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Article 1, Section 9, Clause 3

Document 6

Alexander Hamilton, A Second Letter from Phocion

April 1784Papers 3:543--45

If we examine it with an unprejudiced eye, we must acknowledge not only that it was an evasion of the treaty, but a subversion of one great principle of social security, to wit, that every man shall be presumed innocent until he is proved guilty: This was to invert the order of things; and instead of obliging the state to prove the guilt, in order to inflict the penalty, it was to oblige the citizen to establish his own innocence, to avoid the penalty. It was to excite scruples in the honest and conscientious, and to hold out a bribe to perjury.

That this was an evasion of the treaty, the fourth proposition already laid down will illustrate. It was a mode of inquiry who had committed any of those crimes to which the penalty of disqualification was annexed, with this aggravation, that it deprived the citizen of the benefit of that advantage which he would have enjoyed by leaving, as in all other cases, the burthen of the proof upon the prosecutor.

To place this matter in a still clearer light, let it be supposed, that instead of the mode of indictment and trial by jury, the legislature was to declare that every citizen who did not swear he had never adhered to the King of Great-Britain, should incur all the penalties which our treason laws prescribe. Would this not be a palpable evasion of the treaty, and a direct infringement of the constitution? The principle is the same in both cases, with only this difference in the consequences; that in the instance already acted upon, the citizen forfeits a part of his rights,--in the one supposed he would forfeit the whole. The degree of punishment is all that distinguishes the cases. In either justly considered, it is substituting a new and arbitrary mode of prosecution to that antient and highly esteemed one, recognized by laws and the constitution of the state; I mean the trial by jury.

Let us not forget that the constitution declares that trial by jury in all cases in which it has been formerly used, should remain inviolate forever, and that the legislature should at no time, erect any new jurisdiction which should not proceed, according to the course of the common law. Nothing can be more repugnant to the true genius of the common law, than such an inquisition as has been mentioned into the consciences of men.

A share in the sovereignty of the state, which is exercised by the citizens at large, in voting at elections is one of the most important rights of the subject, and in a republic ought to stand foremost in the estimation of the law. It is that right, by which we exist a free people; and it certainly therefore will never be admitted, that less ceremony ought to be used in divesting any citizen of that right, than in depriving him of his property. Such a doctrine would ill suit the principles of the revolution, which taught the inhabitants of this country to risk their lives and fortunes in asserting their liberty; or in other words, their right to a share in the government. That portion of the sovereignty, to which each individual is entitled, can never be too highly prized. It is that for which we have fought and bled; and we should cautiously guard against any precedents, however they may be immediately directed against those we hate, which may in their consequences render our title to this great privilege, precarious. Here we may find the criterion to distinguish the genuine from the pretended whig. The man that would attack that right, in whatever shape, is an enemy to whiggism.

If any oath, with retrospect to past conduct, were to be made the condition, on which individuals, who have resided within the British lines, should hold their estates; we should immediately see, that this proceeding would be tyrannical, and a violation of the treaty, and yet when the same mode is employed to divest that right, which ought to be deemed still more sacred, many of us are so infatuated as to overlook the mischief.

To say that the persons, who will be affected by it, have previously forfeited that right, and that therefore nothing is taken away from them, is a begging of the question. How do we know who are the persons in this situation? If it be answered, this is the mode taken to ascertain it, the objection returns, 'tis an improper mode, because it puts the most essential interests of the citizen upon a worse footing, than we should be willing to tolerate where inferior interests were concerned; and because to elude the treaty it substitutes to the established and legal mode of investigating crimes, and inflicting forfeitures, on[e] that is unknown to the constitution, and repugnant to the genius of our law.

The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 3, Document 6
The University of Chicago Press

The Papers of Alexander Hamilton. Edited by Harold C. Syrett et al. 26 vols. New York and London: Columbia University Press, 1961--79. See also: Federalist

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