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Constitutional Government

CHAPTER 17|Document 21

Alexander Hamilton, A Second Letter from Phocion

In the first formation of a government the society may multiply its precautions as much, and annex as many conditions to the enjoyment of its rights, as it shall judge expedient; but when it has once adopted a constitution, that constitution must be the measure of its discretion, in providing for its own safety, and in prescribing the conditions upon which its privileges are to be enjoyed. If the constitution declares that persons possessing certain qualifications shall be entitled to certain rights, while that constitution remains in force, the government which is the mere creature of the constitution, can divest no citizen, who has the requisite qualifications, of his corresponding rights. It may indeed enact laws and annex to the breach of them the penalty of forfeiture; but before that penalty can operate, the existence of the fact, upon which it is to take place, must be ascertained in that mode which the constitution and the fundamental laws have provided. If trial by jury is the mode known and established by that constitution and those laws, the persons who administer the government in deviating from that course will be guilty of usurpation. If the constitution declares that the legislative power of the state shall be vested in one set of men and the judiciary power in another; and those who are appointed to act in a legislative capacity undertake the office of judges, if, instead of confining themselves to passing laws, with proper sanctions to enforce their observance, they go out of their province to decide who are the violators of those laws, they subvert the constitution and erect a tyranny. If the constitution were even silent on particular points those who are intrusted with its power, would be bound in exercising their discretion to consult and pursue its spirit, and to conform to the dictates of reason and equity; if, instead of this, they should undertake to declare whole classes of citizens disfranchised and excluded from the common rights of the society, without hearing, trial, examination or proof; if, instead of waiting to take away the rights of citizenship from individuals, till the state has convicted them of crimes, by which they are to lose them, before the ordinary and regular tribunal, they institute an inquisition into mens consciences, and oblige them to give up their privileges, or undertake to interpret the law at the hazard of perjury; they expose themselves to the imputation of injustice and oppression.

The right of a government to prescribe the conditions on which its privileges shall be enjoyed, is bounded with respect to those who are already included in the compact, by its original conditions; in admitting strangers it may add new ones; but it cannot without a breach of the social compact deprive those, who have been once admitted of their rights, unless for some declared cause of forfeiture authenticated with the solemnities required by the subsisting compact.

The rights too of a republican government are to be modified and regulated by the principles of such a government. These principles dictate, that no man shall lose his rights without a hearing and conviction, before the proper tribunal; that previous to his disfranchisement, he shall have the full benefit of the laws to make his defence; and that his innocence shall be presumed till his guilt has been proved. These with many other maxims, never to be forgotten in any but tyrannical governments, oppose the aims of those who quarrel with the principles of Phocion.

Cases indeed of extreme necessity are exceptions to all general rules; but these only exist, when it is manifest the safety of the community is in imminent danger. Speculations of possible danger never can be justifying causes of departures from principles on which in the ordinary course of things all private security depends--from principles which constitute the essential distinction between free and arbitrary governments.

When the advocates for legislature discriminations are driven from one subterfuge to another, their last resting place is--that this is a new case, the case of a revolution. Your principles are all right say they, in the ordinary course of society, but they do not apply to a situation like ours. This is opening a wilderness, through all the labyrinths of which, it is impossible to pursue them: The answer to this must be, that there are principles eternally true and which apply to all situations; such as those that have been already enumerated--that we are not now in the midst of a revolution but have happily brought it to a successful issue--that we have a constitution formed as a rule of conduct--that the frame of our government is determined and the general principle of it is settled--that we have taken our station among nations have claimed the benefit of the laws which regulate them, and must in our turn be bound by the same laws--that those eternal principles of social justice forbid the inflicting punishment upon citizens, by an abridgement of rights, or in any other manner, without conviction of some specific offence by regular trial and condemnation--that the constitution we have formed makes the trial by jury the only proper mode of ascertaining the delinquences of individuals--that legislative discriminations, to supersede the necessity of inquiry and proof, would be an usurpation on the judiciary powers of the government, and a renunciation of all the maxims of civil liberty--that by the laws of nations and the rules of justice, we are bound to observe the engagements entered into on our behalf, by that power which is invested with the constitutional prerogative of treaty--and that the treaty we have made in its genuine sense, ties up the hands of government from any species of future prosecution or punishment, on account of the part taken by individuals in the war.

Among the extravagancies with which these prolific times abound, we hear it often said that the constitution being the creature of the people, their sense with respect to any measure, if it even stand in opposition to the constitution, will sanctify and make it right.

Happily, for us, in this country, the position is not to be controverted; that the constitution is the creature of the people; but it does not follow that they are not bound by it, while they suffer it to continue in force; nor does it follow, that the legislature, which is, on the other hand, a creature of the constitution, can depart from it, on any presumption of the contrary sense of the people.

The constitution is the compact made between the society at large and each individual. The society therefore, cannot without breach of faith and injustice, refuse to any individual, a single advantage which he derives under that compact, no more than one man can refuse to perform his agreement with another. If the community have good reasons for abrogating the old compact, and establishing a new one, it undoubtedly has a right to do it; but until the compact is dissolved with the same solemnity and certainty with which it was made, the society, as well as individuals, are bound by it.

All the authority of the legislature is delegated to them under the constitution; their rights and powers are there defined; if they exceed them, 'tis a treasonable usurpation upon the power and majesty of the people; and by the same rule that they may take away from a single individual the rights he claims under the constitution, they may erect themselves into perpetual dictators. The sense of the people, if urged in justification of the measure, must be considered as a mere pretext; for that sense cannot appear to them in a form so explicit and authoritative, as the constitution under which they act; and if it could appear with equal authenticity, it could only bind, when it had been preceded by a declared change in the form of government.

The contrary doctrine serves to undermine all those rules, by which individuals can know their duties and their rights, and to convert the government into a government of will not of laws.

The Founders' Constitution
Volume 1, Chapter 17, Document 21
http://press-pubs.uchicago.edu/founders/documents/v1ch17s21.html
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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