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John Taylor.

Construction construed, and constitutions vindicated online

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time chiefly defrayed by lands appropriated to kings, but which
seen aune to be considered as natkmal prqierty, and when,
squandered by regal d^mi^cms, were frequently as such re^
ehimed* The disposition of this motional property, by the will,
eiq^ce^ or favour of the sovereign, without any judicial inters
positioUf guided l^ estublished laws uid rules of evidence,
was nasally infected with tiie foints of waste, and injury to
the puUick, so incuraUe, that in spite of the occasional resump«
tions of tiiis landed national ^cj»erty^ that resource for sus«
tainihg the g^emment was at length exhausted, and taxation
was necessarily substituted for it. At irst, the king or sove-'
leign claimed and exercised an absolute power of disposing of
the national property in the shape of taxes, according to his
pleasu)re ; bttt^ it wlui soon discovered that this [H^tended sove*
re^ ri^t over the natiomd property operated upon taxes,
just as it bad done tuptm lands i and prodi«ced the same capri-
cious misapiriijGatioM and prodigality. After variotis struggles
between the kings said the commons ; by the first to retain, and
by the second to destroy the royal sovereignty over the national
property; the ewW Mras at len^ imperfectly corrected by the
estaUishment rf a tr^t^iry department, under the superinten-
dence of a court of exchequer, both subject to known laws, and
fixed lilies of evidence. The parliament, however, retai^^d
the sovereignty over the property of the nation, of which tiie
king had been so justly deprived ; and the innate viciousness
of ^s politick principle has produced in their hands, the 3ame
provision vrimh it caused in the hands of the king. Still howe-



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▼tr, it deserret the praise of having estaUiahed a cowt to ffe*
Tent its own time from being diverted from great national Gl-
eans, and expended in the trial of trivial private suits. It
najr perhaps be thought, that the English lords and commons
deserve no eulogy for a regolationy so wise, economic^ and jus^
because thej receive no wages; and that, had they been paid
by the day, at a rate fixed by themselves, each house would
have entertained all private suits for publick property, and
would long since have grown into courts of exchequer, the moist
whimsical, burdensome and inconsistent which can be imag^ed;
and that as judges, whose income depends on their business,
will draw before them as many suits as they can, a perpetual
session of these two numerous courts, would long since have
been the consequence* I confess that all men, and particularly
the lords and commons of England, have disclosed sufi^ient.
indications of a respect for money, to justify a supposition, that
if they could have acquired comfortable annuities by assuming
a judicial power over the property of the nation, it is not impose
Bible that they would have yielded to the temptation.

But, besides the want of daily pay by these lords and com-
mons, there was another obstacle to their tryhig suits and ren-
dering judgments. The king had long been conudered as the
fountain of justice, and they had laboured to deprive him of a
power to render it personally, or by during'pleaswre judges. I^
would have been an awkward business therefore for them to
practice that, which they had forbidden to the king as iyran-
nical, after they had gotten during^good-behaviour judges. The
king would forcftly have retorted upon them their own ai^?
ments. ** You," he might have said, «' have successfully proved
« in my case the mischiefs arising from a judicial power in one
'* man, neither subject to impeachment or any appellate juris-
«• diction. You have proved, that judges cw^t to hold their
*'' ofiSces during good behaviour, without being subject to be
" dismissed from office, should I dislike their judgments. Are
'' you subject to impeachment as judges, and removal from
''office; or to an appellate jurisdiction? Do you hold your
** places during good behaviour, as you say all judges ou^t to
<* do ? May not you be influenced by electors, as during-pleasure
« judges were bj kings ? If th^sc judges would buy the vote or
" good will of tiie king by giving him the property and even



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^ the lives cf individiials, in order to keep their offices ; may
'^ not you be tempted to bay tiie votes or good will of electors*
^ by giving to them the property of the nation? And are not
^ yon moreover exposed to the great influence of private friend-
^ ship and family connexions^ in acting as exchequer judges, or
*^ exercising an arbitrary power over the national property, from
** vtrfaich my during-pleasure judges were free?" The English
lords and commons have avoided much of this retort, by for*
bearing in a considerable d^ee to meddle with judicial bu^^^
fliness.

The habit, which prevaSs in all the l^islatares of the United
States, of tr/ftig individual suits or claims for pubHck property
/evidently bears a strong resemblance to the old feudal modes
ef dispensing justice and expending the publidt property. Tea*
timony is ex-parte. Evidence is not wei^ied by any rules. Ora-
tory and influence generally supply its place. No witnesses
sore examined or confronted. The trial by jury is excluded.
Decisions are never directed by law, but always dictated by
policy, influence, selfish views or benevolence, except when
they are the result of accident, inattention, fluctuation of the
judges, ignorance of the truth, or some species of cunning man-
agement. In short, our exchequer legislative judgments are
generally r^dered in the same mode, that legislative attainders
and coiidKscations were enacted during the most tyrannical
periods of the British histories.

It may however be objected, that looser principles are justi-
fiable in the disposition of the property ci a nation, than that
of one man; and that what would be robbery in one case, is
munificence in the other ; just as the killing of a Sngle person
is murder, and the extirpation of a nation, heroisim. Supposing
this reasoning to be sound in general, (and it must be admitted
to be so, if usage makes moral rectitude,) I think that it may be
cbntrouled by national ccMistitutions. It is admitted that all
G^vil powers are appendages of sovereignty, and that sovereign-
ty may of course bestow them as it pleases. If a sovereign
monarch should ajqpoint one set of men to form a code of laws,
and another to execute themt neither would think of discharg-
ing the functions of the other, nor would he suffer it If we
were to select the plainest intention disclosed by the sove-
te%nty oi the people, none c(mld be preferred to Hn^ separation'



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•f kgiilatife ind jidicttl {lower; nor can I aee htw Hit kp«-
Istaret of the sttte or federal goremmenti can have acqaiied
jBqr judicial powfga» ercept thqr can ahew, that the aoveteig afcf
of the people ta dead, haiing detiaed tta eatate, with all the
app«irteikancea» pririlegea and eaMliuoenta, to the legblatite
department Tlioiigjh no anch wttl haa been produced, jet tiie
fict of the death of the aorereignty of the people aeema to be
INreannudrie, from the anndrj law auita aboot the diriiaon of the
eatate. All civil powers beii^appendagea of aorereigntj, if lepa-
latarea can aasnme jediciai powers, thej are ondoabtedlj enti-
tled to the rest. Tlie fedend court haa ttdeed made a diviaion
of the inteatate'a estate, among a £unil j of poBtical s|iherea»
nowiinally upon principles of dbtribation, bat easentiallj acoor^
ding to theae of piimcgenitare, excq»t that it is i^fficiilt to de-
tnuine whether cengresa or itself is hair at law; or ra&er,
according to the tenure called borough Rngliah, faj which the
youngest 8<m gets all the estate. But tiiia diatrihution, however
it may reserve to the court something like legblatiTe and even
conatituent powers, by no means inve^ legislatBies inth jodi'
dal, and menaces such a usurpation, by barling a gaantlet at
unconstitutional laws.

If the soverdgnty of the peoj^e be howevtf sifll alive, and
we look into the commissions to aaake laws, we shall fisfd nO
trace of a power to try auits. The law-makers lake no judiciid
oath. They have no power to Miforce the attendance of wit-
nesses ; nor does a ring^e precaution exist for ebtttniz^ from
legislators upright judgments, because ibej were notemp<yw-
ered to try any suits at ail. In fact, the sovereignly of the
people established a judicial power distinct from and indepen-
dent of all other political spheres, for the puipose of securing
property ; and improved upon the principles of the English
system of government in relation to it, by the identical maxiai,
considered among us as the only solid security for that and lA
other civil rights. Our maxim is, that a government is not a
sovereign, but a trustee of the sovereignty of tiie people, in-
vested only with limited powers and composed of co-ordinate
departments established to discharge specified duties. Th»
manm withholds from these departm^its all the ai^ndagesef
sovereignty, and only entities them to exercise the powers bes-
towed. It deprives them of. the ai)8<dirte power over the Jivea



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9XlA ptoperty itf th« people, dai«ied tnd exercised bj^rerjr
other speeds of soivereigiitj. Hence the creation of a judicial
sphere hecame necessary, which would have been useless had
legiskitiTe power possessed a sovereignty oyer property ; since,
it could in that case have moulded courts according to its will,
«D as^ to make them subservient to its wishes. Hiis corrects
that principle of the English government, which has produced
the greatest evils» " tiiat the parliament is invested with aH
•* absolute sovereignty over property and all other rights,''

Whilst I contend that it is true in theory, that our legisla*-
tares do not possess a power of giving away the national pro-
perty according to their caprices, or even from motives of bene-
volence ; because^ they are not invested with a sovereignty, but
only with a trust in regard to it ; I admit that an adherence to
tills undoubted principle must, in a great me^ure, depend upon
themselves. If| however, the men who compose them should
turn their attention to this Subject, and be convinced of the
truth of the doctrine advanced, this dependance is far from
Iteing insecure. Our system of government is happily con-
trived to unite intereiit and patriotism ; and deviations from its
principles, which may inadvertentiy arise, will tlierefore be cor-
rected as they are discovered, so long as the system itself re-
mains unCorrupted.

The practice of ti*ansferring the property of one man, or of
one class of men to another, directly and unequivocally, gra-
dually became unsafe even to despotism itself, and therefore it
has been abandoned by the best Of those governments which
yet retain a sovereignty over property. But, although this
species of tyranny has become too atrocious to be borne by any
rf the Europeans except those subject to the Turk, when in-
flicted without disguise, yet it is still pursued to a most oppres-
sive extent by their governments, concealed behind exclusive
privileges, pensions, and a variety of abuses, by which the evil
is disseminated over a! whole nation, and every individjual, ex*
cept the objects of its bounty, is injured.

Between the declaration of independence and the ^tal^ish*
ment of our present federal constitution, sundry lepslative ex*
^i<ms of sovereign power had occurred, which displayed some
Of the evils deposited in that principle. Laws of attainder
had past, and many partial confiscations cf private property
2 1



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had been made, by laws o^ tender, and for suspen^ng the ad«
ministration oi justice. The injustice and tyrannj of these
legislative usurpations, under pretence of being invested with
fL sovereign power over persons and property, induced the states
to apply a remedy, by prohibiting themselves *< from makings
''any thing but gold and silver a tender, from passing any bill of
*' attainder or ex post facto law, or any law impairing the obli^
" gation of contractsJ^^ These iqipendages of sovereignty, pro-
hibited to the states, are not delegated to congress. This
constitutional fact proves, that none of our governments ia
invested with sovereign powers, and is particularly adverse to
the novel idea of 8|)herical sovereignties ; for, if the umon of
all our political spheres will not constitute a sovereignty, surely
it is not constituted by their sepanition. If ndther of our de«
partments constituted by the sovereignty of the people, nor all
of them united, are a sovereignty, then they can only be co-
ordinate deputies entrusted with appropriate powers. As no
V one is a sovereign, neither can suppress another. The legisla**
tive department cannot suppress the judicial, nor the judicial
the legislative. The former cannot prohibit the latter from
rendering judgments according to law, nor the latter prohitMt
the former from legislating. In shorty no department can con-
stitutionally suspend the functions of another, because all de-
rive their authority from the sovereignty of the people.

What then is the obligation of a contract, how is it to be en*
forced, and how may it be impaired ? The obligation of a con-
tract arises from the consent of the parties, entered into under
the sanction of the existing laws ; and the constitutions under
which we live, are a notification to them, that it is to be enforced
by the judicial department having a jurisdiction of the case.
The prohibition to impur contracts is directed to that quarter
from whence only the impediments can proceed. This is le-
gblative power. From hence the impediments which produced
a positive vindication of the true spirit of our constitutions
proceeded ; and if the remedy be so construed, as to permit the
very evil it designed to remove, both its reason and its end
must be disregarded*

Every suspension of the payment of debts by law is an actuat
sequestration^ wluch almost invariably terminates in a partial
confiscation for the benefit of the debtor. If our le^ktureft



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do not possess a sovereign power to take awaj directl j the pro-
perty of one man, and give it to another, they have no power
to do the same thing indirectly. Their office is to pass laws \
for establishing rules by which property is to be distributed ; I
but when the right is vested under those laws, so long as tiiey
exist, it is beyond the cognizance of legislative, and appertains
to judicial power. Laws cannot constitutionally transfer the
property of debtors to creditors, nor of creditors to debtors,
any more than they can transfer that of the rich to the poor or
of the poor to the rich. It is our policy, that property should be ,
divided by industry and not by any species of sovereign power;
and our judicial departments were established for the preser-
vation of that policy against whomsoever should molest or '
impair it ; and particularly against executive and legislative
power, by which the principle has been generally overturned.

A suspension of debts by replevy or any other laws, not only
impairs contracts, by defeating the mutual risque, as to the
fiuctuation of money, voluntarily incurred by the contracting
parties ; but is always intended to operate, and generally does
operate, as a confiscation of a portion of the property of the
one, for fhe benefit of the other. In contemplation of this effect
only are such laws either solicited or past. Besides this un-
constitutional character^ such laws are highly penal upon inno-
cence, ex post facto> and participate largely of the nature of
le^slative attainders. Man cannot live over again the days he
has past, nor postpone his wants until his incarcerated property
is liberated. Though robbed of it but for a year, it is still a
robbery in the proportion that year bears to his chance for life.
He may starve, he may suffer, or he may be forced to sell his
deferred stock at a loss, to get the necessaries of life. When
the prison doors are unlocked, some is always found to have
perished in jail, and all returns impaired by confinement, in its
value. But such laws have effected their intention, though
they violate the constitution ; for the depreciation they produce
in debts, by the fear and distress they inflict upon creditors,
never fails to diminish their value, and to enable debtors tor
obliterate them by modes, incorrectly called payments. What
species of pati'onage can be more unjust?

The evil of bad examples by governments is often greater,
iban the immediate mischiefs arising from the act itself^ The



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£68

replerj laws which have conferred on many indifitoda the
use of property belonging to others, and inyented easy modea
<tf getting rid of debts, hare induced the bankers also to exer^
cise the power prohibited to the states; and taught them t»
refuse to pay their debts, in order to make money by seques-*
teriiig the property of others, or to take time for ^ectii^ a con-
fiscation, by becoming insolyent. The same example solicited
individuals to seek for wealth by speculation in preference to
industry, from a reliance on legislatire shelter against payment*
The catastrophe arising from the excitement to incur deM;.
happened in a year of exuberant plenty, as a providential de-
monstration of the inveterate malignity, contained in tho j^nd-
pie of a sovereignty over property and its exercise by impair'^
ing contracts, to human happiness. The year 1816 produced -
unexamined abundance and unexampled com^aints in the
United States. The fields teemed with crops, and the news*
papers with lamentations. All the comforts of life were plenty
and cheap, but the United States resounded with distress*
The beneficence of the Deity was insufficient to remedy or to
satisfy the speculations of avarice. Disappointed in ihi^ hope
of amassing wealth by cunning, it asserts, that the patronage
of industry by providence ought to be countervaUed by a pa-
tronage of speculation by legislatures. Despising constitutions,
from its innate depravity, it proposes to invest congress and
the state legislatures with a common power of suspending
specie payments in fiivour of banks, and the latter with a
power of impairing all other private contracts. Banks stand
at the head of the faction, which pretends to a degree of merit
80 transcendant, as to require the sacrifice of the second best
principle of our political system. Their character defines that
of their progeny. They have caused the nation to divide its
money among swindlers, and those who have gotten it, request
that the remnant of justice left to the injured may be. converted
into an additional reward for the guilty. The banking projects
of England, exhibited in all the finery of fancy, are said to be
worthy of our imitation; whilst the squalid legions they have
helped to generate, the misery only cOntroulable by a great-
army, and our own experience, are passed over as proving,
nothing. A sovereignty over private property is the European
{Nrinciple of government, to which I ascribe most of the bW-:



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1MB •ppvetsMiuL All essential prineiple^fottrptlky is, tkal
private pr^»eF^ eaimot be constitutioDaUj transferred by law
to others^ except for national purpoees* Ta a deviation from
this prmciple I aseribe many of oiur own sufferings^

A legislative sovereignty over the nati^al pr<^rty seema
t» me to have been uneonstitationally exercised to a great ex-
teat, and in a mode highly pernicious by. what I shall call
le^lative patronage* It is tme that in a few cases of a par-
ticular kindy the state legislatures are wisely invested with the
power of making appointments ; but with respect to the federal
government completely^ and to the state govemm^its generally,
the legislature raises the money, whilst son^ other department
designates the person who shall receive, it The framers of all
our constitutions must therefore have seen a distinction be<
tween legislation and patronage, and have conceived that oue
fi^e form of government would be destroyed by their union ia i
one body of. men, if we may draw a conclusion from their efiorts /
to keep them disunited* Personal calculations constitute the /
chief danger to be avoided in legislative bodies. If these can '
taz» bestow»and designate the receivers of pubUek money, per-^
Mmai calculations to a countlesa, extent must be awsAened.
The advanti^ea and gratificatlops resulting to ourselves from
pecuniary favours to our friends, relations and partisans, influ-
once most the minds of the ambitious and dangerous ; and
tl^re is but Uttie difference in the degree of corruption betweea
patron and client Kings and popes, who could corrupt civil
aaid religious principles by patronage, could never remaia
vktuoua themselves- The senate of Rome was converted into
a desjHcal^ body of men by uniting legislation and patronage*
The le^slative assemblies of France owed both their crimes
and their fatOj to an honest ojunion, that their conscious inte-
grity and representative character might safely exercise both
leg}slati(m and patronage* But the experiment terminated in
ft, despotism* A division of tbe powers to raise and appr^riata
Ukoney for puMick use^and to nominate the receivers of tiiat
money, is our constitutional precaution for sustaining a frug^
and honest system of legislation ; and for excluding stratagems
fer purchasing votes» peoviding for friends and gratifying vanity
and avarice fri»n those bodies of mm, upon whose purity and
patriotism: the cmtinionce of a firoeand easy government de«



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poidt. Eyen commiseratioii will be snccestiitHy implored to
weep orer the calamities of indiTidoals* and easil j persuaded to
gratify its feelings at tfts pubUeh expense ; and to oreriodi the
.wonnds it is inffictuig on the constitutkm of its coontiy, hj
assuming a sover^gn power oyer its property.

It was an olgect of oar constitations to secure a common
feeling between legislators and constitoents under the opera-
tkm of laws, whether good or bad. This is confessed to be a
wise and just, and some dunk, an indispensable security fin- good
laws. Can a legislator, who gires away the publick money to
his friends, his clients, or his partisans ; who is interested in the
traffick of corporations, to be created and nurtured by his laws,
or who can increase his own wages by protracting a session in
trying privato suits, be any other than a representative of him-
self?

Congress has already enlisted stato governments among its
clients, and these, like the Roman provinces, are reduced to the
necessity of providing patrons in the senate. An union betweetf
legislation and patronage will enlist an assortment of suitolrSi
composed of individuals who ask for dollars, of companies who
ask for millions, and of statos which ask for bounties, roads and
canals. Patronage begets clientship. States will soon vocife-
rously demand local favours, to balafice other local favours.
Why should not congress endow schools in the old, as well at
tiie new states? I see no end to the parties, intrigues and ani^
mosities, by an usurpation on the part of the federal government
of internal and local powers, and of unlimited patronage. These
will not be less dangerous, for being geographical. Federal fa*'
vours are at first silken fetters to the states, which will gradu^
ally be converted into iron by the menstruum of precedent, as
soft stones exposed to the atmosphere become hard. Yes, I do
see an end to this baleful policy, and I write only as a bumble
assistant to abler advocates of our constitution, towards ob^
structing its arrival. I see a nation dissected into pecuniary
and political corporations ; legislation dalMing in the frauds it
fosters, and sharing in the spoils it bestows ; repres^tati<m con-^
verted into personal motives, incapable of detection ; legists'^
tures sinking into exchequer spendthrifts ; hordes of specula^
tors gambling with legislative judicial patronage, for privato
uid publick property ; the recomUdendatiwis of frugality as in**



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i^pensiMe to tlie costmaance of oar free form of govemment^
go often recommended^ and so steadilj practised by two of the
wisest and most Tirtuous patriots who erer blessed a nation
(Wa^ington and Jefferson) derided; in short, I see a pictnre
bespangled with noxious meteors, gliding between our eyes and



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 26 of 34)