their Strength that there is now no Danger of Desertion. The Demos feel their Weakness. Many of them begin to stagger and will fly at the first Shock. As yet they have only Heartburnings among them but Murmurs will be be heard before the Session closes. I do not think much can be done at the Ensuing Election but even a small Change will work Wonders, for, being of the Courtier Tribe, these Patriots as soon as his Majesty the People shall signify that he is about to fancy a new Whim will as usual shew their Obsequiousness by outruning his Desires.
I have seen as you suppose and laid as you will see on the Table of Senate the Resolutions you mention. I beleive I shall do little for or against them. My present Impression is not I confess favorable and but for the Approbation you express it would be decidedly hostile.
The apparition and the Toast you heard of are accurately stated. I see little Chance for him as a Leader of any Party. Those he is with hate him and tho he has among them a few Adherents they will not follow his Lead just now. He has I think considerable Talents for Government but I do not think the Course which his Situation compels him to pursue will command Respect or excite Confidence. Time and Circumstances do much.


Title: To Alexander Hamilton from William Jackson, 12 March 1802
From: Jackson, William
To: Hamilton, Alexander

Philadelphia, March 12th. 1802
I beg leave, my dear General, to request that you will notify the New York State Society of the Cincinnati that the triennial general Meeting of the Society is to be held at the City of Washington on the first monday in may next, where it is anxiously wished that their Delegates may attend. The nomination of Gentlemen, in Congress, who are Members of the Society may facilitate the convening of a Quorum.
As President General of the Society, your presence will be peculiarly gratifying to
Your faithful and affectionate Servant
W JacksonSecretary General


Title: From Alexander Hamilton to Charles Cotesworth Pinckney, [15 March 1802]
From: Hamilton, Alexander
To: Pinckney, Charles Cotesworth

[New York, March 15, 1802]
You will probably have learned before this reaches you that the act of last Session for the better organization of the Judiciary Department has been repealed, and I take it for granted, that you will with me view this measure as a vital blow to the Constitution. In my opinion, it demands a systematic and persevering effort by all Constitutional means to produce a revocation of the precedent, and to restore the Constitution.
For this purpose I deem it essential that there should be without delay a meeting and conference of a small number of leading Federalists from different States.
Unless there shall be a plan of Conduct, proceeding from such a source, our measures will be disjointed, discordant, and of course ineffectual. There is also a further danger which may attend the want of a plan capable of fixing opinions and determining objects.
There are among us incorrect men with very incorrect views; which may lead to combinations and projects injurious to us as a party, and very detrimental to the Country.
These considerations have determined me to make an attempt to bring about such a meeting. And it has occurred that the first Monday of May next at the City of Washington may be a convenient time and place.
A general meeting of the Society of the Cincinnati is to be then and there held. I have likewise taken the liberty to request the attendance of Governor Davie of North Carolina. In the event of your concurring in sentiment with me, it will be expedient for you to second my invitation to him.
With the truest esteem and most affectionate regard


Title: To Alexander Hamilton from Samuel S. Smith, 18 March 1802
From: Smith, Samuel S.
To: Hamilton, Alexander

Princeton [New Jersey] March 18, 1802. Introduces his son, John Witherspoon Smith, who plans to practice law in New York City.


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

[New York, March 19, 1802]
The President, as a politician, is in one sense particularly unfortunate. He furnishes frequent opportunities of arraying him against himself—of combating his opinions at one period by his opinions at another. Without doubt, a wise and good man may, on proper grounds relinquish an opinion which he has once entertained, and the change may even serve as a proof of candour and integrity. But with such a man, especially in matters of high public importance, changes of this sort must be rare. The contrary is always a mark either of a weak and versatile mind, or of an artificial and designing character, which, accommodating its creed, to circumstances, takes up or lays down an article of faith, just as may suit a present convenience.
The question, in agitation, respecting the Judiciary Department, calls up another instance of opposition, between the former ideas of Mr. Jefferson, and his recent conduct. The leading positions which have been advanced as explanatory of the policy of the Constitution, in the structure of the different departments, and as proper to direct the interpretation of the provisions which were contrived to secure the independence and firmness of the Judges, are to be seen in a very emphatical and distinct form in the Notes on Virginia. The passage in which they appear, deserves to be cited at length, as well for its intrinsic merit, as by way of comment upon the true character of its author; presenting an interesting contrast between the maxims, which experience had taught him while Governor of Virginia, and those which now guide him as the official head of a great party in the United States.
It is in these words—
“All the powers of government, legislative, executive and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the Republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that Convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive and judiciary departments, should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If therefore the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor if made can be effectual; because in that case, they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches. They have accordingly in many instances decided rights which should have been left to judiciary controversy; and the direction of the executive, during the whole time of their session, is becoming habitual and familiar.”

This passage fully recognises these several important truths: that the tendency of our governments is towards a Concentration of the Powers of the different departments in the Legislative Body; that such a Concentration, is precisely the Definition of Despotism, and that an effectual barrier between the respective departments ought to exist. It also, by a strong implication, admits that offices during good behaviour are independent of the Legislature for their continuance in office. This implication seems to be contained in the following sentence: “The Judiciary and Executive members were left dependent on the Legislature for their subsistence in office, and some of them for their continuance in it.” The word ‘some,’ implies that others were not left thus dependent; and to what description of officers can the exception be better applied, than to the Judges, the tenure of whose offices was during good behaviour?
The sentiments of the President delivered at a period when he can be supposed to have been under no improper bias, must be regarded by all those, who respect his judgement, as no light evidence of the truth of the doctrine for which we contend. Let us, however, resume and pursue the subject on its merits, without relying upon the aid of so variable and fallible an authority.
At an early part of the discussion in this Examination, a construction of the Constitution was suggested, to which it may not be amiss to return: It amounts to this, that Congress have power to new-model, or even to abrogate an Inferior Court, but not to abolish the office or emoluments of a Judge of such court previously appointed. In the Congressional debates, some of the speakers against the repealing law, appear to have taken it for granted, that the abrogation of the court must draw with it the abolition of the Judges, and therefore, have denied in totality, the power of abrogation. In the course of these papers too, it has been admitted, that if the preservation of the Judges cannot be reconciled with the power to annul the Court, then the existence of this power is rightly denied. But in an affair of such vast magnitude, it is all-important to survey with the utmost caution the ground to be taken, and then to take and maintain it with inflexible fortitude and perseverence. Truth will be most likely to prevail, when the arguments which support it stop at a temperate mean, consistent with practical convenience. Excess is always error. There is hardly any theoretic hypothesis, which, carried to a certain extreme, does not become practically false. In construing a Constitution, it is wise, as far as possible to pursue a course, which will reconcile essential principles with convenient modifications. If guided by this spirit, in the great question which seems destined to decide the fate of our Government, it is believed that the result will accord with the construction, that Congress have a right to change or abolish Inferior Courts, but not to abolish the actual Judges.
Towards the support of this construction, it has been shewn in another place, that the Courts and the Judges are distinct legal entities, which, in contemplation of law, may exist, independently the one of the other—mutually related, but not inseparable. The act proposed to be repealed exemplifies this idea in practice. It abolishes the District Courts of Tennessee and Kentucky, and transfers their Judges to one of the Circuit Courts. Though the authorities and jurisdiction of those Courts are vested in the Circuit Court, to which the Judges are transferred; yet the identity of the Courts ceases. It cannot be maintained that Courts so different in their organization and jurisdiction, are the same; nor could a legislative transfer of the Judges have been constitutional, but upon the hypothesis, that the office of a Judge may survive the Court of which he is a member: a new appointment by the Executive, of two additional Judges for the Circuit Court, would otherwise have been necessary.
This precedent in all its points is correct, and exhibits a rational operation of the construction which regards the office of the Judge, as distinct from the Court, as one of the elements or constituent parts of which it is composed: not as a mere incident that must perish with its principal.
It will not be disputed, that the Constitution might have provided in terms, and with effect, that an Inferior Court which had been established by law, might by law be abolished; nevertheless, that the Judges of such Courts should retain the offices of Judges of the United States, with the emoluments before attached to their offices. The operation of such a provision would be, that when the Court was abolished, all the functions to be executed in that Court, would be suspended, and the Judge could only continue to exert the authorities and perform the duties which might before have been performed, without reference to causes pending in Court; but he would have the capacity to be annexed to another Court, without the intervention of a new appointment, and by that annexation, simply to renew the exercise of the authorities and duties which had been suspended.
If this might have been the effect of positive and explicit provision, why may it not likewise be the result of provisions, which, presenting opposite considerations, point to the same conclusion, as a compromise calculated to reconcile those considerations with each other and to unite different objects of public utility? Surely the affirmative infringes no principle of legal construction, transgresses no rule of good sense.
Let us then enquire, whether there are not in this case opposite and conflicting considerations, demanding a compromise of this nature? On the one hand, it is evident that if an inferior court once instituted, though found inconvenient, cannot be abolished, this is to entail upon the community the mischief, be it more or less, of a first error in the administration of the government. On the other hand, it is no less evident, that if the judges hold their offices at the discretion of the legislature, they cease to be a co-ordinate, and become a dependent branch of the government; from which dependence mischiefs infinitely greater are to be expected.
All these mischiefs, the lesser as well as the greater, are avoided by saying, “Congress may abolish the Courts, but the Judges shall retain their offices with the appurtenant emoluments.” The only remaining inconvenience then, will be one too insignificant to weigh in a national scale, that is, the expence of the compensations of the Incumbents, during their lives. The future and permanent expence will be done away.
But will this construction secure the benefits proposed by the Constitution from the independent tenure of Judicial Office? Substantially it will. The main object is to preserve the judges from being influenced by an apprehension of the loss of the advantages of office. As this loss could not be incurred, that influence would not exist. Their firmness could not be assailed by the danger of being superseded, and perhaps consigned to want. Let it be added, that when it was understood not to be in the power of the Legislature to deprive the Judges of their offices and emoluments, it would be a great restraint upon the factious motives, which might induce the abolition of a court. This would be much less likely to happen unless for genuine reasons of public utility; and of course there would be a much better prospect of the stability of Judiciary establishments.
Lucius Crassus.


Title: The Examination Number XVII, [20 March 1802]
From: Hamilton, Alexander,“Lucius Crassus”
To:

[New York, March 20, 1802]
It was intended to have concluded the argument respecting the Judiciary Department with the last number. But a speech lately delivered
   By Mr. Giles
 in the House of Representatives, having since appeared, which brings forward one new position, and reiterates some others in a form well calculated to excite prejudice, it may not be useless to devote some further attention to the subject.
The new position is, that the clause of the constitution enabling the judges to hold their offices during good behaviour, ought to be understood to have reference to the Executive only, Because all offices are holden of the president!!
This is a second example of a doctrine, contrary to every republican idea, broached in the course of this debate by the advocates of the repealing law.
   The other is the denial of the right of the Courts to keep the Legislature within its constitutional bounds by pronouncing laws which transgress them inoperative.
 Had a Federalist uttered the sentiment, the cry of monarchy would have resounded from one extremity of the United States to the other. It would have been loudly proclaimed that the mask was thrown aside, by a glaring attempt to transform the servants of the people into the supple tools of Presidential ambition. But now, to justify a plain resolution of the Constitution, and serve a party purpose, this bold and dangerous position is avowed without hesitation or scruple, from a quarter remarkable for the noisy promulgation of popular tenets.
The position is not correct; & it is of a nature to demand the indignant reprobation of every real Republican. In the theory of all the American Constitutions, offices are holden of the Government, in other words of the People through the Government. The appointment is indeed confined to a particular organ, and in instances in which it is not otherwise provided by the Constitution or the Laws, the removal of the officer is left to the pleasure or discretion of that organ. But both these acts suppose merely an instrumentality of the organ; from the necessity or expediency of the people’s acting in such cases by an agent. They do not suppose the substitution of the agent to the people, as the object of the fealty or allegiance of the officer.
It is said that the word holden is a technical form denoting, tenure, and implying that there is one who holds; another of whom the thing is holden. This assertion is indeed agreeable to the common use of the word in our law books. But it is hardly to be presumed that it was employed in the Constitution in so artificial a sense. It is more likely that it was designed to be the equivalent of the words possess, enjoy. Yet let the assertion be supposed correct. In this case, it must also be remembered that the term in this technical sense includes two things, the quantity of interest in the subject holden, and the meritorious consideration upon which the grant is made; which, in many cases includes service or rent, in all fealty; this last forming emphatically the link or tie between the lord and the tenant, the sovereign and the officer. Will any one dare to say that fealty or allegiance, as applied to the government of the United States, is due from the Officer to the President? Certainly it is not. It is due to the people in their political capacity. If so, it will follow that the office is holden not of the President, but of the Nation, Government or State.
It is remarkable that the Constitution has everywhere used the language “Officers of the United States,” as if to denote the relation between the officer and the sovereignty; as if to exclude the dangerous pretension that he is the mere creature of the Executive; accordingly, he is to take an oath “to support the Constitution,” that is, an oath of fidelity to the Government; but no oath of any kind to the President.
In the theory of the British Government, it is entirely different; there the majesty of the nation is understood to reside in the Prince. He is deemed the real Sovereign. He is, emphatically, the fountain of honour. Allegiance is due to him; and consequently, public offices are in the true notion of tenure, holden of him. But in our Constitution the President is not the Sovereign; the sovereignty is vested in the Government, collectively; and it is of the sovereignty, strictly and technically speaking, that a public officer holds his office.
If this view of the matter be just, the basis of the argument, in point of fact, fails; and the principle of it suggests an opposite conclusion, namely, that the condition of good behaviour is obligatory on the whole Government, and ought to operate as a barrier against any authority by which the displacement of the Judges from their office may be, directly or indirectly effected.
In the same speech, much stress has been laid on the words “during their continuance in office,” as implying that the compensation of the Judge was liable to cease by a Legislative discontinuance of the office. If the words had been during the continuance of the office, the argument would have been pertinent; but as they stand, a different inference, if any, is to be drawn from them. They seem rather to relate to the continuance of the officer than to that of the office. But in truth, an inference either way, it is a pitiful subtilty. The clause is neutral; its plain and simple meaning being, that the compensation shall not be diminished while the Judge retains the office. It throws no light whatever on the question how he may lawfully cease to possess it.
Another point is pressed with great earnestness, and with greater plausibility. It is this, that the Constitution must have intended to attach recompence to service, and cannot be supposed to have meant to bestow compensation, where, in the opinion of the Legislature, no service was necessary. Without doubt, the Constitution does contemplate service as the ground of compensation; but it likewise takes it for granted, that the Legislature will be circumspect in the institution of offices, and especially, that it will be careful to establish none of a permanent nature, which will not be permanently useful. And with this general presumption, the Constitution anticipates no material inconvenience from the permanency of Judicial offices connected with permanent emoluments. And though it should have foreseen that cases might happen in which the service was not needed, yet there is no difficulty whatever in the supposition, that it was willing to encounter the triv[i]al contingent evil of having to maintain a few superfluous officers, in order to obtain the immense good, of establishing and securing the Independence of the Courts of Justice. A readiness of the officer to render service to the will of the Government, is the consideration as to him, for continuing the compensation. But the essential inducement is the public utility incident to the Independency of the Judicial character. As to the supposition of an enormous abuse of power, by creating a long list of sinecures, and a numerous host of pensioners; whenever such a thing shall happen, it will constitute one of those extreme cases, which, on the principle of necessity, may authorise extra-constitutional remedies. But these are cases which can never be appealed to for the interpretation of any constitution, which, in meting out the power of the Government, must be supposed to adjust them on the presumption of a fair execution.

A further topic of argument is that our doctrine would equally restrain the legislature from abolishing offices held during pleasure. But this is not true. The two things stand on different ground. First, the Executive has such an agency in the enacting of laws, that as a general rule, the displacement of the officer cannot happen against his pleasure. Second. The pleasure of the President, in all cases not particularly excepted, is understood to be subject to the direction of the law. Third, an officer during pleasure, having merely a revocable interest, the abolition of his office is no infringement of his right. In substance he is a tenant at the will of the government, liable to be discontinued by the Executive Organ, in the form of a removal; by the Legislative in the form of an abolition of the office. These different considerations reconcile the legislative authority to abolish, with the prerogative of the Chief Magistrate to remove, and with the temporary right of individuals to hold. And therefore, there is no reason against the exercise of such an authority; nothing to form an exception to the general competency of the legislative power to provide for the public welfare. Very different is the case as to the judges. The most persuasive motives of public policy, the safety of liberty itself, require that the Judges shall be independent of the Legislative body; in order to maintain effectually the separation between the several departments: The provision that their compensation shall not be diminished, is a clear constitutional indication, that their independence was intended to be guarded against the Legislature. The express declaration that they shall hold their offices during good behavior, that is, upon a condition dependent on themselves, is repugnant to the hypothesis that they shall hold at the mere pleasure of others. Provisions which profess to confer rights on individuals, are always intitled to a liberal interpretation in support of the rights, and ought not, without necessity, to receive an interpretation subversive of them. Provisions which respect the organization of a co-ordinate branch of the Government, ought to be construed in such a manner, as to procure for it, stability and efficiency, rather than in such a manner as render it weak, precarious, and dependent. These various and weighty reasons serve to establish strong lines of discrimination between Judicial and other officers; and to prove that no inference can be drawn from the power of the Legislature as to the latter, which will be applicable to the former.
One more defence of this Formidable Claim is attempted to be drawn from the example of the Judiciary establishment of G. Britain. It is observed that this establishment, the theme of copious eulogy on account of the independence of the Judges, places those officers upon a footing far less firm than will be that of the judges of the U. States, even admitting the right of congress to abolish their offices, by abolishing the Courts of which they are members: And as one proof of the assertion it is mentioned, that the English Judges are removeable by the King on the address of the two houses of Parliament.
All this might be very true, and yet prove nothing as to what is or ought to be the construction of our Constitution on this point. It is plain from the provision respecting compensation, that the framers of that Constitution intended to prop the independence of our Judges beyond the precautions which have been adopted in England, in respect to the Judges of that country; and the intention apparent in this particular, is an argument that the same spirit may have governed other provisions. Cogent reasons have been assigned, applicable to our system, and not applicable to the British system, for securing the independence of our Judges against the Legislative, as well as against the Executive power.
It is alleged that the statute of Great Britain of the 13 of William III. was the model from which the framers of our Constitution copied the provisions for the Independence of our Judiciary. It is certainly true, that the idea of the tenure of office during good behaviour, found in several of our Constitutions, is borrowed from that source. But it is evident that the framers of our Federal System did not mean to confine themselves to that model. Hence the restraint of the Legislative discretion, as to compensation; hence the omission of the provision for the removal of the Judges by the Executive, on the application of the two branches of the Legislature; a provision which has been imitated in some of the state governments.
This very omission affords no light inference that it was the intention to depart from the principle of making the Judges removeable from office, by the co-operation or interposition of the Legislative Body. Why else was this qualification of the permanent tenure of the office, which forms a conspicuous feature in the British statute, and in some of the State Constitutions, dropped in the plan of the Federal Government?
The insertion of it in the British statute may also be supposed to have been dictated by the opinion, that without a special reservation, the words during good behaviour would have imported an irrevocable tenure. If so, the precaution will serve to fortify our construction.
But however it may seem in theory, in fact, the difference in the genius of the two governments would tend to render the independence of the Judges more secure under the provision of the British statute, than it would be in this country upon the construction which allows to Congress the right to abolish them. The reason is this—From the Constitution of the British Monarchy, the thing chiefly to be apprehended is, an overbearing influence of the Crown upon the Judges. The jealousy of Executive influence resting upon more powerful motives in that country, than in this, it may be expected to operate as a stronger obstacle there, than here; to an improper combination between the Executive and Legislative departments to invade the Judiciary. Moreover, the British Executive has greater means of resisting Parliamentary control, than an American Executive has of resisting the control of an American Legislature; consequently the former would be in less danger than the latter, of being driven to a concurrence in measures hostile to the Independence of the Judges: And in both these ways there would be greater security for the British than for the American Judges.
Thus is it manifest that in every attitude in which the subject has been placed, the argument is victorious against the power of Congress to abolish the Judges. But what, alas! avails the Demonstration of this important Truth? The fatal blow has been struck! It is no longer possible to arrest the rash and daring arm of power! Can the proof that it has acted without right, without warrant—can this heal the wound? Can it renovate the perishing Constitution?—Yes, let us hope that this will be the case. Let us trust that the monitory voice of true patriotism will at length reach the ears of a considerate people, and will rouse them to a united and vigorous exertion for the restoration of their Violated charter; not by means; either disorderly or guilty, but by means which the Constitution will sanction and reason approve. Surely this will be so—A people, who descrying Tyranny at a distance and guided only by the light of just principles, before they had yet felt the scourge of oppression, could nobly hazard all in the defence of their rights;—A people, who sacrificing their prejudices on the altar of experience, and spurning the artifices of insidious Demagogues, could, as a deliberate act of national reason, adopt and establish for themselves a Constitution which bid fair to immortalize their glory and their happiness, such a people, though misled for a period, will not be the final victims of a delusion, alike inauspicious to their reputation and to their welfare. They will not long forget the fame they have so justly merited, nor give the world occasion to ascribe to accident, what has hitherto been imputed to wisdom. They will disdain, to herd with the too long list of degraded nations, who have bowed their necks to unworthy Idols of their own creating—who, immolating their best friends at the shrine of falsehood, have sunk under the yoke of sycophants and betrayers. They will open their eyes and see the precipice on which they stand! They will look around and select from among the throng, the men who have heretofore established a claim to their confidence; the solid basis of able and faithful service; and they will with indignation and scorn, banish from their favour the wretched impostors, who, with honeyed lips and guileful hearts, are luring them to destruction! Admonished by the past, and listening again to the counsels of real friends, they will make a timely retreat from the danger which threatens—they will once more arrange themselves under the banners of the Constitution; with anxious care will repair the breaches that have been made, and will raise new mounds against the future assaults of open or secret enemies!
Lucius Crassus.


Title: To Alexander Hamilton from Philip Schuyler, 28 March 1802
From: Schuyler, Philip
To: Hamilton, Alexander

Albany March 28th. 1802
My Dear Sir
In a letter from Mrs. Church of tuesday last she mentions that my dear Eliza had been very much indisposed, but was better. as no mention is made of the disorder with which she has been afflicted, we apprehend that she has miscarryed, we are extremely anxious for further Accounts and pray they may be such as shall do away our apprehensions.
The Regents of the university have directed their chancellers to convey the lands at Lake George, Ti[c]onderoga and Crown point, formerly granted to the regents, and those to be granted at the present session of the Legislature, to The Trustees of Columbia College and Union College as tenants in Common in equal shares, as Also all the Arrears of rent due from the present Occupants, who hold the lands by lease for a term of years of which a few years are unexpired.
At Ty[c]onderoga and Crown point there are ferrys, which already are valuable and will normally become more so.
I believe It would be prudent for the trustees of both Colleges to appoint one or more Agents with power either to sell or lease the premises as may [be] deemed most Eligible.
At the next meeting of the regents I shall propose that the chancellers deed to the trustees be Entered of record in the office of the Secretary of state, and also to direct the treasurer of the board of regents to make out an Account of the Arrears, of rent due, and of the unexpired terms of the leases.
Kitty is at Rhynbeck, Mrs. Schuyler and myself both well, she unites with me in love to you, our Dear Eliza & the Children.
Adieu My Dear Sir   I am ever most Affectionately yours
Ph: Schuyler
Gen Hamilton


Title: To Alexander Hamilton from Cornelius Bogert, 29 March 1802
From: Bogert, Cornelius I.
To: Hamilton, Alexander

From Cornelius Bogert
[New York] March 29, 1802. Discusses the facts in the “causes of Vanderheuvel against the Columbian Insurance Company.”


Title: From Alexander Hamilton to Aaron Burr, [1 April 1802]
From: Hamilton, Alexander
To: Burr, Aaron

[New York, April 1, 1802]
Dr. Sir
Your Protegé Buisson has addressed to me the inclosed letter. Why he did not immediately write to you I cannot tell unless it be that he is conscious he has used your politeness sufficiently, and imagines an intermediary to be hereafter necessary. Perhaps you may be able to decipher his wishes from the letter; which I confess is beyond my skill. But I understand from him in conversation that he wants an order to Simeon Baldwin from Mr Gallation to pay him Buisson a certain sum which was deposited in the hands of Baldwin I believe for Costs; also that he wants your aid to obtain the residue of the money for the captured vessel & Cargo.
Knowing that you are disposed to do for him whatever is proper and practicable, I will only be the vehicle of his wishes; to relieve his delicacy from the embarrassment of a direct application.
Yr. Obedt Servt
A Hamilton
April 1. 1802
Col Burr


Title: From Alexander Hamilton to James A. Bayard, 6 April 1802
From: Hamilton, Alexander
To: Bayard, James A.

New-York April 6th. 1802.
Amidst the humiliating circumstances which attend our country, all the sound part of the community must find cause of triumph in the brilliant display of talents which have been employed though without success, in resisting the follies of an infatuated administration. And your personal friends will not have much reason for mortification on account of the part you have performed in the interesting scene. But my dear Sir we must not content ourselves with a temporary effort to oppose the approach of the evil. We must derive instruction from the experience before us; and learning to form a just estimate of the things to which we have been attached, there must be a systematic & persevering endeavour to establish the fortune of a great empire on foundations much firmer than have yet been devised. What will signify a vibration of power, if it cannot be used with confidence or energy, & must be again quickly restored to hands which will prostrate much faster than we shall be able to rear under so frail a system? Nothing will be done till the structure of our National Edifice shall be such as naturally to controul excentric passions & views, and to keep in check demagogues & knaves in the disguise of Patriots. Yet I fear a different reasoning will prevail, and an eagerness to recover lost power will betray us into expedients which will be injurious to the country, & disgraceful & ruinous to ourselves. What meant the apparition & the toast which made part of the afterpiece of the birth day festival? Is it possible that some new intrigue is about to link the Fœderalists with a man, who can never by anything else than the bane of a good cause? I dread more from this, than from all the contrivances of the bloated & senseless junta of Virginia. The Fœds. & Antifœds. of this state united in certain amendments to the constitution now before your house, having for objects, 1st to discriminate the candidates for the Presidency & Vice-Presidency, 2nd to have the electors of these officers chosen by the people in districts under the direction of Congress. Both these appear to me points of importance in true Fœderal calculation. Surely the scene of last session ought to teach us the intrinsic demerits of the existing plan. It proved to us, how possible it is for a man in whom no party has confidence, & who deserves the confidence of none, by mere intrigue & accident, to acquire the first place in the Government of our Nation; and it also proved to us how serious a danger of convulsion & disorder is incident to the plan. On this point things have come to my knowledge, improper for a letter, which would astonish you. Surely we ought by this time to have learnt, that whatever multiplied the opportunities & means of Cabal is more favorable to our adversaries than to us. They have certainly the advantage in the game, by greater zeal activity and subtlety, & especially by an abandonment of principle. On all these accounts it is our true policy to abridge the facilities to Cabal as Much as possible in all our public institutions & measures. As to the Second of the amendments, it has ever appeared to me as sound principle, to let the Fœderal Government rest as much as possible on the shoulders of the people, and as little as possible on those of the State Legislatures. The proposition accords with this principle & in my view it is further recommended by its tendency to exclude combination which I am persuaded in the general & permanent course of things will operate more against, than for us. Col: Burr without doubt will resist these amendments. And he may induce some of our friends to play into his hands. But this will be a very bad calculation even admitting the inadmissible idea, that he ought to be adopted as a Chief of the Fœderal Party. We never can have him fairly in our power, till we render his situation absolutely hopeless with his old friends. While the indiscriminate voting prevails he will find it his interest to play fast & lose and to keep himself in a state to be at the head of the Antifœderal Party. If these hopes are cut off, he will immediately set about forming a third party of which he will be the head, and then if we think it worth the while we can purchase him with his flying squadron. These observations are of course hypothetical. For to My Mind the elevation of Mr Burr by Fœderal Means to the Chief Magistracy of the U. States will be the worst kind of political suicide.
Adieu my dear Sir   Yours very sincerely
A. Hamilton


Title: The Examination (concluded) Number XVIII, [8 April 1802]
From: Hamilton, Alexander,“Lucius Crassus”
To:

The Examination. (concluded)
Number XVIII.
[New York, April 8, 1802]
In order to cajole the people, the Message abounds with all the common-place of popular harrangue, and prefers claims of merit, for circumstances of equivocal or of trivial value. With pompous absurdity are we told of the “multiplication of men, susceptible of happiness,” (as if this susceptibility were a privilege peculiar to our climate) “habituated to self-government, and valuing its blessings above all price.” Fortunate will it be, if the present favorites of the people, do not, before their reign is at an end, transform those blessings into curses, so serious and heavy, as to make even Despotism a desirable refuge from the Elysium of Democracy.
In a country, the propensities of which are opposed even to necessary burdens, an alarm is attempted to be excited about the general tendency of Government, “to leave to labor the smallest portion of its earnings, on which it can subsist, and to consume the residue of what it was instituted to guard.” It might have been well, to have explained whether it is the whole of the earnings of labor, which government is instituted to guard, or only the residue after deducting what is necessary to enable it to fulfil the duty of protection. Representatives who share with their constituents in an excessive jealousy of Executive abuses, are cantingly admonished to “circumscribe discretionary powers over money,” though they are known to be already so limited, as that the Executive, even on the prospect of a rupture with a foreign power, would not possess the means of obtain[in]g intelligence the most necessary for the proper direction of its measures. That the new administration has not boldly invaded the laws and withheld the funds applicable to the payment of principal and interest of the public debt, is fastidiously proclaimed as evidence that “the public faith has been exactly maintained.” The praise of a spirit of economy is attempted to be gained, by the suppression of a trifling number of officers, (a majority of whom had become unnecessary by the mere change of circumstances) and by declaiming, with affectation, against “the multiplication of officers and the increase of expense.” The proposition to reduce our insignificant military establishment (the actual number of troops probably not exceeding that which is intended to be retained) cannot be suggested, without tickling our ears with the trite but favorite maxim, that “a standing army ought not to be kept up in time of peace.” To make a display of concern for their prosperity—agriculture, manufactures, commerce and navigation are introduced among the pageants of the piece; but, except as “to protection from casual embarrassments,” we are sagaciously informed that these “Great Pillars of our prosperity, ought to be left to take care of themselves.” The carrying trade, however, seems to engage more solicitude; no doubt that we may be terrified by the expectation of future evils, from a much traduced instrument,
   The Treaty with Great Britain
 which in time past, has done nothing but good, in spite of the gloomy predictions of patriotic seers.
Such are the minor features of this curious performance. Had these been its only blemishes, a regard to national reputation would have forbidden a comment; but connected as they are with schemes of innovation replete with great present mischief, and still greater future danger; designed as they are to varnish over projects which threaten to precipitate our nation from an enviable height of prosperity to that low and abject state, from which it was raised by the establishment and wise administration of our present government—they become intitled to notice as additional indications of character and disposition.
The merits of the Message have now been pretty fully discussed; but before it is dismissed, it may be useful to take a view of it in another and a different light as one link in a chain of testimony, which the force of circumstances, at every step of the new administration, extorts from them, in favor of their predecessors.
The President, on the threshhold of office, at the first opportunity of speaking to his constituents, in his very inaugural speech; full of a truth, which the most rancorous prejudice cannot obscure, and not sufficiently reflecting on the inferences which would be drawn, proclaims aloud to the world, that a government, which he had disapproved in its institution and virulently opposed in its progress, was in The Full Tide of Successfull Experiment. In the last address he again unconsciously becomes the panygerist of those whom he seeks to depreciate. The situation in which (humanly speaking) we have been preserved by the prudent and firm councils of the preceding administrations, amidst the revolutionary and convulsive throes, amidst the desolating conflicts of Europe, is there a theme of emphatic gratulation. It shall not be forgotten, as the solitary merit of the address, that we are reminded of the gratitude due to heaven for the blessings of this situation. Amidst the spurious symptoms of a spirit of reform, it is consoling to observe one, which, in charity, ought to be supposed genuine. But it would not have diminished our conviction of its sincerity, if the instruments of Providence in the accomplishment of the happy work, had not been entirely overlooked; since this would have been evidence of a willingness to acknowledge and retract error—to make reparation for injury. But tho’ they have been overlooked by the Message, the American people ought never for a moment to forget them. Their efforts and their struggles, their moderation and their energy, their care and their foresight; the mad and malignant opposition of their political adversaries; the charges of pusillanimity and perfidy lavished on the Declaration of neutrality; the resistance to measures for avoiding a rupture with Great Britain; the attempt to rush at once into reprisals; the cry for war with the enemies of France, as the enemies of Republican liberty; all these things should be forever imprinted on the memory of a just and vigilant nation. And in recollecting them, they should equally recollect that the opposers of the salutary plans to which they are so much indebted, were and are the zealous partizans of the present Head of our Government; who have at all times submitted to his influence and implicitly obeyed his nod; who never would have pursued with so much vehemence the course they did, had they known it to be contrary to the views of their Chief: nor should it be forgotten that this Chief in the negociation with the British Minister, conducted by him as Secretary of State, acted precisely as if it had been his design to widen, not to heal the breach between the two countries; that he at first objected to the Declaration of neutrality; was afterwards reluctantly dragged into the measures connected with it; was believed by his friends not to approve the system of conduct, of which he was the official organ; was publicly and openly accused by the then agent of the French Republic with duplicity and deception, with having been the first to inflame his mind with ill impressions of the principles and views of leading characters in our Government, not excepting the revered Washington; that this Chief, at a very critical period of our affairs in reference to the war of Europe, withdrew from the direction of that department peculiarly charged with the management of our foreign relations, evidently to avoid being more deeply implicated in the consequences of the position, which had been assumed by the Administration; but on the hollow pretence of a dislike to public life and a love of philosophic retirement. Citizens of America—mark the sequel and learn from it instruction! You have been since agitated to the center, to raise to the first station in your Government, the very man who, at a conjuncture when your safety and your welfare demanded his stay, early relinquished a subordinate, but exalted and very influential post, on a pretence as frivolous as it has proved to be insincere! Was he, like the virtous Washington, forced from a beloved retreat, by the unanimous and urgent call of his country? No: he stalked forth the Champion of Faction, having never ceased in the shade of his retreat, by all the arts of intrigue, to prepare the way to that elevation, for which a restless ambition impatiently panted.
The undesigned eulogy of the men, who have been slandered out of the confidence of their fellow-citizens, has not been confined to the situation of the country, as connected with the war of Europe. In the view given of the very flourishing state of our finances, the worst of the calumnies against those men is refuted, and it is admitted, that in this article of vital importance to the public welfare, their measures have been provident and effectual beyond example. To the charge of a design to saddle the nation with a perpetual debt, a plain contradiction is given by the concession, that the provisions which have been made for it are so ample, as even to justify the relinquishment of a part no less considerable than the whole of the internal revenue. The same proposal testifies the brilliant success of our fiscal system generally; and that it is more than equal to all that has been undertaken, to all that has been promised to the nation.
The report of the Secretary of the Treasury, as published, confirms this high commendation of the conduct of the former administrations. After relieving each state from the burden of its particular debt, by assuming the payment of it on account of the United States, in addition to the general debt of the nation; after settling the accounts between the states relatively to their exertions for the common defence in our revolutionary war, and providing for the balances found due to such of them as were creditors; after maintaining with complete success, an obstinate and expensive war with the Indian tribes; after making large disbursements for the suppression of two insurrections against the Government; after liberal contributions to the Barbary powers to induce them to open to our merchants the trade of the Mediterranean; after incurring a responsibility for indemnities to a large amount, due to British merchants, in consequence of infractions of the Treaty of peace by some of the states; after heavy expenditures for creating and supporting a navy and for other preparations, to guard our independence and territory against the hostilities of a foreign nation; after  the accomplishment of all these very important objects, it is now declared to the United States by the present head of the Treasury, by the confidential minister of the present Chief Magistrate, the most subtil and implacable of the enemies of the former administrations, “That the actual revenues of the Union are sufficient, to defray all the expences civil and military of Government, to the extent authorised by existing laws, to meet All the Engagements of the United States; and to discharge in fifteen years and a half, The Whole of Our Public Debt”—foreign as well as domestic, new as well as old. Let it be understood, that the revenues spoken of were all provided under the two first administrations; and that the “existing laws” alluded to, were all passed under the same administrations; consequently, that the revenues had not been increased, nor the expences diminished by the men who now hold the reins: and then let it be asked, whether so splendid a result does not reflect the highest credit on those, who in times past, have managed the affairs of the Nation? Does not the picture furnish matter not only for consolation, but even for exultation to every true friend of his country? And amidst the joy which he must feel in the contemplation, can he be so unjust as to refuse the tribute of commendation to those, by whose labors his country has been placed on so fair an eminence? Will he endure to see any part of the fruits of those labors blasted or hazarded, by a voluntary surrender of any portion of the means which are to insure the advantages of so bright a prospect?
In vain will envy or malevolence reply, “The happy situation in which we are placed is to be attributed not to the labors of those who have heretofore conducted our affairs, but to an unforeseen and unexpected progress of our country.” Candor and truth will answer—Praise is always due to public men who take their measures in such a manner as to derive to the nation the benefit of favorable circumstances which are possible, as well as of those which are foreseen. If proportionate provision had not been made, concurrently with the progress of our national resources, the effect of them would not have been felt as to the past, and would not have been matured as to the future.

But why should it be pretended that this progress was not anticipated? In past experience there were many data for calculation. The ratio of the increase of our population had been observed and stated; the extent and riches of our soil were known; the materials for commercial enterprize were no secret; the probable effect of the measures of the government to foster and encourage navigation, trade and industry, was well understood; and especially, the influence of the means, which were adapted to augment our active capital, and to supply a fit and adequate medium of circulation, towards the increase of national wealth, was declared and insisted upon, in official reports. Though adventitious circumstances may have aided the result, it is certain, that a penetrating and comprehensive mind could be at no loss to foresee a progress of our affairs, similar to what has been experienced. Upon this anticipation the assumption of the state debts, and other apparently bold measures of the government were avowedly predicated, in opposition to the feeble & contracted views of the Little Politicians, who now triumph in the success of their arts, and enjoy the benefits of a policy, which they had neither the wi[s]dom to plan nor the spirit to adopt—idly imagining that the cunning of a demagogue and the talents of a statesman are synonymous. Consummate in the paltry science of courting and winning popular favor, they falsely infer that they have the capacity to govern, and they will be the last to discover their error. But let them be assured that the people will not long continue the dupes of their pernicious sorceries. Already, the cause of truth has derived this advantage from the crude essays of their Chief, that the film has been removed from many an eye. The credit of great abilities was allowed him by a considerable portion of those who disapproved his principles; but the short space of nine months has been amply sufficient to dispel that illusion; and even some of his most partial votaries begin to suspect, that they have been mistaken in the Object of Their Idolatry.
Lucius Crassus.


Title: To Alexander Hamilton from Rufus King, 8 April 1802
From: King, Rufus
To: Hamilton, Alexander

London Ap. 8. 1802
Dear Sir
By Dr. Romayne I send you a pamphlet lately written upon the interesting subject of the public credit of this Country. The author is a member of parliament an old & practical Banker, Brother to the president of the Bank of England, and for many years much conversant with the great money operations of the Country. When you have read it I wish the favour of you to send it together with the other Pamphlet respecting the Sugar Colonies to our friend Mr George Cabot.
I do not enter upon the Situation of Europe since the Peace—it would be too long a labour to do so. While the war lasted, constant and endless occasions presented themselves to employ myself here for the benefit of our countrymen & I flatter myself for the pub. advantage. The Revision of our coml. treaty has been a Service to which I have all along looked as the conclusion of my mission: As however I have no reason to suppose it likely soon to take place, I am not much inclined to remain here a mere figurant, and I am therefore seriously thinking of my Return. Without deciding any thing on this point, I confidentially ask your opinion respecting it? This I have not done except in the present instance.
very faithfully   Yrs
R K.
Before returning, I am desirous to pass a few months upon the continent.