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APPENDIX F: THE HAMILTON PLAN

Farrand writes:

"In connection with his important speech of June 18, Hamilton read a sketch of a plan of government which “was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of Mr. R. in the proper stages of its future discussion.”

Although this plan was not formally before the Convention in any way, several of the delegates made copies that show considerable differences in certain articles, — namely, the fourth, seventh and eighth.

In the fourth article, which relates to the executive, the variations are in that part which prescribes the (indirect) mode of his election. Hamilton’s own copy (found among his papers, but may have been retouched by its author) provides for “his election to be made by electors chosen by electors chosen by the people in the election districts aforesaid,” meaning the single-member districts arranged for the choice of senators. That is to say, it provides not that his election shall be secondary, but that it shall be, if the phrase is permissible, a tertiary election. An alternative is provided, which appears in no other of the texts, namely, “or by electors chosen for that purpose by the respective legislatures” — an election still tertiary. The Brearley and Paterson copies, though they do not give the second member of this alternative, agree exactly with the phraseology of the first. In Madison’s copy the process becomes simply that of secondary election — “the election to be made by electors chosen by the people in the election districts aforesaid.” Read’s copy agrees with this. Arguments from one or another of these texts derived from expressions used in the subsequent debates seem to be lacking. The more intricate form in which the Hamilton copy provides for the election of the executive is sustained by the longer plan which Hamilton gave to Madison at the close of the Convention, for this provided for a tertiary rather than a secondary election, and it is easy in copying to omit one of two similar phrases when the repetition is not perfectly well known to be intentional. On the other hand, it is not easy to imagine that the alternative method which is suggested in Hamilton’s copy was really the document read on June 18, yet escaped all notice on the part of all of those whose versions have come down to us.

In the seventh article, relating to the judiciary, the number of judges in the Supreme Court is left blank in the others, whereas in Hamilton’s copy the blank is filled with the word twelve. Much the most probable conclusion is that the document originally read had a blank at this point, which Hamilton subsequently filled in with the number. In his longer plan he provides for a court of from six to twelve judges.

The eighth article in Hamilton’s copy reads:

“The Legislature of the United States to have power to institute courts in each State for the determination of all causes of capture and of all matters relating to their revenue, or in which the citizens of foreign nations are concerned.”

In the other copies we find a less specific definition of their jurisdiction: “for the determination of all matters of general concern.” It would be natural, according to the usual rules respecting copying, to suppose that the more specific phrase was the original, the more general derivative; but this presumption is much weakened when we find several independent texts agreeing exactly in their phrasing of this provision.

Finally, in the ninth article, the various texts differ markedly in respect to the composition of the court for trying impeachments. Hamilton’s copy provides that they shall be tried by a court consisting “of the judges of the Federal Supreme Court, chief or senior judge of the superior court of law of each State.” The others make no mention of the judges of the Federal Supreme Court. Once they were introduced, it is easy to see why the blank in Article 7 should be filled with the word twelve, lest in impeachments of Federal officers they be quite outnumbered by the thirteen chief justices of the States, or so many of them as could attend. But the other copies, while they confine the tribunal to the State judges, have minor variations in their definition of them — Madison, “to consist of the chief or judge of the superior court of law of each State”; Read, “chief or judges”; Brearley and Paterson, “chief or senior judge”. It is not difficult to imagine that, if the writer did not feel perfectly acquainted with the judicial systems of all the States, and therefore could not in advance of discussion decide what phrase should be used to cover the case of States which did not precisely have a chief judge, he might at first write “chief or judge,” and afterward fill in the blank with the word “senior”. In Hamilton’s longer plan, the court for the trial of impeachments in the case of the higher officials is composed of the Supreme Court of the United States, (which was to consist of from six to twelve judges), plus the chief or senior judge of each State, any twelve to constitute a court.

No other data being available, it is impossible to reach a positive conclusion upon the correct reading of any of these variations, but the editor is inclined to rely upon the accuracy of the Madison copy."

Description

APPENDIX F: THE HAMILTON PLAN

Farrand writes:

"In connection with his important speech of June 18, Hamilton read a sketch of a plan of government which “was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of Mr. R. in the proper stages of its future discussion.”

Although this plan was not formally before the Convention in any way, several of the delegates made copies that show considerable differences in certain articles, — namely, the fourth, seventh and eighth.

In the fourth article, which relates to the executive, the variations are in that part which prescribes the (indirect) mode of his election. Hamilton’s own copy (found among his papers, but may have been retouched by its author) provides for “his election to be made by electors chosen by electors chosen by the people in the election districts aforesaid,” meaning the single-member districts arranged for the choice of senators. That is to say, it provides not that his election shall be secondary, but that it shall be, if the phrase is permissible, a tertiary election. An alternative is provided, which appears in no other of the texts, namely, “or by electors chosen for that purpose by the respective legislatures” — an election still tertiary. The Brearley and Paterson copies, though they do not give the second member of this alternative, agree exactly with the phraseology of the first. In Madison’s copy the process becomes simply that of secondary election — “the election to be made by electors chosen by the people in the election districts aforesaid.” Read’s copy agrees with this. Arguments from one or another of these texts derived from expressions used in the subsequent debates seem to be lacking. The more intricate form in which the Hamilton copy provides for the election of the executive is sustained by the longer plan which Hamilton gave to Madison at the close of the Convention, for this provided for a tertiary rather than a secondary election, and it is easy in copying to omit one of two similar phrases when the repetition is not perfectly well known to be intentional. On the other hand, it is not easy to imagine that the alternative method which is suggested in Hamilton’s copy was really the document read on June 18, yet escaped all notice on the part of all of those whose versions have come down to us.

In the seventh article, relating to the judiciary, the number of judges in the Supreme Court is left blank in the others, whereas in Hamilton’s copy the blank is filled with the word twelve. Much the most probable conclusion is that the document originally read had a blank at this point, which Hamilton subsequently filled in with the number. In his longer plan he provides for a court of from six to twelve judges.

The eighth article in Hamilton’s copy reads:

“The Legislature of the United States to have power to institute courts in each State for the determination of all causes of capture and of all matters relating to their revenue, or in which the citizens of foreign nations are concerned.”

In the other copies we find a less specific definition of their jurisdiction: “for the determination of all matters of general concern.” It would be natural, according to the usual rules respecting copying, to suppose that the more specific phrase was the original, the more general derivative; but this presumption is much weakened when we find several independent texts agreeing exactly in their phrasing of this provision.

Finally, in the ninth article, the various texts differ markedly in respect to the composition of the court for trying impeachments. Hamilton’s copy provides that they shall be tried by a court consisting “of the judges of the Federal Supreme Court, chief or senior judge of the superior court of law of each State.” The others make no mention of the judges of the Federal Supreme Court. Once they were introduced, it is easy to see why the blank in Article 7 should be filled with the word twelve, lest in impeachments of Federal officers they be quite outnumbered by the thirteen chief justices of the States, or so many of them as could attend. But the other copies, while they confine the tribunal to the State judges, have minor variations in their definition of them — Madison, “to consist of the chief or judge of the superior court of law of each State”; Read, “chief or judges”; Brearley and Paterson, “chief or senior judge”. It is not difficult to imagine that, if the writer did not feel perfectly acquainted with the judicial systems of all the States, and therefore could not in advance of discussion decide what phrase should be used to cover the case of States which did not precisely have a chief judge, he might at first write “chief or judge,” and afterward fill in the blank with the word “senior”. In Hamilton’s longer plan, the court for the trial of impeachments in the case of the higher officials is composed of the Supreme Court of the United States, (which was to consist of from six to twelve judges), plus the chief or senior judge of each State, any twelve to constitute a court.

No other data being available, it is impossible to reach a positive conclusion upon the correct reading of any of these variations, but the editor is inclined to rely upon the accuracy of the Madison copy."

Content

I The Supreme Legislative power of the United States of America to be vested in two different bodies of men; the one to be called the Assembly, the other the Senate who together shall form the Legislature of the United States with power to pass all laws whatsoever subject to the Negative hereafter mentioned.

II The Assembly to consist of persons elected by the people to serve for three years.

III. The Senate to consist of persons elected to serve during good behaviour; their election to be made by electors chosen for that purpose by the people: in order to this the States to be divided into election districts. On the death, removal or resignation of any Senator his place to be filled out of the district from which he came.

IV. The supreme Executive authority of the United States to be vested in a Governour to be elected to serve during good behaviour — the election to be made by Electors chosen by the people in the Election Districts aforesaid — The authorities & functions of the Executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed, to have the direction of war when authorized or begun; to have with the advice and approbation of the Senate the power of the making all treaties; to have the sole appointment of the heads or chief officers of the departments of Finance, War and Foreign Affairs; to have the nomination of all other officers (Ambassadors to foreign Nations included) subject to the approbation or rejection of the Senate; to have the power of pardoning all offences except Treason; which he shall not pardon without the approbation of the Senate.

V. On the death resignation or removal of the Governour his authorities to be exercised by the President of the Senate till a Successor be appointed.

VI The Senate to have the sole power of declaring war, the power of advising and approving all Treaties, the power of approving or rejecting all appointments of officers except the heads or chiefs of the departments of Finance War and foreign affairs.

VII. The Supreme Judicial authority to be vested in Judges to hold their offices during good behaviour with adequate and permanent salaries. This Court to have original jurisdiction in all causes of capture, and an appellative jurisdiction in all causes in which the revenues of the general Government or the citizens of foreign nations are concerned.

VIII. The Legislature of the United States to have power to institute Courts in each State for the determination of all matters of general concern.

IX. The Governour Senators and all officers of the United States to be liable to impeachment for mal — and corrupt conduct; and upon conviction to be removed from office, & disqualified for holding any place of trust or profit — all impeachments to be tried by a Court to consist of the Chiefor Judge of the Superior Court of Law of each State, provided such Judge shall hold his place during good behavior, and have a permanent salary.

X All laws of the particular States contrary to the Constitution or laws of the United States to be utterly void; and the better to prevent such laws being passed, the Governour or president of each state shall be appointed by the General Government and shall have a negative upon the laws about to be passed in the State of which he is Governour or President.

XI No State to have any forces land or Naval; and the Militia of all the States to be under the sole and exclusive direction of the United States, the officers of which to be appointed and commissioned by them.

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Appendix F (Max Farrand, 1911)