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Construction construed, and constitutions vindicated online

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atfaer, would certainly cause the destruction of both. Usurpa-
tion may be an appendage of spherical sorere^nty, unnoticed
by the court, and rerdtttion is its sequel* These consequences
can only be preyeated, by eonmdering our goveraaieats as the
creatures (tf the people, invested with expressed, and profaiMled
from implied powers, derired from the idea that they are sor^
reigns*

An indiscriminate use of tiie term ^ corporation" has ifttrtf-
dttced a loose idea of its meanu^, which appears to me to ba
incorrect; but if correct, as militating against the opiaiott of tifo
court* It is applied to towns, counties, and other section^
^visions, necessary for ciril govemment, for the admtaimtratioa
of justice, the prevention or punishment of crimes, tiie care of
tiie poor, the removal of nuisances, and the preservation of reads,
streets and bridges; all objects of a social rather tiian a politi-
cal nature; meaning by the first term, modes of civil govern*
ment, and 1>y the second,^ nu>des of chi^ging that civil ^
vemment There is an evident di»tinetion, betweeq provisions
for executing a government, and meaM for changing its &«t



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gri9qqg|Le«; between 9>iiidcipal and p^yiticd eod& And^if tlier*
18^ it is iacorrept to infer from the application of the word ** cor-
poratLon'^ to a constitutional class of ends, an extension <^ the
power of gavernment to an unconstitutional class oC en^is, fnw
the mere accident of both being called by one; name, arisiog,
from the want of different words to express every diffiDrent
thing; just as it would be incorrect to suppose* tiiat two n^eQ
bad the same rights and qualities, because they were called fagp
one name. TboMgh the same word may hare been applied ta
Siectionaldiyisions for sustaining ciyU goTeniment» and also t»
*l bodies pplitick" for altering civil government, it does not
confound tilings so different in their nature, imd only prov^
that our language,. participating in s^me d^ee of the hi«i]|g}y-
phical defects of the Chinese, has c^ten but one word to convey
idea^ extremely distinct* Besides,^ it will appear from a carefiil
p^MSaU that the state. constitutions, literally^ virtu^ly or m-
pliedly, recc^nize the class of municipal sections for executii:^
civil government, never recognize the class of corporate exclu-
»ve privileges or bodies politick for ajterij^ its principles, aad
sametimes express an aUkorrence of tbem*

But, if the term ** cprporation" is to be so loosely oonstrueA
as to convey these distinct powers, tiie clam of congref s ta it&
instrumentality must becpme still more remote* unless it ea»
be proved, ttiat this body can incc^rpocate towns, divide coua-^
tjies, and create the whole. genus* comprehending b^h the
mnnkipal and political species. To exclude congress (vGOk
the f<Nrmer cla^s^ although it is a legitimate appurtenance of &
limited government^ and to invest it with. the. latter, although it
is an illegitimate attribute of a limited government, would be a
flange perversion of the science of oonstrnction* As. therefore
the slate governments are either invested with^ <Mr not prohibited
&om» the power of creating municipal sections for local state
gnvernments ; and as congress is not invested with, but prpr
lubited from, the power o£ cheating munidpa) local sections for
internal government, this word must be ccmsid^ed as excln^elgn
]^^rtaining to tiie* ^te yocabulary* ft is neither literaUy
nor virtually applied t^, the constitution of the United dtaies>^
to. " ike coinmon defence and general wel&re*'^ On the con*
tnii;y, thia common defence and gener^ welfare 4iad. for it&
chi^ olgeot the comnma secttrily of the state goivemnieiits.



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96

And the unioii, far from mtending to defeat, was entered uito»
for the purpose of attaining this object. The use of the word-
^ corporation'' must either, be disallowed to the goYernment 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
ab9olute g^ietid sovereignty, which it was instituted to prevent
If however this word may be used by the state goveniments,
to contaminate their own principles, (which I deny,) some conf-
lation exists in the consideration, that a weapon so dangerous
will be local ; and that they are prevented by the federal con-
stitution from extending its malignancy to the government of
the United States.

Political words of all. others are the most indefinite, on ac-
count 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 ob-
servation, 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 ** ex-
clusive privileges" were substituted for ** corporation," the po-
rtion *' 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, f Therefore, congress in virtue of this concurrent rigH
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 con-
gross cannot tax the corporate wealth of their own creation,
because no such exclusive right of ^laxation 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 parti*
cipatc^ Can congress exempt any species of wealth £(Wi t«xa*



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97

fioD» and how would the consequences of a power so fkial te
cml liberty teiminate ?

I shall conclude this section with a few quotafions, stili leaT^
ing to the reader iheir application.

Fed. p. 16S. H. "< I affirm that (with the sole eoreepHon of
«* duties on imports and exports) the indiyidual states retain an
*< independent and uncontrovlabU authority to raise their own
<* revenue, in the most absolute and unqualified sense^ and that
*^ an attempt on the part of the national gojsemment to abridge
** them in the exercise of it» would be a violent assumption of
'* power, unwarranted by any article or clause of Ae eousH*
« tution.^^

Fed. p. 168. H. <' Suppose that the federal l^lature, bj
^ some forced construction of its authority (which indeed cannot
<« easily be imagined) upon the pretence of an interference with
** its reyenues, 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
^ ex^t in the state goyemments.^

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 l^ally be opposed or controuled, yet a law
«* abrogating or preventing the cdlection of a tax laid by tiie
<' authority of a state (unless upon imports or expcnis) 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 uncontraul^
" able 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, prrferable to subordi*
*• natUmJ^

We shall meet with many other disagreements in construe-
tionj between avarice and great statesmen.



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SECTION 8.

THE BANK DECISION.— SOVEREIGNTY OF SPHERES.

'* If any one proportion could command the universal assent of
" mankind, we might expect it would be this; that the goyem-
<' ment of the union, tliough 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
** aW." " 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, unth 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 undersood; but I confess my-
self extremely puzzled to discern, how this word, being a suIh
. stantive circumscribed, can be converted into a substantive un-
circumscribed, by tiie help of the adjective ** sovereign.'* And
I think it almost as difficult to see what is meant by the sove-
reignty of the spheres, as it is to hear the musick of the spheres.
But, as some change of tiie nature of a sphere must be effected
by an incong^ous epithet, to sustain the opinion of the court;
tibe experiment deserves a very serious and respectful consi-
deration.

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 allusioni tacitly
suggests, and forcibly illustrates the sovereignty of the people
over the spheres they have created. The beauty of the simili-
tude 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 idea^ to the consequences



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100

wUch would ensae to the universe, should one of its spheres
leave its own and travel into other orbits ; to forewarn us of
the consequences wliich would ensue to our political system
^m a similar aberration. But the similitude is utterly spoilt,
by the ided that one of our spheres may annex to itself a long
t^ of means, reaching into the orbits of other spheres, so a^ to
defeat the sublime allusion, and leave us only a regret for hav-
ing 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 alU because a change in the description, does not
alter the nature of the thing described; and if our divisions of
power will still renudn the same, whether they are called sphe-
rical sovereignties, spheres of actioii, limited powers, balances,
checks or trusts (as the moon (Ud under the several names
<tf Phcebe, 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 sphe-
rical limitatioUi and clearly excluding that of a spherical ex-
tension of power lurking in the ^ord sovereignty. We see a
sovereignty of spheres in England, to justify the language adopt-
ed by the court, and we know that the sphere of acti<m of eaeh
is limited and restrained by the spheres of action <^ 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 leai^ degree; or that a choice of means would be be-
stowed upon either, by which it could encroach upon the others.
To our imitation of this model in the arrangement of le^da-
tive and executive power, we have, besides others, sufcjoiiied
two improvements, by a judicial sphere possessing a great poli-
tical power; and by the important spheres called state and
federal governments. Now, if a spherical sovereignty exista
here as it does in Englapd, it would be as certainly destroyed.



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101 ' ' • •• - . ' . ■

as it has often been there, if either ^ere possessed an exdii-
siye or an uneontroaled choice of means, in the exercise of a
species of soyereignty separately from the rest. Encroach-
ments of sphere upon sphere can only be made by means; and
it is yielding nothing to admit that the spheres are ciroim-
scribed, bat to ipsist, that their choice of means, by which en-
croachments a^ made, is tinlimited ; because a political sphere
of action, cannot possibly be created in any other way, thiui
that of mthholding from it many means for effecting the ends,
even the legitimate ends it may have in view. Even in brings
ing a murderer to justice, the means, as well as the .sphere of
action in the court, are all limited. If it was otiierwise, con-
fusions, 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
j9Lad specious means, occasionally res(Hied to by each of the
spheres, for the purposes of deluding the people, and encroach-
ing upon the others. At length these spheres having harrassed
eac^ other for many centuries, by each having chosen means
for encroaching on tiie 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, especiidly 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 indivi-
dual but a collective sovereignty. It thence follows, if the
sovereignty has passed in the United States from the peo-
|ile to. political spheres, either by delegation, or by the usur-
pation of those spheres, that it can only be executed legiti-
mately by the collective or united conseiit of all these spheres;
unless it can be shewn, that a sort of interregnum or suspen-
sion of this spherical sovereignty, like those which often hap-
pened in England, has already happened here. The same
precedeni/ proves, that neither sphere ought to have any chmce
of means in the exercise of its own spherical powers,!^ which
it may encroach upon its collateral spheres; for, though they
i^crc not co-ordinate, nor circumscribed to preserve the liberty



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of the people, jet they became balanced by mutual f(^r for
Butual safety ; and accordingly each sphere has been obliged,
as the only chance for self-preserration, to be excessively jea-
lous of tiie means resorted to by eath to increase its own power.
Now what does this English precedent teach us? That a sphe-
rical sovereignty can only be exercised by the mutual consent
of the spheres: That om 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
^ways been considered as a usuipation, and has always intro-
duced 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 liian it is, by subjoining to it
vices, which it rejects, as utterly inconsistent with tiie spherical
system, and certainly destructive of all the good it can produce.
In that country, each sphere is a judge, independently of the
o^ers, 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 ne-
cessary 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 ^nemy 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 or-
derly mode in which it might be expressed. Our system,
foreseeing the probabilify of such collisions, both from the tem-
per of human nature, and also from the occurrences in England,
has provided a constitutional and orderly mode, by which pub-
lick opinion may exercise this supervising office. It would be
a radical violation of the English policy of checks and balan*
ces, considered in that country, as the only safeguard of liberty,
even without a speoifick provision for reconciling collisions,
were we to surrender the stone safeguard^ with specifick pro-



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103

visions for i^s exercise* By th&t» &e soverdgnty aX the
people is d^ied* and soTereignty is possessed by the tiirec
i^pheres, 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 aoMMig
these spheres ; yet the English system does not relinquish the
essential principle of the co-ordinacy> indcp^dency and eqna-
lity of the political spheres themselTCS* from an apprehensicm
of their collisions. If we should relinquish this essential
principle from, the same apprehension* we should adopt the
English spherical soverdgnty* renounce the English security
of a co-(»'dinacy or balance of spheres* and lose the sove*
reignty 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 tlie supreme sphere to swallow
up these others; and therefore to admit of sudi a supremacy
in one of <mr 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 circumstuice.

There is but one mode of getting over this reasoning, and
to that mode the ccmrt has resorted. It asserts that ** the
«' government of the union is delegated by all, represents all^
f' and acts for all." Do these assertions (the truth of which I
shall presently examine) squint at consolidation, and inge-
niously undermine the state spherical soverei^ty admitted by
the court ? Do they design to recc^nize the English spheri<^
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 undo: the guardianship of the king, lords and
commons? If these inferences were not intended, L cannot
discern what was meant by these assiertions ; but admitting them
to be true, I deny their sufficiency to justify such inferen<^8.
The people certainly had a right to create the union sphere to
re^ct thf iBtat^ spheres ; and to retain the stirte spheres, to



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104

ri^tiict the union sphere* The court admit that they have
exercised this right; therefore no inference from these asser-
timis can be correct, by which this co-ordinacy of restriction
would be abolished. Had the pec^le 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 tiieirs
from tiiose 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 circum-
stance 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 con*"
ducted and reconciled orderly and argumentatively, whilst
those of the .English spheres can only appeal to mobs or fac-
tions. Why thwefore should these spheres, so much better
supplied with the means of self-preservation and for mutual
restriction, be considered as less estimable than those esta-
blished 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 com-
promise&i of ambitious self-created orders.

Let us now calmly consider whether the prodigiously inclu-
atve assertions, *' That the government of the union is the
« government of all ; its powers are delegated by all, it repre-
*' sents all, and acts for all," are really true. Another asser-
tion to Gcmfront it brings it to a fair test. The government of
the union, in respect to the powers reserved to the states, is iht
government of none, is^ delegated by none, represents none^
and can onjiy act for all, by assuming a power, neUher delegat-
ed nor representative. If one of these assertions be true and
the other &lde, the reader will not hesitate in deciding to
which a deficiency, in veracity, a[q[>ertains. I admit, that the
first may be made true by a restrictive qualification, similar to
the qualification which makes the second assertion true, by ad-
ding to it the words, *' in respect to the powers delegated to the
general government. Both governments represent all in exer^



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105

ciaing 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 delist-
ed to the other. *< If any propositions could cmnmand the nni-
** versal consent of mankind, we might expect they wouM 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 vio-
lating the essential principles of delegation and representation.
If we were to admit the assertion of the court in dl 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 unfetter-^
ing the government of the union, because they actually repre-
sent all, which the latter government does' not

The principle of personal representation was violated to a
considerable extent, for the sake ^ comprondse and accomino-
dation, 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 sove«
reignties, not of numbers; and this fact circumscribes very



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 10 of 34)