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John Taylor.

Construction construed, and constitutions vindicated online

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tical conclusions^ at enmity with the real principle of the max-
im itself. The position >*that intelligence will increase the
productiveness of labour" is unquestionably true; but an in<^
ference, <* that combinations ought therefore to possess a power
'* of taxing labour by a monopoly acting upon labour,'' may yet
be unquestionably false. A monopoly of intelligence by any
class or combination would be tL tyranny, if it could be effected ;
but a monopoly of any means for obtaining wealth from a com-
munity, by a class or combination, unpossessed of an unnatural
superiority of intelligence, prevents tiie increase and diminishes
the stock of national intelligence ; because it is only cunning,
associated with avarice, which resorts to means for the gratffica-
tion of self-interest, un&vourable to the increase of intelligence
itself. The productiveness of virtue by religion is at least a*
desirable as the productiveness of labour; but mono^Mdiei ni



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intelligence bj comlnnations faaye assumed its direcli<m» uA
OYerspread mankind with vice. The productiveness of civil
liberty bj government is of the next importance; but mono-
polies of intelligence bj comlnnations have assumed its direc*
tion, and overspread mankind with o^ression. The produc-
tiveness of labour is the third great source of human happiness;
but monopolies of intelUgenee by combinatiims have also aa^
sumed the direction of labour, and overspread mankind with
fraud and poverty. The eTils resulting from the usurpations
of a power of direction, founded in the false assumption of supe-
nor intelligence, in these three cases which decide the tempo*
rai destiny of nations, admit of no remedy, except that of the
freedom of mteUigence. It is this freedom which makes both
vdigion and civil government more productive of benefits to
mankind, than when intelligence is monopolised by combina-
tions, and exerted by excluri^^ privileges. And if the freedom
of intelligence both produces it and makes it more prbductive
in these two cases, it must have the same effect in the case of
labour. The three cases make up but one political system^ and
that sjrstem, to be consistent, must adhere to one principle; it
must either prefer the national intdligence to the intelligence
df combinations, or the intelligence of combinations to that of
the nation ; and having made an election, it must embrace all
tbre^ cases, or the system will be incomplete and internally
contradictory. Can the freedom of intelligence or intellect be
productive of good in the two first cases, and of evil in the
third ? Can the freedom of religion and of civil government be
preserved, if the freedom of labour be surrendered to the int^
ligence of combinations i Are slaves free, because their labour
is made more productive, (if such be the fiict,) by the intelli-
gence of their masters? Is the white population of the world
justified in c(mvertin^ to .its own use the labour of Africas Oft
account ^ a superiority of intellect ? Would the intelligence
of the negroes in Africa be diminished by a freedom of labour ?
In shdrt, the whole reasoning upon whic^ the advocates for the
protecting-duty system rely, is at ilie threshold, dependent upon
a preference between national intell^nce, uidthe intelligence
of a self-interested combination for the ot^ect of generating pr«i*
ductiveness, moral, and physical, as th^ means of national pi:«s-
pmtf and happiness; and havii^ made an election he<weeft



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tiiese competitors, a fiirtiier ea^mUialioii of the argument be-
comes superfluous.

The *' miseries of labourers in China and Britain results, not
^ from in$inufii)eture8i but from tiie nature of their goifern-
** ments^^ Here again the position is true, and the inference
false. A position, that the " miseries of labourers in China and
«« Britain results, not from ^grimtture, but from the nature of
•* their governments," would have been equally true, and tiie
inference, « that therefore agriculture ought to be directed by
^ the intelligence of a mercenary combination here, to increase
^' its productiveness," would equally follow. I am not reasoti-
ing against manufactures, but for the freedom of labour, and
against combinations and exclusive fnivilcges destructive of
tiiat freedom; believing that the generaVintelligence of labour
will be increased, and its general productiveness encouraged
by its freedom. The same principle embraces manufacturii^
agricultural, and every other species of labour. If the maxim
advanced by the advocates of the protecting-duty system will
justify congress in. assuming, or rather in empowering a few
capitalists to assume the direction of manufacturing labour, it
also invests that body with a power of le^slating for the direc-
tion of every other species of labour^ and assigning all occupa-
tions whatsoever to the care of the inteUigenee of mercenary
combinations. This is the very power which constitutes the
nature of the Chinese and BrUish govemmewts, enables them
to place labour under the intelligent direction of mercenary
combinations, and causes the miseries of labourers in those
countries. To admit the deplorable consequences of a cause,
and immediately to propose tiie introduction of the same cause,
discloses a latitude of reraoning, which evinces no small degree
of confidence in a deficiency of intelligence in those who are
thus addressed. The reliance expressed to avert the evils
said to be caused by the nature/of the British government, is
in the nature pf our own govcirnment; and the nature of our
own government is proposed to be changed, by infecting it with
the identical principle which constitute the nature of the Bri-
tish government, and have caused the miseries oflabmt&rs.

A i^ecurrence to sundry of the okjeetions which have been
urg^d against the protecting^uty system will enfMeus both
tQ estimate tiie extent of ^tese Eng^sh mterpidations, asA also



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to discern that the tjitem here will coDMcleraU; exceed, ia
inability, its criminality in England.

It destroys the diyisi<m of powers between the federal and
state govemments, by investing the former with a swee|»ng^^
internal power over persons and things. In En^and, it does
nothing so bad*

It violates the principles of representation, because local and
personal interests are not rejuresented in congress. Not so in
England.

It recognizes a sovereign power over property, and conse-
quently over persons, according to the political principle® of
England and China.

It destroys the freedom of labour, and enables government,
to subject it to the cupidity of combinations or individuals; as
is practised in England.

It taxes the great mass of capital and labour, to enrich a
favoured few ; as in England.

It increases the burden upcm the people by this operatioji, in
the same degree as if a correspondent addition had been made
by law to the salaries of tlie officers of government; as in
England.

It subjects the poor to this burden, of raising ca^tal for the
rich, and thereby increases the mass of poverty ; as in England.

It impoverishes workmen and enriches employers; as in Eng-
land.

It increases the expenses of government, and entices it into
prodigality ; as in England.

It leaves to one occupation free will in exchanges^ and takes-
itaway from all others. Not so bad in England.

It is a system of pains and penalties, by contracting the na«.
tural right to provide forsubsistence, comfort and pleasure, aod
leaving so much pf this right as it does not take away, depen-
dent upon a precmous toleration, like the freedom of religion;
as in England.

It deprives commerce of the freedom of exchanges, and pro-
hibits it from bringing home universal currency, so as to dimin-
ish its profits, depreciate native commodities, and obstruct naval
prosperity. Not so in En^and.

It corrupts congress and endangers the unira, by making a
geographical nuyority an object of solicitttdi^, for the fmrposeitf



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85S

dbiaining geographical adyantages. This enormous evil is not
attached to the system in England.

And it generates the extremes of luxury and poverty; as in
England. Most of these lineaments identify the visage of this
policy^ both here and in England ; but there are severid of such
local hideousness and exclusive deformity, under our particu-
lar circumstances, that I cannot see a better motive for its
adoption, than that which induced some uncivilized nations to
become enraptured with their idols.

The suligect of bounties or pennons has been anticipated.
Ad it regards all our legislatures, their constitutionality de-
pends upon the truth of the doctrines I have advanced concern-
ing sovereignty, and the natural rights of labour. If our leps-
latures are not sovereigns, they have no power to give away one
state or its property to another, or one man's person or his
)»x>perty to another man. In regard to congress, their constitu-
tionality depends also upon the limitations of the powers *of
that body over persons and things.

I discern no difference between pension, and alien and sedi-
tion laws, in principle. All depend upon the doctrine, that
congress have a mysterious power, to act upon persons and
things* beyond the definitions of the constitution. If such had
been the opinion of its framers, a special power to legislate
ccmceming counterfeiters, pirates atid traitors, would have been
unnecessary. The coincidence in the powers bestowed, between
persons and lands^ demonstrates an intention that the restric-
tions resulting from specification should not be destroyed by
inferences from sovereignty. A limited internal power over
land is given to congress, similar to the limited power^over per-
sons ; as in the cases of public lands, forts, dock-yards, and the
ten miles square* A state cannot constitutionally make a ces-
sion of eitiier persons or lands to congress, beyond the consti-
tutional permission. Maryland and Virginia could not have
conveyed to congress twenty miles square, because congress is
only permitted to rieceive and govern ten. If H state cannot
convey all its territory to congress, it cannot convey an inch,
beyond the permission of the constitution ; because the powers
bestowed by the federal compact cannot be extended in the
smallest degree by unfederal means; Now, if no bargains of any
land between congress and a state can constitutionally alter



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the federal compact bj diminishing Hie state powers reserved,
or increasing the federal powers delegated, it frilows more
strongly, that congress cannot extend its sphere of action with-
out the consent of the states* And as the specification of a
liildited power over land was intended to be restrictive by the
termb of its definition, so the specification of a limited power
over persons was intended to prohibit every other power over
persons, not therein contained. Hence congress cannot gradu-
ally disembowel a state of its citizens or property by incorpo-
rations, alien or sedition laws, or protecting duties.

Does the constitution empower congress to act without limi-
tation over perscms and property by bestowing pensions on pa-
triots or paupers, at the expense of the community F It niust
be admitted that no such power is delegated. It can tiien only
be inferred from the recondite sovereign power supposed to
reside in that department of government ; and if such a powo-
does exist, it will cover the alien, sedition and protecting-duty
laws, as well as the pension laws. Of the whole catalogue, the
last is the most dangerous, and is most capable of disordering
the division and limitations of power, so assiduously contem-
plated by the constitution. Kings by pensions strengthen and
extend their power ; congress may do the same. It is an unli-
mited power over |)ersons and property, and therefore liable te
be abused ; the federal constitution delegates limited powers
over both, to prevent abuses. The alien and sedition laws
acted only on a few persons by penalties ; pension laws upon a
great number, by douceurs and taxes to pay them. The pro^
tecting-duty laws are called bounties, because they contemplate
some compensation to the publick ; pension laws are gratuitous.
The strong objection td the protecting-duty laws arises from
their effect in transferring the private property of one man to
another ; pension laws do the same thing. Both violate the
natural freedom of labour, and the latter are more illimitable
than the former. The soverdgn power of disregarding the
rights of property by congress, as to pensions, is as dangerous
as it is comprehensive. Not only individuals, not only corpo-
rations, but whole states may become pensioners of congress;
and by the instrumentality of this power, all the constitutional
restrictions, for securing the equality of taxes, and their des-
tination to federal purposes, may be effectually defeated. As



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255

all QnKmited power, it may be exerds^ upon wtiaterer persons
it shall please congress to select; and the ministers of a par-*
ticnlar sect, or of all sects, are as much within its scope, as
anj other persons.

The history of pensions would be a history of frauds and
abuses; and tiieir consequences to society are uniTersally
agreed to be demoralizing and oppressive. These consequences
will be a^avated here by the great number of patrons, the fa-
cility with which they are approached, and the variety of causes
for invigorating their solicitude, for the success of their clients*
The effects of these causes are already severely felt both by
the people and our governments ; and much as pensions have
been complained of as a grievance in other countries, and rep-
robated in this when contemplated at a distance, they have
already come home to us in an extent exceeding the semblance
of justice, and making even benevolence ridiculous. The
multitude of pensions granted by congress and the state go-
vernments, and the increase of legislative expenses occasioned
1^ this extensive business, would probably compound a sum of
money far exceeding whatever any other community has ever
paid on the same score, and constitute a very considerable
item in accounting for the publick distresses ; but, if we exclude
from the computation all these expenses, and the whole eata-
ble of pensions, except those bestowed by a single law, the
astonishment and indignation of beholding a capital of fifty mil-
lions devoted at a blow by a temporary fanaticism, as a gratuity
to actual fraud or hypothetical merit, would sufiiciently de-
monstimte the magnitude of a sovereign power over property,
and the danger of its abuse when usurped by legislative de-
partments.

I have never heard the law alluded to, or the loose mode of
bestowing pulsions approved of; and probably at this time
that law is more generally reprobated, both by congress and
their constituents, than the alien and sediticm laws ever were at
any period ; but, it remains as a monument of the falsehood
of the common assertion, that the continuance of a law, is an
evidence of publick approbation ; and as an evidence in favour
of the common observation, that mankind are more fickle in
practising what is right, than in adhering to what is wnmg.



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<<Notiimiik leges Ai^life muttre,^ we are unwilliiig to-
change the laws of England, is a maxim borrowed from our aa*
cestors, which we reverence so far as it is foolish and bad ; and
despise so far as it is wise and good. In multipljing laws and
changing constitutional principles, no people erer disclosed
more mutability; in adhering to laws unconstitutional or
grievous more perseverance. This English maxim sustains
bad principles in their form of goyemment* and bad laws here ;
and though it is rejected when constitutions are violated^ it is
quoted with veneration, if it be proposed to abolish such viola-
lations. Pecuniary combinations have the address to persuade
us to reject it, in granting them an introduction, and to adhere
to it as a sufficient counterpoise to their impositions after they
are detected.

I shall presently advert to the evils resulting from an assump-
tion of judicial powers by legislatures, and from le^lative
patronage ; but the mischiefs arising even from these unjust an4
prodigal practices^ are inconsiderable, compared with those <4
a power to bestow exclusive pecuniary advantages upon char<^
tered companies, sectarian combinations, entire states, or par-
ticular districts. As nations like individuals are often tempted
to imitate other nations with whom they associate, instead of
considering the evils which have been produced in England, as
an admonition to avoid a baleful system, we have been seduced
by avaricious combinations to imitate the pernicious example^
at the expense of our republican policy, and contrary to our con-
stitutional principles. Publick good is invariably the plea of
all such combinations, and publick distress as invariably the
fruit The specious pretext of encouraging manufactures has
caused the United States to shut their eyes upon two maxims
of Mr. Jefferson's (when shall we see his like again P) contained
in his messages to congress of 1801 and 1802, then recdved
with general applause, and now buried in the tomb of forget-
fulness. <* Let economy be substituted for taxation, and indus-
**try be free." Against these maxims, wise, benevolent, honest
, and republican, combinations have successfully urged the fol-
lowing arguments* ** Manufacturing is more profitable than
"agriculture; therefore, give it a bounty. It is less so; there-
^fore, give it a bounty. Navigation is a blessing ; therefor^ opes



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*** canals and shut up the ocean. One portion of the union is
^afflicted by negro slayerj; therefore, make it tribatarjr to
^'capitalists* Cultivation bjr slaves is unprofitable; there-
"** fore, make it tributary to capitalists. The freedom of labour
^'deprives it of the benefit of being directed by intelligence;
«<^therefore9 subject it to capitalists. Taxation is preferable to
** economy; therefore, enhance it for the nourishment of capi-
''talists, and the gratification of avarice." Such reasoning de-
pends upon the position, that it is better to raise oranges in a
hot houses than to import them from a warm climate. The
structure of the terraqueous globe seems to have forbidden a
, policy for enhancing prices, breeding scarcity, diminishing com-
finrts, and excluding pleisures. It seems to have intended to
equalize the means of acquiring happiness among mankind, nw
ean I discern a stronger reason than that of retaliation and ven-
geance for frustoting the beneficent design. England has
already revenged itself upon the feudal aristocracy by creating
a monied one. But a landed aristocracy in Russia at this time
holds the manu&cturing interest in a tributary state. Let us<
therefore, revenge the injury by making the landed interest
here, though it asks for no exclusive rights or privileges, tribu-
tary to the owners of manufactories, and create one species of
aristocracy, because the other still exists in Russia. Is the
British and Bonapartean policy of commercial restrictions
recommended by his being in St. Helena, and the heaviest tax-
ation in the world being in England i



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SECTION 18.



ASSUMPTION OF JUDICIAL POWERS AND
PATRONAGE BY LEGISLATURES.



The us!^per» AugustuSy could nerer be persuaded to re-
establish the Roman republick. What hope is there» if one
man was thus inexorable, that three thousand should be
persuaded to renounce the unconstitutional powers which thej
have |u»sumedP With ten times his honesty, thej have ten
times as much of that invigorating aliment of a love of power;
called conscicms integrity; and our strongest ally ma^ there-*
fore become oqr 8tr<mgest adversary. Augustus no doubt
persuaded himself^ that his government would make Rome
happier, than the restoration of the republick ; and our legisla-
tures undoubtedly have as good reasons for believing, that their
usurpations will be better for the community, than our consti-
tutionsd divison of powers ; but both he and they in such rea-
soning look only at themselves, without weighing their succes-
sors in the scales of probability. He did not anticipate a Cali-
gula, nor do they a French revolutionary assembly. The
solid value of representation is a plausible and seducing ai^-
metit in favour of usurpations, and yet nothing has be^sn more
fiEttal to science in general, and especially to political science,
than the art of extracting erroneous conclusions from sound
principles. The framers of all our constitutions, sensible of this
truth, have laboured to enforce it, by limiting the powers of
l^slative representatives, to prevent an accumulation of pow^
er, which is invariably overwhelming. Their chief precaution
has been to take care, that they ^ould none of them be reprer
sentatives^ of any judicial power, by assigning judicial power
to other trustees ; and, therefore, representation in exercising
judicial powers acts exactly as the judges would do,?by exer-
cising legislative power. Through inattention, however, to a



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irerj yitible constitatioDal dittiitciioD» all onr lepakrinres inre
fallen into an erroi;, which all would condemn if cemmittod
bj the judges.

The delicacj of the proposed sidgecta is as deterriBg»as
their importance is imperative. The difficuUy of writing in a
style, vigorous enough to convince* and yet polished enough to
please the very gentlemen^ who must either be censured, or tiie
proposed reformation abandoned, becomes ^ctremelj formi-
dable whea we reflect, that the reformation to be recommended
depends entirely upon the persons, so likely to be tended. I
have no reliance upon myself for getting over this risque ;
but 1 have great reliance upon the consideration, thatpatrbt-
ism and integrity do yet greatly preponderate in «ttr le^Uiive
bodies ; and that these qualities would view with scorn a saeri*
fice of truth at the shrine of power« and will pardon argusMnta
enjoined by loyalty t<^ her dictates. BesideSj our wpe&mi^
tives are themselves governed the greats purt of their lives^
and their families and friends belong entirely te^e govern^
class. For this reason they woidd prefer a rough i^eadet in
favour of c<mstitutienal principles, to the smoothest flatterer of
temporary power. My apprehensions, therefore^ are gone, and
I will consider the subjects with the same integrity, by which
the representatives of the peo^e are themselves actaaiied.

Let us take a gluice at the origin and progress of judicial
power in England. It was at first considered as an attribute of
sovereignty, and whilst that was apposed to reside in the kiogi
he either exercised it himself, or delegated it to judges, depead*
ant on his pleasure, and guided by his wilL

The judicial power of the house ^ lords is a remnant of the
feudal power of the barons. The caprices, the passions «id
the partialities of feudal kings and barons, in the administra*
tion of justice, had scourged England for c^turies, and long
called for remedies in vun. At length the king was deprived
of his sovereign judicial power, and the house oi lords moulded
into a jurisdiction less ol^ectionable. Had that house exerdsed
the power of receiving original suits, and dedding upon «i-
parte testimony, the zeal, address or eloquence of individual
members would have directed each decision ; and innumerar
ble fraudulent individuals would have taken tickets, which cost
nothing, in a lottery whicli mig^t yield prizes-



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diiced^seviefttl remedies for these evils. The origmal jarisdic-
tion of the bacons bexuune appdlftte> so as to exclude the4iscii8^
sion of fi^ctSy and the frauds of ex^parte affidayit testimony.
But the house oi lords> stijl consctous of the inadequate nature
of a numerous assembly for dispensing justice in particular
cases^ have been invested with a power of requiring the assis*
tance of the judges; so that this appellate jurisdiction is prac-
tically exercised by twelve men of the best l^al knowledge*.
By inroviding thus agiunst fluctuating and inconsistent deci*
^iona uid by subjecting the parties to posts, the incitement to
try. luck by frivolous suits has been suf^fvessed.

The expenses of the Bn^bh g^vermnent were for a long



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 25 of 34)