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 the author
expresses his own opinion, in the propriety of resisting it. The essays of
president Adams, written in 1774 and 1775, fully explain how it happened, that
many of the best informed men in Boston took a side, opposite to that which was
embraced by almost all the philosophers of Europe, who annexed a degree of
veneration to the characters of our own patriots, in which even other nations
participate. These essays, lately published, are replete with profound
observations upon the principles we are considering.
It is sufficient however for my argument, if the people of the colonies
believed in the doctrines which they asserted, bled for and established;
because the influence of opinions thus rivetted, upon their political measures,
will be weighed by impartiality and admitted by candour. During, and soon after
a war, firmly waged for eight years, to resist a right to legislate for them
locally and internally, inferred from parliamentary sovereignty or supremacy,
the colonies or states constructed two unions, and established in both a
division of power, bearing a strong similitude to that upon which they were
willing to have continued their union with England; yielding to her the
regulation of war, peace and commerce, and retaining for themselves local and
internal legislation. The first "union between the United States of America for
their common defence and general welfare" begins where the second ends.
The first "retains the sovereignty and rights to the states not delegated to
the United States." The second "reserves to the states the powers not
delegated to the United States." The first confers upon congress, almost
all the powers of importance bestowed by the second, except that of regulating
commerce; and among them the power of establishing a post office. The second
only extends the means for executing the same powers, by bestowing on congress
a limited power of taxation; but these means were by neither intended to
supersede nor defeat those ends retained or reserved by both. By the first,
unlimited requisitions to meet "the charges of war and all other
expenses for the common defence and general welfare" were to be made by
congress upon the states. By the second, congress are empowered to lay taxes
under certain restrictions "to provide for the common defence and general
welfare." But a sovereign and absolute right to dispose of these
requisitions or taxes without any restriction is not given to congress by
either. The general terms used in both are almost literally the same; and
therefore they must have been used in both, under the same impression of their
import and effect. By connecting in one view the controversy with England, the
first, and the second union; the vindication of colonial, local and internal
government by a long war, and innumerable publick acts; the retention of it by
the first union; its reservation by the last; and the accommodation proposed
with England on the terms of allowing to the parliament the powers of war,
peace, and regulating commerce, given to congress; it is impossible not to
discern a series of testimony, demonstrating a strict subserviency of each
distinct item, to the primary end, of establishing a division of power, by
which an independent internal government should be secured, first to the
colonies, and subsequently to the states. Nor can a better expositor of
particular words and phrases, than this primary end, be discovered.
In fact, the question between England and the colonies was far more
favourable to the former, than that which has arisen between congress and the
states. The colonial governments were chartered bodies politick, and the
acceptance of these charters was an acknowledgment of a supremacy in the
grantor. As the English king in granting these charters acted as the agent of
the English policy, he had no better right to dismember the parliamentary
sovereignty by charters, than congress have to dismember the state sovereignty
by the same instruments. Therefore these charters could not contract the
parliamentary supremacy of legislation. But they contained no restriction of
it, nor any reservations or donations to the colonies of exclusive
internal legislation. Now, the state governments are not chartered by congress,
and instead of a tacit acknowledgment of a supremacy in that body, or in any
other department of the government of the union, the states have expressly
asserted and retained their respective internal sovereignties. The case
is yet stronger against the claim on behalf of congress. The government of the
union is chartered by the states. Had the colonies, under their charters from
the king of England, claimed a supremacy over the parliament, their pretension
would have been equivalent to a claim of supremacy by the government of the
union over the states. The grant of a charter implies a retention of every
power not granted, just as a deed of gift or sale for a portion of an estate
leaves unimpaired the title of the owner to the portion he does not convey
away. A conveyance of part does not entitle the grantee to take more, or the
whole of the residue if he pleases. The people were the true owners of a great
fee simple estate. They have granted one portion of it to the state
governments, another to the government of the union, and retained the residue
for themselves. The grants were in trust for their benefit; and created the
division of power between the government of the union, and the state
governments, which we are contemplating. Now, if one trustee can by
construction or by force, despoil the other of his portion, he will become so
rich, as to be able to betray his trust, and deprive the owner of the part of
his own estate retained. To allow, that a claim of sovereignty or supremacy in
the government of the union, over the state governments, stood on as strong
ground, as the same claim of the English parliament over the colonies, would be
a concession more favourable than the fact; and, if neither the opinions of
several well informed men in Massachusetts, nor the continued endeavours of the
parliament to sustain the more plausible pretension, could suffice to
obliterate the necessity of a division of power for the preservation of
liberty, between the English and colonial governments, able to resist the
assaults of encroachment; neither opinions nor precedents ought to unsettle the
division of power between the state and federal governments, dictated by the
same motive. Many of the arguments which convinced the colonies of the
necessity for such a division in relation to England, apply forcibly to the
government of the union; and a supremacy at London or at Washington, however
more direful to liberty at one place, would not be divested of terrors at the
other. The objections arising from distance, though the colonies should be
represented in the parliament, were forcibly urged; and the experience of
Ireland has subsequently furnished a proof of their propriety. From the same
source, a number of weighty arguments may be drawn by the reader, sufficient to
prove, that the great extent of the United States will not admit both of a
central supremacy, and of a free form of government; and that the preservation
of liberty must depend on the division of power between the state and federal
governments; or an accurate distinction between the powers bestowed and
reserved.
Our system of civil policy, having established two divisions of power;
that between the people and their governments, and that between the state
governments and the government of the union; proceeds to avail itself of all
the advantages which could be extracted from the English form of government. Had
it set out from this point, I do not deny that it might have given some
countenance to sundry constructions to which it has been exposed; but, if I am
right in ascribing to it the two previous principles for which I have
contended, they seem to be insurmountable obstacles to such inferences as the
British system, controuled by no such obstacles, might supply. But though it
has derived an intimation from this system, that the principle of dividing
power is a good one, it is far from copying its checks and balances; and after
having established the two great and operative divisions we have passed over,
it proceeds to those of an inferior character, and continues to enforce the
principle of division in a mode wholly new and entirely intrinsick. It rejects
two of the English balances or divisions, and substitutes for them, an elective
president and senate. It substitutes for the unsettled idea of the balances, a
co-ordination of departments, a definition of the powers of each, and a
subserviency of all to the power of the people. And it advances judicial power
to an equivalency of independence, by an allotment of powers and duties
conferred by the same constitutions, which prescribed the powers and duties of
the other departments.
Our political philosophers surveyed the world of governments, not for
the purpose of a servile imitation, but to collect, to compare and to weigh
facts, in order to enrich their own by improvements; and by a more refined
organization, to reap the benefits, unalloyed by the calamities of the models
which they contemplated. Far from believing that man, whilst constantly
advancing in his other attainments, had gotten to the end of his capacity in
the science of government, and ought still to expect liberty in the lethargick
lap of a political vis inertiæ; they saw that an extraordinary shock had
aroused his faculties, and wisely seized upon a series of happy dispensations,
to gather the moral blessings, which Providence seemed to have revealed.
The divisions, balances or limitations of power, in Greece, Italy, and
England, had all been the result of civil wars, personal ambition, or domestick
commotions; and therefore none had provided any visible restrictions for
preventing, assuaging or deciding the hostilities which must forever ensue,
between political departments invested with the right of controuling each
other. Such hostilities between the people and senate of Rome, and among the
king, lords and commons of England, had produced consequences which inculcated
two truths; one, that a division of power so imperfectly delineated as to cause
perpetual and violent collisions, was nevertheless greatly preferable to any
form of government, founded in the most perfect series of subordination; the
other, that these violent collisions were serious calamities, and seeds of
frequent revolutions or settled despotisms. The object of our wise and good
patriots, was to reap the benefits and avoid the evils arising from a division
of power. By the declaration of independence, they solemnly stationed our
social institutions upon solid ground, for the purpose of effecting both ends.
It proclaims it to be "the right of the people to alter, abolish and
institute governments, as to them shall seem most likely to effect their safety
and happiness." This right had been previously exercised by balanced orders.
Their usurpation was thus subverted. A powerful supervisor and arbitrator, for
moderating and deciding the controversies of political departments, was formed
and recognized in the people; and a great defect of the old theory of the
balances, in supposing there was none, removed. The same source of civil
society furnished a specification of the rights and duties of each co-ordinate
political or civil department, to which the theory of the balances was
inadequate, as neither member of this theory could submit to another to
ascertain its rights and powers, without being reduced to insignificance; and
therefore the rights and powers under the balancing theory, were left to be
distributed by perpetual contentions, secret frauds or open violence. But when
this genuine authority for defining and limiting the rights and powers of
political departments was found, the contentions between regal, aristocratical
and democratical orders ceased; and a new species of political subordination,
more perfect than any subsisting under the theory of balanced orders,
succeeded. I ask the reader's attentive consideration of the doctrine I am
about to advance, as the truth or error of many subsequent observations will
depend upon it. Between balanced orders there is no supremacy and no
subordination. The supremacy they possess is over the nation, and the
subordination they inflict, is not upon each other, but upon the nation, and
upon the inferior officers of government. Are our political departments,
balanced orders; if so, one department cannot be subordinate to another,
according to the English system. Indeed a supremacy of one check or balance,
over that check or balance intended as a controul or abridgment of this one's
power, would obviously defeat the check or balance designed to be substantial.
By the authority of the right of self-government, we have with great
deliberation established divisions of power, created political departments
subordinate to the people, defined the functions of each, and prescribed to
individuals and the inferior officers of each, the obedience respectively due
to these departments. The only supremacy bestowed on these departments, is over
the persons and things specifically subjected to the limited power of each; and
the only subordination due to them, is from such persons and things. No
supremacy is given to one department over another; and the sovereignty and its
relative, subordination, contended for and admitted, as an indissoluble
attribute to civil government, is established between the people and these
departments; whilst good order is secured by the subordination of individuals
and inferior officers, to the political departments to which they are severally
subjected. Of this improved system for dividing and limiting power, we took the
hint from the balances between monarchy, aristocracy and democracy, as
established, not by a deliberative choice, but by violence; but whilst we
adhered to the principle practised by this triumvirate for self-preservation,
we applied it to the preservation of the general liberty, by creating
co-ordinate and collateral political departments, with distinct powers, for the
special design of making them mutual checks upon each other. For this end we
have divided power between the people of each state and their governments;
between the legislature, executive and judicature of the state governments;
between the people of the United States and the government of the union;
between the legislature, executive and judicature of the government of the
union; and between the state governments and the government of the union. These
divisions are surely as natural and practicable, as that between monarchy,
democracy, and aristocracy. If a subordination of the king to the house of
lords, or of the lords to the king, would destroy the intention of that
division of power; a subordination of the government of the union to the
governments of the states, or of the governments of the states to the
government of the union, would also destroy the intention of this. The same
idea applies with equal force to our other divisions of power, and proves, that
an exchange of their mutual independency of each other, for a dependency and
subordination upon one, would be contrary to the only principle, for which the
balances and checks of kings, lords, and commons have been so much applauded.
If two of these co-ordinate divisions of power were subordinate to the third,
that system would be destroyed, because its essence, the checks and balances,
would be no more. Should either of our co-ordinate divisions of power acquire a
supremacy over another, the effect would be the same. Less than two centuries
ago, the identical question we are now considering was debated with great
pertinacity by the ablest writers in England, and was finally settled by a
civil war. Filmer and Sydney espoused opposite sides. The former, with his
co-adjutors, asserted the supremacy of the regal balance, and taught the
Stuarts this principle, which lost the throne, and rendered their names
detestable to posterity. Sydney became a martyr to the contrary faith. All the
eulogies to the English system have been paid to their checks and balances; and
all the liberty of the English nation, has been ascribed to the principle of
dividing power. If, having more studiously laboured to avail ourselves of this
principle, considered even in England as indispensable for the preservation of
liberty, than any nation ever did; we have yet stupidly annihilated it, by
investing one check or one balance with a supremacy over the rest, we had
better go back to the English system, where it imperfectly exists, but in a
degree to do some good, than to surrender it entirely. But if we construe our
system of government as the English do theirs; that is, with an eye to the
preservation of our checks and balances, as the only securities for a free
government; its superior theory will secure to us more beneficial consequences,
than they have ever experienced. A great defect of the English system is, that
although in theory it professes to have created three co-ordinate departments
of power, it has neglected to specify the rights of each with any precision;
wherefore the triumvirate have had many violent contests to settle them; and
these contests have only subsided in one mighty chaldron of corruption. But by
ours, the powers of the several co-ordinate or balancing departments, far from
having been left undefined to be scrambled for, are specified with such
deliberative exactness, that each may very easily descry its own, unless it be
blinded by avarice and ambition. Collisions are therefore likely to be more
rare. But should they occur, our system has provided a safe referee and
impartial judge, sufficient to prevent them from producing the aggravated
consequences, which have been so often experienced in England for want of this
powerful moderator. After having thus given practical effect, to the great
principle of checking power by division, recommended by all sound politicians;
constituting the boast of England and the envy of all other European nations;
with an ingenuity and success, hitherto unexampled; shall we imitate some
whimsical artists, who after having invented a beautiful machine, throw it
away?
Let us go back to the quotation from the declaration of independence,
for the sake of remarking, that its assertion of the "right of the
people to alter, abolish and institute governments" could only have a
reference to the conventional or collective beings, under that denomination,
then existing. These were a people of each state. Accordingly the people of
each state executed the vindicated right, and no body thought of any other
people. By virtue of this right, the people of each state established certain
co-ordinate divisions of power, without investing one with a supremacy over the
others; and by virtue of the same right, solemnly asserted in that sacred
instrument, the same people uniting with each other, established other
co-ordinate divisions of power, still excluding an investiture of one, with a
supremacy over the others. If this last act, so similar to the first, left an
unexpressed supremacy to be found by construction; the first is exposed to the
same species of ingenuity for abolishing from our entire political system,
every thing analogous to checks and balances: For, legislative, executive and
judicial mutual independence, cannot in my view, be placed upon stronger
ground, than the independence of the governments of the states and of the union
upon each other.
Lest however some future Filmer may undertake to prove, that one of
these departments may constitutionally assume a supremacy over the other, by
the instrumentality of means to effect good ends; as Charles the first did over
the lords and commons, by resorting to ship money, as a convenient or necessary
means, to effect an end highly beneficial to the English nation; I shall, on
account of my own deficiency in authority, conclude this section with a few
quotations, leaving their application to the reader. Ramsay's history of the
United States vol. ii. p. 167. "The rejection of British sovereignty
therefore drew after it the necessity of fixing on some other
principle of government."
P. 172. "The far-famed social compact between the people and their
rulers, did not apply to the United States. The sovereignty was in the people.
In their sovereign capacity, by their representatives, they agreed to
forms of government for their own security, and deputed certain individuals as
their agents, to serve them in publick stations, agreeably to constitutions
which they prescribed for their conduct."
P. 173. "It is hoped for the honour of human nature, that the result
will prove the fallacy of those theories, which suppose that mankind are
incapable of self-government"
P. 174. "Political evil will at least be prevented or restrained with as
much certainty, by a proper separation or combination of power, as
natural evil is lessened or prevented, by the application of the knowledge or
ingenuity of man to domestick purposes.
"From history the citizens of the United States had been taught that the
maxims, adopted by the rulers of the earth, that society was instituted for the
sake of the governors, and that the interest of the many was to be postponed to
the convenience of the privileged few, had filled the world with bloodshed and
wickedness; while experience had proved, that it is the invariable natural
character of power, whether entrusted or assumed, to exceed the proper limits,
and, if unrestrained, to divide the world into masters and slaves. They
therefore began upon the opposite maxims; that society was instituted, not for
the governors but governed; that the interest of the few should in all cases
give way to the interest of the many; and that exclusive and hereditary
privileges were useless and dangerous institutions in society. With them
the sovereignty of the people was more than a mere theory. The characteristick
of that sovereignty was displayed by their authority in written
constitutions."
P. 175. "It therefore became necessary to run the line of distinction
between the local legislatures, and the assembly of the States in
congress."
Federalist, p. 81. H. "The general government can have no temptation to
absorb the local authorities left with the states. Commerce, finance,
negociation and war, comprise all the objects of a love of power. All those
things which are proper to be provided for by local legislation, can never be
desirable cares of general jurisdiction. It is therefore improbable, that there
should exist a disposition in the federal councils, to usurp the powers with
which they are connected. But let it be admitted, for argument sake, that
mere wantonness, and lust of domination, would be sufficient to beget that
disposition; still it may be safely affirmed, that the sense of the people
of the several states would controul the indulgence of so extravagant an
appetite."
P. 254. M. "The federal and state governments are in fact but
different agents and trustees of the people, instituted with different powers,
and designed for different purposes."
P. 282. H. "In the compound republick of America, the power
surrendered by the people, is first divided between two distinct
governments, and the portion allotted to each subdivided among distinct
and separate departments. Hence a double security arises to the rights of
the people. The different governments will controul each other, at the
same time that each will be controuled by itself."
P. 288. H. "The federal legislature will not only be restrained by its
dependance on the people, but it will be moreover watched and controuled
by the several collateral legislatures."
P. 302. H. "I am unable to conceive, that the state legislatures, which
must feel so many motives to watch, and which possess so many means of
counteracting the federal legislature, would fail either to detect or to defeat
a conspiracy of the latter against the liberties of their
constituents."
SECTION 6.
PROPERTY.
Blackstone has treated of "The rights of persons, and the rights of
things;" but the rights of man include life, liberty and property, according to
the prevalent fashion of thinking in the United States. The last right is the
chief hinge upon which social happiness depends. It is therefore extremely
important to ascertain, whether it is secured by the same principle with our
other rights; and whether the security, if the same, ought to be equivalently
efficacious; before we proceed to the contemplated examination of several
constructions of our constitutions. The rights to life, liberty and property,
are so intimately blended together, that neither can be lost in a state of
society without all; or at least, neither can be impaired without wounding the
others. Being indissolubly united, a principle which embraces either must
embrace all; and by allowing it to constitute the only solid security for one,
we admit it to be the only solid security of the rest A sovereignty in
governments, of every form, has universally claimed and exercised a despotick
power over life, liberty and property. Whether enjoyed by a monarchy,
aristocracy, democracy, or by a mixture of the three, it acknowledges no
controul, and submits to no limitations. In England, this sovereignty has in
many instances legislated death, banishment, and confiscation; and in many
more, exercised a despotick power over property, by giving away the national
wealth, not for the national benefit, but according to its own will, or to
purchase adherents to sustain its own power. All this is a correct and
legitimate consequence of the principle of a sovereignty in governments. Every
thing within the scope of a sovereignty belongs to it; therefore the
sovereignty of king, lords and commons in England, exercises an unlimited power
over every thing, not only in the direct modes of cutting off heads,
confiscating property, and lavishing the national money upon themselves and
their dependants; but by the indirect modes of exclusive and corporate
privileges, for enabling some individuals to obtain the property of others. To
avoid such calamities, we have adopted the policy of transferring this
illimitable power called sovereignty, from the government to the people; and
the present question is, whether the transfer is partial or complete; whether
our governments still possess a sovereign power over our property, like the
English government; or whether they are only trustees in respect to that, as
they are in respect to our lives and liberties.
In deciding this question, our suffrages are solicited by two distinct
and opposite principles; the principle of a sovereignty in governments, with
its boundless appendages; and the principle of divided, defined and limited
powers, under the supervision and controul of the people. If we waver between
them, we cannot guide our policy by any fixed rules, nor pursue any steady
ends. If our accomplished men should halt between the two opinions, sometimes
leaning towards one, and then towards the other; the people must rove in
conjecture for representatives, be deprived of the means of judging as they
wish by the distractions of complicated professions, and may often catch a
tartar instead of a friend. If, like an archbishop Laud, leaning sometimes
towards the church of Rome, and at others towards the church of England,
politicians of high standing should endeavour to find a medium between these
two principles, infinitely more remote from each other than the two churches;
they may generate evils more calamitous than he did; and prepare the nation for
a revolution, by weakening its affection for our present form of government.
For my part, when I contemplate on one hand, the justice, the mildness, the
restraints upon arbitrary power, the subordination of individuals, the security
of property, and the social harmony, flowing from the sovereignty of the
people, and the division and limitation of power by their authority; and on the
other, the endless catalogue of overwhelming evils which have flowed from a
sovereignty in governments; veneration and abhorrence seem as instinctively to
rush into my mind, as in viewing the most lovely or the most hateful objects.
Under such impressions, my reason is wholly unable to conceive what advantage
can arise to mankind, from leaving property in bondage to governments; after
other human rights have been released from the same species of thraldom, by
transferring sovereignty to nations, and reducing governors to trustees. A
constitution which should secure life and liberty, but invest the government
with an absolute power over property, would only have the merit of forming a
society of naked people, divested of those appendages upon which social
happiness depends.
Pecuniary patronage, and the creation of corporations to transfer
property, are among the appendages of sovereignty, because its power over
property is unlimited and absolute; and mankind have undoubtedly suffered more
injustice and oppression, from the exercise of these two sovereign rights, when
sovereignty is lodged in governments, than from all the rest. In the civilized
world, property is the franklin for conducting the electrical stream, either of
liberty or of slavery, to invigorate or to degrade mankind. If therefore in
exercising the right of self-government, and vindicating the sovereignty of the
people, we have left a sovereign power over property, in the hands either of
the state governments or the government of the union, all our work will be
fruitless; because we shall have placed in the hands of power the precise
instrument, with which it can root out any restriction however carefully
planted. This error is the rock, upon which most republican governments have
split. Possessing a sovereign power, that power included a right of disposing of
and regulating both national and private property, by the will of the
government; and the greater the number of individuals who participate of this
sovereign right, the more people there will be whose avarice must be gratified
at the public expense, and by private oppression. It has been owing to this
uniform consequence of investing republican governments with a sovereign power
over property, that nations have been constantly driven to take refuge from a
host of sovereigns, under one, as the lesser evil of the two. The history of
Athens furnishes us with many instances of the great wealth amassed by these
republican sovereigns; and that of Rome exhibits the frauds and tyranny
produced by a republican sovereignty over property, to an extent which would
have been incredible, except that the enormous wealth of the few, the great
poverty of the many, the perpetual struggles between these two parties for
riveting or subverting the abuse, and its exchange for the sovereignty of one
man, testify to their truth. These consequences of a sovereignty over property
in a republican form of government, demonstrate the importance of the enquiry
to ourselves, whether our governments do, or do not possess it.
The sovereignty over property, always claimed and often exercised by
governments, regal, aristocratical, or republican, is a subject for historical
research, which neither my capacity nor the limits of this work, will allow me
to attempt. Such a history would detail the different forms it has assumed, the
struggles it has produced, and the evils it has inflicted. It would prove that
the notion of a sovereignty over private property was derived in England from
the feudal system, and borrowed by us from England. Kings bestowed and resumed
seigniories, and barons sub-divided them; both giving and taking away property
at their will, and placing it in a state of vassalage to sovereignty. Out of
the vassalage of property gained by conquest, grew the vassalage of property
gained by industry. Under the impression of this habitual way of thinking in
England, our revolutionary struggles commenced; and before we had transferred
sovereignty from the government to the people, we yielded to its force, by only
contending for representation as the solitary protector of private property. In
the ardour of asserting that representation and taxation ought to be
indissoluble, and from the forbearance of our government for a long time to
assert a sovereignty over private property, the other securities it derives
from our constitutional principles, have been too much neglected. In contending
that our property could not be taken from us without our consent by our
representatives, it was admitted, whilst we spoke in reference to the English
system of government, that it might be both taken and expended by our
representatives, without restriction; because, an unlimited power over property
was an attribute of the English sovereignty. But when we separated from that
government, this admission, suggested by the wish for a compromise, was
renounced by the adoption of forms of governments founded in the principles,
that sovereignty resided in the people, and that these governments were their
trustees. Far from acknowledging that representation was the sovereign and
solitary guardian of the rights of persons or of property, according to the
English system, we abandoned that doctrine by sedulously inventing and
prescribing sundry additional securities for both, as I shall presently shew.
We resorted to election and representation, not to liberate our representatives
from the principles and restrictions of our constitutions; nor to invest them
with an absolute power over either persons or property; but as modes of
carrying those principles into practical effect. Election is one security
against their infringement, and cannot therefore be a good argument for
justifying it. Such arguments are synonymous to that urged by criminals to
excuse violations of civil laws. They teach their consciences to believe, that
a risque of punishment balances every crime, as an exposure to the judgment of
election is pleaded as an absolution from conforming to political law. In both
cases, the remedy is enlisted as an ally of the misdeed, and converted into an
incentive to commit that which it was intended to prevent.
The first, the most obvious and the most conclusive argument to prove,
that our governments including those of the states, do not possess an absolute
or sovereign power oyer the national property, arises from the admission, that
they are the trustees of the people. The relation between principal and trustee
is sufficiently understood to induce the reader to accord in the conclusion,
that the trustee, so far from possessing an unlimited power over the property
of his principal, is limited to the exercise of his authority and the execution
of his trust, by the intention with which it was conferred. It has often been
imagined that the state governments have been absolved from an obligation so
obvious; and their absolute sovereignty has been frequently asserted, without
considering that the doctrine would subvert the great principle (the
sovereignty of the people) upon which our political superstructure is founded.
But, if that principle is held sacred, then it follows, that the powers not
delegated by the people to the state governments, are as undoubtedly reserved
to them, as the powers not delegated to the government of the United States;
and that the exercise of any undelegated power by either, under a belief that
it will advance the publick good, is unconstitutional in both cases; because a
right to seek for the publick good, without our constitutional limits, involves
a power of finding publick harm. No reservation of powers not bestowed can be
necessary; nor can this superfluous precaution in the constitution of the
United States invest the state governments with a sovereignty over property,
and only leave to the people the franchise of election for its security; so as
to slide it back upon the scates of modern construction and old prejudices,
under the same bondage which exists in England. This would be to repass the
Rubicon, after we had gotten safely over it.
If the state governments are not sovereigns and only trustees, then
their powers are restricted by the intention of their institution, and when
this intention is ascertained, the restriction is also discovered. Were they
invested with an unlimited power of taxation for the purposes of sustaining
civil governments, and meeting national exigencies; or for those of
transferring property from one man to another, or of gratifying personal
friendship, charity or a love of fame, at the expense of their constituents? A
sovereign has a right to exercise his caprice, his partiality or his
benevolence at the expense of his subjects, because both their persons and
property are his, and his power over both is uncontrouled. But, as mankind
advanced in knowledge, the tyranny and falsehood of this doctrine were
gradually detected; and therefore in many civilized nations it has ceased to be
openly avowed, whilst it is yet indirectly practised; to avoid the effects of
an overwhelming popular indignation, which the unconcealed despotism would
inspire. In the greater portion of Europe, regal sovereignty at this day
exercises an uncontrouled power over property by taxation, by an unfettered
appropriation of taxes, by exclusive privileges, by corporate bodies, and by an
unrestrained patronage. Thus the pretext of publick good is made into a mask
with which to hide publick oppression. To this pretext, in England, and at
length in France, has been added election; not to subvert the false principle
from which the evil has arisen, but to render the sovereignty of the government
over property still stronger; and harder to transmute from being an instrument
for inflicting private misery, into one for securing national happiness.
Accordingly, the sovereignty over property, claimed by the English government,
has been more grievously exercised, than in neighbouring countries, where
election has not been used to betray, that which it was designed to preserve.
Yet the English government does not derive its absolute power over property
from the partial franchise of election, but claims it as being one of the
appendages belonging to the illimitable power called sovereignty; and indeed,
two of the branches of that government have no pretensions to an accession of
rights from the former source. If then this absolute power over property flows
from sovereignty, and not from election; and if the people of the United
States, and not their governments, possess the sovereignty; it follows, that
the source of that stream of despotism, called a sovereignty over property,
which has flowed over mankind immemorially, being dried up here, our system of
government ought not to be poisoned by its effluvium. A sovereignty in the
government is the proposition, from which an absolute power over property is
inferred; but if the proposition be false, the inference fails.
Having established a principle so distinct, let us proceed to enquire,
whether the state and federal constitutions recognize or explode it. To avoid
prolixity, the reasoning must be often generalised. In some of the state
constitutions, exclusive privileges are prohibited, because they operated
fraudulently upon private property. In all, great attention is bestowed upon
the publick treasury, to ensure the proper application of the publick property.
And for both objects, divisions of power, distinct departments, specifications
of rights and duties, and special assignments of patronage, were instituted.
These unite to indicate an anxiety in the people to preserve their property,
and to withhold an absolute power over it from the government. Suppose a state
legislature should, as sovereigns have often done, directly take by law the
property of one man and bestow it upon another. Would the judges sustain an act
so despotick? And upon what ground could they annul it, except that the
legislature were trustees only and not sovereigns? Is there any difference
between offending against the same principle, directly or circuitously?
One of the chief motives for amending the union, was the sovereign
power, unwisely assumed, and imprudently exercised by the state governments. To
correct an usurpation in theory, and an evil in practice, the constitution of
the United States prohibits the state governments from passing "any bill of
attainder or ex post facto law, or any law impairing the obligation of
contracts," and empowers congress "to coin money and fix the standard of
weights and measures." These precautions for defending property against modes
for assailing it, are examples for establishing its substantial rights, and
precedents against a recourse to other modes, infringing the principle upon
which these prohibitions are imposed. And a specified permission to congress,
by which they may establish modes of measuring property for the whole union,
would have been unnecessary, had that body possessed any species of sovereignty
over property itself; because such modes would have been included among its
appendages. No power is given to congress to do that which the state
governments are thus prohibited from doing; and if some species of sovereignty
can extend the power of congress to ends not delegated, it can also extend the
powers of the state governments to ends prohibited; and effectually undermine
our system of government, made up of delegation and prohibition. The power to
"coin money and regulate foreign coin" is limited by the terms "coin and
foreign" to the precious metals, because it could not extend to native paper
currency, without including foreign; and a standard of weights, respecting
money, refers to money capable of being weighed. The states are prohibited
"from coining money, emitting bills of credit, or making any thing but gold and
silver a tender in payment of debts." The distinction between specie and paper
currency is in this clause established. A power, prohibited to the states and
not delegated to congress, can be exercised by neither. A power, the direct
exercise of which is prohibited, ought not to be indirectly exercised. A power,
prohibited or not delegated to the principal, cannot be delegated by that
principal to another. Bills of credit are distinguished from other objects of
tender laws, which had been numerous among the states, and are prohibited
absolutely, whether the quality of being made a tender for debts was annexed to
them or not. Otherwise, it would have been unnecessary to mention them at all.
The powers of "coining money, emitting bills of credit, and making any thing
but gold and silver coin a tender in payment for debts," being prohibited to
the states; and the first power only being delegated to congress; it follows
that the other two are prohibited and not delegated. And it seems to me, that
it may be as speciously contended, according to the late fashion of
construction, that the states may make any thing, but gold and silver, a
tender; as that either congress or the states can delegate to individuals or
corporations a power to emit bills of credit; or impair contracts by
suspensions of payments in" favour of their own creatures, or of unlucky
speculators. Either would be a usurpation of a sovereign power over property,
not delegated to one department, and expressly prohibited to the other. It may
be also remarked, that the power given to congress "to provide for the
punishment of counterfeiting the securities and current coin of the United
States" by omitting bills of credit, recognizes their exclusion, and does not
include bills of credit emitted by corporations.
From these efforts to protect the rights of private property, or rather
the right of individuals to what belongs to them, let us pass on to those for
securing the national property, collectively. Here the question is, whether
congress derive from the power of taxation, a sovereign power to expend the
money thus raised, according to its own will and pleasure, like an English
parliament or a Russian emperor. If congress possessed an unlimited power to
appropriate the publick money raised by taxes, there was no occasion to specify
the objects to which it might be applied, such as to raise and support
armies, to provide and maintain a navy. Among these objects, all the
powers granted, requiring an expense, are enumerated; and this enumeration
proves, that no object of expense, not included within the delegated powers,
can be constitutionally adopted by congress. For where was the necessity of any
enumeration at all of the objects of expense, if congress were not subject to
any restriction in the appropriation of the publick money? The widest scope for
appropriation is included in the words "to pay the debts and provide for the
common defence and general welfare of the United States." The defence and
welfare of the United States, without any explanatory words, would of
themselves refer to the affairs of the union, and exclude those of the states;
but the words general and common, are used in contrast to local and
individual, for the purpose of more explicitly excluding congress, in the
appropriation of the money raised to be applied to the benefit of the United
States, from indulging a sovereign legislative patronage in favour of local,
private or individual interests.
Let us suppose, that a reconciliation had taken place between Great
Britain and the colonies, by which precisely the same powers of taxation for
the common defence and general welfare had been conceded to the British
parliament, the same objects of expense specified, and the same reservations of
local and internal government to the colonies made, as are contained in the
constitution of the United States. Is it not obvious, that an assumption (under
a compact intended to provide for the common, and not for the separate
interests of these parties,) of a power to appropriate the common purse to
local or personal interests, would have infringed its intention, and would
gradually have swallowed up the rights reserved? The same chastity of
construction may possibly be necessary to preserve our union, which would
certainly have been indispensable for the preservation of such a
reconciliation.
It is true that the doctrine of absolute sovereignty, with its
indefinite catalogue of appendages, can adduce in its defence many plausible
arguments, and enumerate sundry conveniences which might result, from its
unlimited capacity to devote both persons and property to whatever purposes it
may think proper. What conveniences may arise from the absolute subordination
appertaining to it, in war! How wonderful are its energies, in punishing crimes
which will for ever elude established laws! How inexhaustible are its resources
for rewarding merit, fostering the arts, and rearing pyramids! Limited powers
and co-ordinate departments, occupied by dependant trustees, are often
incompetent to effect ends really good, and never able to perform exploits,
which historians have called magnificent; whilst sovereignty can enshrine
itself in splendour, and dazzle the quietism with which it is able to encircle
its throne. Such indeed are the advantages arising from a sovereignty in
governments; but, to decide whether it is preferable to our system of
self-government and a division of power, a strict comparison between the whole
mass of good and evil resulting from both forms, ought to be made. As
imperfection is an attribute of every human contrivance, comparison is the only
resource for a judicious preference. In the particular case of property, if we
were to confine it to the good and evil derived by nations from a sovereign or
limited power in governments over the publick purse, a dismal balance of evil
would render the first principle even hideous; and inspire a horror, sufficient
to make the latter, with all its imperfections, appear beautiful. Evil is
indissolubly attached to good; and therefore the inconveniences, arising from
the sovereignty of the people and a limited power in governments over persons
and property, are by no means sufficient to establish the expediency of
undermining these principles. Many wise and good men, however, alarmed by the
illusions of Rousseau and Godwin, and the atrocities of the French revolution,
honestly believe that these principles have teeth and claws, which it is
expedient to draw and pare, however constitutional they may be; without
considering that such an operation will subject the generous lion to the wily
fox; or to speak without a metaphor, that it will subject liberty and property
to tyranny and fraud. In short, that if our new principle of a sovereignty in
the people can be disarmed of its property, by transferring to the government
an unlimited power over it; the old English principle must inevitably swallow
it up, with all its appurtenances.
The reader perceives, that the freedom of property is the chief
principle, which distinguishes governments founded in the rights of nature,
from those founded in some arbitrary act. Our societies were instituted by a
resignation of such natural rights, as was necessary for the preservation of
those retained. Property was only made a common stock, so far as the social
safety and happiness required; but social safety and happiness, far from
requiring that governments should possess a power of dooming one portion of the
people to indigence and ignorance, and another to opulence and insolence, by
supplanting industry, and substituting law, as the dispenser of private
property, require a system precisely the reverse. Modern philosophers, without
discerning, or if it was discerned, without assailing the usurpation of an
absolute and despotick power over private property, have yet strenuously
contended for a system of policy, founded upon the opposite principle; which
they have called the economical system; and have agreed almost unanimously,
that there is little hope of free governments, until it is better understood,
and more actively enforced. The difference between judicatures to secure, and
corporations to defraud private property, concisely displays both the power
delegated, and the right reserved under our system of government; and the
possibility of reaping a social blessing by a limited power, without the alloy
of a social curse, by an unlimited power over private property. Common interest
is the object of a restricted power, and therefore it dispenses general
prosperity; an accumulation of individual honours or wealth comprises all the
business in which an absolute power over property can engage; and therefore it
dispenses comparative disgrace and poverty upon the mass of society. The
freedom of property from the indefinite despotism of sovereignty, is the best
security to be found against those unjust laws by which social liberty is so
often injured; and against that despotism of majorities, by which it has been
so often destroyed. This wise and just principle even denies to the sovereignty
of the people, a right to the private property of individuals, because the
conventional act by which that species of sovereignty was created, conceded a
right to tax for social purposes only, and withheld a right to tax for
individual aggrandizement. I conclude therefore, that neither the state
governments nor congress have a sovereign power over property; that neither of
them has any right at all to create modes for transferring it artificially from
one man or one interest to another; that the right of taxation, with which they
are invested, is limited to the attainment of social ends or specified objects;
and that the right of appropriation, being merely an appendage of the right of
taxation, is restrained to the same ends or objects.
But, admitting the truth of this conclusion, though much will be gained,
the difficulty of distinguishing between spurious and genuine ends or objects
will still remain; and the impossibility of conceiving a complete catalogue of
either leaves no remedy but a watchful attention to current measures, and a
fair investigation of the principles by which they ought to be justified or
condemned. Yes, there is another. If the honourable, just and patriotick men,
who abound in our legislative bodies, should consider the subject and concur in
the conclusion, they will, in obedience to an essential social principle,
through affection for their country, and from a zeal for its glory, forbear to
impair the foundation upon which it has been erected. They will not approach
towards the rival principle arrayed in calamities to mankind "that governments
possess a sovereignty over property," without a sensation of horror, and
shrinking from its contamination. The right to property or labour is involved
with our whole subject, and as it must consequently be often adverted to, its
consideration is not here concluded.
SECTION 7.
THE BANK DECISION. —
CORPORATION.
The previous pages have been devoted to the establishment of several
important principles, from an opinion, that they are better expounders of our
constitutions, and sounder arbiters of construction, than dictionaries. The
philosopher, who is led astray from things by signs, resembles a botanist whose
taste leads him to wander in a wilderness of flowers, and to contemplate their
hues, without caring whether their fruit is noxious or wholesome. Principles
are the fruit of words; and as no man in his senses would swallow poison,
because it grew from the beautiful flower of the poppy; so bad principles ought
not to be recommended nor good ones defeated, by a verbal Mosaick, however
ingenious. By the standard of principles, I shall therefore proceed to examine
several measures and opinions; and beginning with the most recent, select a few
others, without regard to chronological order, as opposite to such as I believe
to be constitutional.
An examination of the opinion of the court of appeals, against the right
of the state governments to tax the bank of the United States, not with
arrogance, but with humility; not with confidence, but with distrust; will I
hope be pardonable. Against the talents and integrity of that respectable body
of men, I have no counterpoise but my creed; against the acute argument by
which their decision is defended, I have no offset, but an artless course of
reasoning. An unknown writer is but a feather, weighed against acknowledged
uprightness, erudition, and well merited publick confidence; yet under all
these disadvantages, as wisdom and virtue are sometimes liable to error; as the
battle is not always to the strong, nor the race to the swift; and as enquiry
is the road to truth; I shall endeavour to reconcile my respect for the court,
with my right, perhaps my duty, as a citizen of our happy commonwealth.
Before I proceed, as some defence of this presumption, I quote a
judicial precedent. The decision of a bad or a corrupt judge would not apply;
but one rendered by the great, the good, the wise Sir Matthew Hale, so late too
as the seventeenth century, is quite in point. This judge, of superior talents
and spotless integrity, condemned and put to death two poor old women as
witches; and the correctness of his judgment was not questioned. Behold in this
case, confidence yoked to fallibility. Perhaps the time may arrive, when it
would be as absurd to contend for the witchcraft said to be lurking under the
words sovereignty, supremacy, necessary and convenient, as it would be to prove
now, that it does not lurk under a wrinkled visage; and when it would be
thought as superfluous to prove, that our constitutions ought not to be
destroyed by one species of witchcraft, as that old women ought not to be burnt
out of compliment to the respectable Judge Hale's decision establishing the
other.
The following quotation from the opinion of the court is copious, from
an apprehension of omitting any thing material towards a thorough knowledge of
the question.
"Banking was introduced at a very early period of our history, has
been recognized by many successive legislatures, and has been acted upon by the
judicial department in cases of peculiar delicacy, as a law of undoubted
obligation." "It has been said, that the people had already surrendered all
their powers to the state sovereignties, and had nothing more to give."
"If any proposition could command the universal assent of mankind, we
might expect it would be this; that the government of the union, though limited
in its powers, is supreme in its sphere of action. This would seem to result
necessarily from its sphere of action. It is the government of all; its powers
are delegated by all, it represents all, and acts for all. The people have said
' This constitution and the laws of the United States, which shall be made in
pursuance thereof shall be the supreme law of the land, any thing in the
constitution or laws of any state notwithstanding." "There is no phrase in the
constitution which excludes incidental or implied powers." "Its nature requires
that only its great outlines should be marked." "We find in it the great powers
to lay and collect taxes, to borrow money, to regulate commerce, to declare and
conduct war, and to raise and support armies and navies. Can we adopt that
construction, unless the words imperiously require it, which would impute to
the framers of the instrument, when granting these powers for the publick good,
the intention of impeding their exercise by withholding a choice of means? The
instrument does not profess to enumerate the means by which the powers it
confers may be executed, nor does it prohibit the creation of a corporation, if
the existence of such a thing be essential to the beneficial exercise of those
powers. The creation of a corporation appertains to sovereignty." "The powers
of sovereignty are divided between the government of the union and those of the
states. They are each sovereign with respect to the objects committed to it,
and neither sovereign with respect to the objects committed to the other."
"Congress shall have power to make all laws necessary and proper to
carry into execution the powers of the government."
"Let the end be legitimate,
let it be within the scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not prohibited,
but consist with the letter and spirit of the constitution, are
constitutional."
"That banking is a convenient, a useful, and essential instrument in
the prosecution of fiscal operations, is not now a subject of controversy."
"The power of taxation by the states is not abridged by the grant of a
similar power to the government of the union; it is to be concurrently
exercised by the two governments. The states are forbidden to lay duties on
exports or imports. If the obligation of this prohibition must be conceded; if
it may restrain a state from the exercise of its taxing power on imports and
exports, the same paramount character would seem to restrain as it certainly
may restrain, a state from such other exercise of this power, as is in its
nature incompatible with and repugnant to the constitutional laws of the
union."
"All subjects over which the sovereign power of the state extends, are
objects of taxation; but those over which it does not extend, are upon the
soundest principles exempt from taxation. The sovereignty of a state extends to
every thing which exists by its own authority, or is introduced by its
permission, but does not extend to the means employed by congress to carry into
execution, powers conferred on that body by the people of the United States."
"Such is the character of human language, that no word conveys to the mind, in
all situations, one single definite idea. It is essential to just construction,
that many words which imply something excessive, should be understood in a more
mitigated sense."
"We find, on just theory, a total failure of the original right to tax
the means employed by the general government of the union for the execution of
its powers." "That the power to tax involves the power to destroy; that the
power to destroy may defeat and render useless the power to create; that there
is a plain repugnance in conferring on one government a power to controul the
constitutional measures of another, which other, with respect to those very
measures, is declared to be supreme over that which exerts the controul, are
propositions not to be denied." "The legislature of the union can be trusted by
the people with the power of controuling measures which concern all, with the
confidence that it will not be abused." "The principle, for which the state of
Maryland contends, is capable of arresting all the measures of the general
government, and of prostrating it at the foot of the states." "It is a question
of supremacy." "It is of the very essence of supremacy to remove all obstacles
to its action within its own sphere, and so to modify every power vested in
subordinate governments, as to exempt its own operations from their influence."
"The result is a conviction, that the states have no power by taxation
or otherwise to retard, impede, burden, or in any manner controul the operation
of the constitutional laws enacted by congress to carry into execution the
powers vested in congress. This we think the unavoidable consequence of the
supremacy, which the constitution has declared."
The essential conclusion of this opinion is, that an absolute
sovereignty as to means does exist, where there is no sovereignty at all as to
ends. This doctrine seems to me, to be evidently inconsistent with the
principle of dividing, limiting, balancing and restraining political powers, to
which all our constitutions have unequivocally resorted, as the only resource
for the preservation of a free form of government. If the means to which the
government of the union may resort for executing the powers confided to it, are
unlimited, it may easily select such as will impair or destroy the powers
confided to the state governments. If a delegation of powers implies a
delegation of an unrestrained choice of means for the execution of those
powers, then this unrestrained choice of means was bestowed by the people on
the state governments, by the double act of delegation and reservation, and is
attached to their powers; and the same principle, by which it is contended that
the government of the union may impair or destroy the powers of the state
governments, entitles the state governments to impair or destroy those of the
government of the union. It will be admitted, that the powers delegated and
reserved to the state governments, are positive limitations of the powers
delegated to the government of the union; and that the powers delegated to the
union, are limitations of those delegated and reserved to the state
governments; and from this assignment of powers, made by the same authority, it
arises, that both are limited governments. The ends with which these
governments are respectively entrusted, are allowed to have been exclusively
bestowed, and neither could constitutionally use its legitimate ends, to defeat
or absorb the legitimate ends assigned to the other. So far the array of ends
against ends appears to have been placed by the constitution on equal ground,
and this equality justifies the inference, that a mutual check upon the
exercise of political power by each government was intended. In dividing these
ends, the constitution of the union is positive and explicit; but, it is quite
silent as to the means to be employed by the state governments for effecting
the ends committed to them by the people; and also as to the means to be
employed by the government of the union, in some degree. And this silence is
attempted to be exclusively appropriated to the government of the union, so
that by the instrumentality of a monopoly of means, it may supplant and destroy
the equality of ends plainly established by the constitution, subdue the state
ends by the appendages of the union ends, though neither catalogue of these
ends would be allowed openly to batter down the other; and thus effectually
overturn by implied means, our whole positive division of ends, made for the
purpose of limiting, checking and moderating power. As ends may be made to
beget means, so means may be made to beget ends, until the co-habitation shall
rear a progeny of unconstitutional bastards, which were not begotten by the
people; and their rights being no longer secured by fixed principles, will be
hazarded upon a game at shuttlecock with ends and means, between the general
and state governments. To prevent this, means as well as ends are subjected by
our constitutions to a double restraint. The first is special. In many
instances, the means for executing the powers bestowed, are defined, and by
that definition, limited. The other is general, and arises necessarily from the
division of powers; as it was never intended that powers given to one
department, or one government, should be impaired or destroyed, by the means
used for the execution of powers given to another. Otherwise, the indefinite
word "means" might defeat all the labour expended upon definition by our
constitutions. Numberless illustrations might be adduced in support of this
reasoning, but those which have appeared, are preferable to such as are
conjectural. The constitution of the United States contains many positive
restrictions of the means for executing the powers bestowed. It bestows on
congress the power of declaring war. But it restricts the means of executing
this power, by limiting the right of taxation; by withholding the right of
ordering the militia without the United States; by withholding the right of
impressing seamen or landmen; by confining appropriations for an army to two
years, and by excluding the government of the union from the appointment of
militia officers. This last power, positively reserved to the state
governments, is evidently intended as a check upon the power of the sword, by
dividing it between the two governments; and a volunteer militia, officered by
the president, or a general, is a mean, both convenient for the end of war, and
also for impairing or defeating the end designed to be accomplished by the
constitution. Is this inferred convenience, a fair abrogation of the specified
end? Again; a sudden inroad under the authority of the president into a country
at peace with us, might be a beneficial and convenient mode of beginning a war,
and a mean towards ultimate success; but the right of involving us in war, is
exclusively limited to congress for ends infinitely more beneficial to the
nation. Ought these more valuable ends to be sacrificed, for the sake of one
less valuable? So congress is empowered to borrow, and to coin money; and as
one mean for the execution of this power, to provide for the punishment of
counterfeiting the securities and current coin of the United States. Ought this
restraint of a power to create or punish crimes, to be extended by
construction, to a power of punishing counterfeiters of corporation or
individual paper? Such a power was not given, because a paper currency was not
recognized. To secure a fair exercise of the legislative power of congress, two
means are resorted to. One, that no legislator shall receive an office created,
or the emoluments of which shall have been increased, during the time for which
he was elected; the other, that no person holding an office under the United
States, shall be a legislator. If corporations are used to enable members of
congress to be both legislators, officeholders, and emolument-receivers under
their own laws, the means for effecting this triple violation of the
constitution ought surely to be compared, if the word "beneficial" is to decide
the preference, with the means for preventing it. The judicial power is
invested with the right of deciding controversies between private persons, and
between individuals and our governments, and even between states, to prevent
the mischiefs of legislative patronage and adjudication. A legislative
judicature is both excessively imperfect and expensive, and also defeats one of
the most beneficial means, for attaining the great social ends of fair trials
and impartial decisions.
A specification of some means for the attainment of ends, is a proof
that means were not intended to be unlimited; but as it was impossible to
specify all which might be constitutionally used, for the execution of the
powers delegated to the government of the union, or reserved to the states,
those not specified were unavoidably left to be controuled by the division of
powers and rights, which was specified. This controul is indispensably
necessary for giving the intended effect, to all the minor divisions of power
in the state constitutions, and also to the major division of power, between
the state governments and the government of the union, as well as to the
inferior divisions of the latter. By rejecting this controul, our whole system
of social policy would be rent to pieces from top to bottom. If the unspecified
means of the states for executing the powers reserved to them, were not limited
by the powers delegated to congress, the state governments might defeat the
latter powers, by the instrumentality of means. But, if the unspecified means
which the states may use to effect the ends committed to their care, are
limited by the powers delegated to the government of the union, it follows, as
being the same principle, that the unspecified means which congress may use to
effect the ends committed to the care of the government of the union, are also
limited by the powers delegated and reserved to the states. Neither government
can, under cover of such words as "sovereign, convenient, necessary and
supreme," legitimately resort to means which would impair their co-ordinacy of
origin, or the distribution of ends made by the people for their own security;
and both or neither must be restrained by a principle, exactly common to both.
Otherwise, the words "sovereign, convenient, necessary and supreme" will enable
the same parties, factions and exclusive interests, which have been changing
and modelling the English form of government from time immemorial, gradually to
work up ours into a similar compound of exclusive privileges and emoluments,
legislative corruption and venality, excessive taxation, and stock aristocracy.
Our civil revolution will then have eventuated, precisely like the religious
revolution in England under Henry the 8th. The pope was gotten rid of, but the
tithes and the episcopal aristocracy remained.
But, the wise men who framed our form of government never intended, that
its great principles and great ends should be altered and modelled from time to
time, by the means and ends of factions, parties or individuals; to render it
quite unsteady, liable to important innovations without any real reference to
the people, or to the right of self-government; and to carry it back to the
same unfixed principle or no principle of the English form of government; in
which, change has been so constant, and constitution so changeable, that it is
said in a late Edinburgh Review, that the old English reporters do not contain
a single precedent which is now law; and in England, law is constitution.
On the contrary, they intended to erect a political fabrick, with
separate compartments, each watered by distinct streams of power; and not,
whilst apparently perfecting a work so glorious, to invent covertly a machine,
then nameless but now called the "supremacy of means," for diverting the
streams assigned to some departments into others, so as to famish some
occupiers and poison others by a plethora. Though the outside walls of the
fabrick may still stand after the operations of this machine, like those of an
old Gothick castle, and occasionally attract the admiration of future
connoisseurs; yet they will no longer be capable of sheltering liberty against
the blasts of ambition or the reptiles of venality, after the apartments cease
to be habitable.
Having thus opened the way for a more particular, consider ration of the
opinion of the court, I shall proceed to exhibit to the reader extracts from
the quotation, arranged with a view to the perspicuity of the argument.
"The creation of a corporation appertains to sovereignty." This
position, the fountain from whence the court draws all its arguments, is
assented to; but I shall endeavour to prove, that if their proposition be true,
their inferences are false.
There are some words innately despotick, and others innately liberal.
Among those of the former character, corporation and hierarchy bear the most
exact analogy to each other, the first being used to destroy civil, and the
second to destroy religious liberty. Both are appurtenances of sovereignty, and
sovereignty being despotick because it is indefinite, both are appurtenances of
despotism. The fruit uniformly produces a tree like that on which it grew. The
English sovereignty has availed itself of these two appurtenances to a great
extent. Kings and towns conspired in the use of corporations; Kings to purchase
partisans, reduce the barons, and increase their own power; towns to obtain
more liberty than the rest of the people. Kings soon discovered, that the
sovereign right of granting exclusive privileges was much better adapted for
getting money, corrupting factions, and gratifying minions, than for diffusing
liberty; and they substituted this new appurtenance of sovereignty for its old
prerogatives, with the advantage which a plausible novelty possesses over a
detected oppression. Commercial monopolies, commercial companies, local
immunities and personal privileges, fully compensated their ambition and
avarice for the loss of prerogatives, and the word "corporation" has furnished
history with a list of grievances, often resisted, occasionally redressed,
again revived in new forms, and terminating in taxation and pauperism, both so
excessive, that England is as ripe for reformation, as it was under royal
prerogative in its most aggravated form. The word was adopted into English
jurisprudence, and endowed with a character both sacred and indefinite, by
regal "during pleasure" judges, to enlarge regal power, to obtain regal favour,
and to avoid regal displeasure. It was thrust into the English law books by
sheep, clothed in ermine by lions, and sanctified by precedents bottomed upon
fear, hope and flattery. From these receptacles, wherein it hides the heart of
a prostitute under the habiliments of a virgin, it has found its way into the
heads of lawyers, seduced by the habits of intercourse, or deceived by a
primness of feature, adjusted to conceal imposture, and to impose upon
credulity. But it did not get into our constitutions, and the question is,
whether its congeniality with their principles is sufficiently apparent, to
justify our judges in supplying the oversight of the people. Regal sovereignty
was its father, and regal prerogative (a respectable matron in England, though
not much beloved here,) its mother.
The English dictionaries, in accordance with their intention and
effects, define corporations to be "bodies politick." Sovereignty alone could
create bodies politick, and therefore it exclusively granted the charters or
enacted the laws by which they were created in England. The English law books
themselves do not recognize a right in some bodies politick to create other
bodies politick. Whether our governments are sovereigns, or only bodies
politick created by the charters of the only sovereignty we acknowledge, is a
question, involving in my view the existence of our form of government. If they
are sovereigns, it must be admitted, that according to the English precedents,
they have a right to prop and secure themselves by all bodies politick, capable
of defending an absolute, unquestionable, and indefinite power, the attribute
of sovereignty; but if they are not sovereigns, they can only be bodies
politick, created by the charters, called constitutions, and as such, according
to the incorporating principles of the English law books, they have no right to
create other bodies politick. If we are to be bound by the laws of England,
those laws ought surely to be correctly construed. Do these allow bodies
politick created by the sovereignty of that country, to create other bodies
politick, without the assent of its sovereign power? Is it less necessary for
the safety of the sovereignty of the people, to attain its appurtenant power of
creating bodies politick, than for the sovereignty of a king or a government?
It, is undoubtedly a power, which cannot be surrendered by any species of
sovereignty, without ultimately losing the sovereignty; because, after its
attributes are gone, an empty shell only remains. If therefore it be true, as
the English authorities assert, that the opinion of the court admits "that the
creation of corporations appertains to sovereignty," and if sovereignty among
us appertains to the people, it follows that the creation of corporations does
not appertain to either of our governments, or to either of their
departments.
There is no political influence capable of producing greater impressions
upon the sovereignty of the people, or their forms of government, than a system
of legislative patronage, or of shedding wealth upon corporations, and lustre
upon ambition. By incorporations, great bodies politick, whole parties, and
entire states, may be degraded into clientage, and bribed to obedience; and
legislators themselves may participate in every bonus they bestow. Among these,
an exemption from taxation extended to a great mass of incorporated wealth, is
an exclusive privilege, of a value sufficient to purchase the most abject
submission to political projects, the expense of which is imposed upon other
classes of society. This mode of purchasing the adherence of priests and nobles
was universally resorted to by European kings, and is still practised by all
European governments. And although our system of election and representation,
is often urged as a complete security against this palpable injustice to the
rest of society, yet it must be admitted, that the additional securities we
have provided against an evil so general, by divisions and restrictions of
power; that the experience of the whole world; that the example of England in
particular; that the concurrence of all political writers; unite in concluding,
that election, alone, is insufficient, and requires many auxiliaries. Why
should these auxiliaries be renounced, if the consequence is acknowledged,
under the pretext, that election, unaided by divisions and limitations of
power, has universally faded to prevent the evil?
Congress is prohibited from legislating respecting the
establishment of religion. But, if it possesses a sovereign power to
create corporations, it may nevertheless incorporate a sect, without
establishing a religion, invest that sect with a right to acquire wealth; and
protect that wealth against taxation, under the doctrine contended for in the
case of banking corporations. The states might exercise the same power. And
thus, a positive principle of our constitutions might be evaded by the
sovereign incorporating privilege, which has every where sufficed to beget the
most enormous oppression. But supposing that this species of incorporation is
prohibited by our constitutions; yet, allowing that it would have sufficed to
destroy religious liberty, had it not been prohibited, it follows, that a
sovereign power to create civil corporations would also suffice to destroy
civil liberty. The wise men who prepared the constitution of the United States,
conceived, that as no power was delegated to congress to create religious
corporations, its exercise was sufficiently prohibited; and such was the
construction of the instrument before its adoption. Hence it follows, that this
patriotick convention was of opinion, that the same absence of any power to
create civil corporations, also prohibited its exercise. And though the object
of adopting the constitution suggested the amendment referred to, for quieting
unfounded apprehensions, yet the weight of this respectaable contemporaneous
opinion remains unshaken. If the convention was mistaken, and really conferred
upon congress an unlimited incorporating power, though it intended to do no
such thing, then congress may create an East India corporation, settle it upon
the Pacifick ocean, and under the power to dispose of the lands of the United
States, endow it with a western territory; or it may create commercial
corporations; or it may incorporate towns; and shield all against taxation. I
need not remind the reader of the political consequences which would flow from
such measures.
A power of excusing either personal or real property from taxation, is
so far from being found in the constitution of the United States, that it
contains positive prohibitions against it, in the modes prescribed for taxing
both. Congress is prohibited from exempting the whole personal or real property
of a state from taxation by these prescribed modes, and not invested with a
power of granting partial exemptions to any portion of either, even in the
imposition of taxes for the benefit of the union; but, if it may assume the
latter power, it may in detail defeat the actual prohibition. If however it
cannot exercise this partiality even in taxing for the benefit of the union,
the construction, which supposes that it may partially exempt real or personal
property in particular states from state taxation, as still more violent,
cannot be admitted.
A power to exempt, is equivalent to a power of imposing; since the
deficit it creates, must produce a relative accumulation upon property not
exempted. The whole field of taxation not delegated to congress, is reserved to
the states. A construction which imposes a restriction upon the states, where
there is none; and destroys the restrictions to prevent partialities actually
imposed upon congress, is doubly at war with a construction, drawn from
positive rules. There is no distinction in the right of taxation reserved to
the states, between real and personal property. Their original right to tax
both is reserved to them as it stood, and a right to tax both in specified
modes only is delegated to congress. If congress can exempt personal property
from taxation by the instrumentality of corporations, it may exempt real, as
the stock of banks as well as of other corporations, may as easily be composed
of lands as of money; and thus accumulate direct taxation upon lands not
exempted.
But it may be said, that though congress possess a dispensing power of
exempting both real and personal property from state taxation, by first
inferring from a gratuitous sovereignty, never created, a right to create
corporations, and then inferring from this inference, a right to exempt the
property of these corporations from taxation; and though these same inferences
from the gratuitous sovereignty allowed also to the state governments, are
rejected; yet, that congress may tax the property of these corporations, and
observe in so doing, some degree of uniformity. But suppose their stock is made
to consist of land. Is this land to be taxed by the rule of population? If so,
a thousand acres of landed corporate stock, in a state having fifty thousand
people, will only pay one-twentieth of the amount to be paid by a thousand
acres in a state having half a million; and states having no land stock, would
pay no part of this direct tax. The same inequalities would ensue from the
taxation of personal stock by congress. This power of exemption claimed on
behalf of congress, (for congress has never claimed it for itself, and I
believe never will,) must have the effects of rendering state taxation unequal
and unjust, by shielding masses of state property, real or personal, from
contribution; and also of rendering union taxation unequal and unjust, or of
placing corporation property beyond its reach: thus it is in fact already
exempted from taxation, great as it is, and greater as it may become; and
exactly occupies the privilege of the clergy and nobility of France, which
caused the revolution of that country. By taxing state banks, congress has
acknowledged the injustice of exempting corporate property from taxation.
There is no idea expressed in the constitution, of any object of
internal taxation, or any species of internal property, within the reach of
congress, and without the reach of the state governments. Their power, as to
all such objects, is evidently considered as concurrent, except where the
taxing power of the state governments extends farther than the taxing power of
congress. Whatever internal property congress may tax, the state governments
may tax, and therefore corporation property must be exposed to state taxation,
or it must be entitled to an absolute exemption from paying taxes, both to the
state governments, and the government of the union. Thus, the power of
exemption claimed will defeat the concurrent power of taxation, bestowed for
the mutual security of both governments; and also introduce either an
inequality of taxation, or a complete exemption from it, both of which are
inconsistent with a fair and free government, and neither of which was intended
to be introduced by the general or state constitutions. Both partial exemptions
and partial douceurs have the same effect, as if congress should tax in
accordance with the formalities prescribed by the constitution, and then
restore their proportional contributions to states or individuals, instead of
applying them to publick use. A shield against unequal taxation, which can be
pierced by any of these contrivances, is no shield at all.
Let us suppose, that the state governments could diminish the objects of
the concurrent right of taxation, on the part of congress. The gratuitous
sovereignty conceded to both, carries with it the mutual right, it is supposed,
of establishing corporations. So far the doctrine of the court, though
erroneous, is consistent. But at this point it becomes eccentrick. Having
created mutual sovereignties, and having endowed them with a mutual right of
creating corporations, it becomes suddenly disloyal to the sovereignty bestowed
upon the states, and denies to it the same appurtenance, claimed for the
sovereignty bestowed upon congress; although these sovereignties must be
co-ordinate, whether they are bestowed by the people or the judges. But,
consistency required an acknowledgment, that if the state governments cannot
controul or defeat the sovereignty of congress, so neither can congress
controul or defeat the sovereignty of the state governments, as to
incorporations; these being included within the spheres of both governments.
Now, if the state governments could diminish by corporations, the concurrent
objects of taxation on the part of congress, it is very evident that by
multiplying them they might weaken and endanger the government of the union.
This danger both congress and the court have distinctly discovered. Congress
have warily resisted it, by the precedent of a slight tax on state banks; and
the judges have wisely sacrificed consistency to prevent it. But then this
foresight, both of congress and the court, as to the danger to the government
of the union, from a power in the state governments to diminish the objects of
a concurrent right of taxation on the part of congress, ought not to make the
governments and courts of the states blind, as to their danger from a power in
congress, to diminish the objects of the concurrent right of taxation on the
part of the states.
There is no view, in which a power to create bodies politick with
pecuniary privileges and exemptions, is more manifestly unconstitutional, than
in its capacity to subvert the distinct division of powers between the general
and state governments. It has been remarked, that the opinion of a state right
to local and internal regulation, was derived from the principles of our
revolution; and that the idea of a union was derived from general relations,
and not from local considerations. To these sources, both the special powers
given to congress, and the residuary powers reserved to the states, must be
referred. The creation of bodies politick by the states or by congress, endowed
with privileges inconsistent in any degree, with the ends and duties expected
from either, is substantially unconstitutional; and substance is the best
lexicographer for ascertaining both political rights and wrongs. There are two
principles pre-eminently unfavourable to a free government; an absence of
checks and balances, and a partiality in taxation. The judgment of the court
subverts our best counterpoise of power by power, and admits of an exemption
from taxation in favour of wealth.
The admission, that our primary divisions of power were coordinate, was
liberal, if the general government was created by a union between states
politically existing; because a claim of superiority rather appertains to the
creator, than to the created; and because this co-ordinacy is the highest
ground, upon which the created power can be placed, and is precisely its
guardian angel; since a superiority in one and a subordination in the other,
would certainly cause the destruction of both. Usurpation may be an appendage
of spherical sovereignty, unnoticed by the court, and revolution is its sequel.
These consequences can only be prevented, by considering our governments as the
creatures of the people, invested with expressed, and prohibited from implied
powers, derived from the idea that they are sovereigns.
An indiscriminate use of the term "corporation" has introduced a loose
idea of its meaning, which appears to me to be incorrect; but if correct, as
militating against the opinion of the court. It is applied to towns, counties,
and other sectional divisions, necessary for civil government, for the
administration of justice, the prevention or punishment of crimes, the care of
the poor, the removal of nuisances, and the preservation of roads, streets and
bridges; all objects of a social rather than a political, nature; meaning by
the first term, modes of civil government, and by the second, modes of changing
that civil government. There is an evident distinction, between provisions for
executing a government, and means for changing its first principles; between
municipal and political ends. And, if there is, it is incorrect to infer from
the application of the word "corporation" to a constitutional class of ends, an
extension of the power of government to an unconstitutional class of ends, from
the mere accident of both being called by one name, arising from the want of
different words to express every different thing; just as it would be incorrect
to suppose, that two men had the same rights and qualities, because they were
called by one name. Though the same word may have been applied to sectional
divisions for sustaining civil government, and also to "bodies politick" for
altering civil government, it does not confound things so different in their
nature, and only proves that our language, participating in some degree of the
hieroglyphical defects of the Chinese, has often but one word to convey ideas,
extremely distinct Besides, it will appear from a careful perusal, that the
state constitutions, literally, virtually or impliedly, recognize the class of
municipal sections for executing civil government, never recognize the class of
corporate exclusive privileges or bodies politick for altering its principles,
and sometimes express an abhorrence of them.
But, if the term "corporation" is to be so loosely construed as to
convey these distinct powers, the claim of congress to its instrumentality must
become still more remote, unless it can be proved, that this body can
incorporate towns, divide counties, and create the whole genus, comprehending
both the municipal and political species. To exclude congress from the former
class, although it is a legitimate appurtenance of a limited government, and to
invest it with the latter, although it is an illegitimate attribute of a
limited government, would be a strange perversion of the science of
construction. As therefore the state governments are either invested with, or
not prohibited from, the power of creating municipal sections for local state
governments; and as congress is not invested with, but prohibited from, the
power of creating municipal local sections for internal government, this word
must be considered as exclusively appertaining to the state vocabulary. It is
neither literally nor virtually applied by the constitution of the United
States, to "the common defence and general welfare." On the contrary, this
common defence and general welfare had for its chief object the common security
of the state governments. And the union, far from intending to defeat, was
entered into, for the purpose of attaining this object. The use of the word
"corporation" must either be disallowed to the government of the union, or the
union must be considered as intended to absorb and abolish the powers reserved
to the states, and to create an absolute general sovereignty, which it was
instituted to prevent. If however this word may be used by the state
governments, to contaminate their own principles, (which I deny,) some
consolation exists in the consideration, that a weapon so dangerous will be
local; and that they are prevented by the federal constitution from extending
its malignancy to the government of the United States.
Political words of all others are the most indefinite, on account of the
constant struggle of power to enlarge itself, by selecting terms not likely to
alarm, but yet capable of being tortured by construction to produce effects
generally execrated. In the catalogue of examples testifying to the truth of
this observation, the words "sovereignty and corporation" occupy the most
prominent place. If "despotism" were substituted for "sovereignty," the mask
would be torn from the latter, and its deformity would be exposed to the
weakest minds; and if "exclusive privileges" were substituted for
"corporation," the position "that exclusive privileges are general grievances"
so generally assented to, would detect that.
An unlimited right of taxation was possessed by the states, previous to
the union. The solitary exception to this right is contained in the prohibition
to tax imports and exports. A concurrent right of taxation under some
limitations, is given to congress; but one concurrent right is no restriction
upon the other, and both reach every object of taxation to which either
extends. Therefore, congress in virtue of this concurrent right, can inflict no
tax, to which the same right in the states does not extend. Hence it
irresistibly follows, either that the states can tax corporate wealth under
their original power of taxation, not prohibited, but reserved by the
constitution; or that congress cannot tax the corporate wealth of their own
creation, because no such exclusive right of taxation is given to them, and
therefore it must either be a concurrent right or no right at all; and in the
concurrent right of taxation, the states participate. Can congress exempt any
species of wealth from taxation, and how would the consequences of a power so
fatal to civil liberty terminate?
I shall conclude this section with a few quotations, still leaving to
the reader their application.
Fed. p. 163. H. "I affirm that (with the sole exception of duties
on imports and exports) the individual states retain an independent and
uncontroulable authority to raise their own revenue, in the most
absolute and unqualified sense, and that an attempt on the part of
the national government to abridge them in the exercise of it, would be a
violent assumption of power, unwarranted by any article or clause of
the constitution."
Fed. p. 168. H. "Suppose that the federal legislature, by some forced
construction of its authority (which indeed cannot easily be imagined) upon
the pretence of an interference with its revenues, should undertake to
abrogate a land tax, imposed by the authority of a state, would it not be
evident that it was an invasion of that concurrent jurisdiction in
respect to this species of tax, which the constitution plainly supposes to
exist in the state governments."
Fed. p. 169. H. "Though a law, therefore, laying a tax for the use of
the United States would be supreme in its nature, and could not legally be
opposed or controuled, yet a law abrogating or preventing the collection
of a tax laid by the authority of a state (unless upon imports or exports)
would not be the supreme law of the land, but an usurpation of power not
granted by the constitution." "The inference from the whole is, that the
individual states would, under the proposed constitution, retain an
independent and uncontroulable authority to raise revenue to any extent
of which they may stand in need, by every kind of taxation, except
duties on imports and exports."
Fed. p. 175. H. "The convention thought the concurrent
jurisdiction in the case of taxation, preferable to subordination."
We shall meet with many other disagreements in construction, between
avarice and great statesmen.
SECTION 8.
THE BANK DECISION — SOVEREIGNTY OF
SPHERES.
"If any one proposition could command the universal assent of mankind,
we might expect it would be this; that the government of the union, though
limited in its powers, is supreme in its sphere of action. This would
seem necessarily to result from its sphere of action. It is the government
of all; its powers are delegated by all, it represents all, and it acts for
all." "The powers of sovereignty are divided between the government of the
union and those of the states. They are each sovereign with respect to the
objects committed to it, and neither sovereign, with respect to the objects
committed to the other."
The word "sphere" conveys an idea of something limited, in which sense
it is correctly applied to our governments by the Federalist, and may be easily
understood; but I confess myself extremely puzzled to discern, how this word,
being a substantive circumscribed, can be converted into a substantive
uncircumscribed, by the help of the adjective "sovereign." And I think it
almost as difficult to see what is meant by the sovereignty of the spheres, as
it is to hear the musick of the spheres. But, as some change of the nature of a
sphere must be effected by an incongruous epithet, to sustain the opinion of
the court, the experiment deserves a very serious and respectful
consideration.
The word "sphere" was very happily used in the Federalist, and conveyed
an idea of our system of government, both just and beautiful. It refers to the
structure of the universe, as the model of our political system; and in the
allusion, tacitly suggests, and forcibly illustrates the sovereignty of the
people over the spheres they have created. The beauty of the similitude
consists in the regularity produced by a strict confinement of these spheres
within their respective orbits; and it contains a fine admonition, in extending
our ideas to the consequences which would ensue to the universe, should one of
its spheres leave its own and travel into other orbits; to forewarn us of the
consequences which would ensue to our political system from a similar
aberration. But the similitude is utterly spoilt, by the idea that one of our
spheres may annex to itself a long tail of means, reaching into the orbits of
other spheres, so as to defeat the sublime allusion, and leave us only a regret
for having neglected its admonition.
If the sovereignty of the spheres means any sovereignty at all, it
supersedes the sovereignty of the people, since they can no longer possess
that, which they have divided among spheres. But, if these spherical
sovereignties are restrained by their orbits, called "spheres of action," then
this new phrase means nothing at all, because a change in the description, does
not alter the nature of the thing described; and if our divisions of power will
still remain the same, whether they are called spherical sovereignties, spheres
of action, limited powers, balances, checks or trusts (as the moon did under
the several names of Phœbe, Cynthia, Diana, Dictynna, Hecate and Luna,) no
sound argument can be deduced from using one appellation in preference to
another. "The limited monarchy of spheres" would have been more appropriate to
the apparent meaning of the court in this extract, as clearly conveying the
idea of spherical limitation, and clearly excluding that of a spherical
extension of power lurking in the word sovereignty. We see a sovereignty of
spheres in England, to justify the language adopted by the court, and we know
that the sphere of action of each is limited and restrained by the spheres of
action of the other two. By calling each "sovereign with respect to the objects
committed to it, and neither sovereign with respect to the objects committed to
the other," I cannot see that the powers of the king, of the lords, or of the
commons, would be enlarged in the least degree; or that a choice of means would
be bestowed upon either, by which it could encroach upon the others. To our
imitation of this model in the arrangement of legislative and executive power,
we have, besides others, subjoined two improvements, by a judicial sphere
possessing a great political power; and by the important spheres called state
and federal governments. Now, if a spherical sovereignty exists here as it does
in England, it would be as certainly destroyed, as it has often been there, if
either sphere possessed an exclusive or an uncontrolled choice of means, in the
exercise of a species of sovereignty separately from the rest. Encroachments of
sphere upon sphere can only be made by means; and it is yielding nothing to
admit that the spheres are circumscribed, but to insist, that their choice of
means, by which encroachments are made, is unlimited; because a political
sphere of action, cannot possibly be created in any other way, than that of
withholding from it many means for effecting the ends, even the legitimate ends
it may have in view. Even in bringing a murderer to justice, the means, as well
as the sphere of action in the court, are all limited. If it was otherwise,
confusions, usurpations, and oppressions would ensue on all sides; because
power never finds any difficulty in choosing means calculated for its own
enlargement. In fact, we know that the English political history is only a
compilation of insidious and specious means, occasionally resorted to by each
of the spheres, for the purposes of deluding the people, and encroaching upon
the others. At length these spheres having harrassed each other for many
centuries, by each having chosen means for encroaching on the others, came to a
compromise; and compounded among themselves a sovereignty of spheres; and this
precedent justifies the court, however puzzled I may be to understand it upon
American ground, in using that phrase. But in quoting it, especially if I do
not dispute its authority, I hope I may be allowed to contend, that it cannot
prove the same thing to be wrong in England and right here. It proves that
political spheres, by uniting, may acquire, not an individual but a collective
sovereignty. It thence follows, if the sovereignty has passed in the United
States from the people to political spheres, either by delegation, or by the
usurpation of those spheres, that it can only be executed legitimately by the
collective or united consent of all these spheres; unless it can be shewn, that
a sort of interregnum or suspension of this spherical sovereignty, like those
which often happened in England, has already happened here. The same precedent
proves, that neither sphere ought to have any choice of means in the exercise
of its own spherical powers, by which it may encroach upon its collateral
spheres; for, though they were not co-ordinate, nor circumscribed to preserve
the liberty of the people, yet they became balanced by mutual fear for mutual
safety; and accordingly each sphere has been obliged, as the only chance for
self-preservation, to be excessively jealous of the means resorted to by each
to increase its own power. Now what does this English precedent teach us? That
a spherical sovereignty can only be exercised by the mutual consent of the
spheres: That one sphere can only be prevented by the watchfulness and
resistance of the others, from using means to make itself the master of these
others. That its success has always been considered as a usurpation, and has
always introduced a tyranny: And that it was necessary to preserve the
independence of the spheres of each other, to maintain even the semblance of a
free government.
If then we are to adopt the English spherical sovereignty, we ought not
to make it worse than it is, by subjoining to it vices, which it rejects, as
utterly inconsistent with the spherical system, and certainly destructive of
all the good it can produce. In that country, each sphere is a judge,
independently of the others, of its own sphere of action, and of its own means;
but both this sphere of action, and these means, are checked and restrained by
the sphere of action and the choice of means, possessed by the other spheres.
The same equivalency is necessary here to preserve a sovereignty of spheres,
and prevent one from becoming the master of the others. The English system has
made no specified provision to settle the collisions which will naturally
arise, and have arisen in England from this equivalency of powers, "because
power controuled or abridged is almost always the rival and enemy of that power
by which it is controuled or abridged," as Mr. Hamilton justly observes in the
Federalist, page 81; and this important office is loosely left to publick
opinion, without establishing an orderly mode in which it might be expressed.
Our system, foreseeing the probability of such collisions, both from the temper
of human nature, and also from the occurrences in England, has provided a
constitutional and orderly mode, by which publick opinion may exercise this
supervising office. It would be a radical violation of the English policy of
checks and balances, considered in that country, as the only safeguard of
liberty, even without a specifick provision for reconciling collisions, were we
to surrender the same safeguard, with specifick provisions for its exercise. By
that, the sovereignty of the people is denied, and sovereignty is possessed by
the three spheres, king, lords and commons; this is the reason, why it contains
no orderly mode by which a direct reference can be made to the people, for the
settlement of collisions among these spheres; yet the English system does not
relinquish the essential principle of the co-ordinacy, independency and
equality of the political spheres themselves, from an apprehension of their
collisions. If we should relinquish this essential principle from the same
apprehension, we should adopt the English spherical sovereignty, renounce the
English security of a co-ordinacy or balance of spheres, and lose the
sovereignty of the people. According to the English system, no sphere possesses
the least degree of supremacy in the exercise of sovereign power, over the
others, by the instrumentality of means, because it would enable the supreme
sphere to swallow up these others; and therefore to admit of such a supremacy
in one of our spheres, would be contrary to the most valuable principle of
theirs; and by adopting the sovereignty of the spheres, and also rejecting the
only security against its abuse, namely the check and controul of these spheres
upon each other, we should introduce here a worse government than the English,
in an essential circumstance.
There is but one mode of getting over this reasoning, and to that mode
the court has resorted. It asserts that "the government of the union is
delegated by all, represents all, and acts for all." Do these assertions (the
truth of which I shall presently examine) squint at consolidation, and
ingeniously undermine the state spherical sovereignty admitted by the court? Do
they design to recognize the English spherical sovereignty of kings, lords and
commons, as existing here in the president, senate and house of
representatives? Do they mean to insinuate that our system of government will
be safe under the guardianship of these three departments, as the English
system is safe under the guardianship of the king, lords and commons? If these
inferences were not intended, I cannot discern what was meant by these
assertions; but admitting them to be true, I deny their sufficiency to justify
such inferences. The people certainly had a right to create the union sphere to
restrict the state spheres; and to retain the state spheres, to restrict the
union sphere. The court admit that they have exercised this right; therefore no
inference from these assertions can be correct, by which this co-ordinacy of
restriction would be abolished. Had the people of England created their
co-ordinate spheres, they might have varied their form and their number from
what they are; and surely the people of the United States might vary the form
and the number of theirs from those of England, without defeating the principle
of a co-ordinacy of spheres, and still retaining its application to whatever
spheres they chose to create. The establishment of the union and state spheres,
was not only a happy circumstance for extending the compass and capacity of
republican government, but wisely comprised an advantage to which the English
spherical system cannot pretend. Each of these spheres is invested with an
independent legislative and judicial power within their respective orbits, so
that collisions may be conducted and reconciled orderly and argumentatively,
whilst those of the English spheres can only appeal to mobs or factions. Why
therefore should these spheres, so much better supplied with the means of
self-preservation and for mutual restriction, be considered as less estimable
than those established in England by civil war, and the intrigues of faction?
The ordinances of the people approved of by the best talents of the country
ought at least to be as venerable, as the compromises of ambitious self-created
orders.
Let us now calmly consider whether the prodigiously inclusive
assertions, "That the government of the union is the government of all; its
powers are delegated by all, it represents all, and acts for all," are really
true. Another assertion to confront it brings it to a fair test. The government
of the union, in respect to the powers reserved to the states, is the
government of none, is delegated by none, represents none, and can only act for
all, by assuming a power, neither delegated nor representative. If one of these
assertions be true and the other false, the reader will not hesitate in
deciding to which a deficiency, in veracity, appertains. I admit, that the
first may be made true by a restrictive qualification, similar to the
qualification which makes the second assertion true, by adding to it the words,
"in respect to the powers delegated to the general government" Both governments
represent all in exercising the powers committed to them respectively, and
"neither represent any, with respect to the powers committed to the other. Both
may act for all, within their respective delegated spheres; but neither can act
for all within the spheres delegated to the other. "If any propositions could
command the universal consent of mankind, we might expect they would be these."
And if these propositions are true, it follows, that neither government can,
under cover of a sovereignty of spheres, or by the use of inferences, exceed
its limitations, without violating the essential principles of delegation and
representation. If we were to admit the assertion of the court in all its
latitude, it would amount to the following position: — "A government
representing all, may act for all." This position, unqualified, applies more
forcibly, (as I shall attempt to shew,) to the end of unfettering the state
governments, than to the end of unfettering the government of the union,
because they actually represent all, which the latter government does not.
The principle of personal representation was violated to a considerable
extent, for the sake of compromise and accommodation, and because a spherical
representation was necessary to a union of states. The house of representatives
only, of the federal government, is elected with a view to the first principle,
whilst it is throughout applied to the state governments. The senate of the
United States is a representation of state sovereignties, not of numbers; and
this fact circumscribes very materially, the generality of the assertion made
by the court, or transfers its application to the state governments. It was
instituted to preserve that which it represents, and not as the guardian of
individuals whom it does not represent. The union was established for the
management of the general concerns of the states united, and not for the
management of local or individual concerns; to which intention the construction
of the senate has a distinct relation. The present senate is exactly analogous
to the old congress, in which each state had one vote, as each has two in the
present senate; and the present senate is no farther a representative of
individuals, than was that congress. Both were chosen by the state
legislatures. Hence it appears that the government of the union does not
represent all, as the court assert, and of course, that it has no right to act
for all. The house of representatives is elected by states; but that house is
not the government of the Union; and the mode of its election may be easily
accounted for, exclusively of an intention by that mode, to extend the powers
of the federal government. The want of a power in the old confederation to act
upon individuals by taxation, had destroyed its efficacy, and this defect was
the chief object to be removed in the formation of "a more perfect union." The
concomitancy of representation and taxation, dictated the form of the house of
representatives, and not an intention of extending the powers of the federal
government, by the mode of representation established in that single branch.
For, the president is also elected, in the first instance, upon indirect
federal principles, and directly by states, in case of no election by electors.
As two branches of the federal government are federally constructed, as only
one participates of individual representation, and as the construction of this
one was dictated by the limited power over persons bestowed for effecting
federal, and not personal or local ends, the assertion of the court is exploded
by fact, and the inferences from it subverted by a genuine construction of the
federal constitution. It never intended to inflict upon state legislatures,
elected by all, a responsibility to the federal senate, not elected by the
people, and only the representatives of state sovereignties. Nor did it intend,
by bestowing a limited power of taxation upon the federal government, for the
special purpose of effecting federal ends, and by subjecting this power to the
check of personal representation, to make this partial representation a pretext
for assuming local or personal powers, and for exercising the unlimited power
of "acting for all." If this reasoning be true, it applies conclusively to
banks, corporations, roads, canals, and congressional patronage.
To sustain the assertions I have been combating, the court says, "There
is no phrase in the constitution which excludes incidental or implied
powers." "Its nature requires that only its great out-lines should
be marked." "We find in it the great powers to lay and collect taxes, to
borrow money, to regulate commerce, to declare and conduct a war, and to raise
and support armies and navies. Can we adopt that construction, unless the words
imperiously require it, which would impute to the framers of the
instrument, when granting these powers for the publick good, the
intention of impeding their exercise by withholding a choice of means?
The instrument does not profess to enumerate the means by which the
powers it confers may be executed, nor does it prohibit the creation of a
corporation, if the existence of such a thing be essential to the
beneficial exercise of those powers." If the assertions we have just examined
are true; they do not need the various auxiliaries summoned to their assistance
in this extract; if they are false, these auxiliaries cannot make them true;
and as the assertions comprise the principles to be vindicated, the auxiliaries
brought forward in their defence are of no use or weight, if the principles
themselves should have been exploded. The great weight of the authority of the
court, however, will justify their examination.
When the adoption of the federal constitution was under discussion, its
enemies expressed an alarm, on account of the magnitude of the powers conferred
on the federal government, and its friends an apprehension of its feebleness,
compared with the powers reserved to the states; but neither party contended,
that an amplification of the greater division of power, and of course a
diminution of the lesser, could constitutionally be made by equipping the giant
in all the panoply of means, implication and inference, and compelling the
dwarf to appear naked in a combat with his antagonist. On the contrary, it was
successfully urged by the warmest friends to the constitution, and in
particular by the authors of the Federalist, that the supposed inequality of
power between the state and federal spheres did not exist; and that either
division, especially the state, was able to balance and controul the other. In
this computation, the comparison was made between the federal sphere, and the
state sphere, comprising all the state governments; and the equilibrium of
power was deduced from the expectation, that if the rights of one state were
assailed by the federal government, the rest would not suffer their copartner
to be overwhelmed by the weight of power, and their own rights to be destroyed
by a victory, in a contest so unequal. To estimate the magnitude of their
relative powers, the state governments ought to be considered as constituting
one sphere, and the federal government another. Perhaps a cool philosopher may
consider the security of private property, the protection of personal rights,
the suppression of crimes, the care of good manners and the catalogue of
municipal regulations, as embracing a sphere of action, of greater moral
extent, than the powers delegated to congress; and if the two spheres are to be
geographically compared, the map demonstrates their equality. If these spheres
are equal as to magnitude, one magnitude attracts undefined appurtenances as
strongly as the other; and if the framers of the constitution designed to
balance magnitude by magnitude, they could not also have designed to destroy
the balance, by annexing to either an exclusive privilege of attracting
undefined powers.
Be this as it may, I contend, that the federal constitution, so far from
intending to make its political spheres morally unequal in powers, or to invest
the greatest with any species of sovereignty over the least, intended
the very reverse; and that the court have recognised the latter intention by
avowing its right to declare an unconstitutional law, void. As the powers of
congress must be confessed to transcend those of the court, much farther than
they do those of the states, it follows, that if they cannot be
constitutionally used to contract the powers of the court, they cannot be
constitutionally used to contract the powers of the states. The reason why
great spheres derive no authority from magnitude to transgress upon small
spheres, is, that both are donations from the same source; and that the donor
did not intend, that one donation should pilfer another, because it was
smaller. "Can we adopt that construction, unless the words imperiously require
it, which would impute to the framers of the instrument, when granting these
powers for publick good, the intention of impeding their exercise
by withholding a choice of means?" This question might be answered by another.
Can we adopt that construction, unless the words imperiously require it, which
would impute to the framers of the constitution, when granting powers for
publick good, the intention of allowing one sphere by an unlimited
choice of means, to impede the exercise of powers conferred upon others?
It admits also of so many other answers, quite satisfactory, that a few only
need be urged. There is no imperious, or rather positive power, requiring the
judicial sphere to declare a law void; yet it claims this right, by which it
may limit the means of legislative power, and impede its exercise. This
can only be justified by co-ordinacy and restrictions imperiously
established, in the positive division of power, into limited political
spheres. This division was intended to effect the precise end, for the
publick good, here objected to; the end of controuling power by power.
And if this controul does not extend to means, as power cannot be exercised nor
usurpation become successful, except by means; all our divisions, restrictions
and limitations of power, designed to prevent, for the publick good, the
profligacy it has invariably displayed, when uncontrolled, must become nugatory
and ineffectual. The words of the constitution are literally imperious
in reserving to the states, for the publick good also, a right of
taxation subject only to a positive limitation. The means by which the states
may provide for raising a revenue, being expressly bestowed by the people, are
surely as sacred, and as constitutional, and as likely to advance the publick
good, as any conjectural conflicting means, which can be imagined by
congress.
"There is no phrase in the constitution, which excludes
incidental or implied powers. Its nature requires that only its great
outlines should be marked." A contrast between positions often elicits
light. There is no phrase in the constitution which even insinuates, that the
actual divisions of power should be altered or impaired by incidental or
implied powers. A revolution in our system of government would be no longer
anticipated, after supplanting the position "that actual powers controul
implied powers," and planting in its place the dogma "that implied powers
controul actual powers." A great one would be effected, if it could be
established, that "incidental or implied powers not excluded" were not
prohibited. Let it be remembered, that the great outlines of state
governments are more slightly referred to by the constitution, than the
outlines of the federal government; that the means for executing the powers
delegated to the latter are frequently marked, whilst those for
executing the powers reserved to the former, are left chiefly unlimited. And
then let it be computed, which sphere may make the greatest use of the strange
position "that means, or incidental, or implied powers not excluded, are not
prohibited," however they may be at discord with the positive divisions of
power. If this reasoning of the court be incorrect, the conclusion it is used
to establish "that the creation of a corporation, if the existence of such a
thing be essential to the beneficial exercise of the powers of congress, is
constitutional, because not prohibited" — is incorrect also, if
however beneficial considered alone; it disorders or impairs actual powers
bestowed upon political spheres, as in the case of limiting the power of state
taxation, farther than it is limited by the constitution. The idea, that one
limited sphere has an exclusive privilege of doing whatever it may conceive to
"be essential to the beneficial exercise of its own powers" is
still more extravagant, more subversive of co-ordinate spheres, and utterly
inconsistent, in every view; with our system of checking power by power; as
well as with the English theory of balances.
Another argument urged by the court is, I think, less ingenious than any
of those we have previously considered. It says "The power of taxation by the
states is not abridged by the grant of a similar power to the government
of the union; it is to be concurrently exercised by the two governments. The
states are forbidden to lay duties on exports or imports. If the obligation of
this prohibition must be conceded; if it may restrain a state from the exercise
of its taxing powers on imports and exports, the same paramount power
would seem to restrain, as it certainly may restrain, a state from
such other exercise of this power as is in its nature incompatible
with and repugnant to the constitutional laws of the union." The artifice
of acknowledging a constitutional principle, and distinctly admitting the
powers actually bestowed on the federal and state spheres of our government;
and then of immediately defeating these actual powers on one side, and
extending them on the other, is repeatedly resorted to in the opinion of the
court. But, this bold mode of reasoning is in every instance completely
overthrown by the principle, if it be a true one, "that expressed powers and
rights contract and limit implied powers and rights, and that implied powers
and rights do not controul and limit expressed powers and rights." The
assertion "that the same paramount power" (by which I understand the
constitution) "which restrained the states from taxing imports and exports, may
restrain a state from such other exercise of their taxing power as is in its
nature incompatible with and repugnant to the constitutional laws of the
union," by blending a sequitur and a non sequitur together and confounding our
ideas, endeavours to delude them into an erroneous conclusion. Stript of this
ambiguity the argument stands thus: "The constitution might have further
restrained, and therefore, it has further restrained the taxing power of the
states." Thus fairly stated, the conclusion does not follow. To use the
prospective terms employed by the court, the argument would be this: "A
constitution may, and therefore has further restrained this power." This mode
of anticipating innovation, renders the mode prescribed for amending the
constitution quite superfluous. It unfolds to legislatures the entire cargo of
powers not prohibited, but not given; they are told that they may exercise any
powers, which the constitution might have given them, and are very courteously
invited to pick and choose. As a complete spherical sovereignty is conceded
both to the federal and state governments, and as the constitution does not
forbid to either this mode of extending their respective powers, it is open to
both; and the laws of neither, under this novel constitutional power, can be
unconstitutional, because state laws made in virtue of its spherical
sovereignty comprising a right of construction, will be equally constitutional
with federal laws, when both may defend themselves by a common principle. The
clashings likely to arise between specified powers and rights will be nothing
to those, which would be produced by a mutual power to assume implied rights
and powers not prohibited. But I believe that I have misunderstood the court in
supposing, that it meant "constitutional power" by the phrase "paramount
character." It seems by the expression "constitutional laws of the union" as if
it meant, not that the constitution, but that congress was the paramount power.
The consideration of this idea is postponed to the next section; at present I
shall only observe that the laws both of the federal or state governments may
be either conformable or repugnant to the constitution; that one government is
equally restrained with the other from passing laws repugnant to the
constitution; and that neither can be absolved by a claim of one to the title
"paramount" bestowed upon neither, to defeat the laws of its co-ordinate
sphere. The paramount power of the people, by prohibiting the states
from taxing imports and exports, did not create a paramount power in congress,
to extend the prohibition to internal objects of taxation. It is therefore
obvious, that the restrictive expression "constitutional laws of the union" has
no relation to the subject under discussion, as that relates entirely to
unconstitutional laws; and that it is used merely to conceal, under the
position "that the states have no right to pass unconstitutional laws," which
is true, the conclusion "that the federal government possess a paramount and
exclusive power of deciding upon the constitutionality and unconstitutionality
of all laws, both state and federal," which is denied to be true.
Let us illustrate this reasoning by the fact. Congress have, by one
corporation, subtracted from the fund made liable by the constitution to state
taxation, thirty millions of specified right, by the instrumentality of power
implied or not prohibited. The same species of instrumentality, not being
prohibited, may also be implied in behalf of the states. And to place the
federal and state governments in the constitutional relation existing between
them previously to its exercise, the states ought to subtract thirty millions
also from the specified fund exposed to federal taxation; a precedent by which
one fund is diminished to the extent of thirty millions, and by the capacity of
an incorporating power to diminish it without limitation, decides the fate of
either of these sovereign spheres, which should be deprived both of resistance,
and every countervailing expedient. Revenue is the sustenance of power. The old
congress dwindled into imbecility, because the states could subtract from its
funds without limitation; and the old states will ultimately suffer the same
fate, if the new congress may by corporations subtract from their power to
raise a revenue, without limitation. The position between these two spherical
sovereignties would be exactly reversed, and however it may be justified upon
the principles of retaliation and revenge, the reciprocity of defeat would, by
the humiliation of the state governments, inflict greater evils upon the
people, than they suffered from the humiliation of the old congress from a
similar cause. Our experience had taught us the necessity of an independent
revenue for the support of power; and the constitution under the conviction of
experience, invested each sphere, sovereign say the court, with this paramount
necessity, in terms the most distinct; but, if another paramount necessity for
creating corporations, shall be able to subtract what it pleases from the
paramount necessity for revenue, these spherical sovereignties will occupy the
stations of England and Ireland, whilst the former took away revenue from the
latter, by quartering a substantial, though not a nominal, corporation of
pensioners upon the Irish funds. Had it been proposed in the convention, still
further to reduce the fund for revenue left with the states, by investing
congress with a power of subtracting any portion or the whole of internal state
funds for raising revenue; or had such a construction been put upon the
constitution whilst under the consideration of the people, it is impossible to
hesitate in our opinions as to the results; and this unavoidable retrospective
impression is no slight proof of its real intention.
Sometimes the court reject a restriction imposed upon particular words
by the general tenour of the constitution, and at others endeavour to destroy
the most liberal rights, though according with the general tenour. An exception
excludes that which it does not contain. A delegation of power does the same.
The prohibition to tax exports and imports leaves untouched every other species
of taxation. The delegated power of taxation to congress, contains no new
prohibition upon the states. The intention in both cases is literally
expressed. The reservation of all powers not delegated to the United States,
nor prohibited to the states, is a third literal restriction of the prohibition
to tax imports and exports, to the tilings actually prohibited. Add to the
positive letter the consideration, that sovereign states were delegating
limited powers; and the idea, that both the specifick prohibition upon the
states, and the restricted delegation to congress, may be defeated by an
implication, hostile to both, and contrary to the rules of construction, seems
entirely inadmissible. Had the framers of the constitution conceived, that the
state taxing power, originally unlimited, could be limited by implication, a
far more specious foundation for this doctrine was furnished by the power given
to congress to regulate commerce; as the taxation of exports and imports by the
states might have been "incompatible with and repugnant to" this constitutional
power; and by not confiding in this implied species of prohibition, they
positively reprobate it. The implication in this case would have been specially
confined to imports and exports, had the constitution failed to prohibit the
states from taxing them; but as it does contain this limited prohibition, I
cannot conceive by what train of ratiocination, the limited prohibition
expressed, can be made to beget an unlimited power in congress further to
restrict the original state right of taxation.
It has been proved, that the English spherical sovereignty rejects any
claim of sovereignty by one sphere over another, and limits the means of each,
by the sphere of each. Admitting a sovereignty composed of spheres to be still
one and indivisible, then a spherical sovereignty of spheres here would also be
one and indivisible. Unity is an innate quality of sovereign power, as it is of
legislative, though it may be compounded of individuals. Thus the moral or
political beings called a sovereignty or a legislature are units, of whatever
individuals composed. Such is the case with the sovereignly of the people. As
this is composed of natural individuals, a sovereignty of spheres is composed
of individual spheres. Neither of these can possess a better right to assume by
any means a superiority over co-spheres composing a sovereignty, than one
citizen under the pretext that he also is a component part of the sovereignty
of the people can assume a superiority over other citizens. In both cases,
however, a love of power has suggested a multitude of means, by which both the
individuals composing the sovereignty of the people, and the individuals
composing a sovereignty of the spheres, have violated their allegiance.
Sovereignty here resides in the people, or in our individual political spheres.
If in the people, these spheres are limited departments only, not having more
power individually, than if they participated as is contended of sovereign
power. If we even enlarge this power, by endowing our political spheres with
sovereignty, then one sphere, being only an individual of the sovereignty, has
no controuling authority over the others; such an authority, however disguised,
would destroy a sovereignty of spheres and establish a sovereignty of one
sphere; and this sphere would be a despot over the others, just as one citizen,
who obtains a controuling authority over the rest, is also a despot. The case
is precisely the same if one sphere of action can by any means obtain a
controuling authority over the other spheres of action; the rights of the
controuled spheres, derived from the sovereignty of the people, would be made
dependent upon another sphere of action, created by the same authority. Thus a
citizen having social rights loses them, if another citizen has by any means
obtained an authority of controuling them. It follows from both aspects of the
case, one of which must be admitted, that political spheres, constituting a
spherical sovereignty, must controul and restrain each other; that political
departments, circumscribed by the sovereign power of the people, must still
more clearly controul each other; that is, spheres of action must controul each
other; and that the means of each of these individual moral beings, must also
be controuled and restrained by the means of the others; because an authority
capable of controuling the rest, obtained by one, destroys the end and design
of either political system.
The argument in reply to this reasoning is, that unless a supreme
authority is allowed to the federal legislature and federal courts, to controul
the legislatures and courts of the states, subordination will not exist, and
sundry inconveniences would result from its absence. This argument would be
sufficiently answered by asking for the words in the constitution, by which one
sphere of action is made subordinate to another; or by which one is invested
with the exclusive authority to restrain the rest within their proper spheres.
But it overthrows itself by its own force, and by proving too much, proves
nothing. It implies, that every division, balance, restriction or check of
power by power, which has been or can be invented, must be wrong; and that
subordination is preferable to them all: that Mr. Hamilton is wrong in
observing that "power controuled or abridged is almost always the rival and
enemy of that power by which it is controuled and abridged," and ought to have
pleaded in favour of removing all restrictions by supremacy, for the sake of
establishing subordination; and that he was still more wrong in supposing, that
power could only be controuled by power. It is not uncommon to destroy the
highest attainable temporal blessings, by selecting and displaying the
imperfections of which all human institutions participate. Thus the
inconveniences of co-ordinate and balanced departments, and the conveniences of
subordination are both magnified. Individual spheres or departments are easily
persuaded, like kings, that a subordination to themselves would be better for a
nation, than the occasional collisions produced by a division and limitation of
power. The federal and state governments might both be induced to believe, that
its own supervising supremacy over the other would produce more good to the
people, than the plan adopted by the people themselves. And thus an object of
the first necessity or convenience, that of a free, moderate and limited form
of government, might be sacrificed for such pitiful objects, called objects of
necessity or convenience, as transmitting the publick money by banks, staying
judgments and executions, making a road or a canal, creating fraudulent
corporations, and absolving their great wealth from taxation, whilst very poor
people are contributing to the support of government. Usurpation begins with
weaving a shroud for free principles by the woof and warp of little
conveniences and pretended necessities, and ends by inflicting the slavish
quietism of a perfect subordination.
The court has cautiously forborne to define the origin, or the extent of
spherical sovereignty. By denying the argument of the counsel, "That the people
had bestowed sovereignty on the state governments, and therefore had none left
to bestow on the federal government," it clearly asserts, that the people do
not lose their sovereignty by creating a government. By contending that the
federal government, created in virtue of their retained and inherent
sovereignty, has acquired any species of sovereignty, it as clearly asserts,
that they do lose it. By asserting, that our political spheres are limited by
their constitutional spheres of action, it admits, that they are not invested
with sovereignty. By investing them with the right of creating corporations, as
resulting from the power appertaining to sovereignty, it declares that they
are. This sample of its appurtenances, and the general position that it may
employ any means which it chooses, or may think necessary or convenient, leaves
the capacity of the new political structure called spherical sovereignty, quite
indefinite. I have heard of a lady desirous of having a new house, and unable
to prevail on her husband to build it, who persuaded him at length to suffer
her to repair the old one. With the help of an ingenious carpenter, under her
own influence and direction, she went to work; and proceeding by cautious
degrees, not to awaken her husband's attention, so altered and enclosed the old
one, that when he at last discovered the artifice, he found himself obliged to
pull it down and throw it piece by piece out of the windows. Thus the
indefinite attributes of a sovereignty of spheres, will gradually usurp and
supplant the attributes of the sovereignty of the people. The old principle of
limited ends will be thrown out of the window by the new principle of unlimited
means; and the right of the old sovereignty to create bodies politick, will be
swallowed up by a new spherical sovereignty.
Of this sophistical spherical sovereignty, the instances abound; and we
find it in every case to be the identical machine, by which all free and
limited governments have been overthrown. The conventions of France (elected to
form a constitution) upon the ground of representing the people, assumed a
spherical sovereignty with its attributes as settled by themselves; and
exercised unlimited power, under a nominal acknowledgment of the sovereignty of
the people. Bonaparte, both in his sphere of consul and emperor, took their
votes, and thus owned the sovereignty of the people. But what was the value of
the allegiance professed in either case, united with a choice of means,
necessities, and conveniences, by these spherical sovereignties? The same as
that of the divine right of sovereignty in kings, nobles and political spheres,
from the beginning of history to this day.
The reader is reminded, that although I have adopted the phrase
"spherical sovereignty" and supposed its existence, with a hope of proving that
even this concession does not warrant the judgment of the court; yet I do not
thereby design to admit of its application, under any definition, to our system
of government; because its meaning is so utterly equivocal, as to be innately
incongruous with the idea of limited powers, of which this system is composed.
I contend that the idea of one or many spherical sovereignties is an
adulteration of the sovereignty of the people; that a limitation of spheres of
action, is a limitation of means of action; that no sphere can do any thing,
because it may be convenient or necessary, unless it be constitutional; that no
sphere can invade another by means however beneficial, because it would be
unconstitutional; that no sphere has a power of doing what is good or bad,
generally, but constitutionally only; and that if these principles can be
overturned by an ingenious management of words, all our checks, balances,
limitations and divisions of power, are good for nothing.
SECTION 9.
THE BANK DECISION —
SUPREMACY.
"The people have said, "This constitution and the laws of the
United States made in pursuance thereof, shall be the supreme law
of the land." "It is a question of supremacy." "It is of the very
essence of supremacy to remove all obstacles to its action within its own
sphere, and so to modify every power vested in subordinate governments, as
to exempt its own operations from their influence." "It is a question of
supremacy." This expression, being unequivocal, had it remained unmodified,
would have submitted to the publick consideration the plain question; whether
the constitution of the union had, or had not, invested the federal government
with a supreme power over the state governments. National questions ought to be
candidly and fairly stated, to obtain a genuine national opinion. Out of
complaisance to national opinion it was conceded by the court, that both the
federal and state governments were sovereign within their respective spheres,
to obtain as an attribute of sovereignty, a mutual right of creating
corporations, and conciliate the usurpation practised by both. But, after
allowing to both this attribute of sovereignty, a variety of equivocations are
resorted to, for inhibiting to the states its other attributes, and assigning
their exclusive enjoyment to the federal government. The means, the
necessities, and the conveniences of the federal government as attributes of
sovereignty are dilated, and those of the state governments consigned to
oblivion. The federal government is acknowledged to be limited; but then it is
said, that there is no phrase in the constitution which excludes incidental or
implied powers, without admitting, that no enlargement of power can be
inferred from this assertion in favour of the federal sovereignty, in which the
state sovereignties would not participate. It is conceded, that the power of
internal taxation is not abridged with respect to the states, by the grant of a
similar power to the government of the union, and that it is to be exercised
concurrently by the two governments; but the concession is retracted, by
inferring from the constitutional abridgment in the subjects of imports and
exports, a right in the federal government still farther to abridge the
concurrent right of the states to an unspecified extent. It is said that the
power of the states is subordinate to, and may be controuled by the
constitution of the United States; but then it is inferred, that it is also
subordinate to and may be controuled by the federal government. But, as this
alternation between concession and retraction was liable to formidable
objections, it is finally abandoned, or shielded against confutation, by the
assertion "that it is a question of supremacy, and that it is of the very
essence of supremacy to remove all obstacles to its action within its own
sphere, and so to modify every power vested in subordinate governments, as
to exempt its own operations from their influence." The sweeping power
asserted in the conclusion of this extract, is obviously distinct from a power
of removing obstacles within its own sphere, previously asserted; and is
another instance, in which unlimited power is attempted to be inferred from a
power acknowledged to be limited. Thus the wisdom, of concession and the
ingenuity of retraction are so constantly blended, as finally to invest a
government acknowledged to be limited, with an unlimited power over the very
restrictions imposed upon itself; and also over the state governments,
acknowledged also to be its co-sovereigns. To fortify this mode of reasoning,
it became even necessary to find a higher power than sovereignty, in order to
controul the admitted sovereignty of spheres; and though hitherto thought not
to exist, it is supposed to be found in the words "paramount and supreme" so
sublimated, as to reduce the sovereignty both of the state spheres and of the
people to mere glow worms.
The declaration of independence declares the colonies to be free and
independent states; the constitutions of many states assert the sovereignty of
the people; and sovereignty has hitherto been considered as the highest
political degree. In that sense it has been claimed, held and exercised by the
people of every state in the union from the revolution to this day. The attempt
made by the court (before considered) to transplant sovereignty from the people
of each state, by whom it has been and may be exercised, to the people of the
United States, by whom it never has been nor can be exercised, under our
present system of government, might fail of success; and therefore a new mode
of destroying the sovereignty of the people is resorted to. Its jealousy is
first appeased by the acknowledgment of spherical sovereignties, and then its
degradation is finished by subjecting these sovereignties to supremacy. If the
ground is a good one, all the states of the union took bad ground both in
establishing and sustaining their independence. Supremacy was the literal claim
of the British parliament over the colonies; and these colonies having only
established sovereignties (an inferior political degree) have in fact tacitly
acknowledged the British claim, which, being thus recognised, may be still
prosecuted. It is also probable that the treaty failed to acknowledge our title
to paramount and supreme power. If the treaty and the declaration of
independence had not unfortunately committed this oversight, it would have
narrowed the question considerably, by excluding from it a necessity for this
entire section. Had these instruments declared the states to be sovereign,
independent, paramount and supreme, then the language of the court's
admission must have been correspondently changed; and instead of admitting that
both the federal and state governments were each sovereign within its sphere,
they must have admitted that each was sovereign, paramount and supreme within
its own sphere. But, if this language, to give each word its excessive meaning,
would have been tautological; then these instruments have committed no error,
but merely avoided repetition, by rejecting useless synonymes. To admit, that
the words "sovereign, paramount and supreme" are synonymes, to express the
highest degree of political power, bestows on the two latter their most
excessive meaning; whilst there is no excess at all in allowing that meaning to
the first; therefore this admission bestows on the doctrine of the court the
utmost force of which it is susceptible. And yet after thus doing for it all
that can be done, and more than it can claim, it is obviously defeated by the
error of giving to one synonyme a different meaning from another; just as it is
impossible to prove, that though three apples are of the same weight, yet that
one may be made heavier than the others, by calling it a supreme apple. But I
shall endeavour to prove, that even this ground is stronger than the opinion of
the court is entitled to, by shewing that "sovereignty" describes a higher
power, than "paramount or supreme," and therefore that it was never intended to
be subjected to them.
The word "paramount" is not mentioned in the constitution, nor any where
adopted, that I recollect, by our political phraseology; wherefore in
considering the leader, it will be unnecessary to pay much respect to a feeble
ally. Hence I proceed to shew, that the word "supreme" is invariably used by
the constitution, not in a paramount but in a subordinate sense to sovereignty.
"The constitution, and the laws of the United States which shall
be made in pursuance thereof, and all treaties made or which
shall be made, under the authority of the United States, shall be the
supreme law of the land, and the judges, in every state, shall be bound
thereby, any thing in the constitution or laws of any state to the contrary
notwithstanding." This is the clause of the constitution, supposed by the court
to confer on congress a power over the state governments and state
sovereignties. These state sovereignties made, may revoke, or can alter the
constitution itself, and therefore the supremacy bestowed upon the
constitution, being some power subservient to the state sovereignties,
demonstrates that the word "supreme" was used in a sense subordinate to these
sovereignties; and being used in that sense, it is impossible that the people
intended it as a revocation of those powers, or of any of their appurtenances,
or of the spherical sovereignties, previously bestowed, never recalled, and
specially reserved to the state governments, by the sovereignties, to whom the
whole constitution and all its words, are subordinate. According to the
construction adopted by the court, the stile of the constitution ought to have
been this. "We, state sovereignties, do hereby establish a federal government
invested with limited powers, and retain our state governments, with all their
powers not delegated to the federal government, each of which governments shall
be sovereign within their respective spheres, but over these sovereignties, we
also create three supremacies; one a supremacy of the constitution; another, of
the laws of the United States; and a third of the treaty-making power." It is
hard or impossible to serve two masters only. The court has turned the federal
and state governments into sovereignties, and placed over all, three
supremacies. The difficulties of such a system would be insurmountable :
whereas, by acknowledging one master only, in the sovereignty of the people,
and confessing the obligation of the political departments created by that
sovereignty, to move within the orbits assigned to them, as great a degree of
order may ensue, united with liberty, as is attainable by human wisdom.
Are these supremacies of co-ordinate and equal power; or are laws and
treaties subordinate to the constitution? The constitution, the laws and the
treaties are all declared to be the supreme law of the land, and therefore, as
it could not have been designed to bestow on laws, an authority equal to the
authority of the constitution, no construction can be correct, which does not
sustain both the superiority of the constitution over laws, and also a perfect
equality as to the obligations imposed by the supremacy declared; and such a
construction is I think quite visible. The supremacy is not bestowed upon the
federal government. It is a moral and not a personal supremacy which is
established. It was not intended to confer on one department, sphere,
sovereignty, or organization of persons, any superiority over another
department, sphere, sovereignty, or organization of persons; and was merely a
declaration of the respect to which the recited moral beings were equally
entitled. The constitution cannot be personified, so as to be reduced to a
supreme body politick distinct from the people; and if laws are to be
personified by congress, and treaties by the president and senate, their
supremacy would either be of a different nature from the supremacy of the
constitution, or these two departments, neither of which, nor both constitute
the federal government, would be made supreme over the federal and state
governments, and equal to the supremacy of the people, if they are to be
considered as the representatives of the supremacy of the constitution. But as
no additional personal or national power was conferred by declaring the
constitution to be the supreme law of the land, it proves that no additional
personal or spherical power was conferred by declaring the laws and treaties to
be also the supreme law of the land. The declaration, that the constitution was
the supreme law, confirmed all its limitations, divisions, restrictions and
limitations of power, and it never was intended that either should be altered
in the least degree by laws or treaties, or be placed under the power of those
who should make laws or treaties. On the contrary, the laws were to be made in
pursuance of the constitution, and the treaties, under the
authority of the United States. The United States have no authority, except
that which is given by the constitution. Both the laws and treaties to be
supreme must, therefore, be made in conformity with the powers bestowed,
limited and reserved by the constitution, and by these we must determine
whether a law or a treaty has been constitutionally made, before the question
of its supremacy can occur. The judges are expressly referred to, as the
curators or executors of this moral supremacy, and no other department is by
the least hint recognized, as being able to impair or enforce it. And finally,
all officers, legislative, executive and judicial, take an oath to support the
constitution, which is a moral sanction in favour of a moral system; and none
take an oath to acknowledge any species of personal or spherical supremacy.
This clause then amounts to no more, than that the constitution shall be the
supreme law of the land. As proceeding from the sovereignty of the people, the
highest political authority, the term was proper; because it was paramount and
supreme over whatever should proceed from any inferior authority; and as the
constitution embraced our whole system of government both state and federal, by
delegating and reserving powers, the supremacy bestowed on it was intended
equally and co-extensively to protect and secure the powers delegated to the
federal government and those reserved to the states. In this construction of
the word "supreme," the court itself has literally concurred, in asserting
"that it would be its duty to declare an unconstitutional law void." The right
of doing this arises from the supremacy of the constitution over law; from the
restriction it imposes upon political departments or spheres to confine
themselves within their limited orbits; and from its intention that each
department or sphere should controul another, if it trangresses its boundary.
Upon this ground the court has asserted this constitutional power in its own
sphere. It can be defended upon no other; because the constitution does not
say, that their judgments shall be the supreme law of the land. If the ground
be solid in relation to the judicial sphere, it is equally solid in relation to
the limited federal and state spheres. If the legislative federal sphere have
no supreme power over the judicial federal sphere; because its power is limited
by the constitution, and not extended beyond these limitations by the clause of
the constitution under consideration; it follows, that neither the federal nor
state spheres derive any supremacy over the other from the same clause, whilst
acting within their limited boundaries.
In fact, the opinion of the court admits the soundness of this
construction, though it qualifies the admission by an unexplained ambiguity,
which ingeniously keeps the question out of sight "It is a question of
supremacy." But it does not explain what this supremacy is, nor how far it
extends. "It is of the very essence of supremacy to remove all obstacles to its
action within its own sphere." By the words "within its own sphere" the
court seems to admit, that a sphere ought to act within the boundaries
prescribed to it, without suffering any hindrance from another sphere. This is
all for which I contend; and if this be allowed (and it must be allowed to
justify the judicial sphere in annulling an unconstitutional law of congress,)
then neither the federal nor state spheres whilst acting within their spheres,
are subjected to the impediments of the other, and each has a right to controul
such impediments. But then the court produce the ambiguity by adding, that a
supreme sphere may "so modify every power vested in subordinate governments,
as to exempt its own operations from their influence." It is useless to
concede principles if they can be evaded. The court had previously admitted
that the federal and state governments were "both sovereign with respect
to the objects committed to them, and neither sovereign with respect to
the objects committed to the other;" but now it takes it for granted, that the
federal sphere is supreme, the state spheres subordinate, and
that in consequence of this supremacy and subordinacy, the federal government
has a right "so to modify every power vested in the state governments,
as to exempt its own operations from their influence."
Power in the exercise of verbal construction, and in deducing inferences
from particular phrases, like a fine lady admiring a casket of jewels, very
easily discovers whatever it wishes for, to be right, convenient, useful and
necessary. Particular texts are often tortured to appease conscience, or to
gratify prejudice; and good or bad intentions are equally fertile in expedients
for surmounting obstacles. A single word is often so indefinite, that its
meaning is controuled by another. A single sentence may generally be twisted
into an enmity with principles plainly asserted, in any book; but the defects
of language do not equally extend to an entire treatise. Thus the imperfections
of isolated words and sentences, and the frailties of mankind unite to teach
us, that the licentiousness of construction can only be controuled by an
impartial estimate of a whole, and a candid comparison of its parts. If the
reader shall examine the federal constitution by this rule, and should discover
that it delegates a power to the federal government so to modify every
power vested in the state governments as to exempt its own operations from
their influence," he must conclude, that the decision of the court, founded
upon the existence of this power in the federal government, is correct; but if
the constitution invests the federal government with no such power, then it
follows, that this decision, founded upon a supposition that it did, must be
unconstitutional. This is in fact the very essence of the question; as
interferences by the federal or state governments with powers delegated to the
other, are in truth modifications of those powers; and it is extremely
important to ascertain, whether a power so enormous and unspecified is common
to both, or exclusively conferred upon the former. The latter is asserted by
the court for the purpose of modifying the state right of taxation; by those
members of congress who supported a bill for prohibiting slavery in a
particular state, and is the ground upon which alone all interfering with the
police of states can be defended.
It will be allowed, that the people of each state had, and exercised the
right of modifying the powers vested in the state governments. If the federal
government now have it, the most unexpected consequences will ensue. The people
can no longer exercise the right, because they have given it away. If it be a
concurrent right, should they exercise it, the federal government may re-modify
their modifications. The state governments will be responsible either to the
federal government singly, or both to this government and the people for their
conduct. It was quite idle to reserve to the state governments the powers
previously bestowed, if they were at the same time subjected to the subsequent
modifications of the federal government And the meditated check upon the
federal government by the powers reserved to the state governments would be
equally insignificant. These consequences of the construction given to the word
"supreme" by the court, so completely subversive of the essential principles of
our system of government, are a sufficient exposition of its incorrectness.
But the argument becomes stronger, when we resort to the provisions of
the constitution. I shall venture to test the position relied on by the court,
by the mode before practised of confronting it with a contradictory position;
so that one or the other must be disallowed. It is a question of supremacy; the
constitution has invested the states with a complete, and the state governments
with a limited supremacy, over the federal government, and expressly subjected
its operations to the influence of the latter, in sundry important
instances. The states by common consent may dissolve or modify the union, over
which, by the natural right of self-government, which they have never
relinquished, they retain a complete supremacy. By the constitution, the state
governments are invested with the rights of appointing senators and electors of
a president, for the very purpose of influencing the operations of the federal
government for their own security. They may forbear to exercise this right, and
thus dissolve the federal government. They may elect the members of the house
of representatives by a general ticket, and thereby very considerably influence
its operations. They may compel congress to call a convention. They may ratify
changes of the federal government, without its consent. They may affirm or
reject amendments proposed by congress. They have a concurrent right of
internal taxation with the federal government, and. these concurrent rights may
deeply influence each other; and they are exclusively invested with the
appointment of all the officers of that force, upon which the safety and
liberty of the nation depend. These powers seem to me, to invest the state
governments with a limited supremacy over the federal government; at least it
must be admitted, that they are such as may and do deeply influence its
operations. The constitution gives no authority to the federal government to
exercise such powers over the state governments. Can it then be true, as the
position of the court declares, that the federal government have a right "so
to modify every power vested in the state governments, as to exempt its own
operations from their influence? Upon the ground of this doctrine, the
supreme court of the federal government has attempted so to modify the
concurrent right of taxation reserved to the states, as to exempt the
incorporating power assumed by congress, from its influence. This is one of the
enumerated powers invested in the states, by which it was certainly foreseen
and intended, that they might influence the operations of the federal
government; and if in this case such an influence justifies a modification of
the state power of taxation by the federal government, and even by one of its
departments, the same reason will justify a modification of all the rest of the
enumerated influencing state powers. The supreme court might by the same
principle, appoint senators, electors, and militia officers, should the states
neglect to do it; in order, by modifying these powers of the state governments,
as being subordinate to the supposed supremacy of the federal government, to
exempt the latter from their influence.
If, therefore, it should have been proved, that the federal government
is not invested with a power of modifying the powers bestowed by the people on
the state governments, the pretended supremacy, supposed to bestow a right so
unlimited, does not exist; the modification on the state power of taxation was
of course unconstitutional; and the question would seem to be settled. But it
starts up again in a new form; and though it should be allowed that the entire
federal government do not possess a right to modify the state constitutions,
yet it is still contended, that one of its subordinate departments does possess
it; and its supreme court have accordingly modified and restricted the power of
internal taxation bestowed by the state constitutions on their governments.
This power under the state constitutions was unlimited. It is not limited by
the federal constitution. But the federal court have adjudged, that it is
either necessary or convenient that it should be limited; and for that reason
they have modified it by a precedent sufficient to justify other modifications
of state powers to any extent, upon the ground of possessing an unlimited
supremacy over the legislative and judicial power of the states.
The supremacy we have examined is confined to the constitution, the
laws, and treaties. It is not extended to judicial decisions. Suppose congress
should pass a law declaring such state laws as they pleased, to be
unconstitutional and void. An excessive interpretation of the word "supreme,"
might give some countenance to so evident an usurpation; and as one branch of
the federal legislature is elected by the people, it would afford some
security, however imperfect, against such a prostration of the state
governments at the feet of the federal legislative power. But neither this
excessive supremacy, nor this defective security, plead for lodging the same
unlimited power in the federal courts. Were they to possess it, they might
modify the state governments, in a mode, contrary to the will of congress, as
is exemplified in the case under consideration. In creating the bank of the
United States, congress did not endeavour to prohibit the states from taxing
the property employed in that speculation. Had the state right to do so been
considered in that body, its constitutionality might have been decided in the
affirmative. The court, therefore, in assuming a power to restrain this state
right, may have violated the will both of the federal and state legislature,
and modified the state constitutions, contrary to the judgment of both. The
state law asserted the right, the federal law is silent, and the court imposes
a constitutional rule on both (as if it were itself a constituent or elemental
power,) objected to by one, and never assented to by the other. This outstrips
even the arbitrary principle laid down by the court itself "that the supreme
government may modify every power vested in subordinate governments, to exempt
its own operations from their influence." It will not be asserted that the
federal court is the supreme government, or that it has operations to carry on,
which ought to be exempted from the influence of the subordinate state
governments. If these governments are not subordinate to that court, it cannot
modify their powers, even under its own principle; and if the federal
government possesses this modifying power, it ought to be exercised by
congress, before it can be enforced by the court. The court at most can only
execute, and have no power to pronounce the modification. Congress might have
intended, that the power of taxing the United States bank, like that of taxing
state banks, should remain as a concurrent power, like the other concurrent
powers of taxation. If that body conceived itself possessed of a power to
modify the state power of taxation, it could only do so by its own act, and
that act ought to have been explicit, that the people might, by election, have
expressed their opinion concerning it. But when the modification is expressed by
the court the chief remedy for deciding spherical collisions, and for
restraining each division of power within its own orbit, is wholly evaded, and
completely transferred from the people to the judges.
But, though it should be allowed, that the court derives no supremacy
from that clause of the constitution, which bestows it upon the constitution
itself, the laws and treaties, yet it has been claimed under another. "The
judicial power of the United States shall be vested in one supreme
court, and in inferior courts. The judges, both of the
supreme and inferior courts shall hold their offices during good
behaviour." And in the next clause, this "judicial power of the United
States" is defined and limited. By this clause, a judicial power is tested.
Was it a limited or an unlimited power? It is expressed to be "the judicial
power of the United States." In the second section of the same article, the
judicial power of the United States is expressly defined and limited; and this
defined and limited judicial power, is that which is vested in the supreme
and such inferior courts as congress may from time to time establish. The
word "supreme" is evidently used in reference to "inferior." The supremacy
bestowed is over the inferior courts to be established by congress, and
not over the state courts, either supreme or inferior. This is
manifested by the division of jurisdiction between the supreme and inferior
courts. In cases "affecting ambassadors, publick ministers and consuls, and
where a state shall be a party, the supreme court shall have original
jurisdiction. In all other cases before mentioned the supreme court
shall have appellate jurisdiction." "Before mentioned." Thus expressly limiting
the jurisdiction of the supreme court of the United States, to the subjects
defined in the preceding article. If, therefore, any thing in the federal
constitution is plain enough to be understood, I think we may certainly
conclude, that the word "supreme" was not intended to extend the power of the
federal court in any degree whatsoever. That court by declaring every local or
internal law of congress constitutional, would extend its own jurisdiction; a
limitation of which, attended with a power to extend it without controul, by a
supreme power over the state courts, would be no limitation at all; since the
power of supremacy would destroy the co-ordinate right of construing the
constitution, in which resides the power of enforcing the limitation. A
jurisdiction, limited by its own will, is an unlimited jurisdiction. As a
further evidence of this conclusion, it may be observed, that if this word had
bestowed "a supreme jurisdiction," there would have been no occasion for a
subsequent delegation of jurisdiction to the supreme court; and that, as by the
subsequent jurisdiction bestowed (in the few cases of original jurisdiction
given to the supreme court excepted,) the power of the inferior courts is made
the basis of the appellate jurisdiction, given to the supreme court, it
follows, that if the word "supreme" does not extend the jurisdiction of these
inferior courts, it does not extend the jurisdiction of the supreme court. As
the word "supreme" is not applied to the inferior courts, it cannot invest them
with any power over the state courts. And as the appellate jurisdiction of the
supreme court is limited to the cases before mentioned, of which the
inferior courts can only take cognizance, it cannot invest the supreme court
with any power over the state courts, unless it has also invested the inferior
courts with the same power.
The federal constitution does not say, "that the legislative power shall
consist of one supreme and inferior legislatures;" because it considered the
state and federal legislatures as independent of each other, within their
respective spheres. Had it considered the state legislatures as subordinate to
the federal legislature, the supremacy of the latter would have been declared,
and the subordination of the former expressed, as objects upon which this
supremacy was to operate. If one federal court only had been allowed by the
constitution, the word "supreme" would have been unnecessary. In creating and
specifying the objects, namely, the inferior federal courts, upon which the
supremacy was to operate, all other objects are excluded. The judicial federal
power therefore stands in the same relation to the state judicial power, as the
federal legislative power does to the state legislative power; and if either be
independent of the other whilst acting within its own sphere, both must be also
independent of the other. If congress cannot repeal or injoin state laws, the
supreme federal court cannot injoin or abrogate state judgments or decrees. If
the federal legislative power be limited, the federal judicial power must also
be limited.
For the elucidation of this very important part of the subject, I shall
resort to authorities, as respectable as authorities can be.
Fed. p. 72. M. "The jurisdiction of the general government, is
limited to certain enumerated objects, which concern all members of
the republick, but which are not to be attained by the separate provisions of
any."
Fed. p. 208. M. "The local or municipal authorities form distinct and
independent portions of the supremacy no more subject within their
respective spheres, to the general authority, than the general authority is
subject to them within its own sphere." In the same page, however,
Mr. Madison makes what the lawyers call an obiter observation, that is,
he drops an opinion by chance, apparently without due consideration. "It is
true," says he, "that in controversies relating to the boundary
between the two jurisdictions, the tribunal which is ultimately to decide, is
to be established under the general government" Perhaps I mistake his meaning.
If he mean, "controversies between two state jurisdictions," I admit that their
decision is vested in the federal judicial power. But if, as I confess it
appears to me, he meant "that the federal judicial power was vested with a
right of deciding controversies between itself and the judicial power of the
states," I must with much confidence, yet with great respect, differ with him
in opinion. The point ought to be determined by the constitution itself. Mr.
Madison asserts that, "the jurisdiction of the general government is limited
to certain enumerated objects." Is this case comprised within that
enumeration? Is it said, generally, "that the state judicial sphere shall be
subject to the controul of the federal judicial sphere?" Or is it said,
specially, that controversies as to jurisdiction between these two spheres
shall be decided by one of the parties? Are controversies between the state and
federal legislative spheres to be also decided by one of the parties? Neither
conclusion can consist with the preceding opinion of Mr. Madison, that "the
local or municipal authorities form distinct and
independent portions of the supremacy no more subject within
their respective spheres, to the general authority, than the general
authority is subject to them within its own sphere." However, therefore,
we shift our words or phrases, in describing the powers delegated to the
federal government and reserved to the states; whether we call them sovereign,
supreme, legislative, executive or judicial; they still retain their spherical,
limited, co-ordinate and independent nature, in relation to each other,
according to the construction of contemporary writers of the best
authority.
Fed. p. 456. H. "There is not a syllable in the plan which directly
empowers the national courts to construe the laws according to the spirit of
the constitution, or which gives them any greater latitude in this respect,
than may be claimed by the courts of every state:" Unequivocally rejecting
the idea of judicial spherical subordination.
But this constitutional question is deliberately and distinctly stated,
apparently upon the most profound consideration, in a style, and with a
precision, which it would be presumptuous in me to defend, in certain
resolutions of the Kentucky legislature, passed in the year 1798, said to have
been drawn by Mr. Jefferson, and bearing internally, evidence of flowing from
an enlightened mind. The first is in these words: — "Resolved, that the
several states composing the United States of America, are not united on the
principle of unlimited submission to their general government; but that by
compact under the style and title of a constitution for the United States and
of amendments thereto, they constituted a general government for special
purposes, delegated to that government certain definite powers,
reserving each state to itself the residuary mass of right to their own
self-government; and that whensoever the general government assumes
undelegated powers, its acts are unauthoritative, void and of no
force: That to this compact each state acceded as a state, and is an
integral party, its co-states forming, as to itself, the other party; that the
government created by this compact was not made the exclusive or final judge
of the extent of the powers delegated to itself; since that would have made
its discretion, and not the constitution, the measure of its powers; but, that
as in all other cases of compact among parties having no common judge, each
party has an equal right to judge for itself, as well of infractions as of
the measure of redress." The co-ordinacy of institution, the independence of
each other, and the mutuality of the right of construing the federal
constitution, are thus recognised and asserted, as existing in the federal and
state governments; and the principle, which pervades the whole, must also
pervade the parts. If the entire federal government possesses no supremacy
over, and can require no subordination from the entire state governments,
whilst acting within their respective spheres, no part or department of that
government can exert a supremacy over, or exact a subordination from, the
corresponding parts or departments of the state governments. The federal
legislature having no supremacy over the state legislatures, the federal
judicial power can have no supremacy over the state judicial power. The same
prohibition of such claims, co-extensively forbids to both an enlargement of
power by trespassing on the state sphere or state departments. It arises from
the limited powers bestowed on the legislature and judiciary of the federal
government, and the reservation of the residuary mass of right to the
states.
With this construction, the oath of office prescribed by the federal
constitution is a remarkable coincidence. Both legislators, judges and other
officers, of the state as well as the federal governments, are required to take
an oath to support the federal constitution; but neither federal legislators,
judges nor other officers, are required to take an oath to support the state
constitutions. The reason of this distinction is, that state legislators,
judges and officers, have some duties assigned to them by the federal
constitution, and would necessarily have others, arising from the laws of the
United States; but, that federal legislators, judges or officers, having no
duties to discharge under the state constitutions or laws, but being confined
within the limited spheres defined by the federal constitution, no allegiance
to state constitutions was necessary on their part. I cannot imagine a power
more inconsistent with republican principles in general, and with ours in
particular, than that claimed over the state laws, and consequently over the
state constitutions, by the supreme federal court. It is under no obligation or
responsibility of any kind to respect either. If it should violate its
legitimate federal or spherical duties, it violates its oath; and is liable to
trial and removal from office. But, in virtue of its supposed supremacy over
the state courts, it might be tempted to annul state laws, to advance the power
of congress, by whom it is paid and tried; and it might alter the institutions
of the people according to its own pleasure, without even breaking an oath. The
case is analogous in all its aspects to the claim of the British parliament,
neither bound by an oath, nor elected, nor paid, nor removable by the people of
the colonies, over the legislatures of these colonies; which were elected, paid
and removable by the people, and also bound by an oath. A judicial power,
though under the obligation of an oath, paid by the king of England, was justly
considered in Massachusetts, as an outrage upon the principles of justice and
liberty. It was a feather to one, created by and accountable to a native
distinct government, emulous (as is the nature of man) of power, possessing a
supreme power, over the laws of a collateral government, without being under
any influence or responsibility to observe those laws.
But cannot judges declare unconstitutional laws void? Certainly.
Constitutions are only previous supreme laws, which antecedently repeal all
subsequent laws, contrary to their tenor; and the question, whether they do or
do not repeal or abrogate such subsequent laws, is exactly equivalent to the
question, whether a subsequent repeals a previous law. Therefore, judges,
juries and individuals have a correspondent power of deciding this question in
all legitimate occurrences. But the constitutionality of state laws cannot
legitimately be decided by the federal courts, because they are not a
constituent part of the state governments, nor have the people of the state
confided to them any such authority. They have confided it to the state courts,
under the securities of an oath, and of various modes of responsibility. The
people also have confided to the federal courts a power of declaring an
unconstitutional federal law void, under similar securities; but where such a
power is neither bestowed by the people, nor any security against its abuse
provided, its assumption by inference is repelled by the absence of every
regulation for moderating its exercise. In fact, the spheres of action of the
federal and state courts are as separate and distinct, as those of the courts
of two neighbouring states. Because the judges of each state are empowered
under certain regulations to declare a law of their own state void, it does not
follow, that the judges of another state can abrogate it. The federal judges
owe no allegiance to the state governments, nor are more a component part of
them, nor are more responsible to them, than the judges of a different state.
Ramsay's United States, Vo. 1. p. 202. "Great Britain contended, that her
parliament, as the supreme power, was constitutionally invested with an
authority to lay taxes on every part of the empire." "If the British
parliament, said the colonies, in which we are unrepresented, and
over which we have no controul, can take from us any part of our
property, they may take as much as they please, and we have no
security for any thing that remains." p. 303. "That by the novel
doctrine of parliamentary power, they were degraded from being the subjects
of a king, to the low condition of being subjects of subjects." p. 306.
"Where parliamentary supremacy ended, and at what point colonial
independence began, was not ascertained." p. 307. "The omnipotence
of parliament was so familiar a phrase, that few in America, and still
fewer in Great Britain, were impressed, in the first instance, with the
illegality of taxing the colonies." Let us parody this quotation. The federal
court contends, that as the supreme power, it is constitutionally
invested with an authority to abrogate state laws, and contract state revenue.
If, say the states, this court, over which we have no controul, can take
from us any law, or any revenue, it may take away as many or as much
as it pleases, and we have no security for retaining any. By the
novel doctrine of federal judicial supremacy, we are degraded from the
right of internal self-government, to the low condition of being subjects of
subjects. Where the federal jurisdiction ends, and where state
jurisdiction begins, is ascertained by the federal constitution, but the
omnipotence of federal supremacy, legislative and judicial, may become
so familiar a phrase, that few may be impressed, in the first
instance, with the consequences to which it tends, or the evils in which it
may terminate.
The first instance of a spherical supremacy which I recollect, was the
claim of the treaty-making power, to bind the taxing or legislative power, by
stipulating in a treaty for the payment of money. This was a dispute between
two federal political spheres; but the principles, upon which it has been or
must be settled, are those by which the rights of the federal and state
political spheres can alone be ascertained. In both cases, to find where powers
begin and end, we must either conclude; that one sphere cannot be let into
another under a claim of supremacy, or by any verbal construction, so as to
abridge rights bestowed by the constitution; or concede, that the constitution
has unsuccessfully attempted to establish divisions of power between political
departments. The federal legislative and treaty-making powers are obviously
more interwoven with each other, than the federal and state powers delegated
and reserved; yet the federal legislature would not be at a loss to find limits
for the treaty-making power, nor to discern the powers confided by the
constitution to itself. As the federal legislative sphere may justly deny to
the treaty-making power, a right to abridge the powers delegated to itself by
the constitution, under a claim of supremacy, or by any species of
construction; so, the state spheres may justly deny to the federal legislative
or judicial spheres, a right to abridge by similar modes the powers reserved to
them. Suppose the treaty-making power should stipulate with England to declare
war against France; would that deprive congress of the right of preserving
peace, with which it is invested by the constitution? Suppose in like manner
that congress should stipulate with a corporation by one of those laws called
charters (in awkward imitation of monarchical sovereignty,) that its property
should not be liable to state taxation; can that deprive the states of a right
as distinctly given to them by the constitution, as the right of declaring war
is given to congress? Previously to an incorporation, its funds, of whatever
species of property composed, were by the constitution subjected to state
taxation. Could congress or the supreme court have exempted this property,
directly, from the state constitutional right to tax it? If they could not, can
they do it by the circumlocutory contrivance of using two words "corporation
and charter;" neither of which is recognized by the constitution? Gases might
be stated to shew, that there are many objects within the reach of a supreme or
sovereign treaty-making power, to which ours does not extend; such as,
stipulating to keep on foot standing armies; to raise armies and navies as
foreign auxiliaries against nations with whom we are at peace; or to destroy
the union by ceding states to form a kingdom for some foreign prince; and these
powers may as correctly be implied because they are not prohibited, as the
powers of supremacy claimed by congress or the court. If we must resort to the
obvious ends, the general texture, and the special divisions and limitations of
the constitution, to avoid these violations of its positive principles, by a
treaty-making supremacy; the same remedy exists to defeat the evils, equally
indefinite, which would arise from any other spherical supremacy. We have a
multitude of political spheres, state and federal; and if the orbit of one does
not terminate where that of another begins, I am unable to discern any
boundaries between them, so convenient or necessary for preventing a
political chaos. If either of these spheres may create corporate political
spheres, capable of corrupting, or of diminishing the powers of constitutional
spheres, the musick, after which we have been dancing for almost forty years,
will I fear become so harsh, as to make us weep. The licentiousness to which
construction may be carried is remarkably exemplified, by its attempts to
invert the climax of supremacy, established by "the constitution of the United
States." "The constitution, the laws made in pursuance thereof, and the
treaties made under the authority of the United States, shall be the
supreme law of the land." Under this clause, treaties have aspired to a
supremacy over laws, and laws to a supremacy over the constitution, though both
the legislative and treaty-making spheres have no powers, except those given by
the constitution, and are limited by the authorities it bestows. It would seem
therefore perfectly plain, that neither is invested with a supremacy, able to
justify an abridgment of a power given by the constitution to the state
spheres, and that these may resist such attempts, upon the same ground that the
legislative federal sphere resists an attempt of the treaty-making sphere to
abridge its constitutional rights.
The argument of the court may be thus condensed. The federal and state
governments have limited powers under the federal constitution. The powers of
both are attended by such a portion of spherical sovereignty, as is necessary
or convenient for their execution. Sovereignty can legitimately use the means
it may choose, for the execution of the powers it legitimately possesses. So
far nothing is gained; because the sovereignty bestowed, and the means it may
use, are limited by the spheres of action bestowed upon each government. But
the difficulty is gotten over, and the court's own argument overthrown, by
thrusting the word "paramount" into the constitution. The mutuality and
equivalence of the spherical sovereignties allowed to the state and federal
sovereignties is revoked; and one is made an absolute sovereign over the other,
by a construction of the word "supreme" and an interpolation of the word
"paramount;" which must be unconstitutional, if the limited spherical
sovereignties, previously assigned to each, are sustainable by a correct
construction. To say the most for "paramount and supreme," they are only
tautologies of "sovereign;" and being so, shed no new light upon the case. Had
the court declared, that the federal and state governments were each paramount
and supreme, within their respective spheres of action, it would have only been
a repetition of its assertion, "that they are each sovereign, within their
spheres of action."
The reader perceives that the enquiry is reduced a plain question. Is
our system of government founded in the principle of co-ordinate political
departments, intended as checks upon each other, only invested with defined and
limited powers, and subjected to the sovereignty, supremacy, paramount power,
superintendence and controul of the people; or in the principle of a supremacy
in the federal legislature or judges, with its concomitant controul over the
state legislative and judicial departments? If the division of powers among a
great number of political departments, endowed with rights independent of each
other, constitutes its chief beauty, its distinctive superiority, and its
soundest security for human happiness; then the absence of supremacy or
sovereignty in one department over the rest does not require the expedient of
shuffling words and phrases for the purpose of getting rid of an imaginary
defect, by introducing the very evil intended to be avoided. If words are to be
tortured or borrowed, let it be done to sustain, not to subvert the essential
principles of our political system; if we continue to love that, which other
nations admire. Should congress assume a paramount or supreme power over the
state governments, it would acquire the authority of the people themselves,
naturally possessed, never transferred, specially reserved, and necessary for
the preservation of their liberty. Even the English monarchy derives all its
eulogies, and owes all its benefits to the want of supremacy and subordination
between its political spheres, and to the collisions which their absence
produces. By extending the same principle, our system of government has
obtained greater eulogies, and diffused greater blessings. Of these eulogies
and blessings, the checks and collisions between several legislative branches;
between legislative, executive and judicial departments; and above all, between
the federal and state governments, are the sources. To this principle we owe
the valuable judicial right of restraining legislatures within their
constitutional powers. To the same principle we have resorted for the same
purpose, by dividing powers between the federal and state governments. Are the
state spheres less respectable than the supreme court, or less able to restrain
congress within its limits, that they must be doomed to subordination because
of the great powers of the federal legislature; whilst the court feel their
capacity and avow their resolution to controul these powers, if
unconstitutionally exerted? If congress in consequence of the great power of
the federal government possess a supremacy over the state governments, what
must be the power of the court, which claims a supremacy over congress? As
supremacy has been found to govern sovereignty, it is necessary to find some
word, by which the court can govern supremacy. By turning our attention from a
complexity of words and phrases, to the true principles of the federal
constitution, we shall find one by which the federal court, feeble as it is, is
able to controul the federal legislature, powerful as it may be; a principle, in
which the court confides so firmly, as to express its prowess for vindicating
its spherical right. Feeble also as the state governments may be, they are
protected by the same power upon which the court relies, and have no reason to
be less firm and loyal in discharging the duties with which they also are
entrusted. The strength of the government lies in the people. They are the
protectors and supervisors of the collateral political spheres, which they have
created. If one of these spheres could acquire sufficient power to controul the
others, it would, like an officer of a monarch, who can controul all the other
officers of the government, obtain a supremacy over the monarch himself; as
many prime ministers of kings have actually done. Every inference deducible
from the inconvenience of conflicting powers, and every reason in favour of a
regular series of political subordination between the several departments of a
government, applies as forcibly against the check of one legislative chamber
upon another, and of judicial upon legislative power; as against mutual checks
of the federal and state governments upon each other; and to supply, what the
reasoning of the court craves, the whole system of division and limitation of
power must be destroyed. If it should make a breach at one point upon this
principle, especially at the strongest, there can either be no talisman able to
save the weaker from destruction, or there is one upon which the strongest may
rely.
I cannot discern any difference between a supremacy in one man, or in
one political department; between a singular or a plural absolute power. The
divine supremacy both of kings and of popes have been limited by the more
divine supremacy of human nature. Neither the uniformity of religion, nor a
complete subordination of one civil department to another, has, by any modern
writer of credit, been considered as equally beneficial to mankind, with the
principle of limiting power, whether it be entrusted to one person, or to a
political department. The bulls of the pope claimed supremacy; but the conclave
of cardinals claimed and exercised a supremacy over these supreme bulls; and
the Roman catholick countries found it necessary to limit both these
supremacies. The laws of congress claim a general supremacy, but the supreme
court claims and exercises a supremacy over them; and the division of powers by
the constitution, like the catholick nations, possesses a right to limit, and
has limited both these supremacies also. The supremacy of the pope, and of the
kings of England, waged a long war against the sovereignty of nations and the
rights of human nature, claiming a power to remove all obstacles which should
impede its will, and to exempt its operations from controul; but the war of
these allies terminated in their defeat. The supremacy of congress and of the
court, in alliance also, has declared war against the sovereignty of the
states; but how it will terminate, is hidden in the womb of time. We must
enlist either under the banner of spherical supremacy or of a limitation of
political power.
Previously to the union, the states were in the enjoyment of sovereignty
or supremacy. Not having relinquished it by the union, in fact having then
exercised it, there was no occasion, in declaring the supremacy of the
constitution and laws made in pursuance thereof, to notice that portion of
state supremacy, originally attached to, not severed from, and of course
remaining with the powers not delegated to the federal government; whilst it
was necessary to recognize that other portion of supremacy, attached to the
special powers transferred from the states to the federal government. But, by
recognizing the supremacy transferred, it was not intended to destroy the
portion of supremacy not transferred. The supremacy retained, and a choice of
means convenient or necessary for the execution of the powers reserved, was as
indespensable an appendage of state rights, as of the limited powers delegated
to congress. And in fact the unqualified supremacy, bestowed upon the
constitution, is equally a guaranty of state and of federal powers, as is
demonstrated by the positive limitation of the supremacy bestowed on federal
laws, to such as were conformable to the restricted legislative power, created
by the constitution. Suppose a state should declare war, tax imports, or
regulate commerce; or, that congress should tax exports, alter the course of
descents, or liberate the negroes; would these be questions of supremacy,
unconnected with the powers actually delegated and reserved? If not, supremacy
is limited by these powers, and cannot extend them. In like manner, neither the
federal nor state courts, can under colour of supremacy, exceed its own sphere.
If one should assume admiralty jurisdiction, and the other the distribution of
intestates' estates, the party usurping could not constitutionally defend its
usurpation under colour of supremacy. Unconstitutional judgments, like
unconstitutional laws, are null and void, and both courts are mutually bound by
their oaths to the constitution, and have a mutual right to resist and defeat,
by every means in their power, unconstitutional laws, falling within their
respective jurisdictions. Had an oath of loyalty, not to the constitution, but
to the supremacy of one court, been imposed, it might have been otherwise. An
exclusive right in either to ascertain the extent of its own jurisdiction would
leave its jurisdiction without limits, and the rights of neither judicial
sphere can be defended against the other, except by using all the means it
possesses; just, as a senate and house of representatives can only defend their
respective constitutional rights. The supremacy of the constitution is not
confined to any particular department or functionary, but extends to our entire
system of political law. Under its protection, the federal senate has a right
to defend itself against the house of representatives; and the federal judicial
power against the federal legislative power; and if so, it seems impossible to
doubt, that the same sanction invests the state and federal judicial powers
with a mutual right of self defence, against the aggressions of each other.
I renounce the idea sometimes advanced, that the state governments ever
were or continue to be, sovereign or unlimited. If the people are sovereign,
their governments cannot also be sovereign. In the state constitutions, some
limitations are to be found; in the federal constitution, they are infinitely
more abundant and explicit. Whatever arguments can be urged against the
sovereignty of state governments, stronger can be urged against the sovereignty
of the federal government Both governments are subjected to restrictions, and
the power by which both were constituted has entrusted neither with an
exclusive power of enforcing these restrictions upon the other, because it
would have conceded its own supremacy by so doing, and parted with its inherent
authority.
No derived power can be greater than the primitive power. No state, nor
a majority of states, had any species of primitive sovereignty or supremacy
over other states. Elections by states, therefore, cannot confer upon a
majority of congress a supremacy never possessed by a majority of states,
especially as from the form of the senate, the representatives of a minority of
people may pass a law, and this representation of the minority might, if it
possessed a legislative supremacy, exercise a sovereign power over the
majority. If federal legislatures do not possess an absolute supremacy, federal
judiciaries cannot possess it, since judgments cannot enforce that which is not
law. In conformity with this reasoning, neither federal legislative majorities,
nor a majority of the states, can amend the constitution, because it was a
compact by which each state delegated for itself only limited powers to the
federal government; attended by a supremacy not of any political sphere, but of
the constitution, limited and confined to the powers delegated, and not
extending to the portion of primitive state supremacy, never delegated. Thus it
happened, that no state was bound by the constitution, until it had acceded
individually to that compact. And hence it results, that the right of
construing the constitution within their respective spheres, is mutual between
the state and general governments, because the latter have no supremacy over
the state powers retained, and the former no supremacy over the federal powers
delegated, except that which provides the stipulated mode for amending the
constitution.
It is objected, that if the supreme federal court do not possess an
unlimited or unchecked supremacy in construing the constitution, clashing
constructions will ensue. This is true; and yet it is not a good reason for
overturning our system for dividing, limiting and checking power, if that
system be a good one; and if it be even a bad one, the people only, and neither
one of their departments separately, nor all united, can alter of amend it. The
objection applies as strongly to the other departments of our government, as to
the judicial. If the federal legislature and executive do not possess an
absolute supremacy over the state legislatures and executives, clashing
constitutional constructions will ensue. The jurisdiction of the federal
judicial power is as expressly limited, as the legislative and executive
federal powers. There is no judicial supremacy recognized in the supreme
federal court, except that over inferior federal courts. And, if the supremacy
of the constitution bestows upon any federal department a supremacy over the
correspondent state department, it must bestow upon every federal department, a
similar supremacy over the other correspondent state departments.
It is therefore obvious, that the subject proposed by the objection for
consideration is, whether it is better to abandon our primary division of
powers between the state and federal governments, to prevent clashing
constructions; or to retain this chief security against a gradual introduction
of oppression, trusting to the mutual prudence of these governments, and the
supreme authority of the people, for meeting the inconvenience, as it appears.
The greatest scope of human wisdom is, to compare evils and choose the least. I
cannot discern the wisdom of one who cuts off his head, lest his face should be
scratched occasionally as he journeys through life. Montesquieu has somewhere
said, that when the savage of America wants fruit, he cuts down the tree to
obtain it. Shall we act with still less foresight, by cutting down the division
of power between the general and state governments, calculated to produce the
fruit of moderation in both, that one may cram us with the fruits of supremacy?
How or when have co-ordinate political spheres existed, with a supremacy
in one over the others? The idea involves a contradiction. Indeed, the regal
sphere in England has often attempted to reconcile it in various ways, and with
temporary success. Henry the 8th exercised a supremacy over the two other
spheres (at length by rebellions and civil wars rendered co-ordinate,) strongly
resembling that now claimed over the state spheres; and the blessings reaped
from his success, and the success of his daughter Mary, and of the Stuarts, in
removing the evil of clashing powers, by the help of supremacy, were such as we
shall reap by pursuing the same policy. It is very true, that the federal and
state courts may occasionally carry on little wars with the weapons called
injunction and habeas corpus, which both have an equal right to use; but then
these weapons cannot shed blood, confiscate property, nor burn hereticks, as
supremacy has frequently done; and besides, the states can at any time force
the combatants to lay down their arms.
The mutuality of the right of construction in the several departments of
the state and federal governments, was the reason, which suggested the section
of the constitution of the United States requiring that, "the senators and
representatives in congress, and the members of the several state
legislatures, and all executive and judicial officers, both of the
United States, and of the several states, shall be bound, by oath, or
affirmation, to support the constitution." The mutuality of the oath, by
imposing a common duty, implies a common right; because the duty cannot be
discharged, except by exercising the right of construction. To impose the duty
by the highest sanction, and yet to have impliedly designed that its
performance should be rendered null and void, by a constructive supremacy in
one political sphere over the others, would amount to the same thing, as if the
oath had been, that the enumerated spheres should be subordinate to one,
invested with a supremacy over the rest Would this latter have been equivalent
to the actual oath? If not; can a construction by which it is substantially
enforced, be correct? By the actual oath, the constitution, in conformity with
its great principle of a division and co-ordinateness of powers between the
state and general governments, divides also its confidence for its own
preservation. The same confidence is divided by the special powers invested in
the states and in the general government for its execution. If the oath binds
the federal judicial power to disregard a mandate from a state judicial power,
prohibiting the exercise of its constitutional powers; it also binds the
judicial power of a state, to disregard a similar mandate from the judicial
power of the union; and compels both to protect the officers and individuals
upon whom their respective jurisdictions may operate: otherwise, one
jurisdiction may supersede the other. This would be certainly a greater evil,
than even a necessity for a reference to the people to settle a collision.
If a greater sphere of action conferred supremacy according to the
constitution of the union, and if the federal government possesses the greater
sphere of action, (the positions upon which the court relies as justifying its
decision,) where was the necessity for declaring the constitution and the laws
made in pursuance thereof to be the supreme law of the land? The
supremacy had passed, as the court asserts, attached to the greater sphere of
action. If it was attached to this greater sphere of action, it is not bestowed
by this clause; and yet this clause is referred to by the court, as auxiliary
to their implied supremacy. In the several mixtures of truth and error to be
found in the opinion of the court, this has been managed with the most
ingenuity. The supremacy expressed has been united with the supremacy implied,
without any examination of the nature of the first, or of its great difference
from the latter. A government of laws and not of men, is a definition of
liberty; a government of men and not of laws, of despotism. The expressed
supremacy asserts the first principle; the implied supremacy of the men
composing the legislative or judicial federal departments, asserts the second.
By blending them, their extreme contrariety is endeavoured to be obscured; and
the clause conferring supremacy on the constitution and the laws made in
pursuance thereof, is very ingeniously changed from a restriction, into an
amplification of power. Yet it is under the supremacy conferred upon the
constitution by this very clause, that the federal judicial sphere exercises a
controul over the federal legislative sphere in the case of unconstitutional
laws, because the difference between a supremacy of the constitution and a
supremacy in congress, is manifest; whilst the same court insists upon a
supremacy in congress over the powers reserved to the states, and denies to
congress a supremacy over the powers delegated to itself. This seems to me to
be obviously incorrect, because I consider the constitution to have derived
from this clause an absolute supremacy for the preservation of the powers
reserved to the states, as well as of those delegated to the general
government; and not as bestowing on any one sphere, state or federal, an
exclusive right to ascertain the extent of those powers; such a right being in
fact a despotism of men.
Important as this subject is, to avoid prolixity, I shall overlook
sundry features of the constitution, and only add a few observations to those
already urged. A union of states clearly admits the sovereignty and equality of
the parties uniting. A union does not, as a consequence of union, tacitly and
impliedly, reduce these sovereign and equal parties to subordinate
corporations; because in that case, they could not alter or dissolve the union,
without the consent of the power, to which they would be subordinate. The
federal government is allowed by the court to be limited. Can it be limited by
a power subordinate to itself, or is it only limited by the didactick lessons
of the constitution? The Federalist speaks of the jealousy which would arise
between the federal and state governments, because they would be mutual checks
upon each other, as co-ordinate powers always struggle for sovereignty; and of
the great security for a free government, arising from this feature of the
constitution. But a paramount or supreme power in congress obliterates this
feature. And of what avail is a preceptive limitation, bereft of the co-ercive
resource for its execution? If congress be a paramount or supreme judge of its
own legislative power, its power is unlimited. We have no conception of an
unlimited power, beyond one, limited only by its own will. If the jurisdiction
of the supreme federal court is limited only by its own will, it is in like
manner unlimited. Power can never be checked by itself, or by its own
subordinate instrument. The constitution certainly intended to invest the
legislative and judicial spheres of the federal and state governments, with
distinct and independent objects of legislation and cognizance; but, these
mutual rights however clear can never be preserved, if one party possesses a
supremacy over the other, and the other, no power of resistance. Mr. Locke has
somewhere said, "that no man has a right to that, which another has a right to
take from him." The art of melting up brass with gold, and calling the whole
mass gold, is not a new one. When good and bad principles are thus fused
together, it requires some intellectual chymistry to separate them. The court
say, "the result is a conviction that the states have no power by taxation or
otherwise to retard, impede, burden or in any manner controul, the operations
of the constitutional laws enacted by congress to carry into execution
the powers vested in congress. This we think the unavoidable consequence of
the supremacy which the constitution has declared." The supremacy which the
constitution has declared! This phraseology conveys a different idea from "the
supremacy of the constitution." The foregoing part of the extract only amounts
to an assertion, that congress have a right to pass constitutional laws, and
that the states have no right to resist them. So far the metal is pure. But,
instead of declaring that these conclusions result from the powers delegated to
congress and prohibited to the states, they are said to be "an unavoidable
consequence of the supremacy which the constitution has declared;" as if it had
declared any species of supremacy to which it was itself subordinate. Here lies
the essence of the question, and here the court are silent. They have not
informed us, whether the declared supremacy created a sphere able to legislate
or to judge unconstitutionally; nor pointed out the remedy, in case any such
sphere should attempt to do so. There is no such question as the court have
stated, namely, whether constitutional laws are supreme or obligatory. The
true question is, whether any one political department is invested with a
supreme power of deciding, what laws are constitutional, and of course
obligatory. Now, if the supremacy of the constitution be really the declared
supremacy, the court ought to have ascertained the objects upon which it was
intended to operate, in order to decide this true question. These undoubtedly
and principally are both the state and federal political departments or
spheres, all of which being themselves subordinate to the declared supremacy of
the constitution, no one could derive from that declaration a supremacy over
the rest; and what would be still more absurd, a supremacy over the
constitution itself, which would be involved in an exclusive right of deciding
upon the constitutionality of laws or judgments. The declared supremacy of the
constitution embraces the rights reserved to the states, as well as those
delegated to the federal government; and therefore, if the administrators of
the delegated rights derive from it any species of supremacy, the
administrators of the reserved rights must derive from it the same species of
supremacy, because both are guaranteed by the same sanction; namely, the
supremacy of the constitution.
That the phrase "the supremacy which the constitution has declared" was
intended by the court to convey a very different idea from "the supremacy of
the constitution," is demonstrated by the following quotation from its opinion.
"That the power to tax involves the power to destroy; that the
power to destroy may defeat and render useless the power to create; that
there is a plain repugnance in conferring on one government a power to
controul the constitutional measures of another, which other, with
respect to these very measures, is declared to be supreme over that which
exerts the controul, are propositions not to be denied." . And yet I think
that all of them are deniable or of no weight It is denied, that the federal
government is declared to be supreme over the state governments. It is even
denied, that the federal government is declared to be supreme in the exercise
of its constitutional powers, any farther than the state governments are
declared to be supreme in the exercise of their constitutional powers.
It is contended, that the constitution, and not either of these governments is
declared to be supreme, and that its supremacy is an equivalent guaranty of the
division of powers it has made. And it is concluded under the arguments
previously urged, that the repugnance to the constitution is exactly the
same, whether the federal government shall controul the constitutional measures
of the state governments, or the state governments shall controul the
constitutional measures of the federal government. It was to prevent evils thus
repugnant to the nature of the constitution; that the powers of each were made
co-ordinate, and a mutual right of construction delegated and reserved. If the
remedy be defeated, the repugnance follows. The propositions "that the power to
tax involves the power to destroy, and that the power to destroy may defeat and
render useless the power to create," appear to me to be both incorrect and
irrelevant. Shall not civil government tax, because a power to tax may destroy?
Have not both the state and federal governments a power to tax; can they
therefore destroy? Does not our political system contain remedies against an
abuse of the power to tax? Can either government destroy by unconstitutional
laws or usurpations? If we have legitimate modes of preventing it, why should
an apparition terrify us into an abandonment of these modes? May not a power in
the federal government to destroy state laws, defeat and render useless, the
state power to create laws? May it not defeat and render useless, the power of
the states to create a new constitution? How does a power to destroy, defeat
and render useless a power to create? Is not the destruction of the old, and
the creation of our new confederation, a refutation of the assertion? Did not
this power reside, and does it not yet reside in the states? Is it not
recognized by the constitution? Has not the constitution by this recognition,
and by depending on the states for senators, and other materials for sustaining
the federal government, admitted the state power to destroy and create? If the
states have this power, where is the danger of their exercising it indirectly
by opposing a constitutional law of congress? On the contrary, is not their
acknowledged power over the constitution, a security for a temperate and
conscientious opposition to unconstitutional laws? These general propositions,
therefore, do not prove their conclusion of a supremacy in the general
government over the state governments; but the first however irrelative in its
present shape, may, by a small alteration be rendered extremely applicable. A
power to prohibit a government from taxing involves the power of destroying
that government. If congress may take from the states, by virtue of the
spurious supremacy assigned to it, one object of taxation; they may take away
all; and I know of no better weapons to be employed by co-ordinate powers,
always struggling for supremacy, than a right in one and not in the other, to
withdraw, from its competitor, by corporations, subjects of taxation.
But this argument is foreseen and opposed in the opinion of the court.
That opinion declares, that "all subjects over which the sovereign power of the
state extends are objects of taxation; but those, over which it does not
extend, are upon the soundest principles, exempt from taxation. The sovereignty
of a state extends to every thing which exists by its own authority, or is
introduced by its permission; but does not extend to the means employed by
congress to carry into execution powers conferred on that body by the people of
the United States. We find on just theory a total failure of the original right
to tax the means employed by the government of the union, for the execution of
its powers. The principle for which the state of Maryland contends, is capable
of arresting all the measures of the general government, and of prostrating
it at the foot of the states." If I understand the assertions of this
extract, (as to which I am extremely doubtful,) they either apply against the
paramount or supreme power claimed for the federal government, or are incorrect
in point of fact "All subjects, over which the sovereign powers of the state
extends, are objects of taxation." Whether sovereignty be natural or
conventional, I have endeavoured to prove, that it resides in the people of
each state. The conventional sovereignty created in each state, embraced and
extended to every species of property, real, personal and mixed.
Therefore, property of every kind was an object of taxation before the
confederation. Have the states relinquished by that compact a right to tax any
species of property, except imports and exports? If not, as the sovereignty
of the states extends to all internal property, and as all objects to
which it does extend are objects of taxation, a conclusion adverse to the
conclusion of the court is unavoidable. To avoid it, the court subjoin, that
which they seem to consider as a new and explanatory position. "The sovereignty
of a state extends to every thing which exists by its own authority, or is
introduced by its permission; but does not extend to the means employed by
congress to carry into execution powers conferred on that body by the people of
the United States." The first member of this assertion is merely a repetition
of the idea of sovereignty, as whatever it extends to, may be said to
exist by its authority. Hence, the observations just urged apply to this
modification of the same idea; to which it may be added, that property, so far
as it is a conventional or social right, may be said to exist by the
authority of the sovereign power, with peculiar propriety. So far, the
positions of the court seem to be conclusive against its decision. But here a
new, authoritative, and unconsequential assertion is advanced. "The sovereignty
of a state does not extend to the means employed by congress to carry
into execution the powers conferred on that body by the people of the United
States." What! not if these means contract or destroy the state sovereign right
of internal government? It is difficult to discern, what is meant by the
inexplicit word "means," nor could any have been selected, more suitable for
establishing a precedent without limits, and a judicial supremacy without
controul. If it includes men or property, so far as congress may employ either
as means for executing its powers, then the assertion is incorrect; because,
the sovereignty of the states does extend both to men and property thus used as
means, If a federal judge commits a crime or incurs a debt, he is
amenable to the jurisdictions of state sovereignties. All resident federal
officers are liable to pay a state poll tax, and the taxes imposed for
supporting the poor, and keeping up roads and bridges. The property, real and
personal, of all these descriptions of persons, to which we may add the
president and members of congress, is liable to state taxation, and their
persons exposed to state jurisdictions. Are none of these persons means
employed by congress? If they are, where is the distinction to be found in our
system of government, under which all the means expressed, to be employed for
its own execution, imports excepted, are left as they were found, exposed to
state sovereignty, by which under cover of implied means, congress may remove
either persons or property, beyond the reach of state sovereignty; and liberate
them from its cognizance, whilst both, themselves and their property remained
subordinate to it? Are bankers more worthy means to be employed for
executing the constitution than judges?
But, suppose we admit "that the state sovereignty does not extend to
means either expressed or implied, employed by congress," and allow that
banking may be correctly numbered among the latter; I would ask, whether it is
the persons or the property of the bankers, which are thus absolved from state
allegiance, and excluded from state jurisdiction? If the former, they may be
killed with impunity; if the latter, it may be plundered without redress. The
federal government have no jurisdiction as to local wrongs, and the states can
have no jurisdiction as to objects over which they have no sovereignty. If,
however, they do possess a sovereignty, able to protect persons and property,
though employed by congress as means to effect ends, that sovereignty extends
to taxation, as protection and contribution are reciprocal political
principles, and it would be unjust to the rest of society, to establish a
sub-society, entitled to the one and absolved from the other.
Far from admitting, however, a position which would produce such
consequences, I contend that the state sovereignty extends to all the means
which congress can employ. It is necessary to protect the lives, the limbs, and
the reputations even of the standing army; and to secure every atom of
property, from which the federal government can extract resources. Except for
the protection of state sovereignty, even imposts would fail. Whatever is not a
subject of a sovereignty, is not entitled to its protection. Congress cannot
pass a municipal law to protect persons or property, because the federal
government is in no respect a sovereignty. Private property exists by, and is
subject to state sovereignty. With this opinion the Federalist, formerly
quoted, when explaining the concurrent power of the state and federal
governments, as means for effecting the ends respectively confided to them,
explicitly concurs. To me it seems, that the two governments are designedly
blended and interwoven with each other, that each may contribute towards the
preservation of the other; and that a claim of independence, sovereignty or
supremacy, in favour of one, is unfriendly to the federal constitution in
general, and to the federal government in particular. If this be true, is there
not something invidious and reprehensible in this expression used by the court?
"The principle for which the state of Maryland contends, is capable of
arresting all the measures of the general government, and of prostrating it
at the foot of the states." Without enlarging upon the fact, that the
federal government is dependent upon the states for its existence, this
principle may be compared with that contended for by the court The state of
Maryland contends for its original and reserved right to tax property. The
court asserts, that congress by creating corporations may diminish or destroy
the state resource for raising revenue, co-extensively with its own pleasure.
By the first principle, the pecuniary resources for sustaining the federal
government are untouched; by the second, those of the states become dependent
on the federal government. By the first, the power of both governments, either
original or delegated, as to revenue, remains concurrent; by the second,
congress assumes a power of placing whatever property it pleases beyond the
reach of contribution for the support of either. By the first, a sovereignty
which created private property, retains its rights; by the second, a right is
claimed on behalf of a spurious sovereignty to create private property, or
rather to rob the legitimate sovereignty of that which it had previously
created. If congress be indeed a limited sphere, as the court admit, it can
neither create private property, nor absolve it from taxation, because these
are attributes of sovereign, and not of limited spheres. Let the reader
consider whether the principle of the court is not capable, in theory, of
arresting all the measures of the state governments and prostrating
them at the foot of congress. I say in theory, because I trust that in
practice, all efforts for rendering these departments, equally necessary for
our liberty and prosperity, jealous of, or hostile to each other, will be
unsuccessful; and that both will cultivate, not the means of acquiring a
paramount or supreme power over each other, but those for advancing the publick
happiness.
But the court, instead of confiding in the arguments which I have
attempted to examine, endeavour to supersede them all, by observing that "the
legislature of the union can be trusted by the people with the power of
controuling measures which concern all, with the confidence that it will
not be abused." Can be trusted by the people! The reiterated attempts to
distinguish between the people and the states, to sooth and flatter the former
by compliments to their elective sagacity, and by insidious blandishments to
seduce them from the substantial ground of checks and balances, into the
intricate and slippery paths of passion and confidence, are sufficient to
awaken all the vigilance of those who believe, that power must be divided,
limited and controuled, to keep it within bounds. In its every stretch, it
uniformly solicits the popular confidence by protestations of integrity and
promises of moderation. But, in considering the rights under the constitution
of the federal and state governments, an estimate of the confidence due to
either is certainly inapplicable to the subject, and productive of a
malevolence, to be deprecated as the greatest national misfortune. Shall we
exchange our constitutional compact, for a succession of artifices to win
popular favour, or to take advantage of popular folly? Is not an appeal from an
investigation of constitutional principles, to an estimate of fluctuating
popular confidence, an acknowledgement of diffidence in the arguments
previously advanced? If, however, a scramble for popularity is to be
substituted for a limitation of powers, let us beware how we stake the federal
government upon the event of the confusion. Mr. Madison, p. 252 of the
Federalist, has observed, that "the powers delegated to the federal government
are few and defined. Those, which remain to the state governments, are numerous
and indefinite, and extend to all the objects which, in the ordinary
course of affairs, concern the lives, liberties, and properties
of the people." And in page 251, "the state governments may be regarded as
constituent and essential parts of the federal government; whilst the
latter is in no wise essential to the operation or organization of the former."
The reader will see in these quotations an affirmation of the principles for
which I have contended in this section; and he will also discern, that the
popular confidence has been extended in a greater degree to the state than to
the federal government, both in the mass of powers bestowed, and also in the
dependence upon the former to which the latter is subjected. I forbear to
enumerate the advantages which the states possess in this struggle for
confidence, because I earnestly hope that the ever-to-be-avoided contest will
never occur. They are perhaps too copiously remembered in the book last quoted.
Let me, however, remind the reader, that the same book describes the superior
sagacity and intelligence of the state legislatures, for detecting and
repelling artful and insidious violations of the federal constitution, as a
feature of our political system, most happily contrived to prevent the bad
effects universally experienced from tornadoes of antipathy, affection,
prejudice and zeal, to which even representative absolute power has been
universally subject; and by which a mighty effort in France to establish a free
government was frustrated. How can this feature of our political system, so
highly eulogised in the Federalist, be preserved, if the means for
giving it efficiency should be taken away from these same state legislatures,
by investing the federal judges with a supreme power over these means? Ought
this inestimable feature of our government, by which deliberation is
substituted for passion, intelligence for prejudice, and restraint for
unshackled ambition, to be exchanged for a confidence, in a single legislative
department? Yes, says the last extract from the opinion of the court, it will
be advantageously bartered for a power in the legislature of the union to
controul measures which concern all, because the people can possess a
confidence that it will not be abused. But, the constitution intended,
according to the Federalist, that the legislatures of the states should be a
check upon the legislature of the union, and when this check is endeavoured to
be defeated by the words "confidence and supremacy," it only illustrates the
absurdity of construing it by an excessive interpretation of particular terms,
instead of adhering to its obvious intention.
The convenience or necessity of uniformity is the great argument, upon
which this vital change of the federal constitution is contended for.
Archbishop Laud, under the supremacy of Charles the second, attempted to effect
a religious uniformity by the instrumentality of judges, and drew for that
purpose a great portion of the business of the common law courts, into the
ecclesiastical, having at their head one supreme court. His object was to
establish arbitrary power; and that his means were as wise as they were wicked,
is proved by the necessity of a long and bloody civil war to defeat it The
rights of the puritans under Charles's supremacy, experienced the fate to be
expected by the rights of the states subjected to the jurisdiction of federal
judges, under a supremacy in congress. One sect, subjected to the laws and
judges of another sect, or one government, subjected to the laws and judges of
another government, may consider its rights as equally secured or lost. The
English saw the consequences of the judicial usurpations by the ecclesiastical
courts, and many great men, though adverse to the puritans, united with them to
defeat a progress so obvious towards arbitrary government. Every stretch of the
jurisdiction of the federal courts, in virtue of the supremacy of congress,
must operate upon state constitutional rights, as accessions of ecclesiastical
jurisdiction, in virtue of the supremacy of Charles, operated upon common law
rights in England. The uniformity attempted is as impracticable and chimerical
in one case as in the other. If religious sects, severed by speculation, cannot
be reconciled by any thing short of tyranny, how can great states, severed by
local interests, be coerced within one bandage by a weaker power? The remedy in
one case is, to let the opinions and the internal self-government of churches
alone. The remedy provided by the federal constitution for the other, was also
to let alone the local interests and internal self-government of the states. If
one state, or a majority of states, under the contended-for supremacy of
congress, to be enforced by the federal court, should interfere with the
internal affairs of another; it cannot be justified by any mode of reasoning;
except one, which would prove that one church, or a majority of churches, may
rightfully and beneficially interfere with the internal affairs of another.
Mankind have discovered, that equal or co-ordinate religious rights are
preferable for human happiness, to uniformity; and every sect treats the idea
of submission to another sect, with scorn and derision. Laud lost his head for
assailing an opinion so natural, by ecclesiastical supremacy. Will the notion
in the states of their natural right to internal self-government be more
conquerable, by federal supremacy? Religious uniformity was recommended as a
good thing by cunning knavery or fanatical zeal; but neither philosophical
theory nor fanatical zeal will advocate the uniformity to be produced by the
supremacy of congress or the federal court. Solid selfishness, and not moral
reasoning; to destroy, and not to nurture our constitutional checks and
divisions of power, will be the motive for assailing state rights. No important
collision would ever happen between the federal and state governments, if it
was referred to the arbitrament of the common good or general interest only. To
keep the peace between them, it is only necessary to discern whether they are
embroiled by honest patriotism, or by the pretended patriotism of monopoly,
speculation, selfishness or ambition. Even churches have been much oftener
involved in controversies by fraudulent and pernicious designs, than by honest
and intemperate zeal. There was no remedy against such fraudulent arts, except
that of preventing the artificers from getting any thing from their occupation,
by allowing to these churches the natural right of internal self-government.
So, by a sacred adherence to the right of the states to internal
self-government, the manufacturers of broils between them and the federal
government, would be disabled from getting any thing by the occupation, and
then the business will cease. In times of ignorance, mankind have been bitten
by a political or religious tarantula, and either cured or made worse by
sounds; but now, their knowledge is such, that they can keep both their temper
and their honesty with great philosophy in all discussions, which do not
involve some exclusive advantage for themselves.
Besides the counterpoise intended by the federal constitution to be
established between the federal and state legislatures, two clauses of the
constitution seem positively to have renounced the idea of any species of
sovereignty, or supremacy, by which congress could create or regulate property.
It must purchase with the consent of the state legislatures real
property, however necessary or convenient in its opinion for the common
defence or general welfare. As this consent is necessary to subtract real
property from state resources, and subject it to federal legislation, it
follows, since the state internal power is the same over both real and personal
property, that the latter cannot be subtracted from the state internal power,
and transferred to the exclusive legislation of congress, without any state
consent. Congress may dispose of, and make regulations concerning the
property of the United States, implying, very distinctly, that it cannot
dispose of, or make regulations concerning the property of individuals,
embraced by the states. These, and other specified powers given to congress
over persons and property, seem to demonstrate, that it does not possess any
unspecified power over them derived from the words "sovereign and
supreme."
Finally, it ought to be observed, that the constitution does not invest
the federal court with any jurisdiction, in cases of collision between either
the legislative or judicial powers of the state and federal governments; and as
such a jurisdiction would be infinitely more important than any other with
which it is endowed, the omission is not sufficiently accounted for by saying,
either that the case was overlooked, as never likely to happen, or, that though
its occurrence was foreseen as extremely probable, this important jurisdiction
was bestowed by inference only, whilst cases of jurisdiction comparatively
insignificant were minutely expressed. But the omission is well accounted for,
if we consider the constitution as having contemplated the state and federal
governments as its co-ordinate guardians, designed to check and balance each
other; since, having established that primary and important principle by the
division of powers between them, it would have been as obvious an inconsistency
to have bestowed a power on the federal courts to settle collisions as to their
mutual rights, as to have reserved the same supervising power to the state
courts.
I hope the reader has perceived the propriety of my endeavours to
ascertain the principles of our form of government, as preparatory to a
consideration of the supremacy claimed for congress, supposed by the court to
justify its decision; and as necessary to enable us to determine, whether the
ground it has taken is real or imaginary.
SECTION. 10.
BANK DECISION. — COMMON DEFENCE AND
GENERAL WELFARE. — NECESSARY AND PROPER. — CONVENIENT. —
NATIONAL.
I turn with sorrow from the construction of an entire system, to the
science of verbality; from a consistency of meaning, to the artifice of
verbalizing a single word, to destroy that consistency; and proceed to examine
a mode of managing controversies, into which prejudice, ambition and
self-interest continually strive to drag reason. The frippery of precedents,
like the tinsel patched upon lord Peter's coat; here a bank, there a road,
yonder a canal, bounties for these, their payment for those, now an epaulet of
sovereignty, and then another of supremacy, may bespangle our form of
government with armorial ensigns of despotism, and yet leave much of its
original substance perceivable; but the art of verbalizing single words into a
different system, may render the constitution as unintelligible, as a single
word would be made by a syllabick dislocation, or a jumble of its letters; and
turn it into a reservoir of every meaning for which its expounder may have
occasion. I admit that wise and good men may entertain a great respect for the
British form of government; and may conscientiously believe, that it would
improve the constitution of the United States to draw it by construction
towards that model: but yet I contend it would be proceeding too impetuously,
to borrow its modes of construction practised in its most oppressive periods,
and resisted by its best patriots.
In the time of James the second, all the judges of England (except one)
decided "that the laws of England were the king's laws. That it is an
inseparable branch of the prerogative of the kings of England, as of
all other sovereign princes, to dispense with all penal laws in
particular cases, and on particular occasions. That of these
reasons and necessity the king is the sole judge. That this
is not a trust now invested in and granted to the present king, but the ancient
remains of the sovereign power of the kings of England, which was never
taken from them, nor can be." Is not this decision a parallel both in
language and substance with the decision of the court, and a complete precedent
for its defence, except that the mode of construction it adopts is no longer
justified in England? The harmony between the words "sovereignty, particular
cases, prerogative, reasons and necessity," used by the English judges, and the
words "spherical sovereignty, supremacy, convenience and necessity," used by
the decision, strikes the ear, and settles in the understanding. Prerogative
arises out of the king's sovereignty; supremacy out of the spherical
sovereignty given to congress. This sovereign power of the kings could not be
taken away; that of congress may remove all obstacles to its action. Of
particular cases, occasions, reasons and necessity, the king by virtue of his
prerogative arising out of his sovereignty, is declared to be the sole judge;
of convenience and necessity, congress in virtue of it supremacy, arising out
of spherical sovereignty, is declared to be the sole judge. The king may
dispense with the penal laws of England; but the decision does not declare that
congress may dispense with the constitution. It only invests congress with a
spherical sovereignty begetting a supremacy for removing all obstacles to its
action, and establishes the premises producing the conclusion, that congress
may dispense with the rights reserved to the states. The English judges
reasoned illogically, by inferring only from their premises that the king could
dispense with penal laws; but the decision of the court, rejecting an error so
apparent, does not limit the supreme power of congress, but leaves it
co-extensive with the premises asserted. Thus, as the king's sovereignty made
the laws of England his laws, so the supremacy of congress makes the
constitution of the United States, its constitution.
Though this mode of construction be exploded in England, yet as it is
revived here, I shall endeavour to bestow on it the consideration merited by
its consequences.
"To provide for the common defence and promote the general
welfare," powers are bestowed upon the federal government, with a right to make
all laws which shall be necessary and proper for carrying the delegated
powers into execution. Some sound principle, sufficient to ascertain the true
construction of these expressions, ought to be settled. The constitution
consists of correlative rights and duties, divided between the state and
federal governments; and neither allotment was intended to become the prey,
directly or indirectly, of the other. This division was a limitation of the
powers of both, and the laws to be made by either could not violate it, because
a legal power in either of that character would have rendered the division
itself utterly inefficient. The federal government cannot diminish the right of
taxation reserved to the states, nor the state governments, the right of
taxation delegated to the federal government, because these rights clash; since
their clashing being foreseen as certain, was not intended to be prevented by
the division. The division of powers was not intended to be subordinate to a
clashing of rights, but a clashing of rights was intended to be subordinate to
the division of powers. These positions are entirely reversed, if either party
received with its share of powers a supremacy able by inferences to be made by
itself, to remove all obstacles to its action; because all the clashings of
powers, certain, foreseen, and not provided against by the constitution, would
become accessions of power to the construing party and defeat the division
itself. It would be exactly the case, as if the senate or house of
representatives, between whom powers are divided and clashings arise, as in all
such divisions, should either of them usurp a supremacy over the other, to
remove the obstacles to its action, produced by these clashings. The ideas of
limited powers and unlimited inferences being irreconcilable, any construction
of particular words or phrases, which would unlimit the limitations expressed,
is unconstitutional, if the constitution intended to make any substantial
division of power. The field of expediency and convenience belonged exclusively
to the framers of the constitution, and was shut by the constitution, against
the trustees subsequently appointed to execute it, because otherwise it would
have been no constitution at all. The principle "that clashings of rights are
subordinate to divisions of power" is applicable to the structure of the state
and federal governments, and restrains their legislative, executive and
judicial departments within their proper orbits. If either could make the
rights of a co-ordinate department subordinate to itself, by inference or
expediency, those constitutional divisions of power would be destroyed. I
therefore contend, that no construction of particular words or phrases can
change or abolish the division of power between the state and federal
governments, without changing or abolishing an essential principle of the
constitution itself.
It seems to me, that constitutional law, enacted by the people, is as
binding upon political departments, as civil law is upon individuals; and that
none of these departments have any better right to discharge themselves from
its observance by the plea of convenience, than an individual would have to
disobey a civil law under the same plea.
The states united "to provide for the common defence and the
general welfare." The words "common and general" can only refer to the
parties uniting, and these were the states. Therefore, if these words bestowed
any power, instead of only reciting the ends intended to be accomplished by the
union and its terms, it could only extend to interests "common and general" to
all the parties, in their state associated individuality. But they have been
construed as conveying some local and internal powers over persons and things,
and if they convey any, it must be admitted that they bestow all powers of this
character. To determine the propriety of this construction, we can only advert
to the nature and compass of the powers delegated to the federal government,
and reserved to the states. No power is given to the general government to pass
a law for the regulation of private property, or the security of personal
rights; therefore, "common defence and general welfare" did not include these
important objects of welfare and defence; and they are provided for in the
reservation to the states, because they are not included by these terms. These
terms of course have in view the defence and welfare of the states, as states,
and not the internal government of the individual states. The provisions of the
constitution, in relation to foreign nations and domestic insurrections, are
analogous to this construction. Had these words conveyed power, there would
have been no occasion for the provision in the case of insurrection; and this
special, power of internal interposition, excludes a general power of the same
tenour. A similar exclusion is contained in the special power bestowed upon
congress to legislate for the ten miles square "in all cases whatsoever." As
this anomalous district would lose state care and protection, it is thus
specially provided for, because the words under consideration gave no power to
the federal government. Had they done so, no specification of federal powers
would have been necessary; and if they do so, the subsequent specifications
mean nothing. Under the first supposition, the convention needed only to have
organized the government after the first clause of the constitution, to take
care of the common defence and general welfare, which would have comprised
unlimited power. And if the second supposition be true, then a catalogue of
powers was superfluous, because these words covered both those specified, and
all others not specified, which might advance the general welfare. It follows,
either that these words convey no power, or that the subsequent definitions of
the powers delegated restrict their meaning. In fact, they are obviously
introductory, and not decretal. The ends in view are recited, and then follow
the means for effecting those ends. If these means should prove to be
insufficient, the constitution, far from confiding to its officers a power to
supply deficiencies, provides for the occurrence. In all questions, therefore,
concerning banks, roads, canals, taxes, agriculture, manufactures and internal
or local prosperity, the construction of the constitution ought to be
confined to its decretal sections. In these we find two concurrent provisions.
Both congress and the state governments may tax the same property and suppress
the same insurrections. And the specification of these two instances of a
concurrent power excludes the idea of a concurrency of power, in the other
enumerated cases.
But, if the sweeping powers said to be conveyed by the introductory
clause of the constitution cannot be proved, their absence is said to be nearly
supplied, by the power given to congress to make all laws," which shall be
necessary and proper for carrying into execution the foregoing
powers." I shall endeavour to prove that these words, far from enlarging,
restrict the legislative power of congress; and that, coupled with other parts
of the constitution, they also limit the jurisdiction of the federal courts. 1.
They expressly limit the legislative power of congress to laws necessary and
proper for executing the delegated powers, and bestow no authority to
assume powers not delegated. 2. The jurisdiction of the federal courts
under laws, is limited to "the laws of the United States," meaning such laws as
these states by their representatives in congress have a right to enact. They
have only a right to enact laws "for carrying into execution the
delegated powers." 3. Congress have no power to enact laws "necessary
and proper for carrying into execution" the powers reserved to the states, as
their legislative powers are limited to the foregoing or delegated
powers; and in cases concerning which congress have no power of legislation,
the federal courts have no jurisdiction. 4. The states possess an exclusive
legislative power with respect to the powers reserved to them, with the
appurtenant right of passing all laws, which shall be necessary and
proper for carrying into execution such reserved powers. 5. The
jurisdiction of the state courts is limited to the execution of the laws which
the state governments have a right to pass, as the jurisdiction of the
federal courts is limited to the laws which congress have a right to
pass; and neither of these courts can derive any powers from laws, which the
respective legislatures under which they act have no right to pass.
The remarks, in defence of these propositions, must be more concise than
their importance merits. The division of delegated and reserved powers between
the federal and state legislatures would have been quite nugatory, without a
division of the right of legislation respecting them; and except for both
divisions, the principles of representation adopted by the federal government
would never have been approved of. These are calculated for external objects,
or objects common to all the states, as to which a consentaneous interest and
feeling would prevail among the representatives; and in the power, of taxation
necessarily bestowed on congress, precautions are taken to prevent the ill
consequences which might be produced by the absence of those ingredients,
necessary to secure legislative impartiality. These precautions shew, that the
framers of the constitution were conscious, that the principles of
representation in congress were so defective as to require some safeguard
beyond the usual confidence in representation, against the abuse, even of a
power of taxation for the benefit of the union. The constitution contains no
provision whatsoever for the exercise of the rights reserved to the states, nor
any stipulation respecting it. Can it be imagined, that, having expressly
placed them without the compass of the compact between the states, it meant
impliedly to bring them back under the power of congress, without subjoining
any provision for its defective form of representation, as in the case of
taxation? Numerous and important powers and rights are reserved to the states,
to secure which the members of congress are bound by no sanction, nor any
sympathy. The slave question, and the unlimited right of taxation reserved to
the states, are among the number. Mutual prejudices, separate interests,
different circumstances, and want of local information, all operate against the
idea that the constitution intended to invest congress impliedly with a power
of local and internal legislation. But arguments abound to prove, that the
representation in congress is devoid of every principle of representation, in
respect to these objects, or the powers reserved to the states. Local laws,
passed by the representation in congress, could only operate upon the
representatives of a single state. The sufferers under such laws could not by
election influence the legislature. The qualifications, required by state
constitutions in legislative representatives, would be wholly abolished. The
necessity of residence would be superseded. In short, the representatives from
Georgia in congress might legislate as to the local and internal concerns of
Massachusetts bay. Every relation between constituents and representatives
would be violated by a power of local or internal legislation in congress. Both
in theory and practice, it would approach near to that detestable virtual
representation, under which the British parliament claimed a power of local and
internal legislation over the colonies. Implied, inferred, and virtual
representation, are substantially equivalent. No express power was given to
congress to legislate in reference to local or internal objects, or to objects
reserved to the states; because that body was not organized by any
representative principle in reference to these objects. All the reasons which
excluded an express, exclude an implied power of local and internal
legislation. Implication cannot transform congress into a representation of
local state rights, when they are not so recognized by the constitution, and
are devoid of every quality and character of such a representation. In
legislation they are therefore limited to the delegated powers, in the
execution of which they have no right to usurp any power of local or internal
legislation, as in the cases of roads and banks, because there is not in that
body any species of local representation.
The acquisition of powers either not delegated, or inconsistent with the
powers reserved to the states, or incongruous with the nature of the
representation in congress, must all be very different from the execution of
the powers bestowed. Congress may "make all laws which may be necessary
and proper for carrying into execution the foregoing powers."
Suppose the clause had thus proceeded. "And may also invest themselves with
other powers by implication, inconsistent with the principles of
representation." Would this addition have altered its meaning? If so, what does
it mean as it stands? If I have proved that the powers of congress cannot,
under colour of legislating for the execution of the powers delegated, be
extended to powers not delegated and reserved, it follows that the jurisdiction
of the federal courts cannot be extended by a species of legislation which is
unconstitutional and void. The special objects of jurisdiction given to the
federal judicial power, have no connexion with their jurisdiction founded upon
the laws of congress. An act or law of congress, which is unconstitutional, is
agreed to be no law at all. Suppose congress should pass a law to liberate the
slaves of a particular state, or to give the land of A to B? Would the federal
courts derive jurisdiction from it, or would the state courts retain their
exclusive jurisdiction between the people or citizens of their own state? But
is there not an appellate jurisdiction lodged in the federal supreme court,
able to reach cases in which the federal judicial powers have no original
jurisdiction? The reasoning upon this point seems to be superseded by a
complete perspicuity in the constitution. We have seen, that the legislative
power of congress is limited to the delegated powers, and that the federal
judicial power under the laws of congress only extend to such as come within
the limitation. Such is its original jurisdiction. The constitution declares,
"that the appellate jurisdiction of the supreme court," shall extend to the
cases before mentioned. The jurisdiction arising under a law of congress
is that, with which the argument is concerned. To bestow the original
jurisdiction, the law must conform to the delegated powers. Therefore, the
appellate jurisdiction cannot take cognizance of a case, in which the original
jurisdiction has none. The federal courts derive no jurisdiction from state
laws. Their jurisdiction, arising from law, is limited to laws passed by
congress in conformity with the delegated powers. On the contrary, the
jurisdiction of the state courts is limited to state laws in conformity with
the reserved powers. Neither of these courts has an appellate jurisdiction from
the other. As the federal and state legislatures have a right to legislate
within their respective orbits, independently of each other, the respective
judicial powers have a right to execute these independent laws, independently
also of each other. It is said, that some supreme power is necessary to
prevent collisions. A saying of the Marquis of Halifax, (a man renowned for
understanding) recorded by Wrangham, fits our case. "The word necessary,
is miserably applied; it disordereth families and overturns governments by
being abused." Necessities are, strictly, things unavoidable. In practice, they
may be divided into absolute or imaginary. In relation to the principles of
government, they are all of the latter class, as governments are capable of
endless modifications. In this case they are only expedients. The plain
question, divested of verbal evolutions, is, whether congress are invested with
the supreme power of altering or mending the constitution, should they imagine
it to be expedient? The same management is used to excite the doubts, which
have been laid hold of to produce a radical change in our constitution. As
necessity is used instead of expediency, collision is used
instead of check, whereas in political effect they are essentially the
same. A supreme power able to abolish collisions, is also able to abolish
checks, and there can be no checks without collisions. The checks resulting
from the co-ordinacy of the lords and commons of England, could not produce any
good, if a political department existed able to controul those
collisions, and much less, if one of these bodies possessed a supremacy over
the other. In that country, checks attended with collisions, are preferred to
subordination, under a very imperfect supremacy, hardly acknowledged or capable
of acting, called publick opinion. Here, also, we have preferred checks and
collisions, to a dictatorship of one department, under the supremacy of the
people, fully acknowledged, and acting without difficulty. If the inconvenience
of collisions between coordinate political departments begets a
necessity for the supremacy of one, and this necessity will justify its
assumption, the scheme of checks and balances is entirely chimerical, and a
political fabrick built upon that theory must fall. Necessity, inference and
expediency never fail to beget an endless successive progeny. Roads are
necessary in war; therefore congress may legislate locally concerning roads.
Victuals, manufactures, and a certain state of national manners, are more
necessary in war; therefore congress may legislate locally, concerning
agriculture, manufactures and manners. The favour of the Deity is more
necessary than either; therefore congress may provide salaries for priests of
all denominations, in order to obtain it, without infringing the constitutional
prohibition against an establishment; or they may incorporate sects, and exempt
them from taxation. Roads are more necessary for collecting taxes than even
banks. Taverns are very necessary or convenient for the officers of the army,
congress themselves, the conveyance of the mail, and the accomodation of
judges. But horses are undoubtedly more necessary for the conveyance of the
mail and for war, than roads, which may be as convenient to assailants as
defenders; and therefore the principle of an implied power of legislation, will
certainly invest congress with a legislative power over horses. In short, this
mode of construction completely establishes the position, that congress may
pass any internal law whatsoever in relation to things, because there is
nothing with which, war, commerce and taxation may not be closely or remotely
connected; and the constitution does not contain any prohibited degrees of
consanguinity. The personal departments established by the state constitutions
seem indeed to be without the scope of this mode of construction, which can
only strip them of their whole wardrobe of rights, and reduce them to a sort of
naked political skeletons.
I see no end to the power of necessity, armed with supremacy. It seems
already to have carried us nearly a thousand years backwards in the science of
political justice. In 846, Ethelwolf established tythes, and exempted the
property of the clergy from taxation. Bankers are said to be useful and
convenient to the government. The established clergy are still thought so by
the English government. Governments and nations very often differ in opinion as
to conveniences.
The argument of collision would reach a multitude of cases. As an
instance. It has been judicially and practically established, that both
congress and the state governments have a right to tax carriages. Suppose the
states should impose a tax on them amounting to a prohibition. Would this state
law be void, because it might defeat the law of congress? Collisions between
concurrent and co-ordinate powers, are natural and certain, and must have been
foreseen by the framers of the constitution. Moderation and the people, are the
only arbiters they thought safe or necessary. But a conflict between a positive
and an implied power, is the question we are considering. Can the latter
abrogate the former under any pretext whatsoever? Let us consider the subject
in this new light with some attention. The natural rights of nations, in
respect to each other, are more evident, better understood, and more
universally recognized, than the rights of individual men; because a nation can
more conveniently exist independently of other nations, than one man can of
other men. Accordingly they are acknowledged by all political writers to confer
on nations the character of individuality, and the utmost degree of
independence, of which human nature is susceptible. The United States, whilst
provinces, were imperfect nations. Under charters, they obtained and exercised
a separate and distinct national character, in relation to internal affairs,
yielding to Great Britain the management of their external national rights. By
the revolution, each state became a perfect individual nation, possessed of all
the natural rights of nations. As perfect nations, they have entered into two
confederations, both influenced by the principles to which as colonies they
were willing to have conformed in a union with Britain. By these
confederations, they relinquished several national rights, and retained all not
relinquished. As to their natural rights retained, they remain perfect nations;
or in other words, their national individuality and independence of each other,
respecting these rights, are unchanged. A conveyance of one portion of an
estate, by metes and bounds, does not impair the title to the portion not
conveyed, especially if attended with a positive reservation. Had they entered
into a similar union with Britain, their internal and local rights must have
been specified, as not having been settled; and they would have been justified
in asserting and maintaining the specifications against any implications, for
which an assumed British supremacy, or the appellate jurisdiction of the king
in council might have contended. But, no specification of the state rights
reserved was necessary in establishing our union, because these rights were not
conceded, as being national and antecedent to the compact. Being natural and
national rights, and also never delegated, but reserved, they are held by the
states in their original character, as perfect national rights. This amounts to
a plain specification - of the powers of the states, and a positive prohibition
bearing upon those of congress. The conflict, therefore, is not between
implication and implication, but between specification and implication. Ought
the positive stipulations of contracts to be supplanted by doubtful
conjectures? "Congress shall have power to make all laws which shall be
necessary and proper for carrying into execution the delegated powers," says
the constitution; and also, subjoins the implication, "power to make all laws
necessary and proper to contract the powers reserved to tho states." The chief
forces on the two sides of the question are thus opposed. The states are armed
with their original national rights; congress with conventional rights. The
states have a natural right to make all necessary and proper laws within their
national powers reserved; congress a right of legislation limited to delegated
powers. Implied powers may be as copiously extracted from the rights of the
states, as from those of congress; but if their absolute and conventional
powers are independent of each other, their powers by implication must also be
liable to the same limitation. If congress cannot directly contract the state
power of taxation, being a national right, they cannot have an implied power to
do it indirectly. But if congress can by implication assume a power of passing
any local or internal law beyond the specifications of the constitution, it
must be admitted that they have a right to undertake the care of state
prosperity in relation to agriculture, manufactures, private property,
corporations, roads and canals; as it is impossible to find a justification for
one case, which will not extend to the others. Suppose the clashing laid hold
of, for introducing a catalogue of implied powers, under the supremacy of the
very power intended to be checked, was not between specification and
implication, but between specification and specification. This supposition
places the subject upon much stronger ground in favour of the doctrine of
implied powers, in congress only (forgetting the equal right of the states to
them,) than has been yet taken. Congress have no specified power to create a
corporation, but they have one to impose a tax on stills and whiskey. It will
not be denied that the states have a concurrent power to tax the same objects.
Suppose they should impose on them a tax amounting to a prohibition. It would
defeat a law passed by congress for taxing them. This would be a conflict
between specification and specification, or between two powers, undoubtedly
residing in the respective governments. Could the federal court defeat the
state law, upon the ground that the states have no right by taxation or
otherwise, to retard, impede, burden, or in any manner controul
the operations of the constitutional laws enacted by congress," as
the court has declared? In this case the law of congress would be
constitutional, and the argument deducible from it surrenders the
objection arising from the unconstitutionality of the bank law. If the question
be answered in the negative, it follows, that if no power resides in congress
or the federal court to abrogate a constitutional state law, thus
impeding and controuling a constitutional law of congress, the argument
is insufficient in every other similar case. And if I am not mistaken in the
reason of its insufficiency, neither the constitutionality of the law
passed by congress, nor its impediment nor controul by the state law,
ought to have any weight upon the subject. This reasoning establishes an
essential conclusion, towards which all my arguments have been directed. It is
this. Powers are delegated or reserved both to the state and federal
governments to make laws. Under the concurrent power of taxation, they may each
pass a law, both of which may be constitutional, and yet these laws may clash
with, or impede each other. The same thing may happen in many other cases. For
this clashing the constitution makes no provision. The right of passing
constitutional laws which clash with the constitutional laws of congress, is
not prohibited to the states; nor is the right of passing constitutional laws,
which may clash with the constitutional laws of the states, prohibited to
congress; because the evil of clashing, balanced, or checked powers, appeared
to its framers, to be inconsiderable, compared with that of an absolute
supremacy. I have called the first an evil, in a spirit of concession, but I
think it the only security for the whole catalogue of social blessings; and not
to be counterpoised by a concentrated supremacy, which would be obviously a
step towards consolidation and despotism. As the constitution has not provided
for the clashing of constitutional laws, it may safely be demanded, by what
authority either the state or federal legislative or judicial power, can
abrogate one constitutional law because it clashes with another? After the
people have invested two legislatures with the power of passing laws within
specified orbits, who but themselves can circumscribe those orbits? If the
constitutional rights and powers, established by the people between
legislative, executive and judicial departments, and between state and federal
departments, do in the language of the court retard, impede, burden or
controul each other, where does the authority lie for removing the
inconvenience, admitting it to be one; in the people, or in an implied
supremacy of one of these departments, intended by the people to be controuled?
If in the latter, the constitution is exposed to be altered by laws or
adjudications without restraint. If in the former, then it can never be a
question before any judicial department, whether a law is void because it
retards, impedes, burdens or controuls another law; and the only chaste
question is, whether or not the obstructing law is itself constitutional.
Supposing then the bank law to be constitutional, and also that the national
right of the states to impose internal taxes is not surrendered, and of course
constitutional also, neither congress nor their courts can modify this state
power without invading the sovereignty of the people.
In some of the West India islands, as I have heard, the power of an
executor extends to all the testator's estate, real and personal; and to such
an extent has legal chicanery been carried, that he can easily cheat the
devisees out of the whole. A rich father on his deathbed informed an only son,
that he had given a moderate legacy to one of his friends and appointed him his
executor, but that he had devised to him (the son) the whole residue of his
estate. The son, thanking his father for his good intentions, but recollecting
the sophistry so successfully practised on behalf of executors, besought him to
alter the will, to give him the small specifick legacy with the appointment of
executor, and to make his friend residuary legatee. The federal government is
the specifick, and the states the residuary legatee. If the former can transfer
to itself such portions of the residuary estate as it pleases, either by its
own will, or by judges appointed, paid and removable by itself, the fate of the
latter must be that of a West India residuary legatee. I know of nothing,
equivalent to this West India precedent, more in point for construing our
constitution, so as to transfer the residuary estate to the special legatee:
And yet even this precedent does not go far enough. The legal power of the
executor extended to the whole estate, whereas the constitutional power of
congress is prohibited from touching the powers reserved. Much less ingenuity
was therefore necessary to hold a legal possession contrary to justice, than to
acquire possession contrary to law. The executorial power of this country is
more like the power of congress. It does not extend to real estate. When an
executor or administrator here shall deprive the heirs or devisees of their
lands, we shall have a better precedent for establishing the right of congress
or the federal courts, to deprive the states, or rather the people, of their
natural, national and reserved rights. These are truly their real estate, far
surpassing in value the administration of external concerns.
The court, probably without intending it, seem to me to have advanced a
position which fully justifies the ground I have taken. They say," let the
end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the letter
and spirit of the constitution, are constitutional." It is plainly
intimated in this extract, that whatever is constitutional, is valid; and of
course conceded, that in a conflict between two constitutional acts, neither
can have any sovereignty over the other. The court indeed in advancing this
doctrine, seems only to have turned its eye towards the constitutionality of
the acts of congress, overlooking entirely the constitutionality of the acts of
the state governments. But if constitutionality bestows validity, and if the
state governments, and other political departments can perform constitutional
acts, then the validity of these acts rests upon the same foundation, with the
validity of the acts of congress. By "ends" the court seems to understand
expressed powers, and by "means" the execution of those expressed powers. What
then are the powers expressed? Undoubtedly, those delegated and those reserved.
Unless the reservation be an expression of powers, it can mean nothing. What
are these powers? They can be none others, but the national rights not
surrendered. Taxation is one of these: or rather the support of the state
governments by revenue may be called the end, and taxation the means. This
end is legitimate, within the scope of the constitution; the means are
appropriate and plainly adapted to the end, not prohibited and consist with the
spirit and letter of the constitution.
The constitution has involved ends and means, in such a manner, as to
prove that it never intended that the latter should beget any ends inconsistent
with its great principle, express letter, and obvious spirit; all uniting to
establish a line between external and internal powers. The power of declaring
war is an end for which the federal government was instituted, and nothing
could be more necessary for carrying this end into execution, than to
raise armies, support them, and to make rules for their government. Yet these
means are not left to be implied as necessary for the execution of the end. The
reason I take to be this. Wherever the" means, such as taxation for the support
of armies, and a code of military laws, would trench upon or circumscribe the
national rights inherent in the states, they are expressed and constituted into
a delegated power. If such was the reason for specifying means of this
character, so necessary in war, it follows that no means of the same character,
namely, such as subtract from the national state rights, were intended to be
inferred from necessity.
But the court, apparently wanting confidence in the words necessary
and proper, as being under an expressed restriction, and subjected to a
comparison with all the other parts of the instrument, in which they are used;
in order to determine their meaning, have taken a ground so comprehensive, and
so adequate to the defence of any acquisition of unconstitutional powers by
congress, that if it be solid, every thing hitherto said is immaterial. They
add to the last extract, as conclusively responsive to its doctrine, "that
banking is a convenient, a useful, and essential instrument in the
prosecution of fiscal operations, is not now a subject of controversy." Of
course a syllogism bounces unexepectedly upon us, out of the two extracts.
Fiscal operations are within the powers of congress, and all means appropriate
to that end are constitutional; banking is a means convenient, useful and
essential to fiscal operations; the conclusion is inevitable. But this
interpolation of the words, "convenient, useful and essential," into the
constitution, is in my view not even a plausible argument. It is merely a
tautology of the phrase "necessary and proper," but excluding the restriction
attached to the latter. If the tautology may be fairly used, it can only be asmaybe fairly
an illustration, since the word "proper" is equivalent to "convenient and
useful" so far as they are applicable, and "necessary" to "essential." "Proper"
indeed has a reference to the impropriety of swerving from the constitution,
and the substitution of words otherwise equivalent may be so far ingenious. The
substitution, however, is not a correct illustration of the constitution
without the restriction. To reason from it, the court ought to have stated it
thus. Congress may pass all laws, which shall be "convenient, useful and
essential" for carrying into execution the foregoing powers. Thus
stated, all the arguments, used in reference to "necessary and proper," plainly
apply to the substituted words. And if no power, expressed or implied, be given
to congress by the words used, to abrogate constitutional state laws, or to
travel out of its delegated orbit into the reserved orbit, I think I may
assert, that it cannot derive this power from the substituted words.
But whatever use can be made of these substituted words, it surely
cannot appertain exclusively to the delegated powers, and must extend also to
those reserved. These would be quite nugatory, under a prohibition to resort to
that which was convenient, useful and essential for their execution or
preservation. And the constitution having divided and balanced the powers
between the federal and state governments, has united itself with common sense
in dividing and balancing means, words, phrases and implications, by not
investing either department with an exclusive use of these implements necessary
to its existence; foreseeing that powers in either case divested of means,
would be inefficient; but it did not intend that either should destroy the
other with its means; though prohibited from doing it with its powers.
It is easy to see, that the court have erected a climax by the words
"convenient, useful and essential," to unite an extension of power with an
apparent adherence to the words of the constitution. We are gently led along
from convenient to essential, as if all the three words were legitimate,
because of the resemblance in the last to the word "necessary." Considering all
three as restricted by the words "foregoing powers," this is not very material;
but yet, as the incorporating power of congress is deduced from these
substituted words, the expediency of banking thus asserted by the court cannot
be wholly passed over. I shall, therefore, subjoin a short catalogue of its
inconveniences.
The court, with candour and justice, has limited the power of congress
to create banks, to the circumstance of their being "convenient, useful and
essential to fiscal operations," and forborne to urge their general utility as
a reason for the exercise of that power, because it was conscious that the
country was not ripe for that doctrine; or that the constitution did not
authorise the extension of federal power, upon the ground of internal social
expediency; and therefore, it was necessary to hook every implied, to some
delegated power. Banking is of course suspended to fiscal operations. As to
these, the eulogy is consequently wholly pecuniary; and can have no other
meaning, than that banking will save publick money, by the facility with which
it can be transmitted. And I admit that pecuniary frugality is convenient,
useful and even essential to republican governments. This solitary argument for
investing congress with the right to incorporate banks, if it can overthrow all
those I have advanced, depends yet upon the fact, to which I shall therefore
call the reader's attention.
The depreciation of money caused by banking, has been repeatedly and
successfully urged both under the state and federal governments, as a reason,
for an increase of wages and expenditure; and has considerably aggravated
taxation, both state and federal. Whatever increase of wages or expenditure has
been produced by banking, has been nearly a total loss to the nation, unless it
can be proved, that an increase of taxation is a publick benefit; a doctrine,
which all governments have inculcated, and no nation has yet believed. The
reader must compute the extent of this increased taxation, both state and
federal, for himself. I can only furnish him with two facts. The federal
expenditure in the time of Washington amounted to about three millions
annually, and in that of Jefferson to about six. At the first epoch, the United
States were paying the interest of their debt; at the second, both the interest
and a portion of the principal. Now, the expenditure of the federal government
exceeds twenty-five millions. The same candour which will admit, that only a
portion of this rapid increase of taxation is attributable to banking, must
also allow that much of it is so. I compute the additional taxation, state and
federal, thus derived, at not less than five millions annually; paid for the
facility of transmitting the publick money from one place to another. Neither
our army, nor our navy costs so much. Whatever is the amount, it undoubtedly is
directly the reverse of fiscal convenience or utility; that is, in regard to
the nation; for I know that it is not rare for governments to consider an
increase of taxation as "a convenient, useful and essential instrument
in the prosecution of fiscal operations," and that banking has therefore been
very much of a favourite with those of the old world. I acquit, however, all
our governments of this design, because I believe they never thought of it,
however extensively their laws may have brought it about. It only happened from
the circumstance, that similar causes, either in the west or east, will
generally produce similar effects. In the east, exclusive privileges have
invariably turned out to be publick grievances; and aggravated taxation, legal
extravagance and pauperism, have regularly brought up the rear of banking. But
our legislatures have fondly hoped, that exclusive privileges, granted by good
republicans, would be publick blessings.
It was once asserted, that banking would reimburse the loss it caused to
the nation in aggravating wages, expense and taxation, by enhancing the price
of our commodities; and the argument kept its ground, so long as these brought
a high price in Europe; but woful experience has detected the delusion. It is
at length demonstrated, that the price of our exports is fixed in foreign
markets, and that banking does not, by enhancing it, reimburse the nation for
the increase of taxation it causes. The argument of the court can derive no
benefit from any utility in banking, except in fiscal operations, as it
does not pretend a right to extend the powers of congress from any general
considerations of national good; but only as means appurtenant to an actual
delegated power, which in this case it supposes to be the power of taxation,
though called "fiscal operations." But, whilst the court, in sustaining this
argument, is limited to the convenience of banking for the execution of a
delegated power, in refuting it, all the national inconveniences it causes are
fair counterpoises against its solitary convenience of transmitting publick
money. This is, apparently, a pecuniary convenience; but if we pay for it more
than it saves, by the increase of taxation arising from the depreciation of
bank currency, it is clearly a pecuniary inconvenience; and it is not yet
contended, that the powers of congress may be extended by implication to rights
inconvenient and oppressive to the nation. No one, who computes impartially,
will hesitate to conclude, that the increase of taxation, caused by the
depreciation of bank currency, infinitely exceeds the saving of transmitting
taxes by bank instrumentality. Waving the facilities arising from bills or
orders, which would be considerable, I will venture to assert, that if it was
removed under a military escort, the expense would be comparatively
trifling.
To the increase of taxation by banking, another great item of pecuniary
loss is to be added. The local depreciation of its currency causes us to pay an
additional price for our imports. Sellers will reimburse themselves for this
depreciation, to our excessive injury when the balance of trade happens to be
against us, by asking a price sufficient to enable them to make remittances in
specie. And exclusively of the diminution of the precious metals thus caused,
the difference between their value and the value of bank paper is a large item
of national pecuniary loss, independently of the pecuniary individual loss
arising from the same cause.
Fiscal operations are the means, by which civilized nations are
oppressed and enslaved. If a government may do whatever it pleases to think
"convenient, useful or essential in the prosecution of fiscal operations,"
however inconvenient, useless and injurious to a nation, and however
detrimental to the morals, interest, and happiness of individuals, it is
difficult to conceive any limitations by which it can be restrained. The
framers of the constitution, aware of the necessity for restraining this
dangerous instrument, confided to the federal government a fiscal power,
defined and limited. In the division of powers between the federal and state
governments, the care of the morals, interest and happiness of individuals is
confided to the latter; nor is any power over persons given to the former,
except for the carrying into execution the delegated powers, which were not
intended to absorb a right to take out of the hands of the states their
national and original right to provide for the morals, interest and happiness
of the individuals composing each state. Suppose experience should disclose
mischiefs and inconveniences to the people from the circulation of notes
payable to the bearer. Is the federal or state governments to apply the remedy?
The limited power of the federal government over persons does not reach the
object. The state governments have endeavoured to prevent it, by prohibiting
individuals or unincorporated banks from issuing such notes. They might have
suffered this, but congress could not. It is merely an internal local
regulation, like the transfer of bonds, bills or notes, within the power of the
state governments, and without the power of congress. The right of prohibition
is consecutive to the right of permission; and congress have no power to
prohibit, because they have none to permit. Whilst the care of the morals,
interest and happiness of the people internally, is confided to the states, it
can hardly be imagined that congress was invested with a power of legislating,
so as to afflict all three in a mode, which they had no power to prevent. They
could not, constitutionally, even consider the inconveniences of banking under
any power given to them by the federal constitution, as to the morals, interest
and happiness of the people, because the care of these is reserved to the
states; and ought to have confined themselves to the meagre point of its
affording a facility in transmitting money, as all its other effects belonged
to the state orbit. In this view, the decision of the court allows that congress
may cause great and general internal inconveniences, of a character beyond its
power to prohibit or even to consider; and that the states, who can only
consider these inconveniences, and cannot apply a remedy under their internal
power of forbidding the circulation of notes payable to order, often exercised
and never relinquished.
Congress were never expected to consider those local frauds by which
life is embittered and society corrupted; even the manners of the individuals
who conduct its banks, are without its province and beyond its correction; and
although the idea of correcting the frauds of institutions, shrouded in
secrecy, is only a theory, yet this unfortunate fact is an unanswerable
argument for a power of suppression in a government. Being of an internal
nature, congress cannot exercise this power; yet evils ought to be suppressed.
Is there a single case of a stockholder, defrauded by the management of these
secret institutions, having been able to obtain justice? Whilst widows and
orphans are pining in silence, under the distress of the spoliations they have
suffered, the newspapers roar with the dolours of the patriots who have
employed their property in unsuccessful speculations. Legislatures are invoked
by arts and wailings from bankrupts of borrowed property, to have compassion on
their aversion to the payment of their debts, to sequester a poor remnant which
their unfortunate creditors may recover, and confiscate this remnant, by
devising some depreciated currency with which to balance accounts.
Under our form of government, fiscal operations ought not to be
considered in reference to the convenience or benefit of a government, as they
are considered under European monarchies, but in relation to the convenience or
benefit of the people. Now, though the government may suffer no inconvenience
or injury from the increase of salaries and expenses produced by the
depreciation of bank currency, the people from our peculiar situation may
sustain both. Their funds arise chiefly from the exportation of agricultural or
marine productions, by which they are enabled to pay their taxes. The price of
these productions being limited by their trans-atlantick value, the people
cannot be reimbursed by the depreciation of a local currency, for an increase
of taxation chiefly paid out of this restricted price.
Again. The fiscal operations of a government may be nurtured by a
corruption of manners, and a violation of justice among individuals. Unhappily,
the revolutionary patriots were driven into the latter evil by necessity. But
we have voluntarily introduced both without any. The United States have
ascertained the effects of paper money by two experiments, and its character
under a free government has been settled by both. By the first it is
ascertained, that the most solemn national promises of redemption, without
equivalent funds, cannot sustain its value, or prevent its fraudulent operation
upon individuals: By the second, that a promise of redemption by the payment
of specie will sustain its value, or delay its fraudulent operation upon
individuals, so long only as the nation believes in the falsehood, that the
banks are able to pay it. In a free country, the detection, sooner or later, is
inevitable, and a heavy shock of factitious misfortunes ensues. Banks, managed
by the power of despotism or of aristocracy, live long either upon delusion, or
upon supplies extracted from the people. The same motives unite these parties
in these means, for conducting their fiscal operations. Exposed to the
scrutinizing eye of liberty, a detection of fraud will come at last. Under the
iron rod of despotick governments, these institutions are deterred from
committing any frauds, but in concert with their accomplices, both by the fear
of punishment, and the influence of patronage; but under our mild policy,
neither expiation nor bribery is practicable in the case of banks. Their crimes
may possibly be numbered, but no figures can record their punishments, because
they are never punished. Had the bank of the United States commenced its very
career, by committing the most enormous frauds, congress might have been
deterred by the magnitude of its offences, or an inability to do justice to the
injured, even from making them publick.
A catalogue of the immoral tendencies of banking ought to be awful to a
republican government, which many great writers assert to be incapable of
subsisting long, except by the preservation of virtuous principles. Can these
be preserved, by investing corporate bodies with the privileges of committing
remediless frauds, of laughing at detection, and of retaining the pillage? By
nurturing and then ruining, pride, extravagance, speculation, folly,
rapaciousness and dishonesty, as the arch fiend entices into guilt, and
punishes those whom he has deluded? By corrupting legislative bodies, the
temporary representatives of the people, into an opinion, that they may prolong
their power and establish their speculations, however detrimental to their
constituents, for unlimited periods? By deluging a whole nation with floods of
depreciation usury, having first banished the only check by which it could be
restrained? By enlisting in the cause of this overwhelming system of usury,
from which even those who never borrow cannot escape, a great portion of the
talents of the country; and teaching them to be satisfied with its intellectual
pleasures, without salaries? By rewarding atrocious frauds, sometimes with
wealth, and always with impunity? By first expelling specie, and then
subjecting the nation to the alternative of suffering a great loss in getting
it back, or of submitting for ever to banking prescription? By bribing
corporations with an absolute power of acquiring wealth by frauds with
impunity, for the sake of a trivial political convenience? By committing the
national safety and prosperity to the care of individual character, without
responsibility or controul, for indefinite periods; except such as may be fixed
by the will of temporary representatives? By thus regenerarating the hereditary
principle of subjecting mankind to the chance of being governed by knaves in
the affair of money (so important to social happiness,) under an interest to do
wrong, and under no compulsion to do right? By substituting an arrogant
divination for actual experience (the true source of human knowledge,) in
usurping a right to pass irrepealable laws? By staking the national prosperity
on the maxim, that it may safely be intrusted to unchecked avarice? By
arranging society into debtors and creditors, bribing usury to lend, tempting
indiscretion to borrow, protecting the former against the payment of its own
debts, and producing by law a state of things, calculated for destroying a good
government, or subjecting it to the clamours and threats of dishonesty? And by
making it improvident to be prudent; as by endeavouring to provide for old age
or misfortune, we should probably lose the whole, and certainly a portion of
our labours?
The facts, to justify these inconveniences produced by banking, are left
to the recollection of the reader; but the expression "depreciation usury,
"requires a short explanation. It refers to the loss sustained by the nation,
from the depreciation of bank currency, beyond the interest paid for it by the
borrower. This item of pecuniary loss, frequently repeated in the circulation
of the paper, may possibly amount to as much as the additional taxation caused
by the same depreciation. The two items and the interest paid to banks chiefly
constitute the price paid by the nation for the convenience of transferring the
taxes from place to place. It is probable that it amounts to thirty or forty
per centum per annum, on a larger sum than the amount of taxes; and equally so,
that these taxes could be transmitted in the most inconvenient mode, which
could be devised, at less than one.
Wherein consists the difficulty on this subject? may the truth be
permitted to answer the question? Men incline to acquire wealth, without
encountering the labours of industry; as they incline to get to heaven, without
discharging the duties of morality. Speculators for both objects are therefore
greedily attended to, and often infuse tenets into nations so stubborn, as to
divide society for ages into jugglers and dupes. Governments have repeatedly
aggrandized themselves and enriched the initiated, under intricate and
plausible schemes for enriching the nation; and labour is induced cheerfully to
exchange its earnings, for a dogma or a charm. When these schemes or
incantations are directed against a foreign nation, the imposition is easy; and
governments generally cajole nations out of their property to a great amount,
by ingenious lectures to prove that they will be reimbursed ten fold in heaven,
or by other nations. Once taught that we may be enriched by the speculations of
our government at the expence of foreigners, a transition from a dogma having a
glimmering of truth, to one having none, becomes easy; and we rashly believe
that a patriotick magician can instruct a nation to enrich itself, by
speculations upon itself; that exclusive privileges conferred on an
incorporated section of the national wealth will produce a greater degree of
national prosperity, than equal privileges retained by the whole.
Congress, in rejecting lord North's insidious proposal for raising a
revenue by colonial laws, observed, "that all history shews that a power
over the purse is the best intercessor for a redress of grievances, and
a re-establishment of rights." Banking has gotten into its possession that
which the national purse contained; intolerable grievances have ensued; the
right to private justice has been grossly violated, and no general benefit has
been produced. The revolutionary congress, that highest emblem of wisdom and
virtue, with which Providence has endowed man; the fathers of our liberty,
uninfluenced by avarice or ambition; the revolutionary congress decided, "that
a power over the purse is the best intercessor for a redress of grievances and
a re-establishment of rights." The power over the purse has escaped from
the people and their governments. This best security against grievances and
wrongs has been transferred by legislatures to corporations. If they had a
right to transfer the best, they may transfer all other securities to the
custody of chartered bodies. Dazzled by a spurious lustre, we have violated
this sound maxim; we have worshipped a demon instead of a Deity; and now that
we are awakened by sensation from the infatuation, we are told that the altars
of fraud are sacred. Grievances and violated rights abound; the principles of
justice are prostrated; but the hurricane of evils claims a power founded in
the imposition of calling a law a charter, to molest an entire generation
during its whole life, without redress; and the isinglass of construction is
its ally against the diamond of justice. Money governs the world. Is a
corporate despotism over the money or currency of a nation no political power?
That which is able to do good or harm to nations, is power. All our
constitutions have provided representation, checks and responsibilities, to
prevent grievances and preserve rights. Can representation invest
corporations with a power of doing good or harm to the nation for long terms,
without being subject to the constitutional provisions for preventing
grievances and preserving rights? No legislature is itself invested with any
power, unsubjected to these provisions. If legislatures can create a power
beyond their own, the coercion of which is without the reach even of election,
they may thus overthrow every principle of our constitutions. Our constitutions
unite in deciding, that political power ought to be responsible, to be
entrusted for short periods, to be controuled, and to be punished if abused. In
the legislative creation of political corporations, none of these precautions
has been regarded. We have had an irresponsible, uncontrolled, unpunishable,
unelected power over the national purse, in operation for a short time. Compare
the effects of the two principles, exactly contrary to each other, and decide
which is best. Can the evils embowelled in one, by having been littered; over
the land, hide the blessings which have flowed from the other? This absolute
power over the national purse was never before conferred on banking
corporations, nor has a pecuniary despotism been before entrusted by any
government, to such establishments. The banks, created by monarchies and
aristocracies, have all been subjected to those governments, and, subservient
to their designs. The government directs their political effects: Private
bankers are liable, personally, to the payment of their debts. Our bankers are
neither liable to the controul of our governments, nor subject; personally, to
the payment of their debts. A non-descript in their nature, they have of course
been a non-descript in their consequences.
But, if these evils of banking are recompensed to the nation by its
convenience in transmitting federal money from one part of the country to
another, there would yet remain weighty constitutional arguments against it The
absorption of power by money was so very well known by the framers of our
constitutions, that they studiously erected a circumvallation of restrictions,
such as election, representation, sympathy, rotation, responsibility, checks,
balances, divisions and limitations, around the power of the purse, when
exercised by the governments they created, and these governments have bestowed
that power on bankers, unattended by any restriction at all, in return for the
convenience of transmitting the publick money. It is, as if a monarch had
surrendered to a corporation all the principles by which his throne was
secured, for the same mighty object. Weighty enough, as the court think it, to
invest a government with the most dangerous and oppressive of all powers, that
of granting exclusive privileges, and creating bodies politick; neither France,
nor many other large countries, have ever thought of it; and the novelty of
making an object, so diminutive hitherto in the history of mankind, a source of
acquiring enormous powers, must be an evidence of the profundity or shallowness
of the American genius. There is evidently much ingenuity in making the
convenience of transmitting, publick money, on the ground of the great extent
of the United States, the matrix of the right to incorporate, because the state
governments cannot, with any plausibility, avail themselves of the argument,
the whole force of which must redound to the federal government; but yet I
shall proceed to controvert it.
The mother bank of the United States, I suppose (for I have not the law
before me,) may, or may not, establish or abolish branch banks at its own
pleasure. If so, it may, or it may not, at its own will, transmit publick money
from one place excepted. I do not know whether the bank is compelled by the
law, under a penalty to receive and transmit publick money, wherever it may
establish branches; or whether the law is merely preceptive as to the point;
but I suppose, that it can only be required to transmit what it receives, and
that it is not bound to receive where it has no branch. If this should be the
case, this compensation to be paid by the bank, as justifying its
incorporation, may be extended or diminished at its own pleasure. It is true,
that the profit arising from deposites of publick money, inspired a very
reasonable hope, that the bank would send out branches to those places where
most of it was to be received, and from whence it could most easily be
transmitted; but hope is eventual, and the constitutionality of a law ought to
be positive and not fortuitous, at the time it is passed; not now
constitutional and then unconstitutional, as the bank should choose to hook it
to, or unhook it from fiscal operations; and not constitutional in one state,
or at one place, where the bank night choose to have a branch to aid those
operations, and unconstitutional in another, where it might choose to have
none. However this may be, it must be admitted, that the size of the
convenience can have nothing to do with its power to invest congress with the
right of creating corporations, and that the transmission of a cent would be a
convenience, as effectual to constitutionalize an incorporating law, as the
transmission of a million. The constitution does not confine the virtue of this
power-amplifying principle to conveniencies, or means of any specified degrees
of magnitude, and each, however small, like every magnet, contains the power of
attraction. The least convenience, therefore, in the exercise of every
delegated power, will justify congress in granting individual or corporate
privileges; and those who will transmit federal horses, arms or victuals, (so
much more cumbersome than money,) have a better right to them than the
money-changers themselves. In short, if the argument of convenience be
sufficient to establish: the constitutionality of the law in the case of the
banks, every power whatsoever, delegated to congress, may reward its coadjutors
with exclusive privileges, and embrace within its means, monopolies of every
description.
It would be a subject worthy of mature consideration, whether a bank
currency, such as we are suffering under, does not bear a strong analogy in its
effects, to the monopoly of the colonial trade long held by the English, and
which we supposed we had happily abolished by a long war. But it is too copious
for the limits I must observe, and I only suggest it to the reader, that he may
compare in his own mind, both the extent of the two monopolies, and the cost of
getting rid of them.
A phalanx of words have been enlisted to assail the plainest provisions
of the federal constitution; but only one more shall be adverted to. The word
"national," is often made an auxiliary of "sovereign, supreme, necessary and
convenient," towards destroying or relaxing the restrictions imposed upon
congress by the union. It is contended, that congress may exercise
national powers. Where is this nation, of which gentlemen speak? Is it
composed of twenty-three individuals only? If so, if the states made the union,
and if congress possess no powers, except those bestowed by the union, then the
term is only an expedient, like that in using the words sovereign, supreme,
convenient and necessary, to convey to the federal government recondite, in the
place of defined powers. All these words being equally sufficient to convey
indefinite, instead of the limited powers really delegated to congress, why
should we be led round the radii of a circle to get at its centre, omnipotence?
The premises being settled, the argument would terminate in a syllogism, and
put us out of our pain. As thus: Such a thing is an act of power, congress is
omnipotent, therefore it is within the sphere of congress. Is it not the same
sort of reasoning to say, such a thing is an act of sovereignty, or of
supremacy, or necessary, or convenient, or national; congress may do what is
sovereign, supreme, necessary, convenient, or national, therefore it is within
the sphere of congress?
SECTION. 11.
THE BANK DECISION —
PRECEDENTS.
I shall conclude this subject, by an examination of an argument with
which the court began. It remarks, that "banking was introduced at a very early
period of our history, has been recognized by many successive legislatures, and
has been acted upon by the judicial department in cases of peculiar delicacy,
as a law of undoubted obligation." This remark must either furnish the
conclusion, that precedents may change the federal constitution, or it has no
weight. As it was intended to have weight, it deserves an attentive
consideration.
In consolidated societies, subject to one sovereign government, having
but one legislature, and but one judicial power, where law is omnipotent, the
omnipotence of precedents is a component part of the form of the government;
but in a federal republick, having two co-ordinate and distinct legislatures,
and two judicial powers, where law is not omnipotent, and where the
governments, instead of being sovereigns, are only invested with limited
powers, it would be an incongruity with the form of government, to allow to
precedents the same force. The constitution does not invest either the state or
federal governments with an exclusive power of changing its principles by
precedents, because it would destroy their co-ordinacy, disorder the division
of powers, and subject one to the other. Nor can such a power be common to all
these governments, because the different precedents, which would thence arise,
must soon make as many federal constitutions as we have governments. In
countries where the unity and sovereignty of the government is the primary
political principle, these objections to precedents would have no weight; but
here, where neither this unity nor sovereignty is to be found, they would, if
used as they are used under those governments, destroy our existing system;
because, a right to make precedents in any one of our departments is an
acknowledgment of a sovereignty in that department. The reader will remark,
that I am speaking of political precedents, which ought not to be confounded in
any degree with municipal or forensick, established for ascertaining private
rights, because we did not intend by constitutions to subject the national
liberty to so uncertain a tenure.
If, however, we should even be governed in relation to charters, by the
precedents of other nations, and other forms of government, they would furnish
us with a volume of authorities, subversive of their sufficiency to sustain our
banking corporations. In England, the granting of charters was an executive,
not a legislative act; and as the English king, (the grantor) never dies, so
his act could never be revoked. But all our legislatures die regularly, and the
precedents of repealing laws are numerous enough, if the right of repeal
depends upon precedents to establish it beyond a doubt In England, it never was
even contended, that the parliament could not annul charters, and therefore
charters cannot have drawn from that country a sanctity for precedents, with
the help of which they may annul constitutions.
It would be tedious to collect the changes made by laws in the English
magna charta. This charter itself has been so entirely obliterated by laws, as
to have become useless, and to deserve a very opprobious appellation bestowed
upon it by an English judge, but yet so appropriate as to have been long
commemorated. The commercial charters granted by queen Elizabeth, and other
English monarchs, were often annulled or revoked by law; and even by the kings
themselves, in spite of their legal immortality. The south sea charter was
annulled, and remedies applied by the guardians of the publick good, to the
evils of chartered frauds. Precedents therefore pronounce, that legislative
power is not prohibited by corporation fictions, not even by the ancient
fiction that the king never dies, "introduced at a very early period of our
history, recognized by many successive legislatures, and acted upon by the
judicial department, in cases of peculiar delicacy, as a law of undoubted
obligation," from shielding nations against any calamities produced by
charters. The mischiefs of having south sea directors in the English parliament
were so apparent, as to have suggested a law prohibiting the officers of
revenue from even voting at elections; and this is a very pointed precedent;
applying to the case of filling our legislatures with bank directors and
stockholders, who receive nearly the whole of our taxes both state and federal,
and make a profit on all these deposites. So that like English revenue
officers, the higher the taxes the greater will be their income.
Many precedents in relation to charters have been "introduced at
periods of our history" still earlier than banking; have "been
recognized by many successive legislatures," and have been "acted upon
by judicial departments in cases of peculiar delicacy as laws of undoubted
obligation." Virginia, when a colony, oppressed by a mercantile or
money-making charter, having the acquisition of wealth, and not the good of the
colony for its object, was saved by taking refuge from it under a king; even a
king of the Stuart family. The same king divided Virginia in violation of
charters. Carolina and other colonies were in like manner divided. All the
colonies broke through charters to get at publick good and national safety. The
effects of bank charters were not better understood when these laws, so
nick-named, were passed, than the excessive extent of a few colonial charters,
when they were granted. This unforeseen extent demanded and received remedies.
Even since the revolution, it was a subject of debate in congress. The smaller
states asserted, that justice demanded a restriction of the charters extending
to the western ocean, and an application of unsettled territories to the
general benefit; and the states possessing such charters yielded to the call of
justice, and the general interest. Is this a precedent for sacrificing both to
banking charters, and for re-instating musty feudal errors, so very soon after
we have subverted a host of them; by subjecting our property and industry to a
ruinous tenure, renewable forever by those who receive the rents?
Let us look at the logick which supposes that acquiescence makes
precedents, and that precedents make reason. All precedents or laws are at
first theory, and acquiescence alone can convert them into practice. Banking
began as a theory; and political augurs differed in their prognostications of
its effects. The worst precedents are often but little felt in their infancy,
because they move with caution, until they gather strength; and the worse they
are, the more time is often required to develope their character. Some foretold
that banking would be beneficial; others, that it would be pernicious to our
country. It would be an odd Judgment, however honest, which should assert, that
fulfilment ought to destroy, and falsehood to establish an augury, because just
at the time when experience has converted the theory of banking into evidence,
both felt and understood, acquiescence has also mellowed the same theory into a
precedent, and a precedent deprives us of the benefit of experience; so that
the time, expended in ascertaining the truth or falsehood of an augury, renders
it impossible to remedy its imposition, just at the moment when it is
discovered.
Judicial precedents are commonly the work of one man or a very few men.
An opinion becomes an authority, and as it rolls along, it magnifies by others
which adhere to it, not because it is right, but because it is authority. In my
view, it bears no resemblance to the species of consent by which we make
constitutions.
The submission of the people is one argument of little or no weight to
prove the constitutionality of laws. The influence of government, and not the
approbation of the people, generally causes a submission to laws; and
therefore, it is but a bad argument for sanctifying precedents. But under the
federal constitution, the argument has moreover a fraudulent aspect, because
its provisions for amendment have taught the people to believe, that there are
no other modes by which the constitution can be altered; and lulled them into
security against precedents. Expecting solemnities and publick discussions
before their own solemn compact could be changed, they would be caught by the
snare of precedents, from an opinion that no such snare existed. It would have
been better to have declared, that all laws which should live to a certain age
should be engrafted into the constitution, because it would have kept the
people attentive to legislation, and induced them to save such laws as were
good, and to check the vigilance of governments in making precedents favourable
to power. Suppose, it had been proposed to amend the constitution in either of
the prescribed modes, by investing congress with powers to create banks, to
bestow bounties, to grant exclusive privileges, to snake roads and canals, to
annex conditions to the admission of new states into the union, and to prohibit
the state governments from taxing the persons or property it should invest with
exclusive privileges; would all these powers have been as quietly and silently
obtained in the constitutional mode, as by precedents? There is no fair way of
deciding the doubt, except one, which I wish to see resorted to, namely, a
formal proposal in congress for conferring all these powers upon itself, by a
positive amendment of the constitution. The inconsistency between limiting a
government attended with prescribed modes of amendment, and the doctrine that
this same government might extend its powers by its own precedents, is
sufficient to have deluded the people into an opinion, if it be a delusion,
that the constitution was not liable to be altered by precedents; and that
whatever law could do, law could undo. Precedents would make a strange species
of constitution, according to our notions; they would be repealable by the
legislatures which made them. In those countries where the governments are
absolute, this is no objection to them; but here precedents are nothing but
laws, and the question, whether they are constitutional or not, must forever
remain attached to them, unless it can be proved that it is a question of no
importance after they have obtained the title of precedents. It will then
become a matter of very great importance, to ascertain by whom this title is to
be bestowed.
The Stuart family were mighty sticklers for precedents, and sedulous
builders of these political forts to hold the ground gained by construction
from time to time, by its inroads upon constitutions; because, successive
encroachments terminate in conquest. To prevent these encroachments, as a fatal
appendage to all governments invested with sovereignty, we have deprived ours
of the right to modify our constitution by precedents, by prescribing the modes
of modification. The precaution was suggested by two very important
considerations. One, that every government which has possessed a power of
modifying its own form, has used it fraudulently and oppressively : The other,
that we having established co-ordinate governments, state and federal, a right
of modification by precedents must either be equal or exclusive. If it was
equal, inextricable confusion would ensue; if exclusive, the principle of
co-ordinacy would be abolished.
The distinction between limitations and restrictions imposed by the
people on their governments by constitutions, and those imposed by the
governments on themselves, by their own precedents, is manifest. There is no
similitude between the cases. Constitutions and precedents perform contrary
offices. The first tie, and the second untie. It has always been difficult for
nations to tie governments by precedents; and to give them knives, for
precedents are such, to cut these constitutional knots, would make every
government an Alexander. Each administration would have as good a right to make
precedents, as its predecessor; and this guillotine of restrictions would
seldom lie idle. Veneration for our constitutions is the best security for the
endurance of our free form of government, and the best infusion for elevating
the national character. But, how can a nation love an embryo litter of
fluctuating precedents, concealed in the womb of time, each of which as it
grows, hustles some principle out of the constitution, as the cuckoo does the
sparrow out of its own nest? Had Pygmalion's beautiful statue, after it was
animated, been seduced to produce bastards, would be have loved her the better
for it? What should we say to a husband, who should surrender the custody of
his wife to a set of professed rakes? That which ought to be said of a nation,
which entrusts its constitution to the care of precedents. They are only the
projects or opinions of successive legislators, presidents, judges, generals or
statesmen, none of whom will acknowledge that their laws, actions, decisions,
orders or schemes are unconstitutional, though they will be forever as various
and contradictory as the characters from which they proceed. Mankind have
generally, however, confided in this chance medley current of governmental
promulgation, for the preservation of their happiness; but we have preferred
principles, maturely considered, carefully selected, cautiously approved, and
distinctly defined, as a better security. Our mode of establishing the
principles in which we confide is infinitely preferable to the European
practice, of leaving them to be found and to be lost, by a succession of
precedents; from the consideration, that our conventions have no other
business, and reason acts, uncorrupted by avarice or ambition; whereas, after a
government is in operation; the whole tribe of selfish motives becomes active,
and time for inventing and practising stratagems is endless. France, by
deviating from our mode, and investing her constituent assemblies with the
current powers of government, received a lecture upon the consequences of
deriving constitutional principles from the governing power, which she has
cause to remember, and which we ought not to forget.
It is admitted, that precedents, both good and bad, ought to have weight
in fixing our conclusions. They are practical demonstrations of wisdom or
folly; and constitute the fund of experience, by which the faculty of reasoning
is supplied with materials. But discrimination is as applicable to precedents,
as to any other species of evidence; and if mankind have improved in the theory
of political morality, their age only suggests a suspicion of their goodness,
and the propriety of their rigourous examination. As rigourously ought current
measures to be subjected to the test of an improved political system, because
its value depends upon its practical effects. It is true, that power, to
prevent this necessary examination of precedents, has in all ages attempted to
fortify them by a spurious sanctity, for the purposes of fostering usurpations,
and securing its acquisitions; and that the worse they are, the more earnestly
is their sanctity asserted. The exclusive power and wealth they obtain from the
general evils they inflict, are zealous preachers in self defence, which never
fail to convince themselves. Hence no improvement in civil government has ever
been made, or can be preserved, but by a subversion of precedents, until a form
is discovered incapable of corruption. Being numerous as foes, and few as
friends of liberty, she must constantly have recourse to constitutional
principles to keep them in check, or fall a victim to their power. By
surrendering its constitution to precedents, a nation would surrender its
strongest fortress to its strongest enemy; and would subscribe to the opinion,
that the best mode of defending itself, is to throw down its arms.
Constitutions are exposed to the jurisdiction of experience; but precedents
presumptuously renounce it, and impiously say to improvement "stop;" so that
when experience has discovered an evil, our sensibility of its affliction is
rendered more poignant by the veto of a precedent against the remedy.
An exaltation of precedents to an equality with constitutions would
exceed their pretension, however it might dissatisfy their arrogance; and yet a
dignity so extravagantly gratuitous would not absolve them from construction by
a reference to principles, nor entitle them to complain of a treatment, which
they apply to constitutions. But, if we reduce precedents to their just rank,
we shall discern that they are exposed to two tests, to which constitutions are
not subject. They are amenable both to constitutions and expediency. The
enquiry upon the first ground is not, whether the precedent is better or worse
than the constitution, but whether it is conformable to constitutional,
principles; and if it is, the precedent is still amenable to the second
enquiry, whether it is working good or evil. If a succession of wrongs can
constitute rights under the name of precedents, as in Europe, then indeed they
are beyond the reach of these enquiries, and have obtained a degree of
insubordination, to which constitutions themselves do not aspire; otherwise,
they are always liable to an arraignment for disloyalty to constitutions, or
injury to society; and if found guilty, constantly exposed to the mild
punishment of suppression. If they should slip by constitutions, upon the
smooth profession of benefiting society, they ought certainly to be arrested,
should the profession turn out to be fallacious.
But suppose, as the court contend, that banking "having been introduced
at a very early period of our history, been recognized by many successive
legislatures, and been acted upon by the judicial department in cases of
peculiar delicacy, as a law of undoubted obligation," is settled by a cloud of
precedents to be constitutional; and that the question should be considered
under an admission so copious, of the efficacy of precedents. Yet this same
efficacy is as strong to sustain positive, as to sustain implied
constitutional articles. The court does not say that the federal constitution
bestows a positive power on congress to create banks, and only asserts that
"there is no phrase in the constitution which excludes incidental or
implied powers," among which it includes banking. A concurrent right of
taxation is a positive power given and reserved to the federal and state
governments by the constitution. It has been exercised to great extent from
the commencement of our constitutional history; it has been recognized by many
successive legislatures; and it has been acted upon by the judicial departments
in cases of peculiar delicacy, as undoubtedly constitutional. If a cloud of
precedents can establish an incidental or implied power, another cloud of
precedents ought to establish a positive and expressed power. The finest effort
of ingenuity to be found in the opinion of the court, is, that of availing
itself of precedents in a point only incidental, and of passing them by
altogether in reference to the true question to be decided. The state of
Maryland had not disputed the constitutionality of the bank, but had exercised
its concurrent right of taxation; and the court refers to the multiplicity of
precedents as a proof of its constitutionality, and forgets the same species of
multiplicity as a proof of the constitutionality of the concurrent right. There
was a sound reason for doing so. The intended decision was to make a new
precedent, to overthrow the whole multitude of precedents establishing the
concurrent right of taxation, and therefore it was wise to transfer our
attention from the precedents applying to the question, intended to be
destroyed, to make a shew in the back ground, as some generals have gained a
victory by formally arraying the scullions of their army, and deceiving their
adversaries into an opinion, that they were really soldiers. Besides, it held
out an aspect of paying respect to precedents, under cover of which they were
actually to be overturned. There was no precedent at all by which the court
could abridge or modify the concurrent powers of taxation established by the
constitution; but a multitude of precedents in favour of the constitutionality
of this concurrency, had arisen from its mutual exercise. Congress had
established it by many laws, especially in taxing the state banks by a stamp
act. If the establishment of state banks was within the state spheres, congress
had no right to throw obstacles in the way of their sphere of action,
except by virtue of the concurrent power of taxation; and if this power
justified congress in taxing state banks, the same power justified the states
in taxing the banks of congress, though these latter were also constitutional.
But, the court, instead of considering the precedents in relation to the
concurrent right of taxation, have insisted at large upon those which relate to
the constitutionality of banking, and adhered to the precedent of searching for
a goose, when the thing lost was a cow. The excessive departure from the true
question by this process, will be seen at once by supposing all that it could
prove, namely that the constitution had given to congress a positive power to
create banks. We should then have seen it in a state of equality, as to origin,
rank and obligation, with the positive concurrent power of taxation; and the
question would have come fairly forth, whether one power revokes another equal
to itself, because they clash? If this question was answered affirmatively, and
the revoking power ascertained, it would be easy to prove that very little of
the constitution would remain. I suppose it will hardly be asserted, that an
implied power is better than if it had been expressed, because though it may be
moulded so as to defeat other implied powers, it can hardly be made to destroy
a power expressed. The concurrent right of taxation reaches all property real
and personal, and had banking been positively allowed, still it would not have
followed, that any modifications of property thus subjected to taxation, by the
state or federal government, should discharge it from the liability to which it
is clearly subjected. The property could not evade the constitution by changing
its shape. The authors of The Federalist have considered this concurrent right
of taxation in the federal and state governments as a plain, positive and vital
principle of the constitution; and the court has merged it in the implied
constitutionality of banking, as by precedents established.
If I have overlooked any argument used by the court, it has been done
undesignedly; and if I have any hope of victory, in a contest between a dwarf
and half a dozen giants, it is founded in the following consideration. It seems
to me that the argument of the court may be defined "an exquisite sample of
artificial phraseology;" and that the simplicity of ignorance may possibly
break through fine webs spun from the wombs of single words, because truth can
be seen without being dressed in such flimsy robes. Mystical interpreters
extract from texts whatever doctrine is necessary for their purpose, but sound
logick is not like money; an hundred light arguments will not make a heavy one,
as an hundred cents make a dollar; and I cannot discern an argument in the
opinion, which weighed singly, seems heavy. When I read those extracted from
the words "sovereign, supreme, sphere, paramount, necessary and convenient," I
thought I saw the end of the sound revolutionary good sense by which our
governments were constituted, as Rome saw puns and quibbles substituted for the
masculine eloquence which preceded the age of Augustus. It seemed like
extracting poison from vipers, under an opinion that it would be medicinal. If
I were asked, how it has happened that men in power can inveigh against,
oppose, support, and practise the same maxims? I should reply, by artificial
phraseology. How are political parties drilled into contradictions? By
artificial phraseology. How has the reasoning of the court been assailed,
whilst its conclusion is allowed to be correct? By artificial phraseology. How
is the right of incorporating banks conceded, when the mode of defending the
right is censured? By artificial phraseology. And what is this artificial
phraseology? It is the vocation of stripping evils of unseemly attire in order
to dress them more handsomely, or of subjecting the federal constitution to the
needles of verbal embroiderers, in obedience to the saying "the tailor makes
the man."
SECTION 12.
PROTECTING DUTIES AND
BOUNTIES.
The points presenting themselves in considering this important subject,
are, first, whether either the federal or state governments possess a right to
distribute wealth and poverty, gain and loss between occupations and
individuals. Secondly, whether the federal government possesses this right. And
thirdly, supposing both or either to possess such a right, whether it is wise,
or honest, or beneficial to the United States, to exercise it.
To understand the rights of mankind, the powers of government, and the
meaning of constitutions, we ought to ascertain the design of civil society.
Man, by nature, had two rights; to his conscience, and to his labour; and it
was the design of civil society, to secure these rights. In the case of
religious freedom, we have seen one right; in that of the freedom of property,
our vision is not so clear; yet both, as natural rights, stand on the same
foundation.
By suppressing the distinction between occupations, and covering all by
the inclusive term, labour, we at once discern the natural equality of the
right. The occupations of men are the men themselves; and every free government
supposes, that it is only distinguishable from a tyrannical one by equal laws,
and equal rights in its citizens. Our societies grew up from this principle,
and we find nothing in our constitutions by which it is abolished. Our
governments received man, animated by the creator, with a free will over his
mind and his labour; and were instituted to protect the divine bounty. The
freedom of conscience was made complete, because no contributions from that
natural right were necessary for the support of civil government; but the
freedom of labour was incomplete, from the necessity of such contributions. For
ages; governments used the division of mankind into religious sects, as a means
for making some men subservient to the avarice of others. We have detected this
fraud; but its principle is vindicated by our governments having used the
division of mankind into different occupations, as a means for making some men
subservient to the avarice of others. The natural rights of labour, in
subjecting themselves to contributions for the support of civil government,
never meant to acknowledge themselves to be the slaves of a despotick power.
These contributions were agreed to, for the purchase of protection, and not to
establish a power for transferring the fruits of labour from one man to
another. When paid, the freedom of property, as a natural right, occupies in
relation to the remainder, the same ground which is occupied by the freedom of
conscience. There is no reason to make any deduction from the latter right, for
the sake of civil government; the reason for doing so, as to the former,
extends only to publick contributions, and when these are paid, the rights of
property are the same as the rights of conscience. Had it been proposed in
forming our constitutions, to invest government with a power (over and above
the power of exacting contributions for publick use) of taking away the
property of some and giving it others, it would have been rejected with
indignation; yet this power is as much exercised by bestowing gratuities or
exclusive privileges, as if the individuals, impoverished and enriched, had
been named. This evasion of the freedom of property is particularly fraudulent,
when a new society is constituted of men previously divided into distinct sects
or occupations. Then the names of these sects or occupations are exactly the
same as the names bestowed on infancy, as a medium for transferring property
from one to another, and more difficult to exchange, in order to elude the
imposition. Suppose, that at the period when the Highlands of Scotland were
inhabited by a very few cognominal families, these families had united in a
civil government by the names of tribes, either in the terms of the state or
federal constitutions. In the first case, an assumption of power by their
government to tax one family or tribe to enrich another, would have been
exactly equivalent to state exclusive privileges in favour of some occupations,
and injurious to others. In the second, an assumption of the same power would
also have had this effect, and would moreover have resembled partialities on
the part of congress for and against particular states. The endowment of one
class of men by the names of their occupations, at the expense of another, is
evidently the same in substance, as to tax the McGregors to enrich the
McDonalds. All these cases, however modified, are an actual subjection of
labour and free will for self good, to the use of avarice; and if this be not
tyranny, I know not what is so.
Had beasts established a government among themselves, to protect each
individual in the exertion of his own skill and industry, in gathering the
fruits of the forest, and this government should have passed laws to prevent
the majority of beasts from eating clover and cherries, and confining them to
broom straw and blackberries, that a few might indulge in the most delicious
fruits; would it not have been an arbitrary restriction of the desires and
comforts bestowed on beasts by divine bounty, and a tyrannical abridgment of
their natural power and liberty to provide for themselves? The case is much
stronger, when the fruits are produced, not spontaneously, but by labour. Can
it be less humiliating to reason than to instinct, to suffer this deprivation;
or is the latter most capable of feeling it? Yet sophistry, or at least
self-interest, has deluded several states into an opinion, that it is a
blessing. But Doctor Rezio of Barataria could never persuade honest Sancho,
that he would be made healthier or happier, by having good victuals or drink
conjured away by the wand of power. Nations, excluded by prohibitory duties
upon industry and free will, from enjoying the good things produced by
different climates and different degrees in the arts, are placed in the
situation of the beguiled and half starved Sancho. This is not surprising, when
they are obliged to submit to doctors; but what shall we say to nations who
boast of doctoring themselves? Are our comforts so numerous that they ought to
be diminished? Yes, says the doctor, it will make you richer. When we reflect,
however, upon the existence of an ocean for the diffusion of these comforts,
and that man has been taught to walk all over the world upon the water, it
ought to induce us to doubt, whether this worldly wisdom, even if it were not a
fraud, of bartering comforts for deprivations, was preferable to the wisdom
which has provided the means of bartering comforts for comforts.
The capacities of reasoning and labouring beget among men a relation
founded in desires and wants, which designates them as constituted by nature,
for society. Whether society be tacit or conventional, its end and design is to
protect each individual of which it is composed, in the enjoyment and exercise
of his primitive and natural faculties of labour and free will. Restraints upon
these, so far and no farther, than to protect the same natural rights of other
individuals, constitute social liberty; and restraints imposed, not for the end
of this social protection, constitute tyranny. If the society has crept tacitly
into existence, these two natural rights are the strongest of all limitations
upon the powers of its government, because they are imposed by God; if it be
conventional, the same limitations also remain, unless the compact should
expressly surrender them. It would even be a doubt, if an existing generation
should improvidently do so, whether future generations would be bound by the
surrender; and the soundest opinion is, that they would not. Suppose the
compact should say, that the government should have the power of taking away
the life of one man for the private benefit of another; would this be a free
government? But if it be silent upon the point, could the government exercise
the power because it was not prohibited? And what prohibits it, but the natural
paramount human right to the enjoyment of life? It is this paramount right,
which has made it unnecessary to stipulate in our constitutions against the
killing of one man for the benefit of another. The right of each man to his own
labour, by which only his life can be preserved, is as much a natural right, as
a right to life itself; nor was there any more need to stipulate in actual
social compacts for its safety, than for the safety of life. It is an evasion
of the right to live, to take away the products of labour by which men live,
and to give them to other men. If a government can take some, it may take all;
and bad governments, by this species of tyranny, do often starve men to death.
But there is no difference in the principle, whether men are partially starved,
or quite starved, to enrich other men. If the reader will recollect, and apply
to this point what has been before said in relation to a bill of rights, he
will discern that there was no reason to vindicate natural rights in that mode,
because they remain, if not surrendered; and as the rights to our lives and our
labour are not surrendered by our state constitutions, their design being on
the contrary, to protect and preserve both, it follows, that these paramount
rights are limitations upon the power of state governments to invade, either by
exclusive privileges or otherwise, to enrich private individuals.
I might rest the argument here, and leave it to the reader to determine
whether the interest, liberty or happiness of any state in the union can be
possibly advanced by overturning these principles; but as the freedom of
property is the object intended to be vindicated by this treatise, I hope he
will have patience with me in bringing it into view in as many shapes as I may
happen to recollect.
All, or most intellectual improvements, are referable to the free
exercise of each man's will, in procuring his own happiness. It unfolds his
understanding, increases his knowledge, and animates his virtue. By multiplying
the relations between the individuals of the human family, the blessings of
society are also multiplied; and an abridgment of these relations is a
retrogade movement towards that savage state, in which they are few. These
relations are called commerce; and all obstacles thrown in its way are
diminutions of an intercourse, from which men have derived their
accomplishments, and a capacity for happiness.
Though a power of interfering in the intercourse between individuals by
bestowing exclusive privileges on particular sects or interests, civil or
religious, is contrary to the rights of nature and the end of society, and has
produced oppression, when exercised in all other modes; it is contended, that
one mode remains, by which a bad principle may be changed into a good one, and
fraud white-washed into justice. By baptizing this bad principle with the
goodly name of "an encouragement of manufactures," avarice is supposed to be
turned into patriotism, as Jefferies was made an upright judge, by clothing him
in ermine; or, as it was once endeavoured to be purified by the still better
name "religion." It behooves us, therefore, to consider this new nominal
modification of the same old tyrannical principle, with great attention.
If men were classed by the colour of their hair, yet the generick term
"man" would include them all. Classed by their occupations, all are also
included by the generick term "labour." They all have the same rights, whatever
may be the outlines of their physical or moral qualities, and to stretch or
contract their moral qualities by force, in order to pamper the passions of a
particular sect, or their physical qualities to gratify those of a Procrustes,
is one and the same act. It is the same thing for a government to grant
exclusive privileges to a particular occupation at the expense of the others,
as to the class of black-haired men, at the expense of those having hair of
other colours, because the effect of both would be, to confiscate a portion of
the faculties of some men to provide for their own subsistence and comfort, and
to bestow the amount of the confiscation upon other men; and it exceeds in
atrocity the contributions imposed by generals on conquered towns, because it
cannot be defended by the right of conquest. We have been led into this error by
the abundance and vagueness of words. The words "agriculture, manufacture,
commerce, profession and science" have produced artificial distinctions, which
have obscured the reach of the inclusive word "labour," and caused us to
forget, that it is a natural faculty, like that of seeing, given to all men,
that each might provide for his own individual happiness. I cannot see any
difference between taking away from a man one of his eyes, if it could be done,
and giving it to another; or taking away and giving to another fifty per centum
of his labour. But this has been effected by making the plenty of words change
the nature of things, although labour is in fact the only manufacturer. Workers
upon the land, or upon the ocean, who give to things new forms or new places,
are all manufacturers; and being comprised in one essential character, are
entitled to the same freedom in free societies. It is this equality of rights,
and nothing else, which constitutes a free, fair and mild government.
The power of a strong man to extort from a weak one, more labour than he
gave in exchange, identifies the character of a government, which personifies
the strong man, in depriving some occupations of free will in making exchanges
of labour. It assumes that very practice of the strong man, which caused
mankind to form themselves into societies, for the purpose of resistance. An
exertion of this power first defrauded the sufferers of all the labour they had
lost during the revolutionary war, by the circulation of certificates whilst
they were depreciating; and secondly, of as much more by taxes imposed on the
sufferers themselves, to raise an enormous bounty for the last holders. A
certificate sect, strong in influence, used the power of government to transfer
to itself a great mass of the labour of more useful occupations, like the
strong unassociated man. The banking sect, also, has been able to convert the
legitimate power of government to protect the freedom and fairness of
exchanges, into an illegitimate power of destroying both, by enabling that sect
to rob all useful occupations of a great portion of their labour, by means of
false or depreciating tokens of value, drawing an interest paid by these
occupations, in addition to their losses from depreciation and bankruptcy. But,
the manufacturing sect do not propose to divert the power of government from
the protection to the invasion of property in the same atrocious degree, and
only asks it to compel all other occupations to exchange labours with it, not
by the mutual valuations of free will, but by a compulsory, inadequate
valuation; and like a liberal, unassociated strong man, it is willing, for the
present, to receive annually, from all other occupations, two measures
only for one. In exchanges of labour, that which a freedom of intercourse can
obtain, constitutes the only true measure.
The effects of this annual exchange of labour to a great amount, by a
false, and of course, a fraudulent measure, are too extensive to be explained
in this short treatise, and too intricate to be completely developed; but some
of its consequences are necessary to clarify the argument.
As all the other occupations, by being compelled to give two measures of
labour for one, will sustain a great diminution of their means for procuring
subsistence, competency or affluence, every individual belonging to them will
immediately exert his ingenuity to evade the imposition, and to reimburse
himself for his losses, at the expense of other individuals. He will endeavour
to enhance the price of his own manufactures, whether agricultural, mechanical,
commercial, scientifick or professional, in order to bring back exchanges from
the false measure of legal compulsion, to the true measure of free will. If
these other occupations could succeed in this attempt against the occupation
obtaining the bounty by means of the false measure, the bounty or privilege
would become abortive, and exchanges would be honestly made, measure for
measure, as they were previously to the compulsion. In this event, the
experiment would only have the effect of disordering for a time the only fair
principle of social intercourse, and of exciting new arts for mutual
imposition. If these other occupations cannot succeed in reinstating the golden
rule of free will in the exchanges of labour, they will endeavour, like
starving men, to prey upon each other; and the oppression of the bounty will
fall heavily upon them a second time, by producing fraud and extortion among
themselves. Those occupations, which cannot find at home objects on which to
operate, to indemnify themselves for the extortions of the occupation which is
privileged to mete in a smaller measure, than they are willing to receive by,
cannot be reimbursed. The agricultural and commercial occupations are in this
situation. Neither of these can for many years find objects at home for
exchanges, sufficient to reinstate the freedom of intercourse; and neither can
indemnify itself for the coerced contributions to the domestic privileged sect,
at the expense of foreign nations, because all exchanges between them and these
nations must still be made and measured by free will and mutual computation,
whilst the extortions they will suffer from the false legal mode of exchanges
at home will remain. The agricultural class may indeed retain and employ its
capital, subject to the contribution, but a considerable portion of the
mercantile capital will be thrown out of employment; and its owners must suffer
miseries and losses from leaving a business in which they are skilful, for one
of which they are ignorant. They will be emigrants from a highly cultivated to
an unexplored country. Though the scientifick classes may make a few reprisals
from the endowed class, and many inroads for indemnification upon the
mercantile and agricultural classes, yet it will be incomplete, because they
must participate of the loss sustained by their best customers. The valuable
classes of ship builders, owners and navigators, subsisting entirely upon the
capital of the mercantile and agricultural classes, must inevitably lose a
portion of employment equivalent to the losses of their patrons or customers,
without the smallest chance of reimbursement. These classes sell neither bread,
meat, physick nor law, and their wages will be diminished by a diminution of
employment. Such will be the effect until a sufficient number of these maritime
manufacturers are starved, or thrown out of employment, to create a demand for
the labour of the remnant.
The great argument, in favour of compelling all other occupations to pay
double prices to that which is very incorrectly called, exclusively, the
manufacturing occupation, is, that the imposition will be temporary; for that
when it has coerced an emigration from other occupations into this, to stock
the market sufficiently with manufactures, the fraudulent measure or compulsory
price will disappear, and the fair measure, or free will in computation, will
be re-instated; and an anticipation of a recovery of the principle for which I
am contending, is said to be better than its actual enjoyment. No proverb has
said, that a bird in the bush is worth as much, as one in the hand. This
argument, containing the essential and solitary promise, by which a
protecting-duty policy is defended, is infinitely more fallacious than any I
have ever met with, by which privileged sects have heretofore dazzled reason,
and defrauded ignorance. These fungi have usually asserted, that their
monopolies and exclusive privileges were good, and proper for endurance. But
this admits, that the privilege and monopoly it is striving to obtain bad; by
asserting that it ought to be granted, because it will in time cease to operate
partially and unjustly upon the other occupations of society. Let us, says its
great argument, relinquish the good principle of exchanging labour by the
measure of free will, and undertake a journey, long or short, upon the bad
principle of forcing all other occupations to give two measures for one, to a
certain detachment of manufacturers, that we may get back to the same good
principle from which we set out. What should we think of the general of a vast
army, encamped on firm ground, who should march for many years over bogs and
marshes, in order to get back to the same ground? If he should even accomplish
a project so profound, would his getting back resuscitate or cure the soldiers
who had died or been crippled by the way? A journey through exclusive
privileges, in order to get back to the principles of social liberty, is even
more hopeless than the march of an army round the world, in order to get back
to a safe station; for this latter journey might possibly have an end. But
where is the end of the world of exclusive privileges? What man can hope to
live to the end of a journey through its protecting-duty region only? If he
should survive the hardships and privations of this long and perilous journey,
could he be so infatuated as to expect, that no new exclusive privileges will
be invented by the way? Will avarice be glutted and put to sleep by its success
in this instance; or will that success beget a new progeny, and cause the hopes
of our traveller from good principles, to get back to the same good principles,
by the road of bad principles, to be more extravagant than those of a turnspit
dog, which expects that every step will be his last, and that then he will eat
the meat he is roasting? But why do I argue this point, when he who gave to man
the capacities of free will and labouring, hath said, "with what measure you
mete, it shall be measured to you again?"
Let us, therefore, proceed to the second point, namely, whether the
federal government has a right to regulate the wealth and poverty of
individuals, or of corporations, by protecting duties and bounties. And if it
has, mark the consequence! Protecting duties for the encouragement or coercion
of manufactures are within the sphere of action of congress; the
supremacy of congress over subordinate governments entitles it to remove all
obstacles to its measures within that sphere; therefore, the state
governments cannot tax internal manufactures, because it would obstruct the
intention of congress to encourage them by bounties. Here is a new case,
displaying the extent of the principles asserted in the bank decision, and
evincing that their power to enable congress gradually to strip the states of
the right of taxation is not ascertained, if according to that decision, it
admits of any limitation. I hope the reader, in considering this important
point, will endeavour to recollect the observations previously made, in
relation to sovereignty, supremacy, and our distinction between local and
external powers, which caused us to go to war with England, and dictated much
of our former and existing confederation. He is not to determine, whether
congress could create a bank, or grant protecting-duty bounties, or
gratuitously bestow the property of the people upon revolutionary soldiers, as
if these were special and particular cases; but, whether it has an unlimited
right to establish monopolies, grant exclusive privileges to persons, exempt
capital or wealth from state taxation, and give away the property of the people
in any amount to whomsoever it pleases. Such are the general conclusions
arising from these special cases, which seem to me to deserve the national
attention.
The truth of the following proposition, depends upon the intention of
the federal constitution. Congress is only invested with limited powers
over persons and things, for the purpose of executing the defined
powers delegated to it. The 8th section of the first article of the
constitution contains a list of these defined powers, amounting to seventeen;
and the eighteenth clause of the section empowers congress to make all laws
necessary and proper for executing the seventeen defined powers delegated.
Thus, a correlative power of acting upon persons and things is attached to each
defined power delegated, as a necessary and proper means for the execution of
that power; and not as a means of obtaining power not delegated, or of
destroying or diminishing any power reserved to the states.
The first power given to congress is that of taxation, to provide for
the common defence and general welfare of the United States. Under this
power, congress can act upon persons and things, so far as is necessary and
proper to collect these taxes. It has however been often asserted, that the
power given to congress to lay taxes is amplified by the words "to provide for
the common defence and general welfare of the United States." This
construction is obviously erroneous. These words refer to the destination of
the taxes, and are only a reason for the power of taxation. If they convey any
power over persons and things, internally or externally, they convey all power
over all objects; and under a construction of the latitude contended for the
power of taxation, and all the subsequent powers bestowed in the same section,
would have been quite superfluous. For, if these words comprise a grant of
power to congress, the power is unlimited, and includes both all the specified
powers, and also every other power, which in their opinion may be necessary and
proper to provide for the common defence and general welfare. They would
suffice to swallow up the treaty-making power, as well as the other
specifications of the constitution; but, if they do not suffice to swallow up
all the specifications and restrictions of the constitution, they are not
sufficient to swallow up any one. Of course, they cannot absorb any portion of
the local or internal powers, specially reserved to the states, among which
that of making roads is undoubtedly one.
But, suppose we detach the phrase "to provide for the common defence and
general welfare of the United States" from the power of taxation, and
consider it as an isolated and distinct grant of power; it will then be
necessary to ascertain whose defence and welfare was to be provided for; the
defence and welfare of the individuals composing the states, or of the
political individuals called states. I think the letter and tenour of the
constitution correspond upon this point with perfect perspicuity. "The United
States" are specified as the objects or individuals, whose common
defence and general welfare was to be provided for. In the first clause
of the constitution the same phrase is used: "The people of the United
States to provide for the common defence and promote the general welfare
establish this constitution for the United States of America." It was
not, therefore, a constitution for the government of persons or things
generally existing in these United States, but for the government of the states
themselves, and in order to promote their common defence and general welfare.
The words common and general refer to the objects or political beings,
whose defence and welfare was to be provided for, as being in a state of union.
And as no state of union or any species of social compact existed among the
persons composing the states, inclusively, these words cannot be made to refer
to them. They therefore restrain the power of congress to the defence and
welfare of the states themselves, instead of enlarging it to include the
defence and welfare of private persons.
The whole tenour of the constitution corresponds with this literal
construction. All the powers given to congress point to the defence and welfare
of United States, and those necessary for the defence and welfare of private
individuals are reserved to the states themselves. If this construction be
correct, it clearly follows, that congress can only impose taxes,
constitutionally, for the defence and welfare of the states, and that an
imposition of taxes for the purpose of enriching one state, one interest, or
one individual, at the expense of another state, another interest, or another
individual, is as unconstitutional, as it is adverse to the freedom and
fairness of exchanges. In fact, this declaratory end is a complete key to the
intention of the constitution, and locks out congress, in conjunction with the
reservation to the states, from all constructive powers over persons and
things, of a local and personal nature, especially the power of taxing either
to foster political fungi, or to grant bounties or exclusive privileges.
Let us, however, look farther into the constitution, to see if it
affords other proofs of the correctness of the construction for which I
contend. Its terms, in creating the departments of the federal government, are
the same with those used to define its design. "The house of representatives
shall consist of members chosen by the people of the several states.
Representatives and direct taxes shall be apportioned among the several
states. Until the enumeration, the state of New Hampshire shall be
entitled to choose three representatives. When vacancies happen in the
representation from any state. President of the United States.
Senate of the United States. House of representatives of the United
States. And the congress of the United States." Now, can any fair reasoner
contend, that the states are not here repeatedly recognized, as the authors of
the federal government, and the federal government as a government of the
states, and not of the people? Those who made it are its constituents, and over
these constituents its powers are delegated. The states are expressly
characterized as individual political beings, and every department of the
federal government, even the house of representatives, is positively asserted
to be the representative, agent or trustee of the states, and none are even
insinuated to be the representative, agent or trustee of the people, except as
comprised by the term "states." Congress is therefore a representation of those
interests only common to its constituents, the states. But the framers of the
constitution, lest this representation should usurp powers over private persons
and internal concerns, carefully defined such common interests of these
constituents, as were intended to be entrusted to their representative; and the
question is, whether the doctrine of means to effect ends, can bring under the
power of a representation of states, persons and things, neither its
constituents, nor subjected to its power.
Let us look at a sample of this question.
Powers bestowed by the constitution. Powers claimed as means.
Taxation, Incorporating banks,
War, Making roads,
Appropriating money, Giving it away,
Regulating trade, Granting monopolies,
Admitting new states, Prescribing state constitutions.
In one column, we find objects of general concern to the states; in the
other, said to be their legitimate progeny, objects merely personal or local.
Now I contend, that the progeny of the parent powers ought to be sui generis;
and that a progeny of means, which violate the powers reserved to the states,
under the influence of a different species of lust, from that which excited the
heathen gods, is no less spurious, than the fruit of their amours.
Let us deduce a few arguments from the following position. No powers,
delegated to congress, are represented in the state governments; and no powers
reserved to the states, are represented in congress. If this be true, it
evidently follows, that the design of the federal constitution was to establish
two communities, assigning to each a distinct representation, and entrusting
each with distinct powers and duties, so modelled as to preserve the common
interest, fellow feeling and sympathy, which constitute the essence of a true
representation. Congress was entrusted with powers concerning the common
defence and general welfare of the community of states, which it represents;
and the state governments, with the common defence and general welfare of the
communities of individuals represented by them. If the latter should exercise
powers within the sphere of the former, under the pretexts that it would
advance the welfare of the community of states constituting the union, and were
means which might be inferred from the reserved powers, they would be acting
for a community which they do not represent; and if congress should exercise
any powers within the state spheres, under the same pretexts, it would in like
manner be acting for a community which it does not represent. Now, as it is not
pretended that either congress or the state governments can violate the
principles of representation, by directly assuming powers assigned to the
other, the only question is, whether either can do it indirectly, by the
instrumentality of means. It seems to me, that both these governments must as
well be the representative of means, as of powers, and this consideration is as
much a restriction upon the former, as upon the latter. Means ought to be
emblematical of the powers they commemorate, and the converting of them into
powers which penetrate into the territories, either of rights delegated or
rights reserved, is a species of political transubstantiation, transgressing
the essential principles of representation. They are emanations from the powers
delegated to congress or reserved to the states; but these emanations must
surely be limited and restricted by the same principles which limit and
restrict the powers themselves. The primary and obvious intention of the
federal constitution was, to invest congress with such powers only, as equally
affected the members of the community called the union; and to leave to the
state governments, all those powers affecting the members of the community
called the states. In both cases, this was necessary to sustain the principles
of representation, and in neither can this primary and obvious intention be
evaded by any means, without destroying both the positive division of powers,
and the moral principle of representation. A legislation of either of these
communities within the territory assigned to the other, is equivalent to a
legislation by one independent nation over another. I now ask the reader, if
monopolies, exclusive privileges, or bounties to persons; or local
improvements, such as roads or canals, and an encouragement of agriculture or
manufactures; are represented in congress; and if congress in legislating upon
such subjects, can possibly be invigorated by the community of interests, which
ought to pervade that body in the discharge of its federal functions? Are not
the recited functions plainly local and personal, and would they not be
exercised in congress by feelings and motives, entirely different from the
common interest, fellow feeling and sympathy, essential to representation?
In the Federalist, pages 173, 176 and 177, Mr. Hamilton, who was neither
disposed to diminish the powers of congress, nor to extend those of the states,
has delivered the following contemporary construction of the constitution.
"The encouragement of agriculture and manufactures is an appendage of the
domestick police of the states. Exorbitant duties on imported articles tend
to render other classes of the community, tributary, in an improper
degree, to the manufacturing classes. They would be attended with
inequality, between the manufacturing and non-manufacturing states."
What a whimsical thing is party politicks! This gentleman assisted in framing
the federal constitution. He knew that the agricultural and manufacturing
interests were not represented in congress, and that a patronage of either by
that body, would therefore be an usurpation; and having stated that they
appertained to the states, he suggests the tyrannical effect of high duties, in
making one state tributary to another. Mr. Hamilton had a clear view of
the subject. As the states and not individuals were the constituents of
congress, he saw that it could not legislate concerning the property, the
persons, or the rights of individuals, of a local or internal nature; because
in such cases the relation necessary to bestow a right of legislation, between
constituent and representative, did not exist. He saw that the absence of this
relationship would, as it always does, make some people tributary to others. He
saw that the care of agriculture and manufactures equally appertained to the
states. And he knew that a right to encourage one involved a right to
discourage the other; and that, however modest and unassuming the first word
might appear, it contained as much internal tyrannical power, as any degree of
ambition could wish for.
But, may not the power of encouraging and discouraging both agriculture
and manufactures, be common to congress and the state governments? This is a
doubt which deserves great attention, and will reflect much light upon the
subject. We have not forgotten the assertion in the decision of the bank
question, "tha