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Construction construed, and constitutions vindicated online

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thej api^j to constitutions. But, if we reduce precedents to
their just rank, we shall discern that they are exposed to two
tests, to which con^tutions are not subject They are am^ia-
Ue both to constitutions and expediency. The enquiry upon
the first ground is not, whether the precedent is better or worse
tiian the constitution, but whether it is omformsble to consti-
tutional principles; and if it is, the precedent is stiU amena-
ble to the second enquiry, whether it is working good mr evil^
If a succession of wrongs can constitute ri^ts under the name
of precedents, as in Europe, then indeed they are beyond the
reach of these enquiries, and have obtained a degree of insubor-
dination, to which constitutions themsdves do not aspire;
otherwise, they are always liable to an arraignment for disloy-
alty to constituti(ms, or injury to society; and if found guilfy,
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 recdg-
^ni^ed by many successive le^latures, 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 jHrecedents*
Yet this same efficacy is as strong to sustain posiiive, as to sus*
tain implied constitutional articles. The court does not say
that the federal constitution bestows a positive power on con-
gress to create banks, and only asserts that « thwe 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 tte
federal and state governments by the constitution. It hoe been
exercised to great extent from the c&mmenc&nent. of our consti"
tutional history; it has hem recognized by many succesHve
legislatures ; and it has been acted tepon by the judicial depart*
ments in cases of peculiar delicacy, as undoubtedly eonstttU"
tional. If a cloud of precedents can establish an incidental ^r



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implied power, another cloud of precedents ought to egtablish
a positiTe and expressed power. The finest effort of ingenuity
to be found in the opinion of the court, is, that of availing itself of
|H:ecedent8 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
iMLnk, but had exercised it) concurrent right of taxation ; and the
court refers to the multiplicity of precedents as a proof of its con-
stitutionality, and forgets the same species of multiplicity as a
proof of the constitutionality of the concurrent right There was
asouuid 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 tiierefore 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
fimnally arraying .the scullions <^ their, army, and deceiving
their adversaries kito an opini<m, that they were really soldiers*
Besides, it held out an aspect of pajring 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 tiie 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 mu-
tual exercbe. Congress had established it by many laws, espe-
cially in taxing the state banks by a stamp act If the esta-
blishn^nt of state banks was within the state spheres, congress
had no right to throw ohstaeles in the way of tkeir sphere ofuc-
tion, expept by vkctue of the concurrrent power of taxation ; and
if this power justified confess in taxing state banks, the same
power justified the states In taxing the bauifiks of congress, though
these latter were also constitutional. But, the court, instead
of considering the precedents in relation to] the concurrent
ri^t of taxation, have insisted at large upon those which relate
ta the constituticmality of banking, and adhered to the prece-
dent of searching for a goose, when the thing lost was a cow.
The excessive departure from the true question by this pro-
cess, will be seen at once by supposing all that it could prove;
s namely that the constitution had given to congress a positive
powear to create banks. We should then have seen it in



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a state of equality, as to ori^n» rank and obligation,' witk
the positive concurrent power of taxation ; and the question
would have come fairly forth, whether one power revokea
another equal to itself, because they clash ? If this question was
answered i^fllrroatively, 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 follow-
ed, that any modifications of property thus subjected to taxation,
by the state or federal government, should discharge it fronk
the liability to which it is clearly subjected. The property
tould not evade the constitution by changing its shape. The
authors of The Federalist have considered this concurrent ri^t
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 bankjing, 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 ^ants, it is found-
ed in the following consideration. It seems to me that the
a^rgument 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 lo-
^ck 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 sin-
gly, seems heavy. When I read those extracted from the werda
*« sovereign, supreme, sphere, paramount, necessary and cwivc*
nient,'' I thou^t I saw the end of the sound revolutionary good
sense by which our governments were constituted, as Borne
saw puns and quibbles substituted for the masculine doqu^ce
which preceded the age of Augustus. It seemed Ukc extract-



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ing pmsoQ from vipers, under an opinion that it woold be medi-
cinal. 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 phraseolc^. How are
political parties drilled into contradictions ? Bj artificial phrase*
ology. How has the reasoning of the court been assailed, whilst
its conclusion is allowed to be correct ? By artificial phraseo*
logy* 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 constitu-
tion to the needles of verbal embroiderers, in obedience to the
saying " the tailor makes the man."



2 A



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SECTION 18.

PROTECTING DUTIES AND BOUNTIEa

The points presenting themselves in considering this impor*
tant subject, arei first, whether either the federal or state go-
vernments possess a right to distribute wealth and poverty,
^n and loss between occupations and individuals. Secondly,
whether the federal government possesses this right And
thirdly, supposing both or dither to possess such a right, whether
it is wise, or honest, or beneficial to the United States, to exer-
cise it

To understand the rights of mankind, the powers of govern-
ment, and the meaning of constitutions, we ought to ascertain
the design of civil society. Man, by nature, had two nghts ;
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 pro-
perty, our vision is not so clear ; yet both, aa natural rights,
stand on the same foundation.

By suppressing the distinction b^w«en occupations* and co-
vering aU by the inclusive term, labour, we at once discern the
natural equality of the right The occupations of i
men themselves ; and every free government supp
is only distinguishable from a tyrannical one by equi
equal rights in its citizens. Our societies grew u
principle, and we find nothing in our constitutions
is abolished. Our governments received man, ai
the creator, with a free will over his mind and his 1
were instituted to protect the divine bounty. The freedom qf
conscience was made complete, because no contributions from
that natural r^ht were necessary for the support of civil go-
vernment; but the freedom of labour was incomplete, from the
necessity of such contributions. For ages, governments used
tl^e division of mankind into religious sects, as a means for



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204

mlong some men subservient to the avarice of others. We have
detected this fraud ; but its principle is vindicated by our govern-
ments having used the division of mankind into different occu-
pations, as a means for making some men subservient to the
avarice of others. Hie natural rights of labour, in sulgectii^
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 protecti(m» and not to estaUiish a power for trans-
ferring 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 govern-
ment; the reason for doing so, as to tiie 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
Vfiih a power (over and above the power of exacting contribu-
tions for publick use) of taking away the property of some and
giving it others, it would haye been rejected with indignation ;
yet this power is as much exercised by bestowing gratuities
or exclusive pivileges, 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 con*
stituted of men prcYumttly divided into distinct sects or occu-
pations. Then the names of the»e sects xnr occupations are ex-
actly the same as the names bestowed on in&ncy, as a medium
for transferrii^ property from one to another, and more diflBcolt
to exchange, in order to elude the imposition. Suppose, that at
the period when the Highlands of Scotland were inhabited by a
very few co^onunal families, these fandlies 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 assump-
tion of power by their goveniment to tax one family or tribe to
enrich another, would have been exactly equivalent to state ex-
clusive privileges in favour of some occupations, and injurioua
to others. In the second, an assumption of the same power
would also have had this effect, and would moreover have re-
iembled partialities on th^ part of congress for and agiunat par-



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Ocular states. The endowment. of one class of men hfy the
names of their occupations, at the expense of another, is eri-
dentlj the same in substance, as to tax the McGh'egors to en-
frich ^e 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 tiiis be not tynuray, 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 in-
dustry, in gathering the fVuits 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 tiian to instinct, to suffer this de*
privation ; or is the latter most capable of feeling it? Yet so-
phistry, or at ledst self-interest, has deluded several states intd
an opinion, that it is a Uessing. But Doctor Rezio of Barata*
ria could never persuade honest Sancho, that he would be made
healthier or happier, by having good victuals or drink conjured
away by the wand o^ power. Nations, excluded by prohibitory
duties upon industry and free will, from enjoying the good
things produced by different climate;s and different degrees in
tiie arts, are placed in the situation of ^ beguiled and half
starved Sancho. This is not surprising^ when ihej are obliged
to submit to doctciirs; but what shall we say to nations who
boast of doctoring themselves ? Are our comforts so numerous
that they ought to be diminished P Yes, says the doctor, it will
make you richer. When we reflect, however, upon the existence
x>f an ocean for the d^usion 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 bar-'
tering comforts for comforts.

The capacities of reasoning and labouring beget among men
a relation ff^unded in, desires and wants, which designates them



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aicongtitxited by iigti»re» for society. Whether sodetylie tadt
or conTenlioiial, itseiidaBd desgn is to |ffotect each indiyidoal
of which it is composed, in tl^ eDJojment and exercise of
his primitiye and natural fftcolties of labour and free w3l
Restraints upon these, so fiu* and no farther, than to protect
the same natural r^ts of other individuals, constitute social
Ubertj ; and restraints imposed, not for the end of this social
protection, constitute tyranny. If the society has crept tacidy
into existence, these two natural rights are the strongest of all
limitations upon the powers of its goyemment, 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 opiiuon is, that
they would not Suppose the compact should say, that the
goremment should have the power of taking away the life ei
one man for the private benefit of another ; would this be a free
government ? But if it be silent upon the point, could lite go-
vernment 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 anotiier. The ri^t
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 actiial social com*
pacts 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 spe-
cies 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 reedlect,
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 yii^-
dicate natural rights in tiiat 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 botb> it f6llow«» that thcfse



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paramosuBt ri^ts are lioutations upon the power of staie gotem-
ments to mvad^t either bj exclusive privileges or otiierwise, to
Zurich private individuals.

I might rest the ailment here, and leave it to the reader to
determine whether the interest^ liberty w happiness of any sts^
in the umon can be possibly advanced by overturning these
princ^les ; but as the freedom of {unperty is the object intend-
ed to be vindicated by this treatise, I hope he will have patience
with me in Imnging 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 eack man's will, in procuring his own hjipinness.
It unfolds his understanding, increases his knowledge, and ani-
mates his virtue* By multiplying the relations between the in-
d^ividuals of the human family, the blessings of society mre also
multiplied; and an ateidgment of tt|iese relation? is a retro-
gade movement towards that ravage state, in which they are
fi^W* These reUtions are called commerce ; and all obstacles
thrown in its way are diminutic&is of an intercourse, from which
men have derived th^ accomplishments, luid a capacity for
happiness*

Thouj^ a power of interfering in the intercourse between in-
dividuals 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 ex- .
ercised in all other modes; it is contended, that one mode re-'
mains, by which a bad principle may be changed into a good one,i
and fra^^ white-washed into justice. By baptizing this bad,
principle with the goodly name of *^ an encouragement of manu-
ftctures," avarice is supposed to be turned into patriotism, asl
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 <<j:di^on.'' It behooves us, there&re, 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 gene-
rick term «*man'' would include them all. Classed by their
occupations, all are also included by the generick term '< la-
bour." They aU have ^ same rights, whatever may be the
iv^tUnes of their physical or moral qualities, and to stretch or



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ciBtract their moral qoalkies bj force» in order to poaiper ikm
passions of a particular sect, or their physical qualities togtatifjr.
those of a Procmstes, is one and the same act It is the same
tiling for a government to grant exclusive privileges to a parti-
cular occupation at the expense of the oUiers, as to the daii
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 con-
fiscation upon other men; and it exceeds in atrocity the contri-
butions imposed bj generals on conquered towns, because it
cannot be defended bj the right of conquest. We have been
led into this error bj the abundance and vagueness of words.
The words *< agriculture, manufacture, commerce* profession
and science" have produced artificial distinctions, whidi have
obscured the reach of the inclusive word ** labour," and caused
us to forget, that it is a natural faculty, like that of seeiof^
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 maldng the plenty
of words change the nature of things, although labour is in fact
the only manufitcturer. Workers upon the land, or upon the
ocean, who give to things new forms or new places, are ail
manufacturers; and being comprised in one essential charac-
ter, are entitled to the same freedom in free societies. It is
this equality of rights, and nothing else, which constitntes 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 deprivii^
some occupations of free will in making exchanges of Ifdbour.
It assumes that very practice of the strong man, which caused
mankind to form themselves into societies^ for the purpose of
resbtance. An exertion of this power first defrauded ^e suf^
ferers of all the labour they had lost during the revolutionary
war, by the circulation of certificates whilst they were dqirea-
ating; and secondly, of as much more by taxes imposed on the
sufferers themselves^ to raise an enormous bounty for the last



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i«6lder^ A certifieate sect^ stroi^ m influencei used the power
of government to transfer to itself a great mass of the labour
.<of more useful occupationsi 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 ttf destroying both, by ena*
blii^ ihat sectto rob all useful occupations of a great portion
of their labour, bj m^ins of felse or depreciating tokens of value,
^Irawing an interest paid by these occupations, in addition to
'tiieir losses from depreciation and bankruptcy. But, the manu*
facturing sect do not propose to divert the power of government
v^rom the (n'otection to the invasion of property in the same
atrocious degree, and only asks it to compel all other occu-
pations to excha:nge labours with it, not by the mutual valua-
iions of free will, but by a compulsory, inisulequate valuation ;
'and like a liberal, unassociated strong man, it is willing, for the
preseht, to receive annually, from dl 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
necesst^ry to clarify the argument.

As all the other occupations, by being compelled to give two
-measures of labour for one, will sustains 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



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 20 of 34)