A. P. (Abel Parker) Upshur.

A brief enquiry into the true nature and character of our federal government: being a review of Judge Story's commentaries on the Constitution of the United States online

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Online LibraryA. P. (Abel Parker) UpshurA brief enquiry into the true nature and character of our federal government: being a review of Judge Story's commentaries on the Constitution of the United States → online text (page 13 of 16)
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scious that, in building up this huge temple of federal power,
they necessarily destroy those less pretending structures from
which alone they derive shelter, protection and safety. This is
the ignis fatuus which has so often deceived nations, and be-
trayed them into the slough of despotism. On all such, the im-
pressive warning of Patrick Henry, drawn from the lessons of
all experience, would be utterly lost. " Those nations who have
gone in search of grandeur, power and splendor, have also fallen
a sacrifice and been the victims of their own folly. "While they
acquired those visionary blessings, they lost their freedom."
The consolidationists forget these wholesome truths, in their



106 TRUE NATURE AND CHARACTER OF

eagerness to invest the federal government mth every power
■which is necessary to realize their visions in a great and splendid
nation. Hence they do not discriminate between the several
classes of federal powers, but contend for all of them, with the
same blind and devoted zeal. It is remarkable that, in the ex-
ercise of all those functions of the federal government which
concern our foreign relations, scarcely a case can be supposed,
requiring the aid of any implied or incidental power, as to which
any serious doubt can arise. The powers of that government,
as to all such matters, are so distinctly and plainly pointed out
in the very letter of the Constitution, and they are so ample for
all the purposes contemplated, that it is only necessary to un-
derstand them according to their plain meaning, and to exercise
them according to their acknowledged extent. No auxiliaries
are required ; the government has only to go on in the execution
of its trusts, with powers at once ample and unquestioned. It
is only in matters which concern our domestic policy, that any
serious *struggle for federal power has ever arisen, or
L J is likely to arise. Here, that love of splendor and dis-

play, which deludes so large a portion of mankind, unites with
that self-interest by which all mankind are swayed, in aggran-
dizing the federal government, and adding to its powers. He
who thinks it better to belong to a splendid and showy govern-
ment, than to a free and happy one, naturally seeks to surround
all our institutions with a gaudy pageantry, which belongs only
to aristocratic or monarchical systems. But the great struggle
is for those various and extended powers, from the exercise of
which avarice may expect its gratifications. Hence the desire
for a profuse expenditure of public money, and hence the
thousand schemes under the name of internal improvements, by
means of which hungry contractors may plunder the public
treasury, and wily speculators prey upon the less skilful and
cunning. And hence, too, another sort of legislation, the most
vicious of the whole, which, professing a fair and legitimate ob-
ject of public good, looks, really, only to the promotion of pri-
vate interests. It is thus that classes are united in supporting
the powers of government, and an interest is created strong
enough to carry all measures, and sustain all abuses.

Let it be borne in mind that, as to all these subjects of do-



OUR FEDERAL GOVERNMENT. 107

mestic concern, there is no absolute necessity that the federal
government should possess any power at all. They are all such
as the State governments are perfectly competent to manage ;
and the most competent, because each State is the best judge of
what is useful or necessary to itself. There is, then, no room to
complain of any want of power to do whatever the interests of
the people require to be done. This is the topic upon which our
author has lavishly expended his strength. Looking upon gov-
ernment as a machine contrived only for the public good, he
thinks it strange that it should not be supposed to possess all the
faculties calculated to answer the purposes of its creation. And
surely it would be strange, if it were, indeed, so defectively con-
structed. But the author seems to forget that in our system the
federal government stands not alone. That is but a part of the
machine ; complete in itself, certainly, and perfectly competent,
without borrowing aid from any other source, to work out its
own part of the general result. But it is not competent to work
out the whole result. The State governments have also their
part to perform, and the two together make the perfect work.
Here, then, are all the powers which it is necessary that govern-
ment should possess ; not lodged in one place, but distributed ;
not the power of the State governments, nor of the federal gov-
ernment, but the aggregate of their several and *respec-
tive powers. In the exercise of those functions which '- -"
the State governments are forbidden to exercise, the federal
government need not look beyond the letter of its charter for
any needful power ; and in the exercise of any other function,
there is still less necessity that it should do so ; because, what-
ever power that government does not plainly possess, is plainly
possessed by the State governments. I speak, of course, of
such powers only as may be exercised either by the one or the
other, and not of such as are denied to both. I mean only to
say, that so far as the States and the people have entrusted
power to government at all, they have done so in language plain
and full enough to render all implication unnecessary. Let the
federal government exercise only such power as plainly belongs
to it, rejecting all such as is even doubtful, and it will be found
that our system will work out all the useful ends of government,
harmoniously and without contest, and without dispute, and
without usurpation.



108 TRUE NATURE AND CHARACTER OF

I have thus finished the examination of the political part of
these commentaries, and this is the only object with which this
review was commenced. There are, however, a few topics yet
remaining, of great public concern, and which ought not to be
omitted. Some of these, as it seems to me, have been pre-
sented by the author in false and deceptive lights, and others
of them, from their intrinsic importance, cannot be too often
pressed upon public attention. I do not propose to examine
them minutely, but simply to present them in a few of their
strongest lights.

In his examination of the structure and functions of the house
of representatives, the author has given his views of that clause of
the Constitution which allows representation to three-fifths of the
slaves. He considers the compromise upon this subject as unjust in
principle, and decidedly injurious to the people of the non-slave-
holding States. He admits that an equivalent for this supposed
concession to the South was intended to be secured by another
provision, which directs that "Representatives and direct taxes
shall be apportioned among the several States, according to
their respective numbers ;" but he considers this provision
"more specious than solid;, for while in the levy of taxes it ap-
portions them on three-fifths of persons not free, it on the other
hand, really exempts the other two-fifths from being taxed at
all as property. Whereas, if direct taxes had been apportioned,
as upon principle they ought to be, according to the real value
of property within the State, the whole of the slaves would have
been taxable as property. But a far more striking inequality
has been disclosed *by the practical operations of the
L J government. The principle of representation is con-

stant and uniform; the levy of direct taxes is occasional and
rare. In the course of forty years, no more than three direct
taxes have been levied, and those only under very extraordinary
and pressing circumstances. The ordinary expenditures of the
government are, and always have been, derived from other
sources. Imposts upon foreign importations have supplied, and
will generally supply, all the common wants; and if these
should not furnish an adequate revenue, excises are next re-
sorted to, as the surest and most convenient mode of taxation.



OUR FEDERAL GOVERNMENT, 109

Direct taxes constitute the last resort; and, as might have been
foreseen, would never belaid until other resources had failed."
This is a very imperfect, and, as it seems to me, not a very can-
did view of a grave and important subject. It would have been
well to avoid it altogether, if it had been permitted ; for the
public mind needs no encouragement to dwell, with unpleasant
reflections, upon the topics it suggests. In an examination of
the Constitution of the United States, however, some notice of
this peculiar feature of it was unavoidable ; but we should not
have expected the author to dismiss it with such criticism only
as tends to show that it is unjust to his own peculiar part of
the country. It is manifest to every one that the arrangement
rests upon no particular principle, but is a mere compromise
between conflicting interests and opinions. It is much to be
regretted that it is not on all hands acquiesced in and approved,
upon that ground ; for no public necessity requires that it should
be discussed, and it cannot now be changed without serious
danger to the whole fabric. The people of the slave-holding
States themselves have never shown a disposition to agitate the
question at all, but, on the contrarj;, have generally sought to
avoid it. It has, however, always "been complained of as a
grievance," by the non-slaveholding States, and that too in
language which leaves little doubt that a wish is very generally
entertained to change it. A grave author, like Judge Story,
who tells the people, as it were ex cathedra, that the thing is
unjust in itself, will scarcely repress the dissatisfaction, which
such an announcement, falling in with preconceived opinions,
will create, by a simple recommendation to acquiesce in it as a
compromise, tending upon the whole to good results. His
remarks may render the public mind more unquiet than it now
is ; they can scarcely tranquillize or reconcile it. For myself,
I am very far from wishing to bring the subject into serious
discussion, with any view to change; but I cannot agree that
an arrangement, obviously injurious to the South, should be
*held up as giving her advantages of which the North has ^^^ ^ „ -,
reason to complain.

I will not pause to inquire whether the rule apportioning
representatives according to numbers, which, after much con-
test, was finally adopted by the convention, be the correct one



110 TRVE NATUEE AND CHARACTER OF

or not. Supposing that it is so, the rule which apportions
taxation in the same way, follows as matter of course. The
difficulties under which the convention seem to have labored,
in regard to this subject, may well excite our, surprise, at the
present day. If the North really supposed that they conceded
any thing to the South, by allowing representation to three-
fifths of ^heir slaves, they were certainly but poorly compen-
sated for the concession, by that provision of the Constitution
which apportions taxation according to representation. This
principle was universally acknowledged throughout the United
States, and is, in fact, only a modification of the great princi-
ple upon which the revolution itself was based. That taxation
should be apportioned to representation, results from the feder-
ative character of our government ; and the fact that this rule
was adopted, sustains the views which have been presented,
upon this point. It would have been indeed strange, if some
one State, having only half the representatives of its neighbor
State, might yet have been subjected to twice the amount of
taxation ; Delaware, for instance, with her one representative,
to twice the taxes of Pennsylvania, with her twenty-eight. A
different rule from that which prevails might subject the weaker
States to intolerable oppression. A combination among a few
of the strongest States might, by a little management, throw
the whole burthen of taxation upon the others, by selecting
only such subjects of taxation as they themselves did not pos-
sess, or which they possessed only to a comparatively small
extent. It never would have answered to entrust the power of
taxation to congress, without some check against these and
similar abuses, and no check could have been devised, more
effective or more appropriate than the provision now under con-
sideration. All the States were interested in it ; and the South
much more deeply than the North. The slaves of the South
afford the readiest of all possible subjects for this sort of prac-
tice ; and it would be going too far to say that they would not,
at some day or other, be selected for it, if this provision of the
Constitution did not stand in the way. The Southern States
would certainly never have adopted the Constitution, without
some such guaranty as this, against those oppressions to which
their peculiar institutions exposed them ; and the weaker States,



OUR FEDERAL GOVERNMENT. HQ

whether north or south, woulcl never have adopted it, because'it
might lead to *their utter annihilation in the confede-
racy. This provision of the Constitution, therefore, can ^ J
scarcely be considered as an equivalent for any thing conceded
by some of the States to others. It resulted necessarily from
the very nature of their union : it is an appropriate and neces-
sary feature in every confederacy between sovereign States.
"We ought, then, to regard that provision of the Constitution,
which allows representation to only three-fifths of the slaves,
as a concession made ly the South ; and one for which they
received no equivalent, except in the harmony which it served
to produce.

Reverting to the rule, that representation shall be appor-
tioned to population, and supposing that all parties acquiesce in
the propriety of it, upon what principle is the rule itself founded ?
We have already seen that the whole country had adopted the
principle, that taxation should be apportioned to representa-
tion, and, of course, in fixing the principle of representation,
the question of taxation was necessarily involved. There is no
perfectly just rule of taxation, but property ; every man should
contribute to the support of the government, according to his
ability, that is, according to the value of that property to which
government extends its protection. But this rule never can be
applied in practice ; because it is impossible to discover what is
the amount of the property, either of individuals or nations.
In regard to states, population is the best measure of this
value which can be found, and is, in most cases, a sufliciently
accurate one. Although the wealth of a state cannot be ascer-
tained, its people can be easily counted, and hence the number
of its people gives the best rule for its representation, and con-
sequently, for its taxation.

The population of a state is received as the best measure of
the value of its property, because it is in'general true, that
the greater the number of people, the greater is the amount
of productive industry. But of what consequence is it, ly
what sort of people this amount of production is afibrded ? It
was required that each State of our Union should contribute its
due proportion to the common treasury ; a proportion ascertained
9



m TRUE NATURE AND CHARACTER OF

by the number of its people. Of what consequence is it, whether
this contribution be made by the labor of slaves, or by that of
freemen? All that the States had a right to require of one
another was, that each should contribute its allotted proportion ;
but no State had a right to enquire from what particular sources
that contribution arose. Each State having a perfect right to
frame its own municipal regulations for itself, the other States
had no right to subject her to any disabilities or disadvantages
on account of them. If Massachusetts had a right to object to
the representation *of the slaves of Virginia, Virginia
L ' had the same right to object to the representation of the

apprentices, the domestic servants, or even the mechanics of
Massachusetts. The peculiar private condition and relations
of the people of a State to one another could not properly be
enquired into by any other State. That is a subject which
each State regulates for itself; and it cannot enter into the
question of the influence which such State ought to possess, in
the common government of all the States. It is enough that the
State brings into the common stock a certain amount of wealth,
resulting from the industry of her people. Whether those
people be men or women, bond or free, or bound to service for
a limited time only, is the exclusive concern of the State itself,
and is a matter with which the other States cannot intermeddle,
without impertinence, injustice and oppression. So far, then,
from limiting representation to three-fifths of the slaves, they
ought all to be represented, for all contribute to the aggregate
of the productive industry of the country. And, even then,
the rule would operate injuriously upon the slave-holding
States ; for, if the labor of a slave be as productive as that of
a free man, (and in agriculture it is so,) the cost of supporting
him is much less. Therefore, of the same amount of food and
clothing, raised by the two classes, a greater surplus will
remain of that of the slave, and of course a greater amount
subject to the demands of the public necessities.

The remarks of John Adams, delivered in convention,* are
very forcible upon this point. According to Mr. Jefferson's
report of them, he observed, " that the numbers of people are

* Mr. Adams was not a member of the convention. This speech was made
in congress in deliberating on the articles of confederation. — [Ed.]



OUR FEDERAL GOVERNMENT. 112

taken as an index of the wealth of the state, and not as sub-
jects of taxation ; that, as to this matter it was of no conse-
quence by what name you called your people, whether by that
of freemen or of slaves ; that in some countries the laboring
poor are called freemen, in others they are called slaves ; but
that the difference, as to the state, was imaginary only. What
matters it whether a landlord, employing ten laborers on his
farm, gives them annually as much money as will buy them the
necessaries of life, or gives them those necessaries at short
hand? The ten laborers add as much wealth to the state,
increase its exports as much, in the one case as in the other.
Certainly five hundred freemen produce no more profits, no
greater surplus for the payment of taxes, than five hundred
slaves. Therefore the State, in which are the laborers called
freemen, should be taxed no more than that in which are the
laborers called slaves. Suppose by an extraordinary operation
of nature or of law, one-half the laborers of a State could, in
the course of one night, be transformed into slaves, would the
State be *made poorer or less able to pay taxes?
That the condition of the laboring poor in most coun- L ^

tries, that of the fishermen particularly of the Northern States,
is as abject as that of slaves. It is the number of laborers
which produces the surplus for taxation, and numbers therefore,
indiscriminately, are the fair index to wealth."

It is obvious that these remarks were made for a very different
purpose from that which I have in view. The subject then be-
fore the convention was the proper rule of taxation, anditwasMr.
Adams' purpose to show that, as to that matter, slaves should be
considered only as people, and, consequently, as an index of
the amount of taxable wealth. The convention had not then de-
termined that representatives and direct taxes should be regu-
lated by the same ratio. When they did determine this, the re-
marks of Mr. Adams seem to me conclusive, to show that repre-
sentation of all the slaves ought to have been allowed ; nor do
I see how those who held his opinions could possibly have voted
otherwise. If slaves are people, as forming the measure of na-
tional wealth, and consequently of taxation, and if taxation
and representation be placed upon the same principle, and
regulated by the same ratio, then that slaves are people, in



113 TRUE NATURE AND CHARACTER OF

fixing the ratio of representation, is a logical sequitur wliicli no
one can possibly deny.

But it is objected that slaves wg property, and, for that rea-
son, are not more entitled to representation than any other
species of property. But they are also people, and, upon ana-
logous principles, are entitled to representation as people. It
is in this character alone that the non-slave-holding States have
a right to consider them, as has already been shown, and in this
character alone is it just to consider them. We ought to pre-
sume that every slave occupies a place which, but for his pres-
ence, would be occupied by a free white man ; and, if this were
so, every one, and not three-fifths only, would be represented.
But the States who hold no slaves have no right to complain
that this is not the case in other States, so long as the labor of
the slave contributes as much to the common stock of productive
industry, as the labor of the white man. It is enough that a
State possesses a certain number of feople, of living, rational
beings. We are not to enquire whether they be black, or white,
or tawny, nor what are their peculiar relations among one an-
other. If the slave of the south be property, of what nature is
that property, and what kind of interest has the owner in it ?
He has a right to the profits of the slave's labor. And so, the
master of an indented apprentice has a right to the profits of
Ms labor. It is true, one holds the right for the life of the
r*114-n slave, and *the other only for a time limited in the ap-
prentices' indentures ; but this is a difference only in
the extent, and not in the nature of the interest. It is also
true, that the owner of a slave has, in most States, a right to
sell him ; but this is only because the laws of the State autho-
rize him to do so. And, in like manner, the indentures of an
apprentice may be transferred if the laws of the State will al-
low it. In all these respects, therefore, the slave and the in-
dented apprentice stand upon precisely the same principle. To
a certain extent, they are both property, and neither of them
can be regarded as a free man ; and if the one be not entitled
to representation, the other also should be denied that right.
Whatever be the difference of their relations to the separate
members of the community, in the eye of that community they
are both people. Here, again, Mr. Adams shall speak for me ;



OUR FEDERAL GOVERNMENT. 114

and our country has produced few men who could speak more
wisely. " A slave may indeed, from the custom of speech, be
more properly called the wealth of his master, than the free la-
borer might be called the wealth of his employer ; but as to the
State, both are equally its wealth, and should therefore equally
add to the quota of its tax." Yes ; and, consequently, they
should equally add to the quota of its representation.

Our author supposes that it is a great advantage to the slave-
holding States that, while three-fifths of the slaves are entitled
to representation, two-Mihs are exempted from taxation. Why
confine it to three-fifths ? Suppose that none of them were en-
titled to representation, the only consequence would be, that
the State would have fewer representatives, and, for that reason,
would have a less amount of taxes to pay. In this case, all the
slaves would be exempted from taxation ; and, according to our
author, the slave-holding States would have great reason to be
content with so distinguishing an advantage. And, for the
same reason, every other State would have cause to rejoice at
the diminution of the number of its people, for although its re-
presentation would thereby be decreased, its taxes would be
decreased in the same proportion. This is the true mode of
testing the author's position. It will be found that every State
values the right of representation at a price infinitely beyond
the amount of direct taxes to which that right may subject it ;
and, of course, the Southern States have little reason to be
thankful that two-fifths of their slaves are exempted from taxa-
tion, since they lose, in consequence of it, the right of repre-
sentation to the same extent. The author, however, seems to
have forgotten this connexion between representation and taxa-
tion ; he looks only at the sources whence the Union may draw
wealth from *the South, without enquiring into the p *-\\k-\
principles upon which her representation may be en-


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Online LibraryA. P. (Abel Parker) UpshurA brief enquiry into the true nature and character of our federal government: being a review of Judge Story's commentaries on the Constitution of the United States → online text (page 13 of 16)