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Construction construed, and constitutions vindicated online

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responsible, to be entrusted for short periods, to be controlled,
and to be punished if abused. Ip the k^slative creation of
political corporations, ncme of these precautions has be^ re-
garded. We have had an irresponsible, unoontrouled. unpuur
ishable. uneleeted power over the national purse, in operation
for a short tune. Compare Hmt effects of the two principles^



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ike evils embowdled in one^ bj haTUig been littered oyer th«
iandyliide theUessings whicfa bare flowed frem the ether ? TUs
absolute' power over the natimial purse was never before jctm"
ferr^ on banking corporationsi nor has a pecuniarj despotiaia
be^i before entrusted hj any goTcmment, to such estabtisk*
mentfl* The banks^ created by monarctdes and aristocracies^
hare all been subjected to those govemments, and subservient
to tiieir designs. The government directs their political elfecti.
Priviite bankers are liaUe» pers(maUy, to the payment of their
debts. Our bankers are neither liable to the contnuul of our
governments, nor subjecti personally, to the payment of their
debts. A non-deseiipt 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 anotiier. there would yet remain wei^ty
institutional arguments against it The absorption rf power
by money was^so vc^^y well known by the Iramers of our con*
atitt^t»^ tiiat they studiously erected a circumvallation of nt^
etrittions, such as electimi, representation, sympathy, rota*
tion, responnbiUty, checks, balances, divisions and limitaticms,
around the power of the purse, when exercised by the govern*-
fidents 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
]^ncipks by wftich his throne was secured, for the same mighty
^tsject. Weighty enough, as the court think it, to invest a go-
vernment with the most dangerous and ^pressivec^ all po%v
«ff«, that of granting ezckaive {nivileges, and creating bodies
]politick; nei^er France^ nor many othw lai|;e countries, have
ever thought cC it; and the novrity of making an object, so ^
niimtive hitherto in the history of mankind, a source of acquire
ing enormous powers, must be an evidence of the profiindti)r oi;
ehallowness of the American genius. There is evidentiy mudi
ingenuity in madung &e convenience of transmitting puUSek
money, on die ground of die great extent of die United fitates^
Ae matrix of the right to incorporate, because die state govera-
mxfsto cttt^t, iiidi any plaitsib^i avad. themselves of the



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18S

arfi;unieni; the vHi^.fi>rce of whidi must redound to the fedefd
government ; tntt yet I shall proceed to controvert it.

The mother bank rf the United States^ I rappose (for I have
not the law before me,) may, or nfaj not, e^talHsh or abolish
branch lianks at its own pleasure. If so, it may, or it may not,
at its own will, transmit publick money from one place ^zc^j^
ed. I do not know whether the buik is compelled by ihe
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 pmnt; 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 plea*
sure. It is true, that the profit arising from deposites of pub-
lick money, inspired a very reasonaUe hope, that the bank
would semi out; branches to those places where n>ost of it was
to be received, and from whence it could most- easily be trans«*
mitted ; 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 constituticmal and then unconstitutional, as the bank
should choose to hook it to, or unhook it frpm fiscal operatic^9 ;
and not constitutional in one state, or atone place, where the
bank might choose to have a branch to aid those operations, and
un<?onstitutional 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 ef-
fectual to ccmstitutionaKze an incorporating law, as the trans-^
mission of a million. The constitution does not confine the
virtue of this poWer-amj^fying principle to conveniencies, or
means of any specified degrees of magnitude, and each, how-
ever small, like every magnet^ contains, the power of attraction.
The least convenience, therefore, in the exercise of every dele-
gated power, will justify congress in granting individual or cor-
porate privileges ; and those who will transmit federal horses*
arms or victuals, (so much more cumbersope than money,} haye
a better right to them than the money-changers themselves. In
short, if the argument of convenience be sufficient to establish



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the congtitofimiaUtf ofNthe law in the case of the btidts, tsfoj
power whatsoever, delegated to cong^ress, may reward its co>
aerators witii excksive priTilq;e8« and embrace within its
■leans, mone^lies of every desmptibn.

It would be a suli^ct worthy of mature eonslden^on*
whether a bank currency, snch as we are suifering under, does
Bot bear a strong analogy in its eftcts, to the monopoly of the
colonial trade long held by the En^h, and which we supposed
we had happily abolished by a long war. But it is too co|ttOus
for the limits I must observe^ uid I only si^gest it to the reader,
that he may compare in his own mind, both the extent of the
two monopolies, and th^ cost of getting rid of ikem.

A phalanx of words have been enlisted to assail the plainest
provisionsof the federal constitution ; but only one more shall be
adverted to. The word ^ national,'' is often made an auxiliary
of *' sovereign, supremoi necessary and convenient,'' towards
destroying or relaxing the restrictiflais imposed upon congrera
by the union. It is conit^ded, that congress may exercise
naUtmal powers. Where is this nation, of which gentlemen
speak ? Is it composed of twenty 4hree individuals only? If
so, if the states made the unioA> and if congress possess no
powers, except those bestowed by the union, then the term is
only an expedi^it, like that in u^ig the words sovereign, su-
preme, convenient and necessary, to convey to the federal
government recondite, in the place of defined powers. All
tiiese wordb being equally sufficient to convey inde&iite,' in-
stead of the limited powers really delated to congress, why
dumld we be led round the radii of a circle to get at its cen-^
tre, 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 copgress. Is it not the same
sort of reasoning to ^ay, such a. thing is an act of sovereignty,
tnr of supremacy, or necessary, or convement, or national ; con-
gres&may do what is sovereign, supreme, necessary, convenient,
or nationa], therefore it is withm the ^ere of congress P



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SECTION 11.

THE BANK DECISION^PBECEDENTa



I riiall ce&cliide ifak Stttgect» by an examinatioB of an argu-
ment with which the court began. It remarkg, that ^banking
** was introdaced at a Tcry early period of onr history, haa been
** recognized by many duccessive l^slatures, and has been
** acted upon by the judicial department in cases of peculiar de-
** licacy, as a law of undoubted obligation.'' This remark must
^ ^ther furnish the conclusion* that precedents may change the
federal constitution, tn* it has no weight As it was intended
to have weight, it deserves an attentive consideration.

In consolidated societies, suligect to one sovereign govern-
ment, having but one legislature, and but one judicial power,
where law is omnipotent, the omnipotence of precedents is a
component pait*of the farm of the government ; but in a federal
republick, having two co-ordinate and distinct legislatures, and
two judicial powers, where law is not omnipotent, md where
Ae governments, instead of being sovereigns, are only invested
with limited powers, it would be an incongruity witii the form
of government, to allow to precedents the same force. The
constttutioB does not invest either the state or federal govern-
ments with an exclusive power of changing its prind{des by
precedents, because it would destroy their co-ordinacy, disor-
der the division of powers, and subject one to the other. Nor
ean such a power be common to all ^se governments, because
tile different precedents, whkh would thence arise, must soon
make as many federal constitutions as we have governments.
In countries where the unity and sovereignty of the govern-
ment is the primary political princi|de, these objections to pre-
cedents would have no weight; but here, where neither this
unity nor sovereignty is to be found, they would, if used as
they mre used under those governments, destroy our existing
syrtem; because, a r%ht to make pretedents in spy one of our



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de^ttiaeiits 18 w ftclaowledgmeiit of . a 10? er^^
pirtraeiit. The reader will remark, that I am speakiiig <^ po-
litical precedents, which ought not to be confounded in any de-
gree widi munidpal or for^sick, estaUished for awertainmg
private r^;ht8, because we did not intend by constitutions ^
subject the national liberty to so uncertain a tenure.

If» howerer, we should eyen be governed in relation to <;har-
ters, by the precedents of other nations, and other forms of
government, they would furnish us with a volume of authorities,
subversive of their suffidency to sustain our banUng c4H*pora-
tions. In Ei^land, the granting of charters was an executive,
not a legislative act ; and as the En^ish king, (the grantor)
never dies, so his act could never be revoked* But all our
legislatures die r^ularly, and the precedents of repeiding laws
are numerous enough, if the rig^t of repeal depends upon pre-
cedents to estd[>lbh it beyond a doubt In En^and, itnev^
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 usdess, and to
deserve a very opprobions appellation bestowed upon it by an
English judge, but yet so appropriate as to have been long
commemorated^ The commercial charters granted by ^peen
Elizabeth, and other English monarchs, were often annulled or
revoked by law ; and even by the kings themselves, in spite td
their legal immortality. Thue south sea charter was iuu&ull6d»
and remedies applied by the guardians of the publick good, to
the evils of chartered frauds. Precedents therefore pronoumce,
that legislative power is not prohibited by corporation fictions,
not even by the ancient fiction that the kii^ never dies, " intro'
^ dueed at a very early period of oVT history tteeognized by many
<* successive legislatures, and acted upon hy the judicial depart'
^ment, in atses of peculiar delicacy, as a law of undoubted
^ obligation!^ from shielding nation^ against any calamities
produced by charters. The mischiefe of havii^ south sea di-
rectors in the English parliament were so apparent, as to
have sttgg^ted a law prohibiting the officers rf revenue from



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tM

i^ttn Yotii^^ dectioiui; and this id a vtfj pointed pneceden^
appijing to the case of fiUiDg our legislatures with iMUdk direc-
tors and, stockholders, who receive neaiiy the whole of our
taxes both state and federal, and make a pn^t on all tiiese
deposites. So that like English revenue officers, the higher the
taifces the greater will be fteir income.

Many precedents in relation to charters have been ^ introdu*
^eed at periods jof oter ^is^on/" still ^lier than banking;
have «< been reeogtiized ky mtmy succemve legislatures,^^ and
have been ** acted upon bif judicial departments in cases ofpecu^
.'*liar deUcacy as laws cf undmHed oWgatUmJ^ yirginia»
when a colony, oppressed by a mercantile or money*making char-
ter, lunvii^ the acquisition of weiUth» and not the good of the
colony for its object, was «aved by taking refuge from it under
a king ; even a king of the Stuart family. The same king divided
Virgima in violation of chartenu Carotina 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 foaidc charters were not better understood when these laws, so
niek-named, were passed, than the e:(cessive extent of a few co-
Icmial charters, when they were granted. This unforeseen eltent
de^»anded and received remedies. Even since the revolution*
it was a sula^ect of debate in congress. The smaller states
asserted, that justioe demanded arestnction of the charters
.extending to the western ocean, apd an application of unsettled
, territcnies ta thie general benefit; and the states possessing
such charters yielded to the call of justice* imd the general
interest* Is this a precedent for aacrificing both to banking
garters, and for re*instating musty fe^dal errors, so very soon
.after we have subverted a host of them ; by subjecting our pro^
p^rty and industty to a ruinous tenure, renewable forever by
those who recdve the rents P

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. . Bwking b^n as a tilery ;
and political augurs differed in their prognostications of its
effectsii The worst precedents are often but little felt in their
infancy, because they move with caution, until they gather
atrength; and the worse they are, the more time is (rfifm required-
Z



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194

to derelope their chaneter. Some foretold that hanking WobM
be ben^cial ; others, that it would be pernicious to oar coontiy.
It wouM be an odd judgment, howeTer honest, which should
assert, that fulfilment oug^t to destroy, and falsehood to esta-
blish an augurj, 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 ^f
experience ; so that the time, expend^ in ascertaining the truth
or falsehood of an augury, renders iff impossible to remedy its
imposition, just at the moment when it is discovered.

Judicial precedents are commonly the work of one manor 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 re-
semblance to the species of consent by which we mi^e consti-
tutions.

The submission of the people is oneaigument of iittie 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 argu-
ment for sanctifying precedents. But under the federal con-
stitution, the argument has moreover a fraudulent aspect, be*
cause 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 prece-
dents. Expecting solemnities and publick discussions before
their own solemn compact could be changed, they would be
caught by the snare of precedents, from an opini(m 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 en-
grafted 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 xheck the vigilance of governments
in making precedents favourable to power. Suppose, it had
. been proposed to amend the constitution in either oi the pre-
scribed modes, by investing congress with powers to create
banks, to bestow bounties, to grant exclusive privileges, to
make roads and canals, to annet conditions to the admissioa
of new states into the nnion, and to prohibit th^ state gQvern-



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195

mentd 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 po^
sitive amendment of the constitution. The inconsistency be«
tween 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 ah opinion, if it be a delusion,
that the constitution was not liable to be altered by precedents j
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
i^ade 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, m^ether they are constitu-
tional 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 appen-
dage to all governments invested with sovereignty, we have
deprived ours of the right to modify our constitution by pre-
cedents, by prescribing the modes of modification. The pre-
^ution 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 oppres-
sively : The other, that we having established co-ordinate go-
vernments, state and federal, a right nodification by pre-
cedents must either be equal or excluhx^e. If it was equal,
. inextricable confusion would ensue ; if exclusive, the principle
<»f co-ordinacy would be abolished.



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196

The distmction between limitations and restrictioiia impMei
bj the people on their goyemments by constitntiims, and tlMse
imposed by the governments on ftemselres, by tiieir own pee-
cedents, is manifest There is no similitude between the caseSi
Constitutions and precedents perform contrary offices. The
first tie, and the second untie. It has always been dificstt be
nations to tie governments by precedents ; and to give tbttm
knives, for precedents are such, to cut these ccmstitutional knots*
would make every government an Alexander. Each adHnnis-
tration 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 tiie national character. But, how can a
nation love an embryo litter of fluctuating precedents, conceal-
ed in the womb of time, each of vrhich as it grows, hustles som^
principle out of the constitution, as the cuckoo does the spar*
row out of its own nest? Had Pygmalion's beautiful statue,
after it was animated, been seduced to {HtMluce bastards, would
he 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 ou^t to be said of a nation,
which entrusts its constitution to the care of precedents. They
are only the projects or opinions of successive l^islators, presi-
dents, judges, generals or statesmen, none of whom will ac-
knowledge 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 preserva-
tion of their happiness; but we have preferred principled,
maturely considered, carfeully selected, otutiously approved,
and distinctiy defined, as a better security. Our mode of esta-
blishing the principles in which we confide is infinitely prefera-
ble to the European practice, of leaving them to be found and
to be lost, by a succession of precedents ; from the considera-
tion, that our conventions have no other business, and reason
acts, uncorrupted by avarice or ambiticm; whereas, after a
government is in operation, the whole tribe of selfish motives
becomes active, And time for inventing and practising «ti^ata-



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' 19T

gems lb endless. Fcance, by demtiiig from oar mode, and in*
▼esting her constituent assemblies with the current powers of
government, received a lecture upon the consequences of de*
rivi;pg 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 de-
monstrations of wisdom w fpUy ; and constitute the fund of
experience, by which the faculty of reasoning is supplied with
materials. But discrimination is as applicable to precedents,
m ioxaj other species of evidence ; and if mankind have impro*
ved in the theory of political morality, their age only suggests
a suspicion of their goodness, and the propriety of their rigour-
OUS examination. As rigourously ought current measures to be
sul^ected 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
file purposes of fostering usurpations, and securing its acqui-
sitions ; and tiiat the worse they are, the more eaitiestly is their
sanctity asserted. The exclusive power and wealth they obtain
from the general evils they inflict, are zealous preachers in self
defence, whi^h 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 ii^ check, or fall a
victim to th^ power* By surrenderiu^ 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.
Constitntiims are exposed to the jurisdiction of experience ; but
precedenta presumptuously renounce it, and impiously say to
' improvement ^ stop ;" so that when experience has discovered
an evil, our sensiUlity of Us 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 dissa^fy their
ttrrogance; and yet a dignity so extravagantiy gratuitous



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198

wodd not alMMdre tiion from constnictioii by a rdference to
principles, nor entitle them to comphuB of a treatment, wbicii



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 19 of 34)