CONSTRUCTION
CONSTRUED,
AND
CONSTITUTIONS
VINDICATED.
BY JOHN TAYLOR,
AUTHOR OF THE ENQUIRY,
AND ARATOR.
RICHMOND:
PRINTED BY SHEPHERD & POLLARD.
1820
Edited by Jon Roland
2002
Image of 1820 title
page
DISTRICT OF VIRGINIA, TO WIT:
BE IT
REMEMBERED, That on the thirteenth day of November, in the forty-fifth year of
the independence of the United States of America, Thomas Ritchie and Company,
of the said district, have deposited in this office the title of a book, the
right whereof they claim as proprietors, in the words following, to wit:
"Construction construed, and constitutions vindicated. By John Taylor, author
of the Enquiry, and Arator." In conformity to the act of the congress of the
United States, entitled, "An act for the encouragement of learning, by securing
the copies of maps, charts, and books to the authors and proprietors of such
copies, during the times therein mentioned."
RD. JEFFRIES, Clerk of the District of Virginia.
TO THE PUBLICK.
The crisis has come, when the following work "may do the state some
service."
The Missouri Question is probably not yet closed. The
principle, on which it turns, is certainly not settled. Further attempts
are to be made to wrest from the new states, about to enter into the American
confederacy, the power of regulating their own concerns. — The Tariff
question is again to be agitated. — It is time to bring the policy and
the power of a legislature's interfering with the judicial functions to
the bar of publick opinion. — The usurpation of a federal power over roads
and canals is again to be attempted, and again to be reprobated. — That
gigantick institution, the Bank of the United States, which, while yet in the
green tree, was proclaimed by the republicans a breach of the constitution,
"stands now upon its bond;" but that charter, bad as it is, has been justified
by the supreme court of the United States, on principles so bold and
alarming, that no man who loves the constitution can fold his arms in apathy
upon the subject. Those principles, so boldly uttered from the highest judicial
tribunal in the United States, are calculated to give the tone to an
acquiescent people, to change the whole face of our government, and to generate
a thousand measures, which the framers of the constitution never anticipated.
That decision
—— will be recorded for a precedent,
And many an error
by the same example
May rush into the state. It cannot
be.
Against such a decision, it becomes every man, who values the
constitution, to raise his voice.
In truth, we have arrived at a crisis, when the first principles of the
government and some of the dearest rights of the states are threatened with
being utterly ground into dust and ashes. When we look to the original form of
the government, we are struck with its novelty and beauty. It presents to us
one of the grandest experiments that ever was made in political science. We see
in it an attempt to ascertain, how far power could be so distributed between
two governments, as to prevent an excessive concentration and consequent
abuse of it in one set of bands; at the same time, that so much power
was conveyed to each, as to enable them to accomplish the objects to which each
of them was best adapted. The federal government was to watch over our
foreign relations; that of the states, was particularly to take care of our
internal concerns. The great secret was, to have these functions so wisely
regulated, as to prevent the general government from rushing into
consolidation; and the states, into a dissolution of the union. The first
extreme would infallibly conduct us to great oppression, and probably to
monarchy : the last would subject us to insults and injuries from abroad, to
contentions and bloodshed at home. To avoid these extremes, we should never
have lost sight of the true spirit of the federal constitution. To interpret it
wisely, we should have rigidly adhered to the principle, laid down by George
Clinton, when he, from the chair of the senate of the United States, gave the
casting voice against the renewal of the first bank charter: "In the course of
a long life, I have found that government is not to be strengthened by the
assumption of doubtful powers, but a wise and
energetick execution of those which are incontestable; the former
never fails to produce suspicion and distrust, whilst the latter inspires
respect and confidence. If, however, on fair experience, the powers
vested in the government shall be found incompetent to the
attainment of the objects for which it was instituted, the constitution
happily furnishes the means for remedying the evil by amendment." This
maxim deserves to be written in letters of gold upon the wall of the capitol in
Washington.
But, we have been almost deaf to the voice of wisdom. We have nearly
forgotten the principles of our fathers. In repeated instances, we have
suffered the constitution to be trodden under foot. We have been lately rushing
rapidly towards the gulph of consolidation. We have even seen the purest
triumphs of the republican party in 1800-1, (when an alien and sedition law
were shivered into atoms by an indignant people,) almost forgotten. We have
seen a decision promulgated from the federal bench, which is calculated to
sweep down the dearest rights of the states. The infatuation of the day has
been carried so far, that we have just seen an attempt made, and bolstered up
by the seriatim opinion of five eminent counsellors, to humble the powers of
the state governments at the feet of the District of Columbia!
The period is, indeed, by no means an agreeable one. It borrows new
gloom from the apathy which seems to reign over so many of our sister states.
The very sound of State Rights is scarcely ever heard among them; and by many
of their eminent politicians, it is only heard to be mocked at. But a good
citizen will never despair of the republick. Among these good citizens, is John
Taylor, of Caroline. Penetrated by the conviction, that the constitution is in
danger; that the balance has seriously inclined towards the side of
consolidation; he comes forward to commune with his countrymen, and to state
to them frankly his impressions and his fears.
If there be any book that is capable of rousing the people, it is the
one before us. Bold and original in its conceptions, without passion, and with
an admirable ingenuity to recommend it, it is calculated, we should think, to
make a deep impression. Its author is far removed from the temptations of
ambition. He holds no office. He wishes for none. He writes, for he has thought
much; and the present is a sort of last legacy to his countrymen. It is
unnecessary to dwell upon the particular traits of this work; yet the finger
upon the wall is not to be mistaken. We here see the spirit which breathes in
the pages of "Arator," and of the "Political Enquiry." The first has made him
known throughout America: The last is less generally read; but unless some
intelligent men are much mistaken, it is yet to win its way to distinguished
reputation. They have all one trait, without which genius exists not. The
man, who writes them, dares to think for himself.
EDITOR.
RICHMOND, November, 1820.
PREFACE.
THE author of the following work earnestly wished
to remain unknown; but circumstances having rendered it impossible, his
alternative was reduced to an avowal, or an affectation of concealment: he
hopes, however, that no one will believe him to have been influenced by money,
or fame, or any personal consideration, except that kind of feeling experienced
when about to take a last leave of our friends, we say to them "God bless
you."
He does not solicit the indulgence of his readers, as he wishes his
errors to be corrected; nor does be expect any, except from those whose
interest is not disunited from that of the society.
The end of fostering eleemosynary families has evidently suggested a
mode of construing our constitutions, which requires that such phrases as the
following should be reconciled : "Sovereign servants. Supreme equality.
Unlimited limitations. Consolidated divisions. Inferior superiority. And
desirable misery." Thus, representative power may be made despotick; a
co-ordinate sphere may be made supreme; convenience, like the waves produced by
a pebble thrown on smooth water, may be made to undulate indefinitely; a
subordinate judicial power may start up into a dictator to the state
governments; divisions and limitations of power may be confounded and
abolished; and English follies are converted from objects of our abhorrence,
into models for our imitation. Under a reconciliation between republican and
despotick principles, effected by the new idea of "sovereign servants," our
legislatures are converted into British parliaments, daily new-modelling the
substance of our government, by bodies politick, exclusive privileges,
pensions, bounties, and judicial acts, comprising an arbitrary power of
dispensing wealth or poverty to individuals and combinations, at their
pleasure.
If our system of government produces these bitter fruits naturally, it
is substantially European; and the world, after having contemplated with
intense interest and eager solicitude the experiment of the United States, will
be surprised to find, that no experiment at all has been made, and that it
still remains to be discovered, whether a political system preferable to the
British be within the scope of human capacity. But, if these fruits are not its
legitimate offsprings, but of foreign importation, we ought to fulfil the hopes
of mankind, by returning to those principles in construing our system, by which
it was dictated. Let us remember, that the lucrative partialities of a
government, instead of being destroyed by use, like the splendid fabricks of
the loom bespangled with gold and silver to gratify pride and luxury, become
richer and stronger, the longer they are worn by ambition and avarice.
The habit of corrupting our political system, by the instrumentality of
inference, convenience and necessity, with an endless series of consequences
attached to them, is the importer of contraband principles, and the bountiful
grantor of powers not given, or withheld by our constitutions. It is,
therefore, the natural enemy of our home-bred form of government, and ought to
awaken the resistance of all legislative and judicial departments, and the
detestation of every person not enriched by this ruinous commerce. Every lover
of our institutions ought to be a vigilant custom-house officer, and do his
utmost to prevent a heavy government from being brought in gradually by these
seemingly light skiffs. It is convenient for the transmission of taxes, that
congress should create banks; but the constitution does not delegate to the
federal government a power to create political combinations, invested with a
power to regulate the wealth and poverty of individuals. This new power of
indefinite magnitude is, however, said to be conveyed, as a consequence of the
convenient mode of removing money. Again: congress have a power to regulate
commerce; but the constitution does not delegate to the federal government a
power to make several states tributary to one, nor a power to make the people
of all the states tributary to a combination of capitalists, constituting in
fact a body politick, materially affecting the interests of all persons. In
this case also, the inference is made to bestow a far greater power, than that
from which it is extracted.
The nourishment of exclusive interests, in all its forms, is the
universal cause which obstructs the progress of political science, and has
placed that which ought to be the first, in the rear of human improvements. The
emoluments, attached to the administration of civil government, are unhappily a
sufficient suggestion to avarice and ambition, that fraud and oppression may
afford them gratifications. Even this excitement was viewed by Doctor Franklin
as so dangerous to liberty, that he wished for its suppression, and refused to
receive any compensation as president of Pennsylvania; and Washington would
only receive his expenses for all his services. However impracticable these
speculations may be, yet the opinions of these great men are weighty
authorities against the policy of superadding to an unavoidable temptation, a
host of unnecessary solicitors in behalf of avarice and ambition, retained by
exorbitant fees paid by the people, whilst no reward whatever is offered to the
advocates for integrity and moderation. By this pernicious policy, an union is
formed between the administrators of government, and corrupted combinations,
creating an impulse towards oppression, which abstract principles, however
good, have hitherto been unable to withstand. As the brightest beacon may be
extinguished by throwing some hostile element on the flame, so the best
principles are destroyed by fostering their foes.
Yet the argument in favour of exclusive privileges is, that it is the
best mode by which knowledge can be advanced, and arts perfected. Under colour
of this assertion, it is said, that manfactures have never been introduced into
any country, except by the coercion of the government. Thus a despotick power
of distributing wealth and poverty, as the caprices and vices of individuals
may dictate, is artfully covered by the pretext, that it is the best mode of
advancing arts and sciences; but the truth is, that they have flourished in
proportion as industry has been free and property safe. The gratitude of
knowledge is, therefore, due to that power, which has selected industry and
philosophers for its communication. The claim of governments to be considered
as the apostles of knowledge, is precisely the same with their claim to
religious apostolick power, and experience has sufficiently proved, that both
powers beget oppression.
This is a subject which would fill a book of no small size, and,
therefore, a limited plan would not admit of its full application to the
manufacturing art, selected to establish the pernicious general principle, that
governments ought to have a power of granting exclusive privileges. Yet, it is
highly worthy of publick consideration. Privileges imply a general deprivation.
To take away in order to bestow, is merely to pull down with one hand for the
purpose of building up with the other, if the deprivation discourages as much
industry, as the privilege will excite. These political contradictions would
then neutralize each other. But, if the discouragement operates upon greater
numbers than the privilege, as is always the case, a balance arises
unfavourable to industry, arts and sciences. Hence, they have flourished as
exclusive privileges have decreased, and dwindled where they abound. The
abolition of a vast number of feudal and hierarchical privileges gave them a
great impulse in England, and a gradual multiplication of pecuniary privileges
since has brought the same country to a state of misery, which may involve them
in some general convulsion. Is this misery, or the mysterious advances of
knowledge and liberty, the best hostage for their improvement? These have
co-extensively pushed forward all arts and sciences, aided or unaided by the
patriotism of governments, and agriculture has kept pace with the rest, under
exactions, and without bounties. This concomitancy ascertains a common cause,
establishes the ascendancy of knowledge, and explodes the necessity for the
partialities of governments, or the policy of dispensing general evil, to
enrich selected sects. After the dark ages, a manufacturing superiority
appeared in Italy and France, without any special patronage from their
disorganized governments, because those countries surpassed the rest of Europe
in knowledge; and several English kings tried unsuccessfully to rival it by
legal coercions. The revocation of the edict of Nantes at length expelled a
great mass of manufacturing knowledge from France, and supplied England with
the leading cause of manufacturing prosperity; from this epoch, she dates hers.
The improvements of machinery in England were the works of individual knowledge
and industry, after her prohibitory system had become nominal. The wonderful
art of ship-building, carried to such perfection in the United States, proposed
to be checked by commercial restrictions, proves, that when the knowledge of an
art is obtained, it is only necessary that it should correspond with the
interest of individuals. Compute and compare the progress of the United States
in the arts and sciences, in about thirty years, with the progress of Europe
during a similar space, and anticipate its reach in six centuries, during which
Europe has been employed in effecting her attainments. To what can the vast
difference in velocity toward excellence be ascribed, but to a greater freedom
of intellect and industry? Why, then, should we substitute for these, avarice
and fraud, as better teachers of arts and sciences?
Alexander of Russia, a few years past, asserted the right of all states
to internal self-government, and entered into a treaty with the cortes of
Spain, to guaranty the constitution they had made. Now, to advance the interest
of a combination of monarchs, he renounces his principles and his honour, and
even forbids the penitent Ferdinand to acknowledge what he had asserted, and to
confirm what he had guarantied. The federal constitution as expressly
guaranties to the states the right of internal self-government; but a mode of
construction is introduced to advance the interest of mercenary combinations.
Is not the analogy between the Russian and this mode of construction, apparent?
The differences are, that Alexander proposes to overturn principles and a
compact by force, and construction acts by sap; he adheres to the interest of
hereditary monarchs; construction, to the interest of exclusive privileges. The
importance of these differences may be ascertained by comparing force with
fraud, and a confederacy of foreign kings, with a confederacy of domestic
parasitical privileges. Whatever may be the result of this comparison, it can
offer us nothing but the old alternative between monarchy and aristocracy; and
almost all writers have agreed, that the former is to be preferred.
Against all such modes of construction, as being adverse both to
republican principles, and our positive institutions, the humble reasoning of
the following work is levelled.
SECTIONS.
Page.
1. The principles of our constitutions, 9
2. Construction, 21
3. Sovereignty, 25
4. The Union, 39
5. Division, and limitation of power, 51
6. Property, 67
7. The bank decision. — Corporation, 79
8. The bank decision. — Sovereignty of spheres, 99
9. The bank decision. — Supremacy, 119
10. The bank decision. — Common defence and general welfare.
Necessary and proper. Convenient. National, 161
11. The bank decision. — Precedents, 191
12. Protecting duties and bounties, 203
13. Assumption of judicial powers, and patronage by legislatures,
259
14. The laws of nations, 279
15. The Missouri question, 291
16. The distresses of the United States, 315
CONSTRUCTION CONSTRUED,
AND
CONSTITUTIONS
VINDICATED.
SECTION 1.
THE PRINCIPLES OF OUR REVOLUTION.
THESE are the keys of construction, and the locks
of liberty. The question to be considered is, whether our revolution was
designed to establish the freedom both of religion and property, or only of the
former.
It is strange that the human mind should have been expanded in relation
to religion, and yet should retain narrow notions in relation to property.
Objects unseen, and incapable of being explained by the information of the
senses, afford less perfect materials for the exercise of reason, than those
capable of being investigated by evidence, within the scope of the human
understanding. As the difficulties opposed to the correction of religious
fanaticism seemed less surmountable, whilst its effects were more pernicious,
the zeal of philosophers was condensed in an effort to relieve mankind from an
evil the most distressing; and their attention was diverted from another, at
this period the most prominent. But having wrested religious liberty from the
grasp of fanaticism, it now behooves them to turn their attention towards
pecuniary fanaticism, and to wrest civil liberty from its tyranny also. Between
an absolute power in governments over the religion and over the property of
men, the analogy is exact, and their consequences must therefore be the same.
Freedom of religion being the discovery by which religious liberty could only
be established; freedom of property must be the only means also, for the
establishment of civil liberty. Pecuniary fanaticism, undisciplined by
constitutional principles, is such an instrument for oppression, as an
undisciplined religious fanaticism. A power in governments to regulate
individual wealth, will be directly guided by those very motives, which
indirectly influenced all governments, possessed of a power to regulate
religious opinions and rites. If we have only restrained one of these powers,
we have most improvidently retained the other, under which mankind have groaned
in all ages; and which at this time is sufficient to oppress or enslave the
European nations, although they have drawn some of the teeth of religious
fanaticism. An adoration of military fame, specious projects and eminent
individuals, has in all ages brought on mankind a multitude of evils; and a
sound freedom of property is the only mode that I know of, able to destroy the
worship of these idols, by removing beyond their reach the sacrifices upon
which themselves, and their proselytes, subsist.
Many princes have patronized literature, but none have patronized
knowledge. Augustus was celebrated for the former species of munificence; yet
the temporary splendors of imperial patronage were soon obscured by the bad
principle of a tyranny over property; a principle, unpropitious to knowledge,
because it was hostile to individual liberty. We must reason from a comparison
between general or universal facts, and not from a contemplation of temporary
exceptions, to come at truth; and when we discover that an absolute power over
property, though occasionally exercised for the attainment of praise-worthy
ends, is yet constantly attended by general evils, infinitely outweighing such
particular benefits; we forbear to draw our conclusion from the partial cases,
or decide erroneously. A truth, established by its universality, ought to be an
overmatch for the sophistries of cupidity. The best general principle, under
the destiny of mankind, is capable of producing partial evils. The freedom of
the press, of religion, and of property, may occasionally produce
inconveniences; but ought mankind therefore to transfer their approbation from
these three foundations of civil liberty, to the instruments by which it is
destroyed?
No form of government can foster a fanaticism for wealth, without being
corrupted. The courtiers of republicks, able to exercise an absolute power over
the national property, are more numerous and more vicious than the courtiers of
kings, because access to patrons is easier; they have more occasion for
partisans, and a multiplication of despots over property multiplies the
channels of fraud. New ones also are frequently opened by a revolution of
parties, and of patrons, who with their favorites and dependants, are in haste
to bolster power or amass wealth, during the continuance of a fleeting
authority. Against a propensity so mischievous, and so fatal to republicks,
there seems to be no resource, but a constitutional prohibition of the power by
which it is nurtured; and a rejection of precedents, by which infringements of
so wholesome a prohibition are usually justified. Both reason and morality
unite to impress upon nations, a necessity for imposing restraints upon a
propensity, which may so easily be concealed under the most glittering robes of
patriotism. What real patriot would feel himself molested, by restraints upon
avarice and ambition? Are not both unfriendly to human happiness? Some patriots
have sacrificed their lives for the happiness of their country. Is the
sacrifice of an error, by which fraud and avarice are nurtured, too much to
expect of ours?
A love of wealth, fostered by honest industry, is an ally both of moral
rectitude, and national happiness, because it can only be gratified by
increasing the fund for national subsistence, comfort, strength and prosperity;
but a love of wealth, fostered by partial laws for enriching corporations and
individuals, is allied to immorality and oppression, because it is gratified at
the expense of industry, and diminishes its ability to work out national
blessings.
Look for a moment at Congress, as a power for creating pecuniary
inequalities, or for striking balances between favours to states, combinations
and individuals. If it could even distribute wealth and poverty, by some just
scale, which has never yet been discovered, justice itself would beget
discontent, and sow among its medley of courtiers, a mass of discord, not more
propitious to the safety of the union, than to the happiness of the people. All
would weigh their own merits, and none would be convinced that they were light.
Even the distribution of those preferences, necessary to civil government, is
liable to defects and productive of inconveniences. Where then is the wisdom of
extending the power beyond the limits of social necessity, to the despotick
principle of a gratuitous distribution of wealth and poverty by law; and of
converting a small evil, abundantly counterbalanced by the blessings of
government, into a calamity by which these blessings are diminished or
destroyed?
To answer this question, turn your eyes towards a government accoutred
in the complete panoply of fleets, armies, banks, funding systems, pensions,
bounties, corporations, exclusive privileges; and in short, possessing an
absolute power to distribute property, according to the pleasure, the pride,
the interest, the ambition, and the avarice of its administrators; and consider
whether such a government is the servant or the master of the nation. However
oppressive, is it not able to defy, to deride and to punish the complaints of
the people? Partisans, purchased and made powerful by their wealth, zealously
sustain the abuses by which their own passions are gratified. I discern no
reason in the principles of our revolution, for investing our governments with
such of these instruments for oppression, as were both unnecessary for the end
in view, and even inimical to its attainment; and no such reason existing, it
is more difficult to discern the propriety of investing our governments with
these superfluous and pernicious powers, by inference and construction. Would
liberty be well established in England, if her hierarchy was destroyed, whilst
the government retained the absolute power of distributing wealth and poverty?
Is not that establishment merely one of the modes for exercising this species
of despotism; and what substantial or lasting remedy could arise from
abolishing one mode, whilst others remained amply sufficient to establish the
same pernicious principle? Is not a power of transferring property by pensions,
bounties, corporations and exclusive privileges; and even of bestowing publick
money by the unlimited will of legislative bodies, as dangerous to liberty, as
a power of doing the same thing by the instrumentality of a privileged church?
Is the casuistry consistent, which denies to a government the power of
infringing the freedom of religion, and yet invests it with a despotism over
the freedom of property? A corporation, combination, or chartered church for
one purpose, in its pecuniary effects, is analagous to corporations for
effecting the other. It has been said, that government in its best form is an
evil. This absurd idea seems to have been suggested, by its being usually
invested with an army of supernumerary powers wholly unnecessary for effecting
the end of preserving social tranquillity and safety. Against these
supernumerary powers, the United States waged a long war, upon the ground, that
governments are instituted to secure, and not to bestow the freedom of
property; and it would be highly absurd to suppose, that having established
their great principle, they directly became contented with an unfruitful
theory, and surrendered the idea of its application. It was tyrannical in the
English government, said the colonies, to insist upon taking away their
property, and giving it to placemen and pensioners; and they very justly
considered life and liberty as so intimately connected with property, that the
rights of the latter could not be invaded, without invading the other rights
also. They fought for a revolution, and established governments to secure all
three of these natural rights, because a loss of one was equivalent to a loss
of all, in a national view.
I see no infallible criterion for defining the nature of a government,
except its acts. If the acts of a monarchy, aristocracy and democracy are the
same, these forms of government are to a nation essentially the same also. To
contend for forms only, is to fight for shadows. The United States did not go
to war for nothing but forms. A government is substantially good or bad, in the
degree that it produces the happiness or misery of a nation; and I see but
little difficulty in finding a mode of detecting the fallacy of form, and the
frauds of profession. If we can ascertain the quality in human nature, from
which political evil has chiefly proceeded under every form of government, this
quality is the cause which can corrupt any form; and instead of amusing
ourselves with these new forms, not to be confided in, it behooves us to search
for a remedy, able to remove or control the cause itself.
Cupidity, avarice or monopoly, both in the savage and civilized state,
is the quality of human nature, always requiring control, and always striving
to break down the restraints imposed upon it To resist this quality, the United
States endured the evils of a long war with a powerful nation. They had seen a
limited monarchy tried in the parent country, as a remedy for this bad quality
of human nature; but ineffectually; because a considerable power remained with
the king, and an absolute power was conceded to or usurped by the government,
of distributing property. The hostile principles, of leaving men to be enriched
by their own industry, or of enriching them by the favours of the government,
were to be weighed against each other; that which made many poor to enrich a
few was rejected, and that which encouraged industry was preferred, in the most
distinct manner, as I shall hereafter endeavour to prove. Almost all
governments have espoused and nourished the spirit of avarice, which they were
instituted to discipline by justice; and have betrayed the weak, whom it was
their duty to protect. In assuming a power of distributing property by law,
they have reduced it in a great degree to a destiny, approximating to its
savage destiny, when subjected to force. From this cause have arisen the most
pernicious imperfections of society. Aristocracies and democracies, by usurping
this despotick power, in imitation of monarchs, have driven nations into a
circle of forms, through which they have perpetually returned to the oppression
they intended to escape. Had the essentials, rather than the structure of
governments, attracted the attention of mankind, they would not have trusted to
any theory, however excellent, asserting it to be the duty of a government to
protect rights; under a system of legislation, by which governments of the
worst forms destroy them. They would have discovered, that a power of
distributing property, according to its pleasure, has made governments of the
best forms, bad; and that a remedy for an evil, poisonous to the best theories,
ought to awaken their solicitude and ingenuity. For want of this remedy,
republicks, of the finest theoretical structure, have universally died more
prematurely, even than absolute monarchies; because, the more numerous the
depositaries of an absolute power over property have become, the more widely
has the spirit of avarice or monopoly been excited. If this universal cause of
oppression must exist, that government which afforded the most channels for its
operation, is the worst; and hence has arisen the general preference of mankind
for monarchy. Governments of all forms having exercised an absolute power over
property, they have experimentally ascertained, that the oppression derived
from this source was the most tolerable, when the tyrants were the least
numerous.
If the age has at length arrived, in which knowledge is able to break
the fetters forged by fraud and credulity, political enquiry, as in other
sciences, may take its stand on the eminence of truth, hail with exultation the
happy advent, and direct its arrows straight forward against an error fraught
with plagues to mankind.
To define the nature of a government truly, I would say, that a power of
distributing property, able to gratify avarice and monopoly, designated a bad
one; and that the absence of every such power, designated a good one.
Of what value is an exchange of one system of monopoly for another? How
shall we estimate the difference between noble and clerical orders, and between
combinations of exclusive pecuniary privileges? Is pure avarice better than
some honour and some sanctity? The encroachments upon property by noble and
clerical combinations, once fixed by law, remained stationary; and each
individual could calculate his fate with some certainty: but pecuniary
combinations, once sanctioned as constitutional, will perpetually open new
channels, and breed new invaders, whose whole business it will be, to make
inroads upon the territories of industry. Legislatures will become colleges for
teaching the science of getting money by monopolies or favours; and the deluge
of laws will become as great in the United States, as was once the deluge of
papal indulgences in Europe for effecting the same object. What an
unaccountable feature of the human character it is, that it should exert so
much ingenuity to get the property of others, and be so dull in finding out
means for the preservation of its own?
The morality of the gospel and that of monopoly, seem to me, not to bear
the least resemblance to each other. A Christian loves man. "His light must
shine before men. He keeps judgment and does justice. He trusts in the Lord and
does good. He lives in goodness and honesty. He is a doer and not a hearer only
of the divine law. Whoever doeth not right, is not of God, neither he that
loveth not his brother. Repentance and an avoidance of sin, constitute the
claim to the atonement of a saviour. By their works ye shall know them." The
pope of Rome for many centuries persuaded the people of Europe, that he
fulfilled all these texts of scripture, by uttering annually a great number of
indulgences, to cheat the people of money.
Is there a man who could be so infatuated, as to foster zealously both
bible and missionary societies, and also a spirit of avarice and monopoly?
Geographical malice, combined frauds, individual deceit, and civil commotion,
some of the effects of this latter policy, suggest the idea, that the same
person is equally zealous to convert the heathens to Christianity, and the
Christians to heathenism. This ideal character may be also a philosopher, who
ridicules the notion of being saved by faith without works; and yet contends
that the people ought to confide in forms without acts, and take it for granted
that their property will be safe under a theory, which exercises an absolute
power over it. If he should make an eloquent speech, one half in favour of the
theory of equal laws, and the other half in favour of actual exclusive
privileges, what should we think? that it was like placing Christ on the car of
Juggernaut, and dressing the United States in British regimentals.
There are sundry points of resemblance between the English revolution in
the time of Charles the first, and ours, replete with edification. Let us go
into a comparison. The English reformation of religion, by compromising with
the rapaciousness of individuals, and by retaining sundry of the principles and
habits of popery, inoculated the government with a poison, which diffused its
virulence throughout the body politick, and contaminated the blessings promised
by the experiment. Those who resisted the frauds of selfishness, and the
artifices of ambition, were called puritans; and the derision of a nickname,
united with the excesses produced by oppression, to render the doctrine of a
freedom of religion, both ridiculous and detestable. Those who contended for
it, were successfully represented as wild visionaries, whose views were
unnatural and impracticable. Yet to these puritans the United States are
indebted for the religious freedom they enjoy; and the whole world, for a
refutation of the arguments advanced by ambition and avarice, to obstruct the
progress of political improvement, and the advancement of human happiness.
The same contrivances practised in England to destroy religious freedom,
are using in the United States to defeat civil liberty. The puritanism of
republican principles is ridiculed; it is called democracy; and violations of
the freedom of property (an important principle of our civil puritanism) are
providing combustibles for some calamitous explosion. Our political reformation
is daily corrupted by the principles and habits of the English system, as was
the English religious reformation, by the principles and habits of popery; and
we are exchanging the pure principles of the revolution, for the garbage of
aristocracy, and compromises with venality. By disregarding these principles,
our fluctuations of parties invested with power, have been made to resemble the
bauble called a Kaleidescope, which at each revolution exhibits new scenes of
glittering delusions, whilst the pebbles from which they are reflected, remain
substantially the same. The remedy for an evil so mischievous, is that by which
religious freedom has been established. Freedom of property will beget civil
liberty, as freedom of conscience has begotten religious. The success of one
experiment proves the other to be practicable. Every man, except he belong to a
privileged combination, is as much interested to effect a freedom of property,
as he is to maintain a freedom of religion, except he could become a priest of
an established and endowed hierarchy.
The English protestants had adopted a variety of imaginary habits and
opinions. The several American States also entertained a variety of opinions
and habits, fixed by real interest, more reasonable and more stubborn, as being
derived from natural and unconquerable circumstances. Each of the sects in
England, after the religious revolution was established, as power fluctuated
among them, endeavoured when uppermost, to impose its own opinions and habits
upon the others. The apparel of the clergy, surplices, tippets, caps, hoods and
crosiers; and ceremonies; such as the sign of the cross in baptism, the ring in
marriage, the mode of administering the sacrament, and the consecration and
powers of bishops; all inconsiderable compared with the cardinal end of
religious freedom; became subjects of controversy in England. The endowment of
certificate holders, banking corporations, exclusive privileges, compulsory
laws over free will in the employment of the earnings of industry, and
violations of the local interests and habits of States, more materially
affecting the cardinal end of civil liberty, have become subjects of
controversy in the United States. In England, the force of opinions, less
substantial, produced a frightful civil war. In the United States, opinions,
better founded, have already produced awful ideas of dissolving the union. In
England, the religious controversies terminated in an act of uniformity, by
which a majority of the people are cruelly oppressed; there are more
meeting-houses than churches, and more dissenters than conformists; yet by
bribery with publick money, so as exorbitantly to increase taxation, the
majority are both excluded from civil offices, and subjected to the payment of
tithes for the suppression of their own opinions and interests. In the United
States, the majority of the people of each state, are subjected to the payment
of more than tithes, to deprive themselves of free will as to their own
interest, and to foster exclusive privileges. Our division into state
governments of great extent, and embracing a great variety of local
circumstances, will render a compulsory uniformity of temporal interests,
habits and opinions infinitely more difficult, than a religious uniformity in
England; and require means, more coercive and severe to effect it. A very
powerful standing army, so necessary in England for one purpose, would be more
indispensable here for the other. Whole states will more sensibly feel, and be
more able to resist burdens, inflicted to enrich privileged civil sects,
bearing heavily on their local interests and habits, than individuals only
combined by the slight threads of ceremonials and speculative prejudices. Had
the freedom of religion been established in England at the Reformation, a mass
of civil war, national inquietude and oppression would have been avoided. A
greater mass of these evils was foreseen by the framers of the Union, and
attempted to be avoided, by restricting the powers given to Congress, and by
retaining to the states those powers united with the local interests, habits
and opinions of each state; in fact, by securing the freedom of property.
This wise precaution was suggested by the character of human nature,
sound reason, substantial justice, and unequivocal experience drawn from the
consequences of the different policy pursued by England in her religious
revolution. Why ought not industry to enjoy a freedom of will, similar to that
demonstrated in the United States, to be so wholesome and happy in the case of
religion? How can an expensive, compulsory uniformity in one case, generate
blessings, when it has generated curses in the other? It was not intended by
our revolution to destroy the freedom of will, in relation either to
speculation, actual habits or personal interests. It designed to draw a plain
line between the foreign relations of the United States, and the internal
concerns of each state; and the vitality of the union, as well as the vitality
of religion, lies in a strict adherence to the same principle. Each state,
however different in its habits and interests, like each sect however different
in its tenets and ceremonials, has its liberty and happiness embarked and
hazarded upon its preservation; and if any are tempted by the bribe of delusive
advantages to abandon it, they will, like the religious sects which yielded to
the temptations of pride, enthusiasm and avarice, when possessed of the
majority, produce civil war, forge chains for themselves, and obtain a
toleration of property instead of its freedom. A combination of corporations,
exclusive privileges and pecuniary speculations, assails republican puritanism,
as protestant puritanism was assailed by a combination of Roman Catholick
princes, and for the same reason. It obstructs frauds.
The maxim of James the first, "no bishop no king," was a political
truth; not limited to the idea of hierarchical orders, but an exemplification
of the necessity of intermediate orders between an individual and a nation, for
the support of a despotick government. It applies to all intermediate orders or
exclusive privileges between a nation and a government, whether pecuniary,
civil, religious, or military; whether they be called lords, mandarins,
bashaws, generals, bishops, bankers, exclusive privileges, corporations, or
companies. Adhering to the maxim in its amplified sense, the English
government, for its own security, has extended it gradually from bishops and a
nobility, to an army and to a vast pecuniary order; which, though compounded of
various corporations, companies and exclusive privileges, as the noble order is
compounded of a variety of titles, is united in the support and defence of the
government, whatever it may do, as being dependant upon it for all the
privileges, however denominated, enjoyed by its favour. These dependant orders
are even better props of an oppressive government than a hereditary nobility.
Accordingly, they are more ardent in defence of political severities, and more
rapidly create the evil of excessive taxation, than the orders of ancient
coinage. Hereditary titles were more honorable than lucrative, embraced and
corrupted fewer individuals, and extorted less from the savings of industry,
than dependant privileges entirely mercenary, and only capable of being
fostered by perpetual drafts from the majority of nations. And, therefore, the
latter have accomplished in England a degree of oppression, which the former
could never effect. Did our revolution meditate an intermediate order between
the government and the people? Are not privileged mercenary combinations,
dependant on the government, both such an order, and of the worst species? Have
we then adopted the essence of James's maxim, and subscribed to the opinion,
"no exclusive privileges, no republick?"
During the reigns of the Stuarts, there existed two kinds of puritanism;
one for purifying religious, the other for purifying civil government. The
natural affinity between the two objects, combined the individuals devoted to
each; and although the imperfect state of political knowledge, and a spirit of
fanaticism obstructed their efforts, and prevented their complete success, yet
the English were indebted to this double impulse for some accessions both of
civil and religious liberty, which constituted a platform upon which we have
raised a more perfect superstructure. The civil and religious patriots of that
period were united by the conviction, that a despotick power over the mind will
absorb a despotick power over property; and that a despotick power over
property will absorb a despotick power over the mind. The English government,
by retaining such a power over property, has been enabled to retain a similar
power over the mind. Our revolutionary patriots evidently entertained the same
opinion, and therefore endeavoured to destroy both kinds of despotism; and
their complete success in the establishment of religious freedom, ought not to
render the freedom of property hopeless, especially when it is considered, that
if the latter is impracticable, the former, in time, will become abortive. The
consideration of the principles of our revolution will be resumed in several of
the succeeding sections.
SECTION 2.
CONSTRUCTION.
IT is necessary, before I proceed, to appropriate
a short section to this art or artifice. There are two kinds of construction;
one calculated to maintain, the other to corrupt or destroy the principles upon
which governments are established; one visible to common sense, the other
consisting of filaments so slender, as not to be seen except through some
magnifying glass; one which addresses the understanding, the other which
addresses prejudice or self-interest. When a man splits his mind, and glues one
half to certain principles, and the other to a mode of construction, by which
the same principles are subverted, it is no easy matter to find arguments which
will please both halves. There was in old times a God, said by his worshippers
to be blind and lame and foolish, but who seems to me to be more quick-sighted,
active and acute in the arts of construction than Minerva herself. But his
inspirations are unhappily partial; for, if this deity would but open the eyes
of every one to his own interest, the mode of construction most conducive to
the general interest would be elected by a republican majority.
Next to this influence over construction, is that of governments. In
all, except our own, the people have nothing to do with it; but ours is
modelled with an intention that they should have much to do with it; and what
is better for current use, that the members of the government themselves shall
be strongly induced, individually, to give it fair play. But as the pride of
power, the temptations of self-interest, and even the consciousness of good
intentions, might crook or sharpen this terrible weapon, those invested with
most power, hold their offices for short periods; and arc exposed to frequent
returns to private life; that the people might straighten or blunt its edge
occasionally. This dependance, and our affection for children and relations,
whose fate we are dealing out, unite to chasten and restrain the unlimited
power of construction; and though the solicitations of pride, vanity, or
avarice, may in a few cases prevail, yet, under our form of government, a great
majority of legislative bodies must feel an honest loyalty to correctness.
All other governments, as expositors of power, are influenced by motives
exactly the reverse of these. With them, construction is not a science to
preserve the rights of mankind, but an art for extending their own power. Its
business is to forge wealth for individuals or combinations, and chains for
majorities: To make payment for usurpations, in fulsome flatteries, and
insidious projects: To substitute successive, vacillating, eccentrick meteors,
for steady planets of fixed orbits: To promise future blessings for present
innovations, with the prophetical truth of those prospective chronologists, who
have so often foretold the arrival of the millenium: And to furnish parties,
factions, combinations and individuals, with concealed dirks to stab liberty.
The framers of our constitutions exerted all their faculties, to exclude
from our policy this pernicious species of construction, by specifications and
restrictions. Its wonderful acuteness in misinterpretation, was understood, and
sedulously guarded against. It had often perverted the Scripture, and converted
patriotism into treason. Russel and Sidney fell under the edge of constructive
treason. The day on which the former was beheaded, the wise and learned
university of Oxford, convinced by its doctors in the art of construction,
declared every principle by which a free constitution can be maintained, to be
"impious and heretical," especially the doctrine, that "all civil authority is
derived from the people." Sidney had maintained it. Thence it was inferred,
that he meant to excite the people to enforce it; that this would cause
insurrection; that insurrection was treason; and that Sydney was therefore
guilty of treason. He had also asserted, that tyrants ought to be deposed and
punished, as in the cases of Nero and Caligula. Thence it was inferred, that he
was a traitor in imagining, that the king of England, if a tyrant, might be
justly deposed and punished. Which can do most harm to mankind, constructive
treasons or constructive powers? The first takes away the life of an
individual, the second destroys the liberty of a nation. The machine called
inference can act as extensively in one case as in the other. A government, by
an unlimited power of construction, may stretch constitutions as Jeffries did
laws, or interpret them as synods do scripture, according to the temporal
interest of the predominant sect. Yet it often happens, that whilst our hearts
glow on recollecting the political and religious martyrs, who have fallen by
the edge of this destructive weapon; our heads freeze when it is applied to our
constitutions, by forgetting its ability to destroy the political as well as
the natural body.
The Stuart family, in three successive reigns, pertinaciously adhered to
the ingenuity of conceding principles, and then construing them away. Thus they
craftily endeavoured to extend their powers; and two of them paid the forfeits
of the experiment An admission of a line of separation between the powers of
the state and federal governments, followed with its obliteration with the
sponge of inference, would bear a close resemblance to many of the stratagems
practised by this construing family.
SECTION 3.
SOVEREIGNTY.
I DO not know how it has happened, that this word
has crept into our political dialect, unless it be that mankind prefer mystery
to knowledge; and that governments love obscurity better than specification.
The unknown powers of sovereignty and supremacy may be relished, because they
tickle the mind with hopes and fears; just as we indulge the taste with Cayenne
pepper, though it disorders the health, and finally destroys the body.
Governments delight in a power to administer the palatable drugs of exclusive
privileges and pecuniary gifts; and selfishness is willing enough to receive
them; and this mutual pleasure may possibly have suggested the ingenious
stratagem, for neutralizing constitutional restrictions by a single word, as a
new chymical ingredient will often change the effects of a great mass of other
matters.
Neither the declaration of independence, nor the federal constitution,
nor the constitution of any single state, uses this equivocal and illimitable
word. The first declares the colonies "to be free and independent states." The
second is ordained to "secure the blessings of liberty to ourselves and our
posterity:" And the rest recognize governments as "the servants of the people."
In none, is there the least intimation of a sovereign power; and in all,
conventional powers are divided, limited and restrained. There is, I believe,
an instance in a bill of rights, in which a state is declared "to be
free, sovereign and independent" But it was the state and not its government
which was the object of this declaration; and the reference was to other
nations. The language of all these sacred, civil authorities, is carefully
chastened of a word, at discord with their purpose of imposing restrictions
upon governments, by the natural right of mankind to establish societies for
themselves. It could not be correctly used as a vehicle of power, either
external or internal. The idea of investing servants with sovereignty, and that
of investing ourselves with a sovereignty over other nations, were equally
preposterous. Sovereignty implies superiority and subordination. It was
therefore inapplicable to a case of equality, and more so to the
subordinate power in reference to its creator. The word being rejected by our
constitutions, cannot be correctly adopted for their construction; because, if
this unanimous rejection arose from its unfitness for their design of defining
and limiting powers, its interpolation by construction for the purpose of
extending these same powers, would be an evident inconsistency. It would
produce several very obvious contradictions in our political principles. It
would transfer sovereignty from the people, (confining it to mean the right of
self-government only,) to their own servants. It would invest governments and
departments, invested with limited powers only, with unspecified powers. It
would create many sovereignties, each having a right to determine the extent of
its sovereignty by its own will. And if two sovereignties over the same
subjects could never agree, it would propose for our consideration what was to
be expected from an army of sovereignties. Our constitutions, therefore, wisely
rejected this indefinite word as a traitor of civil rights, and endeavored to
kill it dead by specifications and restrictions of power, that it might never
again be used in political disquisitions.
In fact, the term "sovereignty," was sacrilegiously stolen from the
attributes of God, and impiously assumed by kings. Though they committed the
theft, aristocracies and republicks have claimed the spoil. Imitation and
ignorance even seduced the English puritans and the long parliament to adopt
the despotism they resisted; and caused them to fail in accomplishing a
reformation for which they had suffered the evils of a long war. By assuming
divine rights, because they had been claimed by kings and popes, and drawing
powers from an inexhaustible store-house, they aggravated the tyranny they
intended to destroy, and merited the fate which they finally experienced.
Presbyteries and synods snatched the keys of Heaven from popes and bishops, and
the long parliament, those of property from the king; and both demonstrated
what man would do with the powers of Providence. By our constitutions, we
rejected the errors upon which our forefathers had been wrecked, and withheld
from our governments the keys of temporal and eternal rights, by usurping
which, their patriots had been converted into tyrants; and invested them only
with powers to restrain internal wrongs, and to resist foreign hostility;
without designing to establish a sovereign power of robbing one citizen to
enrich another.
Sovereignty is neither fiduciary nor capable of limitation. Accordingly,
the long parliament asserted, that "there were two sovereignties in England,
their's and the king's," and left us a specimen of what may be expected from
two sovereignties here, state and federal. Two sovereignties or supremacies
over the same subjects have often appeared. Two or more emperors frequently
existed in the Roman empire, each claiming the absolute powers of sovereignty.
Several popes have existed at the same time, each claiming the absolute powers
of supremacy, and both pretending to keep the keys of Heaven. But sovereignty
being by its nature a unit, its division implied usurpation, and therefore the
king, the parliament, the emperors and the popes, in exercising it, were all
usurpers; and hence an allotment or division of the powers of sovereignty by
our governments among themselves, would also be an usurpation. If we must use
terms, taken from the deity to adorn the brows of men, we cannot still divest
them of their meaning; and as sovereignty implies individuality, we are reduced
to the necessity, to satisfy its meaning, of looking for this essential
quality. I admit that it may be found among us, either in congress or in the
people; but I deny that it can exist in both. Chastened down to the
signification of a natural right in nations to institute and limit their own
governments, it only embraces the principle by which alone social liberty can
be established; extended to the idea of a power in governments to regulate
conscience or to distribute property at its pleasure, it includes the principle
by which social liberty is destroyed.
Oppression is universally caused by pecuniary fanaticism. If the
proposition be true, the remedy is indicated. Does the indication point to a
sovereignty in governments over property, or to its security against a power so
despotick? As the evil has eluded and corrupted all political theories
hitherto, it required a remedy at its root. Sovereignty was its root, and we
endeavoured to eradicate it by establishing governments invested with specified
and limited powers. But the evil, restless and persevering, requires a
perpetual activity and jealousy on the part of nations, to keep it from
shooting up new scions. Protean and plausible, its shrubs must be grubbed up as
they appear, or they will soon grow into trees. As the love of wealth is common
to all civilized men, and governments are composed of men, laws to protect the
property of nations against governments are as necessary, as laws to protect
the property of one man against another. Jugurtha's exclamation against the
government of Rome was foolish. The influence of avarice even at that early age
was not a novelty. What ground then was there for surprise, because 'Rome was
for sale?' The government exercised an absolute power over the national
property. How then could he have doubted, whether this power could find
purchasers? I discern no age, no country, no government, wherein these sales
of the rights and properties of mankind have not abounded. Though the modes of
this political traffick are multifarious, yet the result is as certain as a
mathematical conclusion; and a remedy which can reach all modes can only be
effectual.
Lycurgus, sensible of the cause by which governments were corrupted,
excluded it entirely; and surrendered the amenities of life, the acquisition of
knowledge, the elegancies of taste, the fine arts, the circle of the sciences,
and almost civilization itself; because he computed a loss so enormous as a
cheap sacrifice, to get rid of an evil so calamitous. The Athenians, unwilling
to surrender the blessings of life, but sensible of the evil, endeavoured to
restrain it, by the ineffectual expedient of the ostracism. The Romans long
resisted the avarice of the senate, vainly depended upon elective tribunes to
abolish frauds in which they participated, and at length fled from the avarice
of many, to the avarice of one. The ignorant northern conquerors saw no better
remedy against oppression, than to yield the utmost scope to the principle of
sovereignty, by an absolute transfer of themselves and their property to feudal
kings and barons. As the Europeans became more enlightened, they became
sensible of the tyranny of avarice, and after a series of ineffectual struggles
to emancipate themselves from its grasp, have only changed the form of its
operation, without diminishing its oppressions. England, the most successful in
theory, has nothing to boast of in practice; and even the improvements in the
form of her government, have become instruments for avarice, by which it has
effected as much at least as the feudal system could accomplish. By the
confidence derived from representation, united with the power of a sovereignty
in the government over property, avarice is enabled to draw from the people all
they can possibly spare. Thus they owe to the wisest political discovery, the
greatest political evil; and representation itself, the last refuge of hope, is
contaminated and rendered abortive, by its union with a sovereign power over
property. The means used by a sovereignty in the English government, are
monitors to us. They consist of a long catalogue of exclusive privileges, and
legal donations, bestowed by the power of sovereignty, and taken from private
property. The nation, tutored by the domestick usurpations of sovereignty, have
been taught to believe, that it was as right to sacrifice foreign nations to
its own avarice, as it was, that themselves should be sacrificed to the avarice
of domestick combinations; and have suffered a second series of calamities from
the same unjust principle, because the spoils of oppression are always
intercepted by the instruments for inflicting it. The same thing arises
universally from the most specious domestick combinations, under pretence that
they will advance the national good. The managers of the pretext absorb its
fruits, and the majority of the nation get regret for their loss. The people of
England have gazed at the wealth amassed by the bounties, the pensions, the
monopolies, the exclusive privileges, the tithes, and the contracts of their
sovereign government, until, being undeluded by the argument of sensation, and
deceived no longer in the promises of projects to diffuse blessings, they are
only restrained from subverting society itself by the force of a mercenary
army.
A love of property is the chief basis of civil society; but like all
other passions it ought to be regulated and restrained, to extract from it the
benefits it can produce, and to counteract the evils it can inflict. All honest
politicians have acknowledged the necessity for constitutional restrictions, to
curb the fanaticism of ambition; and as the love of wealth is a passion of
wider influence, being often even the primary motive by which ambition itself
is awakened, that also demanded constitutional restrictions, at least as
forcible, to operate upon the individuals who composed a government. If a
society is so constituted, as to invest a government with a sovereign power
over property, restrictions upon the passion of ambition must become abortive,
because the government will possess the means by which it is excited and
nourished.
The distribution of wealth can only be regulated by industry, by fraud
or by force. Fraud and force are of equal weight in the scales of justice.
Theoretically, they are of the same character; practically, fraud has been by
far the most pernicious in distributing property. Yet pecuniary fanaticism or
exclusive privileges, can abhor a resort to force, and admire a resort to fraud
for the same purpose. What could be objected to the exercise of a sovereignty
in the people, forcibly to distribute property? Nothing stronger than may be
objected to a sovereignty in the government, to do it fraudulently. If
pecuniary morality, or the freedom of property is the basis of a good
government; and if a distribution of property by the power of the government or
even of the people would designate a bad one; no remedy which would reach only
half the evil, could make the government good. If it deprived the people of
this pernicious power and gave it to the government, or if it deprived the
government of the power, and gave it to the people, the social principles would
either way be imperfect, because neither expedient would be bottomed upon the
natural right of mankind to the fruits of their own labour. We must extract
principles from facts, and the experience of the whole world supplies them in
abundance. England alone, the admired model of a sovereignty in government over
property, supplies facts enough to establish the principles, and to justify the
conclusions for which I have contended; and would prove, that an artificial
sovereignty for taking away that which belongs to others, cannot be better,
than a natural sovereignty, for keeping that which belongs to ourselves.
The use of a hyperbolical word, suggested by a laudable zeal, has
exposed philosophers to some degree of ridicule; and their exertions for
benefiting mankind, have been considerably counteracted, by insisting upon our
"perfectibility." If the exaggerated word "sovereignty" can be successfully
used to disencumber our governments in general, or the federal government in
particular, of the restrictions imposed upon them by the people; it would be
peculiarly hard, that one extravagant word should arrest the improvement of
man's state, and also that another should deprive him of the improvements he
has made; though both as being hyperbolical, would seem to merit an equal share
of ridicule.
Suppose, however, we admit the hyperbolical claim of sovereignty to
divine origin, and concede the consequence, that as its origin is divine, its
powers must be boundless; it will then be necessary to enquire upon whom the
splendid donation has been bestowed, whether on kings, on governments, or on
the people; on one man, on a few men, or on all men. Now, as the two first of
these competitors are artificial beings, and the last only natural beings; and
as we know of no other channel, except that of nature, through which this
divine boon has been conveyed; and as mental and bodily faculties, common to
all men, are the only evidences of it; the enquiry would seem very clearly to
terminate in the conclusion, that the rodomontade "I alone am king of me" was
considerably more modest, than that other, now contended for, "I alone am king
of you."
This is a concession conformable to the doctrine of the highest-toned
advocates for sovereignty which have ever appeared; but it would be uncandid to
confine the enquiry to a ground which would only propose for our election,
liberty on one hand, or the utmost conceivable degree of despotism on the
other. The modern and more moderate advocates of sovereignty have ceased to
contend for its divine origin; and have rather struggled for its powers, than
defended the genealogy so much insisted upon by their predecessors. They seem
tacitly, but by no means plainly, to admit that sovereignty is not a divine,
but a conventional right. They must assume one of these grounds in asserting
the sovereignty of governments, and as the latter is the strongest, I will
yield it to them. Having gotten upon this ground, chosen by the advocates for
sovereignty, I now ask them to shew me the conventional sovereignty for which
they contend. Far from discerning any glimpse of the powers of sovereignty in
our constitutions, I see nothing but long catalogues of limitations,
restrictions, balances and divisions of power, and if this young political
family can be ground back into the old hoary traitor sovereignty, in the mill
of construction, it will be just reversing the ancient prodigy of grinding old
men into young ones.
I do not however admit that "sovereignty and the right of
self-government" are equivalent things, except it is supposed that both reside
in the people, and neither in a government. Under this supposition it follows,
that sovereignty or self-government are natural rights, and that governments
cannot participate of either, because their rights are all conventional. This
opinion is so firmly fixed in our country, however in some cases exterior
politeness may subsist with internal contempt, or verbal concession with
practical disavowal, that I may safely assume the principle, that the right of
self-government, and sovereignty also if it came from God, resides in the
people. This being a natural right, like the right to our own labour, no
existing generation can deprive another of it, and convey it to kings or
governments, upon any better ground, than it could decree, that the heads of
all future generations, as fast as they arrived to manhood, should be taken
away from them. If no conventional act can deprive man of life, liberty and
property, and if sovereignty in governments would have this effect, it follows
that sovereignty cannot be conventionally established; and that whether
gentlemen deduce it from this source by hyperbolical inferences, or from a
divine origin, it is still a useless, foreign and perplexing word to our
political system. But supposing the rights of sovereignty and of
self-government to be inseparably united with each other; and that a number of
men assembled to exercise one right, are also invested with the other; yet I
see no reason why they may not establish a government with limited powers, and
retain this imaginary sovereignty if it is real; and instead of uniting with
these limited powers, the indefinite powers of sovereignty, agree that they
shall be subordinate to their will, restricted by their constitutional mandate,
and liable to their revision. This was actually done in the establishment of
all our constitutions; and as these conventional acts, far from bestowing
sovereignty on governments, have actually retained it in the hands of the
people, if it existed at all, and if sovereignty may have a conventional
origin, it is so deposited, I shall therefore disregard the distinction between
the rights of sovereignty and of self-government in the progress of this
enquiry, and in accordance with common language, use the term "sovereignty" as
an attribute of the right of self-government, and only applicable to the
people.
We must then return to the old idea of sovereignty, in order to compare
it with the new one. The sovereignty of kings, presumptuously derived from the
same source, from which mankind derive the right of self-government, long
puzzled philosophers and patriots before it was exploded; but no sooner was the
usurpation wrenched from kings, but other men, with other titles, seized upon
it for their own use. Thus the enquiry glided into an immaterial controversy,
and instead of considering the question, whether any man or set of men ought to
exercise the absolute power of sovereignty, the only contest was, whether it
ought to be exercised by a monarchy, aristocracy or a republick. In such a
contest the people could never gain any solid or permanent victory; for,
sovereignty was the prize of the victor, in any event, at their expense. In
England, it has circulated among all these combatants. It has been exercised by
kings, by occasional aristocracies of barons, by lords and commons, by the
commons alone, and by a protector of the liberties of England; by governments,
regal, aristocratical, elective and hereditary. All of them exercised its
despotick powers; granted franchises to the nation or to any section of it;
bestowed, revoked and modelled representation; created monopolies, corporations
and exclusive privileges, and managed commerce as a means for defrauding labour
and gratifying avarice. First the barons, and then the lords and commons,
transferred the crown from one man or family to another; and finally, this
fluctuating sovereignty has settled, not upon the people, but upon king, lords
and commons, with a power unlimited, except as lord Coke observes, that it is
unequal to impossibilities. Its capacity to effect any political changes or
innovations, is demonstrated, by its having extended the power of a house of
commons elected for four years only, to seven. These facts are constructions of
the word "sovereignty," displaying the consequences of its adoption into our
political vocabulary. By referring to the English books and practices, from
which it is borrowed, for its interpretation, it turns out to be synonimous
with despotism. How then can it be incorporated with our political system,
without investing our governments with a power of encroachment; without freeing
them from constitutional restrictions; and without subverting the sovereignty
of the people? No English sovereignty regal, parliamentary or republican,
recognized sovereignty or a right to self-government in the people. The long
parliament loved sovereignty as well as any other form of government. All the
usurpers of sovereignty used favours and penalties to sustain it, and the
acceptance of the former was a voluntary acknowledgment of a right to bestow
them. Among a people jealous of their liberty, this mode for procuring a
confession of the existence of a sovereign power in government, will
undoubtedly be preferred as the safest, and selected as the most successful;
but as it is the most seducing and dangerous, it ought to be restrained with
the greatest circumspection. Exclusive privileges will make more proselytes to
despotism, than the severest punishments.
But it may be objected, if sovereignty and despotism are synonimous
terms, that the sovereignty of the people is also a despotism. The objection is
answered by the following considerations. If societies are instituted by
consent, the objection fails, because the despotism objected is converted into
free will and in fact becomes the very opposite of despotism. If by the
majority; it is then to be considered, whether this species of despotism or
sovereignty, is preferable or not, to despotism or sovereignty in one person or
in a minority. An alternative, arising from comparison, constitutes the scope
for the range of intellect In theory, it is probable that much fewer causes
will exist, which would induce the majority of a nation to invade the rights of
a minority, than such as solicit one or a few to invade the rights of the
nation or of some of its parts. In fact, the first have been extremely rare and
evanescent; the latter, continual and lasting. It is true that many wise and
good men, whilst they intuitively admit the right of self-government to reside
in nations, suffer imagination to conjure up a tumultuous populace, discharging
its fury upon life, liberty and property, and shrink from the terrifick
spectre; whilst they cannot see any danger in a sovereign government,
discharging its frauds Against liberty, property and individual happiness, by
monopolies and exclusive privileges. Such apparitions appeared to devout men,
and caused them to deprecate the introduction of religious freedom. They were
also seen by no small number during our revolutionary war, and even disfigured
the declaration of independence into an ugly monster. But having, in these
cases, rubbed off the rust, spread over the sovereignty of the people by
ignorance and monopolies, it ought not to be lost under a new incrustation
composed of phantoms, kneaded by selfishness, and spread by construction and
inference. Let us recollect that this composition, if left undisturbed,
indurates with wonderful celerity.
It is however superfluous to consider, whether the sovereignty of the
people is a better or worse political maxim, than the sovereignty of the
government; because the question to be settled for application as we proceed,
is, which of these competitors is sovereign in fact. If the government created
the people, that is, organized them into a nation, there can be no doubt but
that the government is sovereign. The kings of England had a claim to
sovereignty upon this ground. They created a nation (lords and commons) by
successive charters and franchises. But unhappily for the argument, our nation
created their governments. Yet it suggests an observation of no little weight.
Had the lords or commons, or bodies politick, or corporations, exercised a
right of creating other lords, or commons, or bodies politick, or corporations,
it would have been a usurpation of the king's sovereignty, and must gradually
have subverted it. The application of this remark is obvious.
It has been observed, that sovereignty implies a correspondent
inferiority; and required, that the subject for a sovereign power in our
governments to operate upon, should be pointed out. Does it reach the
sovereignty of the people, or is the government only sovereign over itself? Is
the foolish boast, "I alone am king of me," converted into sound sense, by
being applied to a state or federal government? Our governments must, if they
are sovereigns, have the people, or only themselves for subjects. To avoid a
collision with the sovereignty of the people; to find subjects for the
sovereignty of a government; and to avoid the absurdity of a sovereignty
without subjects; it has been conceived, that some of our political departments
are sovereigns over others, and one over all. This anomalous sovereignty,
whilst it pretends to respect, directly assails the sovereignty of the people.
All our political departments hold their power under this authority, and not
under the authority of the government. But this new species of sovereignty
proposes to take away all its subjects from the sovereignty of the people, and
reduce it to the state of a king whose sovereignty was admitted, but who had no
subjects. The pope of Rome manages this affair admirably. When he wishes to get
a troublesome bishop out of his way, whom he fears publickly to disgrace, he
transfers him to a cure of souls in foreign parts, where there are no souls to
cure; still leaving to him the title of bishop. So if congress have any
sovereignty over the political departments called states, the sovereignty of
the people would lose a great portion of its cure of souls, although congress
should politely leave them their title.
Our state constitutions confer upon a state majority, a power over every
department of government, either directly by election, or by an influence over
elective departments, entrusted with appointments. In this elemental basis, we
discern clearly a positive conventional power, designed to exercise and to
retain the sovereignty of the people, or the right of self-government; and we
as clearly discover in the governments themselves, the subjects over which this
conventional power was to be exercised. The federal constitution established
three conventional powers over the federal government, lodging one in the
majority of the people of each state; another in the state governments,
comprised in the appointment of federal senators; and a third in the state
governments also, comprised in a mode of amending the federal constitution. A
conventional sovereignty being thus retained by the people over the state
governments, and by the people and the state governments also, over the federal
government, neither of these governments can legitimately acquire any species
of sovereignty at all, because it would be contrary to the conventional
sovereignty actually established. The positive supervising powers bestowed by
the compact of the union, upon the state governments, over the whole federal
government, flatly contradicts the idea, that the same compact designed
constructively to bestow a supervising power upon congress, a department only
of the federal government, over the state governments.
The divinity of sovereignty, and the natural right of self-government,
are therefore really the competitors for our preference. As the latter has been
evidently selected as the basis of our conventional associations, the former is
the only foundation upon which any of our governments can establish a right to
sovereignty. Before the American revolution, the natural right of
self-government was never plainly asserted, nor practically enforced; nor was
it previously discovered, that a sovereign power in any government, whether
regal or republican, was inconsistent with this right, and destructive of its
value. Then the divine sovereignty claimed by governments of every form, was
completely exploded or reclaimed by the natural or divine right of
self-government, not to be again surrendered, but to be retained and employed
in creating and controling governments, considered as trustees invested with
limited functions, and not as sovereigns possessing powers derived from that
source of despotism.
The difference between the right of self-government, and the sovereignty
of governments, is very material. Under one principle the people bestow limited
powers; under the other, they receive limited franchises. The sovereigns of
England sparingly and partially bestowed rights upon the people, and retained
all the powers they did not surrender. Here the people or the states retain all
the powers they have not bestowed. It would be as absurd in the one case as in
the other, to infer from limited grants, a transfer of the sovereignty itself.
Whenever such inferences were made, the king was substantially deposed, until
the inference itself was exploded; and similar inferences will in like manner
depose the sovereignty of the people here.
In the hurry of a revolution, before this subject had been well
considered, and in imitation of the English practice of receiving franchises
from kings, a bill of rights was annexed to several of the state constitutions;
but it was soon discovered, that this was both superfluous and dangerous;
superfluous, as according to the right of self-government, powers not bestowed,
remained with the people; dangerous, as it seemed to imply that the people, as
in England, derived their rights from the government. In England, residuary
rights not granted, remained with the government, and therefore it was
important to the people to extend such grants as far as possible; here, such
ungranted rights remain also with the grantors, but these are the people. This
distinction put an end to the custom of annexing a bill of rights to state
constitutions, and caused a proposition of the kind to be rejected by the
sages, statesmen, and patriots, who framed the constitution of the United
States. It can only be correct upon the ground, that neither the state nor
federal governments received any powers except as trustees, or specified; and
of course it was thought that the term "sovereignty," and its coadjutors
"supremacy and prerogative" were inapplicable to our governments, and incapable
of defeating the reason, upon which a bill of rights was rejected. Otherwise,
this rejection must be considered as a stratagem (for they cannot be charged
with a want of knowledge,) invented by a considerable number of our wisest and
best men to enslave their country.
The patience of the reader is solicited, whilst I am endeavouring to
establish the principles by which we ought to be guided in construing our
constitutions. Unless this is done before we enter into that intricate field,
as the soundest minds cannot suddenly and intuitively understand new and
intricate questions, they will never be understood at all; nor construction
confined within any range. To prove that the right of self-government, or
sovereignty, if the right should be so called, resides in the people, may be
thought a waste of time, as it is generally admitted; but in my view it seemed
necessary to consider the point, both to sustain the arguments to be extracted
from it as I proceed; and because an inattention to its consequences has, I
think, caused several unpremeditated deviations from that loyalty to this
primary principle of our whole political system, which our governments both
feel and profess.
SECTION 4.
THE UNION.
Who made it? "We, the people of the United States." But who were they?
The associated inhabitants of each state, or the unassociated inhabitants of
all the states. This question is an exposition, either of the ignorance or the
design of construction. If there is no difficulty in answering it, construction
ought to be laughed at for playing the fool; but if it gives the wrong answer,
as supposing it to furnish contrary inferences to the right one, it ought to be
suspected of playing the knave. At least an attempt to construe away a fact,
known to every body, is a very fine specimen of its character when aiming at an
accession of power. It has been imagined, that by considering the union as the
act of the people, in their natural, and not in their political associated
capacity, some aspect of consolidation might be shed over the country, and that
the federal government might thereby acquire more power. But I cannot discern
that the construction of the constitution will be affected in the smallest
degree, by deducing it from either source, provided a sound authority is
allowed to the source selected. Every stipulation, sentence, word and letter;
and every donation, reservation, division and restriction, will be exactly the
same, whichever is preferred. A man, having two titles, may distinguish himself
by which he pleases, in making a contract; and whichever he uses, he remains
himself. So the people having two titles or capacities, one arising from an
existing association, the other from the natural right of self-government, may
enter into a compact under either, but are themselves still; and their acts are
equally obligatory, whichever they may select. Politicians may therefore indulge
their taste in deducing the constitution of the union from either, but
whichever they may fancy, no sound ground will thence result for their
differing in the construction of it.
Nevertheless, to take away the pretext, however unsubstantial, for a
different construction of the constitution, on account of the capacity or title
under which the people acted in its establishment, it is material to ascertain
the meaning of the phrase "we the people of the United States;" towards which,
let us run over most of the state constitutions.
New Hampshire. "The people of this state have the sole and
exclusive right of governing themselves as a free, sovereign and
independent state. Every subject of this state. In the government of
this state. The people inhabiting the territory formerly called the
province of New Hampshire, do hereby solemnly and mutually agree with each
other to form themselves into a free, sovereign and independent
body politick or state. That the state may be equally
represented. I do swear that I will bear faith and true allegiance to
the state of New Hampshire."
Massachusetts. "The body politick is formed by voluntary
association of individuals. The people of this commonwealth have the
sole right of governing themselves as a free, sovereign and independent
state. The people do hereby mutually agree with each other, to
form themselves into a free, sovereign and independent body politick or
state."
New York. "This convention, in the name and by the authority of
the good people of this state. The legislature of this state. No
members of this state shall be disfranchised. Delegates to represent
this state in the general congress of the United States. Be it
enacted by the people of the state."
Pennsylvania. "We the people of the commonwealth of
Pennsylvania ordain. The legislature of a free state. All government
originates from the people and is founded in compact only."
Delaware. "The people of this state. The government shall
be called the Delaware state. The legislature of this state. The
general assembly of this state. There shall be no establishment of any
one religious sect in this state."
Maryland. "The people of this state ought to have the
sole and exclusive right of regulating the internal government thereof.
The legislature of this state. The delegates to congress from this
state shall be chosen by joint ballot of both houses of assembly. I will
be faithful and bear true allegiance to the state."
Virginia. "All power is derived from the people. Magistrates are
their trustees or servants. A well regulated militia is the proper defence of a
free state."
North Carolina. "The people of this state have the sole
and exclusive right of regulating the internal government thereof.
Monopolies are contrary to the genius of a free state. All commissions
shall run in the name of the state of North Carolina. The legislature of this
state. The constitution of this state."
South Carolina. "The legislative authority of this state.
The several election districts in this state shall elect. The style of
process shall be "The state of South Carolina, and conclude against the
peace and dignity of the state." I swear to preserve the constitution of
this state and of the United States."
Georgia. "Members of the legislature shall swear to promote the
good of the state, to bear true allegiance to the same, and to observe
the constitution. To make laws necessary for the good of the state.
Citizens and inhabitants of this state."
Vermont. "The people are the sole source of power. They have the
exclusive right of internal government. All officers of government are
their servants. Legislative and executive business of this state. The
people have a right to exact from their legislators and magistrates the good
government of the state. The legislature of a free and sovereign
state. Shall be entitled to all the privileges of a freeman of this
state. Every officer shall swear to be faithful to the state of
Vermont, and to do nothing injurious to the constitution or government
thereof.''
Without further quotations, let us demonstrate the force of these,
extracted from a majority of the state constitutions, to fix the meaning of the
term "state" according to the publick judgment, by substituting the word
"government" for it. They would then read as follows."
"The people of this government have the sole and exclusive right
of governing themselves as a free, sovereign and independent
government."
In the government of this government."
That the government may be equally represented."
The people of this government ought to have the sole and
exclusive right of regulating the internal government thereof."
The legislature of this government."
I will be faithful and bear true allegiance to the
government."
The several election districts in this government shall
elect."
Members of the legislature shall swear to promote the good of the
government and to make laws for the good of the government."
Citizens and inhabitants of this government."
The people have a right to exact from their legislators and magistrates
the good government of the government."
Commissions shall be in the name of the freemen of the
government."
It would be an incivility to the reader, to subjoin to these quotations,
many arguments, to prove, that the term "state" is not in any one instance used
in reference to all the people of the United States, either as composing a
single state, or as being about to compose a single state. Used geographically,
it refers to state territory; used politically, it refers to the inhabitants of
this territory, united by mutual consent into a civil society. The sovereignty
of this association, the allegiance due to it, and its right to internal
government, are all positively asserted. The terms "state and government" far
from being synonimous, are used to convey different ideas; and the latter is
never recognised as possessing any species of sovereignty.
It next behooves us to consider whether the term "states" has changed
its meaning, by being transplanted from its original nursery, into the
constitution of the United States; and is there used to designate all the
inhabitants of the United States, as constituting one great state; or whether
it is recognised in the same sense in which it had been previously used by most
or all of the state constitutions.
The plural "states" rejects the idea, that the people of all the states
considered themselves as one state. The word "united" is an averment of
pre-existing social compacts, called states; and these consisted of the people
of each separate state. It admits the existence of political societies able to
contract with each other, and who had previously contracted. And the words
"more perfect union" far from implying that the old parties to the old union
were superseded by new parties, evidently mean, that these same old parties
were about to amend their old union.
But the parties, though recognised as being the same, were not strictly
so. The authority of the people of each state is resorted to in the last union,
in preference to that of the government of each state, by which the old
confederation was formed. This circumstance by no means weakens the force of
the last observation, because the recognition of existing political parties
able to contract, remains the same. The states, in referring to the old union,
only admit themselves to have been bound by their governments, as they
possessed the right of making treaties. But as the state governments were the
parties to the first confederation, and as such, had a mutual right to destroy
that treaty, this danger suggests another reason for the style and principles
of the new union. Among its improvements, that by which it is chiefly made
"more perfect," was the substitution of the authority of "the people of the
United States" for that of the governments of the United States; not with an
intention of excluding from the new union the idea of a compact between the
states, but of placing that compact upon better ground, than that upon which it
previously rested. The term "union" has never been applied to describe a
government, established by the consent of individuals; nor do any of our state
constitutions use it in that sense. They speak indeed of individuals "uniting"
to form a government, not to form a union; and I do not recollect that a single
compact between individuals for the establishment of a government, has ever
been called a union; though a multitude of cases exist, in which that name has
been given to agreements between independent states. If therefore this term
comprised the whole evidence, to prove that our union was the act of distinct
bodies politick, composed of the people within different geographical
boundaries, and not of a number of people, encircled by one line, without any
such discrimination, it would be sufficient
But the constitution itself furnishes the plainest correspondent
evidence, in its origin, establishment and terms. The members of the convention
which formed it, were chosen by states, and voted by states, without any regard
to the number of people in each state. It was adopted by thirteen votes,
without respecting the same principle. Now what was represented by these
voters; the territory of each state, or the people of each state? The terms
"United States" must refer to one or the other. If to the former, then the
territories of each state entered into a compact "to form a more perfect union,
establish justice, insure domestick tranquillity, provide for the common
defence, promote the general welfare, and secure the blessings of liberty to
ourselves and our posterity." The posterity of
territories. If to the latter, it was the people of each state, who by
compact in their political capacity, by giving one vote each, formed the
union.
The concords with this opinion present themselves at every step,
throughout the compact.
The house of representatives are to be chosen by the people of the
several states, not by the people comprised within the territories of
all. The right of choice is confined to the electors of the most numerous
branch of the state legislatures. Thus the right of suffrage is placed
upon different grounds in different states. Had the constitution of the United
States been the act of all the people inhabiting the territory of the United
States, this right would have been made uniform; but being the act of the
people of each state, in their existing political capacity, the right of
suffrage of course remained as it had been settled by each in forming its
society.
Each state may elect these representatives by a general ticket, as some
have done; and however they may have districted themselves by their own act for
their own reasons, the recognizance of state individuality by the constitution
is as strong, as if they had not done so. The modes of choosing both the
president and senate, coincide also with the opinion, that the constitution
considered the union as the act of bodies politick called states; and not as
the act of a consolidated nature; and it seems to have settled its own
construction, by providing in the case of no election of a president by
electors, that he shall be chosen by the house of representatives, "the votes
to be taken by states, the representation from each state having one
vote."
As the great political departments of the federal government,
legislative and executive, emanated from the societies called states, so they
are made dependant upon them, in the mode prescribed for amending the
constitution of the union; because the authors had the right of altering their
own work. Had this constitution originated from, or been made by the people
inhabiting the territories of the whole union, its amendment would have
remained to them, as the amendment of the state constitutions belongs to the
people of a state. But as such a body of associated people, did not exist, the
amendment of the union is left in the hands of the existing bodies politick, to
which, as its authors, it obviously belonged. No majority in congress can
either call a convention, or amend the constitution; but the legislatures of
two-thirds of the states may compel congress to call one, and those ,of
three-fourths, may amend it Thus a supremacy of the states, not only over
congress, but over the whole constitution, is twice acknowledged; first, by
their power over the legislative and executive departments instituted for
executing the union; and secondly, by their power over the union itself. I
cannot conceive that the constitution could have contained any thing more
hostile to the doctrine "that the sovereignty or supremacy over the government
of the union, rested in the people of the United States, not in their
political, but natural capacity." It clearly discloses an opinion, that there
were no such people, politically speaking; nor can I discern a vestige of the
people inhabiting the territories of the United States, having ever formed
themselves, or attempted to form themselves, into any political society or
civil government. By this new doctrine, however, the checks provided to
controul the powers of the government of the union are ingeniously evaded. It
asserts, that the government of the union is responsible to the sovereignty of
the people residing throughout the union, and not to the sovereignty of the
people residing in each state. Now as an effective sovereignty of the people
can only result from their having constituted themselves into a civil society,
and the first people having never done so, an acknowledgment of a sovereignty
which does not exist, only annuls that which does; and escapes altogether from
any species of loyalty to this superior authority. It brings us back to the old
ground of a tacit compact between governments and subjects. The people of each
state invested their governments with limited powers. They have also
established a government of the union with powers infinitely more limited, than
those originally bestowed on the state governments. But if a tacit social
compact between this last government, and the people individually of all the
states, should be admitted, all these specifications would be abolished;
because, as it is unwritten, the government of the union might construe it as
was most convenient to itself, as all governments have done, which have
condescended to acknowledge implied obligations only. The only difference
between the Europeans and ourselves would be, that though some of their
governments hardly allow of this silent social compact, none acknowledge the
sovereignty of the people; whereas here this sovereignty would be denied, where
it operatively exists, and acknowledged, where it does not exist at all; so
that we should still possess over the government of the union, all the
advantages generally reaped from "we are, gentlemen, your most obedient
servants," whilst the story of Saturn would be gradually reversed.
The eleventh amendment prohibits a construction by which the
rights retained by the people shall be denied or disparaged; and the
twelfth "reserves to the states respectively or to the people the powers
not delegated to the United States, nor prohibited to the
states." The precision of these expressions is happily contrived to defeat
a construction, by which the origin of the union, or the sovereignty of the
states, could be rendered at all doubtful. "Powers are reserved to the
people." "The people," says Johnson, are "those who compose a
community." In a political instrument, the term exclusively possesses a
collective, inclusive, and social sense, and is never used to describe a number
of men in a state of nature. A people is a collective being. No people or
community has ever been composed in the United States, except by the
inhabitants of each state, associating distinctly from every other state, by
their own separate consent. Thus a people in each state was constituted, and
these separate communities confederated, first by the instrumentality of their
separate governments, and secondly by the separate authority of the people
composing each state. Common consent is necessary to constitute a people, and
no such consent, expressly or impliedly, can be shewn, by which all the
inhabitants of the United States have ever constituted themselves into one
people. This could not have been effected without destroying every people
constituted within each state, as one political being called a people cannot
exist within another.
The rights of a people are indivisible; and if a great people be
compounded of several smaller nations, as it inherently possesses the right of
self-government, it must absorb the same right of self-government in its
component parts; just as the rights of individuals are absorbed by the
communities into which they constitute themselves. Therefore had a people been
constituted, by melting down the little nations into one great nation, those
little nations must have lost the right of self-government, because they would
no longer have been a people. As it was never imagined, that the individuals
inhabiting all the states had constituted themselves into one people, so there
has never appeared from this imaginary body politick, the least attempt towards
claiming or exercising the right of self-government; nor is the government of
the union subjected to its controul or modification. Not a single one of the
United States would have consented to have dissolved its people, to have
reunited them into one great people, and to have received state governments or
unrestricted legislation from this great people, so ignorant of local
circumstances, and so different in local habits. This reasoning would I think
have been sufficient to ascertain the people by whom the constitution was made,
had it contained no internal evidence of the sense in which it uses that term.
But if the phrase "we the people of the United States" refers to the people of
each state, the argument is superfluous, and the decision of the constitution
itself, decisive.
The powers reserved are those "not delegated by the constitution." They
could only be reserved by those who possessed them. They were not powers
possessed by a consolidated people of all the states, but by a distinct people
of each state; and as those who reserved were those who delegated, it follows,
either that the reservation was to a consolidated people of all the states, or
that the delegation of powers flowed from the people of the separate states.
Perhaps the interpolation of a grantor and reserver of powers into the
constitution, who had nothing either to grant or to reserve, may have arisen
from an erroneous construction of the word "or." If the remark just made is
correct, consistency decides its true meaning. "Are reserved to the states
respectively or to the people." This word is used either to couple
synonymes, or to denote opposition. The words "states and people" had the same,
and also a different meaning: The same, as an associated people constituted a
state; and a different meaning, from the right of self-government attached to
mankind. But another construction seems to me to be the true one. "Or" is used
merely to conjoin two words considered as completely synonymous; and the latter
is introduced as an expletive of the former, lest it should be interpreted to
mean "governments." The word "states" had been so often used in the
constitution, that it was necessary to fix its meaning; and this amendment was
intended to remove the suspicion of a tendency in the constitution towards
consolidation, with which it had been charged previously to its adoption; by
defining "states and people" as words synonymously used, effectually to defeat
the pretence, that the term "people" meant the people of all the states,
instead of the people, "respectively" of each state. A construction
which supposes that all the inhabitants of all the states, and not the people
of each state, were meant, would produce consequences which never could have
been contemplated. The reservation would have been in favour of two incongruous
objects, and therefore both could not reap its benefits. Being in the
disjunctive, it might have been fulfilled by acknowledging the right of either,
although the other should get nothing. By selecting the inhabitants of all the
states in one mass, as the assignee of the reserved powers, the government of
the union might extend their own powers; since there could be no loss, in
conceding powers to those who could neither receive, exercise, nor preserve
them.
In one other view, highly gratifying, these two amendments correspond
with the construction I contend for. Several previous amendments had stipulated
for personal or individual rights, as the government of the union was invested
with a limited power of acting upon persons; these stipulate for political
conventional rights. But different modes are pursued. By the first, certain
specified aggressions are forbidden; by the second, all the rights and powers
not delegated are reserved. The first mode is imperfect, as the specified
aggressions may be avoided, and yet oppression might be practised in other
forms. By the second, specification is transferred to the government of the
union; and the states, instead of being the grantees of limited rights, which
might have been an acknowledgment of subordination, are the grantors of limited
powers; and retain a supremacy which might otherwise have been tacitly
conceded, as has been often done by the acceptance of franchises from monarchs
or other sovereigns. Thus the powers reserved are only exposed to specified
deductions, whilst those delegated are limited, with an injunction that the
enumeration of certain rights shall not be construed to disparage those
retained though not specified, by not having been parted with. The states,
instead of receiving, bestowed powers; and in confirmation of their authority,
reserved every right they had not conceded, whether it is particularly
enumerated, or tacitly retained. Among the former, are certain modes by which
they can amend the constitution; among the latter, is the original right by
which they created it.
When we have discovered who made a treaty, we have also discovered where
the right of construction resides. Mr. Jefferson, Mr. Pinkney, Mr. Marshall,
and Mr. Gerry, in their negotiations with revolutionary France, have furnished
us with an admirable treatise, both to fix the residence of the right, and to
display the wantonness of construction, assumed without right. Presidents
Washington and Adams, all the successive members of the cabinet and congress
itself, concurred in the principles advanced by these gentlemen. They prove,
that an exclusive right of construction in one party, is a degradation of the
other to a state of inferiority and dependance. Their arguments might be
applied with great force in many views to our subject. If the states made the
union, they demonstrate, that the same consent, necessary to create, is
necessary to construe. Wherever the creating consent resided, there we are
directed to look for the construing consent. It would be a much grosser
violation of their principles, for no party to a treaty to usurp an exclusive
right of construing it, than for one party to do so. As neither the executive,
legislative nor judicial departments of the state or federal governments have
ever consented to the union, no one of these departments can have an exclusive
right of construing it. But if they did consent, and by that consent are
parties, still the right is mutual. And if they are all to be considered as the
co-ordinate departments or creatures of "the people of the United States," they
derive a mutual right of construction, from the mutual right possessed by the
states which they represent Suppose our legislative and judicial departments
had fixed their own rights by a treaty between themselves, in the words of the
general or state constitutions; would not each have possessed an unsubservient
right of construction? If this right would be mutual in the case supposed, what
hinders it from being also mutual, if these departments are created by an
authority superior to both, and invested with distinct and limited agencies.
Each trustee is subject to the supervision of his employer, and neither liable
to a usurpation of another, any more than several co-ordinate ambassadors,
would be to a claim of one to prescribe the duties of the rest, and regulate
their consciences. It is easiest for an exclusive power of construction, where
the limits of respective territories are hardest to define, to make conquests
which will destroy balances, and break down restrictions; and therefore its
interdiction in such cases is more necessary, than in others.
I conclude this section with a quotation from the Federalist "The assent
and ratification of the people, not as individuals composing one entire nation,
but as composing the distinct and independent states to which they belong, are
the sources of the constitution. It is therefore not a national, but a federal
compact"(a)
(a) Fed. 206. M. The quotations from the Federalist are taken from the
edition of 1817, which designates the writer of each essay; and I have added
the letters M. or H. to inform the reader which are cited from Mr. Madison, and
which from Mr. Hamilton.
SECTION 5.
DIVISION AND LIMITATION OF
POWER.
In this and the following section, I shall endeavour to establish
principles vitally important to our system of government, and however the
subject may be handled, particularly worthy of the publick consideration.
Human societies were originally constituted with a view to the interest
of one or a few, and governments were consequently founded in the simple
principle of subordination. They were splendid statues, the people were
pedestals, and a succession of convulsions, occasioned by a gas too sublimated
or too heavy, constantly overturned, only to set them up again. Monarchy,
aristocracy, and democracy succeeded each other; but all being founded in the
principle of subordination to unlimited power, it ran like the blood of the
Stuarts through the whole family, and made each individual a scourge to
mankind. As knowledge advanced, philosophers sought for alleviations of a
condition so unhappy; and having only seen those three forms of government,
called them natural principles, and expected a remedy for the defects of each,
from a mixture of all. It was seen and admitted, that the formation of a
government, after the model of an army, by a series of subordination from a
king to a constable, from a general to a corporal, made tyrants and slaves; and
checks and balances were contrived to prevent both consequences, by poizing the
three supposed natural principles against each other, fraught with co-ordinate,
distinct and independent powers. Thus the principle of a necessary series of
subordination was exploded; but as the discovery was new, and as the dogma
"that monarchy, aristocracy, and democracy comprised all the ingredients of
government" was still believed; it was imperfectly cultivated. Hence absolute
sovereignty continued to be assigned to mixed governments, and absolute
subordination to the people. This first effort of political improvement was
however recommended by a considerable portion of practical success. The checks,
collisions and balances, though imperfectly contrived, produced effects, which
exalted and invigorated several nations, above those which had neglected
similar political modifications. But still the error of retaining absolute
power in the government, and inflicting absolute submission on the people,
caused no small degree of oppression, which excited mankind to search for a
better remedy. Locke and others at length discovered, that sovereignty in
governments and passive obedience in nations, far from being natural or
necessary principles for civil societies, were arbitrary and pernicious
notions, capable of being supplanted by opinions more natural; and that civil
government, constructed upon different principles, and subjected to
responsibility and control, might be made more productive of national
happiness. But the natural right of self-government, and the consequent rights
of dividing and limiting power, might have slept forever in theory, except for
the American revolution; which seems to have been designed by Providence for
the great purpose of demonstrating its practicability and effects. We seem to
have been propelled by necessity and commanded by fate, to stride beyond the
principles of absolute sovereignty in a government, and absolute subordination
in the people; and beyond the ineffectual project of mixing monarchy,
aristocracy, and democracy together; quite up to the sound political doctrines
of limitation, restriction, and division of power. Far from allowing
sovereignty to governments, or confiding our rights to a balance between
arbitrary and artificial political principles, we were obliged to feel and to
act upon the genuine and natural principle of self-government; to extract from
it the obvious truths "that sovereignty resided in the people, and that
magistrates were consequently their trustees," and to vindicate these rights by
creating co-ordinate and collateral political departments invested with limited
powers instead of that absolute power, so highly pernicious in the hands of any
one of the three ancient principles, and so far from being made harmless by
their mixture. Thus we constituted a wide difference between our policy and
that of the English; in its origin; in expelling from it two of their
principles entirely; in rejecting the balances for the better security of
co-ordinate departments; and in withholding from these departments, either
singly or united, the rights of sovereignty, as exercised by the English
government. The first division of power we have established according to this
new policy, consists of the limited rights delegated by the people to their
governments or trustees; and of all the residue of the attributes of
sovereignty, retained, as not having been delegated by the people. Under the
English form of government, this division, with its concomitant limitations, is
utterly unknown.
Our second division of power, also unknown to the English system, is
that between the governments of the states, and the government of the union.
Previously to our revolutionary war, the colonies had been thoroughly lectured
upon the subjects of sovereignty, supremacy, and a division of powers. The
English parliament contended, that its sovereignty or supremacy included all
means necessary or convenient, in its own opinion, to effect its ends. The
colonies admitted its supremacy in making war and peace, and in regulating
commerce; but denied that this admission included a concession of means,
subversive of their own right of internal or local government; as to which they
claimed a supremacy for themselves. The parliament contended, that the right of
making war, conceded by the colonies, implied a right of using all the means
necessary for obtaining success; such as raising a revenue, appointing
collectors, raising troops, quartering them upon the colonies, and many other
internal laws; and that the right of regulating commerce, also involved a right
of imposing duties, and establishing custom houses for their collection;
arguing, that it would be absurd to allow powers, and with-hold any means
necessary or proper to carry them into execution. The colonies replied, that it
would be more absurd to limit powers, and yet concede unlimited means for their
execution, by which the internal supremacy, upon which their liberty and
happiness depended, though nominally allowed, would be effectually destroyed:
That the terms "sovereignty or supremacy," however applicable to the
parliament, were applicable also to the colonial governments, as to internal
powers: That the necessity of controuling supreme, sovereign or absolute power,
in governments, had been proved by experience, particularly in England; where
magna charta, the petition of right, and many declaratory laws, had limited its
means to a great extent: and that however the means contended for by the
parliament, might be useful for carrying on war or regulating commerce; yet,
that a restriction of those means would be still more useful, because it was
necessary for the preservation of their liberties. The parliament closed the
debate, by declaring that it had a right to legislate over the colonies in all
cases whatsoever; and denying the distinction between internal and external
legislation, imposed some trifling taxes of the former character, as an
entering wedge into the colonial claim of local supremacy, to be gradually
driven up to the head. In that on tea, the ingenuity was used of attempting to
establish a ruinous precedent, by conferring a pecuniary favour, in diminishing
the price of the article in favour of the colonies. But the colonies, too wary
to be caught by a gilded hook, detected, resisted and defeated the
artifice.
The controversy lasted for many years. It drew forth the talents of the
ablest writers on both sides the question; and those of the great Doctor
Johnson were exerted to the utmost in favour of the passive obedience due to
sovereignty or supremacy. All the treasures of wisdom, and all the
sensibilities of interest, united to attract the attention of both countries to
the subject. There never was one more ably discussed, or better understood. And
no national interpretation of the terms used in the debate could possibly be
more complete. Their right to local supremacy and internal legislation, was
asserted by every colony, ably defended by many individuals, and conclusively
proved by our early congresses composed of a rare body of men. This thorough
investigation produced a conviction, never I hope to be eradicated, which
dictated our political system, prescribed the terms both of the first and
second union, and defined the nature of the division of powers between the
state governments, and the government of the union.
I have never met with but one respectable authority among our own
writers, by which the correctness of the colonial principles has been
questioned; and this is only comprised in a relation of facts, without being
stampt by the concurrence of the author. In Marshall's life of Washington, vol.
ii. 71 and 72, it is said, "that many of the best informed men in
Massachusetts, had perhaps adopted the opinion of the parliamentary right of
internal government over the colonies, that the English statute book furnishes
many instances of its exercise; that in no case recollected was their authority
openly controverted; and that the general court of Massachusetts on a late
occasion, explicitly recognized the same principle." These historical facts are
undoubtedly designed to warn us of the stealth with which oppression
approaches, and the enormities towards which precedents travel; that they ought
not to be sanctified by time nor repetition; and that the best informed men may
be led by them into the most obvious errors; for the same book abounds with
eulogies upon those who denied this doctrine; and concurs, when t