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John Taylor.

Construction construed, and constitutions vindicated online

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the admired system of goremment, under which we have en-
joyed so much happiness.

The judicial mode of patronizing individuals has been as-
sumed by legislatures, under a garb apparently innocent and
lovely, nor have they perceived the corruption and unconstitu-
ticmality which it covered. It is the right of the people to pe-
tition, and the duty of the representatives to redress grievances.
Bat DO individual has a right to petition legislatures to perform
judicial functions, or to expect that a coilstitutional divbion of
powers and duties should be confounded for his benefit. Legis-
latures are well qualified to ascertain general principles, and
utterly incompetent to ascertain piurticular fi^ts. The first
emnprise the field of their power, and the second object, with
&e means for effecting it, is committed to the courts of justice.
Qan that be a legitimate jarisdictiony which is unaMe to come
at truth, and of course, to do justice i A court of this character,
which can only decide in favour of the plaintiffs ; which cannot
subject him to costs; which cannot ^ve a final decision, nor
Invent the most vexatious reiteraticm; which is annual or
duennial, and also subject to influence in various ways ; and
where the judges must act as solicitors or attomies ; is cer-
tainly a judicial monster. If tins court should assume a power
of t^hg suits between individuals, its incapacity would be in-
stantly discerned even by itself; and yet it is better calculated
finr rendering justice in suits between these^ than between in-
dividuals and the publick, because it would not be influenced
by a notion of a sovereign power or right over the money in
dispute, nor by amlntion or a love of popularity. A judge be*
iween individuals could not benefit himself or a partisan to any -
great extent If this be true, how can it be imagined, that our
constitutions deugned to delude l^datures from a power to
try suits between individuals, and yet to invest them with a
ri^t of trying suits between an indiyidual and the pubiick ? Is
it to be imagined, that in the establishment of a judicial de-
fartmentf the secarity of the property oi the whole nation was^



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ntt at all regarded, wfailftt that of iht poorest iitdintel wtta
proteeted faj a aalutarj dinaioii of power ?

The fiederal conttitatioii includes within the jurisdiction of
the federal courts ** controversies to wkick the United /^ettes
^ shall be m pmrtifJ* How then can congress try them? It ena*
bles congress to tax» not as hanng a sovereignty over property,
but ** to paj the debts, and provide for the common drfence and
^general welfare, of the United States.'^ How then can it
indulge a patronage in favour of individuals, or impose taxes
for conferring local benefits ? The courts of all the states tffe
open against the govmiment; therefore, the state legislatures
bj exercising thb judicial legislative patronage exercise a con*
current jurisdiction trith these courts ; and it is often a reason
fer entertaining a cause, that the courts would decide against
the claimant Nodnng has been more t>iq>ressive to nations,
than the practice of kings, to buy popularity at their expense-
Should this practice become established here, as we shall have
three or four thousand kings, exercising sovereignty over the
property of the nation, one need not be a conjurer to foresee
the consequences. If the aimmal docket of all our legislative
bodies were published, reasoning would be superfluous. It would
account to a great ^rtmt, for our deviation so rapidly from that
frugality, deemed essential to the preservation of liberty by
almost all the real patriots who have ever appeared. Or, if our
pension list were compared with the pension list of Great BfK>
tain, I believe we should be found to have already outstript her
in the application of the maxim, ''that governments are sove-
** reigns over national [H*operty*'' The reason I suppose to be,
tiiat she has only one sovereign, whereas, according to the new
opinions, we have at least two, each of which possesses an unli-
mited spherical sovereignty over property; and these, instead
of being units like those of Lacedemon, are above ten times as
numerous as were the sovereign conscript fathers of Rome. If
l^slaters are publick servants, then* numerosity will be our
salvation ; but if they are sovereigns over our property, and
exercise without controul judicial le^lative patnmage, the
same numerosiiy must be our ruin* Avarice and anAition de*
ride political restrictions, and talk of estimating how vindtL
Ubtrty a people can bear; but the fact is, that governments by
their own morals mould them into acapadty to befree or tobe



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smt

<mri«v0^ The IVeiich nati(9& wst sdipirmoidded by tie pB^Ktti^
jqge and judicial utuqtttions ^ le^latures> into a fitnew even
far a mibtarjr despotism ; and then the sophistry which inffiioted
Hia eiil» under pretence that the nation could not bear good
gm^emttmitt prevailed; but these legislative errors were in fact
Ibe st^ping*stones of fraud, the corrupters of the nation, and
Aa ladders of amUtion.

The reason why a nation it oppressed and enslaved, when^
flfver one man, or any body af men, though elected by the people
Ahall absorb and eiercise a sovereign power over property, is
ebviouB. It disorders all balances, and. overturns ail cheeky
and establishes an irresistible authority. The framers of our
excellent system of government, sensible that election and re-
prosentationi however inestimable, were yet insufficient, alone,
to prevent an evil whii^h has frequently proved fatal to repub-
lican governments, called in divisions of power, checks and
iMdances as auxiliaries. They divided legislation between local
imd internal olgects, and those of an external or general nature ;
they excluded legislation from judicial functions ; and they de-
nied to every department of government the appendag^ of
iover^gnty* All were only fiduciaries, and the duties of each
trustee were defined and limited. But if the congress, one of
tbese departments, can pass local and internal laws; if it can
gire away the publidsL money by no rule but its own pleasure ;
and if it cMi exercise judicial functions, it cannot be in co&*
fihFtmty with those jNnnciples upon which our system of govern-
ment was established.

I recollect but two classes of claims, which can be offi^ed to
legiriatures by individuals or corporations ; the gratuitous, and
the just As to the first, if legislatures are only trustees, and
do not possess a sovereign power over property, they have ne
right to exercise benevolence at the exp^ise of its owners. As
to the second, they are. constitutionally prohibited, and inter-
inJIy disabled from dispensing justice to individuals. Particu-
Itr laws fbr rendering individud justice, instead oi general
laws extendii^ to all similar cases, we substantially judgments
and decrees^ Tb»r character resemUes a scheme of jurispru*
dence, wyefa should ^dude general rules of inheritafuce, and
leave it to legislation to provide for each case. They are exact-
ly the same in principle with the mode of rendering justice,
2 K



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97A

adopted in Tmrkej. A flnctuatiBg will and pleasure deoides
upon an imperfect enquiry after facts, instead of a general law»
to be executed by judicial inyestigation. If the indiYtdual
grievance be real, it ought to be the basis of a general law
extending the remedy to all similar cases ; and if such a law
would be an evil to the community, the suf^posed individual
grievance cannot exist The multitude of suits for publick
property, instituted before legislatures, evinces that such claims
are not solitary, but similar to a great extent; and that there
would be no great difficulty in framing a law, by which the just
might be reached, and the unjust excluded. Thus fixed, rules
of decision would be commuted for fluctuating, truth mi^t be
discovered, and our legislative bodies might avoid a waste of
time, in trying frivolous claims in an imperfect manner, which
no other legislatures that I know of have ever incurred.

We have not lost sight of our great question of internal le«
gblation by congress, in considering this subject. On the con-
trary I contend, admitting the state legislatures to possess a
sovereignty over property, and a ri^t to bestow the publick
money upon objects of benevolence, that it is a subject for inter-
nal and local legislation, not comprised within the powers of
the federal government It is true, that the federal constitution
invests congress with a limited and special power in relation
to persons, but it cannot act upon persons beyond the power
bestowed. By referring to the constitution it will be found*
that all the powers over persons ^ven to congress are intended
to effect some general federal end, and not to confer any rig^t
to legislate over persons, except for such a purpose. As for
instance ; the power over persons in the imposition of taxes is
l^ven for the purpose of providing a revenue. No power to
lavish the revenue thus obtained, in donations to individuals, ia
bestowed ; on the contrary, it is limited to the use of the Uni-
ted States. If this reasoning be correct, the donation* to the
remnant of the revolutionary army, (a remnant more numerous
tiian the army itself at the end of the war, after an interval of
above thirty years,) was unconstitutional. Whether this dona*
tion was constitutional or not, it is a monument of what is to
be expected from the principle of a legislative sovereignty over
the national property, and the effects of a casual humoursome
enthusiasm, which had slept forbear forty years, and was awak-
ened, not by reason or justice^ but by the sound of a drunu



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£75

President Adanis has smnewhere sud, I helieYe, tiiat libertf
consisted in an equality of laws. The definition is good» as far
as it goes ; but it is imperfect in being onl j one ingredient of
liberty. An equality of oppression, which may exist with an
equality of laws, cannot constitute liberty. It would be a better
tnaiim to say, that liberty cannot subsist under an inequality of
laws, by which one portion of the society or associators is en-
dowed with exclusiye benefits. Upon this maxim the union of
tile states was founded. The states were the associators, and
in their compact laboured to prevent congress from being aUe
to distribute among the members of the association, by the in-
strumentality of exercising local or internal powers oyer persons
or things, unequal advantages ; because, an inequality of laws
would destroy the equality of rights among the assodators, in-
tended by their compact to be established. Hence that body
was only invested to legislate upon subjects common to all.
Suppose that a body of guardians were appointed to take care
of an estate held in common by twenty-three virgins, each of
whom held also a particular estate, over which these guardians
were not invested with any power. If these guardians should
endeavour to corrupt and seduce some of these virgins by using
ftie profits of the Estate held in common, to improve several of
the particular estates, by cutting canals or making roads; by
granting bounties or exclusive {>nvileges to some of the tenants
<if the particular estates, to be paid by the tenants of other par-
ticular estates; or by bestowing pensions on others of these
tenants, to be paid out of the profits of the common estate ;
what maxim of equality, of justice, or of liberty, would they
fulfil?

The constitution of the vimon prohibits to the state govem.-
ments a power of regulating currency, and limits the power of
(congress to the establishment of a metallick currency. These
restrictions of power, in relation to the representative of pro-
perty^ do not recognize in either government an absolute power
over property itself. On the contrary, it was idle and vain to
Hmit the powers of governifient as to the sign of the thing, if the
government possessed a despotick power over the thing itself.
Where is the difference in principle between giving away fifty
millions.of the national property in pensions, and in giving away
the whole i And what power over pr<^erty can be more des-



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potidk, thuapowerthiMiodkpoteflf k? TheTettricfiwi as
t^xunencj, coBilniied wiih the dhrisMii of lef^kdte and |i£^
eiid powera» eviace* that tfiia atveveigii power swejft€ifeaptj HA
•et «xiat under our princij^ea of government

The restrictiona as to taxing pnqpertj* inpoaednpoa both tiM
federal and state govemiMiits» diao recognioDe <ttly « Ifanttai
power over it in either; and aa te the a|^e«tioB<«f taxes, it is»
. in the case of the former, expressly liaMted to the eKecntton «f
the powers ddegated, for wtnch purpose and no other the pow*
er of taxation ^ras bestowed. Among the powera del^iated,
fliere is none to grant pensions, or to disposeof tiie piMtcmo*
nej according to the dictates of caprice, er benevolenoe, «a the
Englirii tings ckdned a right to do* As to tiie state govern-
ments, the same principle, which is the onlj sovnd secnrity Ar
civil l&ert J, fought dso to be a security for prop^iy. As tnis«
tees, they have no better right to give away one than the other.
If they eannoit take away tfie property of A to give it toS, what
light have they to take away property from the whole a]phid>e4^
togiveittoB?

Societies are not instituted for the purpose of enaUing go-
vernments to destroy natural rights; and as no manposaessea
a natural, or necessary, or convenient power over the naturd
ri^its of another, a majority of men cannot have a ri^ to«ur-
render to a government an absolute power over these natural
rights, i have previously endeavoured to prove, thaft fbe Ireea
dom of conscience and of labour are essentially nateral rights.
If it be the intention of a society to ^ect a government for the
purpose of protecting both, an invasion of either is a deviation
from that intention; and nothing can be mone unconstitutional
than a stab at the vital part of our political system. Neither
nature, nor necessity, nor convenience, has invested the peo-
ple, QT their representatiTes, with an absolute power over pri-
vate jn-operty, or over conscience; and thou^ mankind were
long deluded by fraud into an opinion, that civil government
could not subsist without one species of tyranny, this imposition
is so thoroughly exploded, that it ought to si^gest a strict exami-
nation of the other. The same orators, whose eloquence so loi^
suppressed the rights of conscience, now plead, that civil go-
vernment cannot subsist without regulating property by char-
ters, establishments, corporationsi exclusive privUq^es, bounties



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that tcoiiBoienoe ougbt to %e ngidated^ &r they saj, that frM
opurioii Bsto^thevse of pnqpertywHI iie MpemicioiiB totha
publick* as free opiBioii in velatiea to reKgion was, aeoonfag
to thrir exploded doct^nes. Lvxiny is now made the heresy,
hj which tiie new order of aiqparent zeakft8»t«t oool catoub-
tors of dollars and ceivts, advance titekr drngno. Wealth and
powor to priests was the pretended ^cuve of heresj; wealth and
power lo corporations and combinations and pensioners, is tho
protesided core of hiznrj. The orators long permaded man*
kind, that they would damn theraselYes bf hereqr, if thejr en*
joyed a freedom of opinion as to religion ; they now endeavonr
to persuade them that th^ wiH ruin themselves by luxury, if
fliey enjoy a freedom of opinion as to property.

In selectii^ generdi principles, we o«|^ to be guided by
general eftects, and not by partieular cases. 8evend devout
ministers undoubtedly deserved the salaries derived from an
absolute power in a government over the freedom of eonscience ;
and several woithy pensi<mers undoubtedly deserve also the
pensions derived from An absdute power a governments over
the freedom of property ; but both powers are so ineurably ex-
posed to abuses, and, an exercise of judicial powers and legis-
lative pi^enage so incurably infected with qualities of irrecon-^
eilable enmij with the virtue, happiness and interest of a com-
mui^y, tiiat the policy of being led astray from the gmeial
good, by particular cases, is simply thatof preferring an op-
pressive to a free and moderate government.

It is an error to suppose, that the people approve of bad mea-
sures, because they are silent* In M nations, the majority ap^
prove of pcditical morality ; and they are silent, both from the
iniuenoe of government and a want of <imeor information to
detect ks infraction. Ther^ore, they are seldom roused into
remstance, except by the extremity of the evil. Our govern-
ments are so happily contrived to influence those in power in
fitvour of truth and justice, as to infuse into the people a reli*
aace on their structure, which yet farther disposes them to be
inattentive to the laws* But, this reliance dictates a cautioiM
watchfulness against the introduction of any new prindples, by
melms of laws or l^slalive patronage, undernuning the basis
cf the reliance itself, by having the effect of exchanging an
influence in favour of truth and justice, des^;ned to be ^ti&*



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£78

Ibhed bj the strnctiure of oar govemmeiits, for an inflaciiee in
fiivoiir oi partiality^ exclusive privileges and erroneous princi-
ples. It is impossible to convince the suitors of legislative
tribunals, the fevers upon le^lative patronage* or ike receivers
of exclusive privileges, bestowed, not by constitutions, but bjr
laws; that l^riative bodies ought not to possess the unhdj
power of converting puUick property into private donations :
but, if the question was propounded to the people, silent aa
Aej have been upon the sulgect, « whether l^islatures had not
** better employ the portion of their sessions, worse than wasted
*' in trying and deciding cases ai cupidity, in a thorough ex-^
^ amination of treasuries, and an annual disentan^ement of
^ the destinations of the taxes," would the answer of their
moral sense and common sense accord with the practice, to
iriiich they have indiscreetly submitted ? Do they really approve
of the new policy of sacrificing the general good to private in*
terest?

When the human mind receives a strong impulse towarda
either truth or error, it is difficult to check the current of con-
viction or prej udice, and to give it a new direction. The im-
pulse derived from our revolutionary principles was stron^y
adverse to legislative sovereignty and excluuve privileges, and
a counter-current in their favour has been gradually introduced*
One flows from truth, and the other from ernn-. Being ^posed^
they are of different characters. In which are we to look jfop
that mercenary temper which has notoriously generated for the
few last years an unusual number of instances of moral turpi*
tude, and materially affected the national character? Morals
are regulated by religion or by laws. Our religion will not be
accused of imperfection. A love of money or of property,
nurtured by fraud, becomes sordid and base; but nurtured by
justice, it is a source of civilization, of virtue, oi happiness, and^
the bond of society. If it could be destroyed, civilized society-
would perish. But the value of property is a temptation to
fraud, and the end of government is to restrain and correct this
temptation. If then, governments themselves shall yield to it
by contriving means to transfer property from the community,
to individuals, each culprit in contemplating their example will
conclude, that if this be right in relation to a whole nation, it
cannot be wrong in relation to one man; and so the national
character is changed.



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SECTION 14.

THE LAWS OF NATIONS.



This fonmdable phalanx has with great ingenuity been impres-^
Bed into the service of spherical sovereignty. The philosophers
who invented them, were actuated by the benevolent intenticm
.of civilizing^e intercourse between na^ons, and softening the
evils of war ; and not by the wicked design, of increasing do«
mestick oppression, by dissolving restrictions imposed for the
security of civil liberty. They did not intend by restraining
the ravages of avarice and ambition, when exercised against na-
tions, to turn them loose upon individuals. little would be gain-
ed from these laws by mankind, at the expense of opening tiiose
sluices at home, through which they have so often been flooded
with misery ; and if the laws invented by one set of benevolent
philosophers, to ci^ize imtions in their commerce with each
other, should demolish those contrived by another set of bene-
volent philosophers, to procure internal national happiness, ^e
former will evidently produce more evil than good. The self-
constituted legators, who compiled the laws of nations, drew
their conclusions from the then established principle ^that
•^governments were invested with sovereignty ;" but our consti-
tutions, framed by legitimate legislators, are founded upon the
pincipl^ ''that there is no sovereignty among men, except
''that species which resides in the people or society." Hie
question therefore is, whether a &lse principle shall destroy
a true one ; or whether rules rec<mimended without authority
ought to supersede those established in the most perfect mode.
The old principle placed nations in a state of vassalage to go-
vernments ; the new one places governments in a state of de-
pendance upon nations. Without launching into the ocean of
despotism, created by the old principle, it will suffice to observe,
that governments could sell or ^ve away the people, or their
p^pertjri and alter or abolish, tiie form of the government



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S80

itself. The power <tf treating away a part of the communitj,
and transferring them to any degree of tyranny* far transcends
that of taxing them without their consent The cortes of Spain
saw the enormity of this power, and endeavoured to moderate
it, by prohibitii^ its exercise, without the concurrence of a
representative assembly : but we have gone farther ) and by
withholding from our governments the powers of sovereignty
of which this was one, abolished it entirely, by rooting out the
error from which it sprouted up* The rights of declaring war«
'mndof creating corporations or granting exclusire privik^s,
IS' considered by the writers upon the laws of natioas^were
idglits- of aovenBignly ; but the caseof war is specially pro>
iri^led for by the fedenal cfmstttution^ because the federal go^
vemment^ as having no sovereignty, could not otherwise have
declared it; whilst no pnivisi<m is made for tiie cases of corpe*
raiticna and exclusive priiilegeB, because none was* necessai*
ry ; these^ tbosfcHre, were dwlished, as- bemg powers derived
from tiie old. doctrine of a sovereignly^ in governments* As the
powers of malung war and peace were necessary, it became
necessary alioto provide for them* not as emanations from the
prineifde of a smrereignty in govennnents, but b» dd^ted pow-
ers conferred by the soduil sovereignty, or natural right of self-
government. Several conduskma result from this reasmung^
No powers in relaticm to warase derived: fr(MB the old doctrine
cf a sovereignty in gov^rmnents under our system ; andiume
am be justly inferred, from the conclusions of the writers ttpoa
thelaws of nations^ deduced from that'Old doctrine. As it Mfta
tfaoi^t necessary to dd^;ate powers in relation to war tor tikcr
federal goventment^it.isj^bin that without such adelegatioB«
the framers of the constitution did not coacexve that the fi9de-^
ral government would possess- any powers at all inrelajtioii to
war. If the fed^al government would have possessed vm
powers at all in relatiea to war, had none be^i del^ated to it
by the states, because it has n» sovereignty, either nmate et
ccmventionid; the conclusion amounts to a demonstration,
that it has no power to create corpon^onsj or grant excludiver
privil^;es, because sudi powers m^st either fiow from an innato
apAf^reignty, or from an express delegatira, and neither of ttMo
aoinrces of power exists in the cases of oorponrttoufrpemmHi^
and excbisive privilq^



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S81

Bat this reasoning is endeayoured te be overthrown, bj in-
ferring the powers of sovereignty from a delegated power; as
the power of establishing banks, from the power of taxation ;
the power of granting exclusive privileges and pensions, from



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 27 of 34)