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John Taylor.

Construction construed, and constitutions vindicated online

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could ever be annexed to it by that pngect. These are, as w^
all agree, that the representative should feel his own laws, and
that those, upon whom those laws operate, should have a peri-
odical power to remove him. Now, the people of the cole^ea
would have had no power to remove a member of parliam^^^
elected in Great Britain ; nor would the laws passed by a mar
jority in that country, but operating exclusively in this, affect
any individual of that majority. Such a representation was
therefore viewed as a mere mockery of re^eseutation, and cre-
dulity itself laughed at the clumsiness of the device. These
projects, however, of Great Britain suggested our distinction
between internal and external powers, and the necessity of a
genuine representation for the exercise of each class, impres-
sively illustrated by the question of slavery, although it is equal-
ly applicable to roads, canals, the encouragement of mannfac*
tures, and other laws operating locally, passed by congress.
The proposed law as to^ slavery was to operate exclusiveij
upi^n Missouri. She bad no representation in congress. If she
tuid, it would be nugatory ; for, the majority necessary to paaa
the law, would neither feel it, nor would it have been liable to
be rejected at any time, by the electors who did feel it. Such is
the case with respect to all local laws passed by cimgress. The
minorities which pass them, must be insensiUe of their opera*
tion. The 8th section of the federal constitution, is both an
iUttStration of this reasening, and a test which forciUy confirms
the construction for which I have ccHitended. All the powen^
bestowed upon congress, are such as will, in their exe€tttioii>



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operate genm^aUg botii upon the menabertef that body, and also
upon the people of all tlie states. Th«8 the legtslatore would
feel thefr owh laws, the electors will be ioflitenced by a com-
mon interest, and ihe essential principles of representa^n are
pr^smred* If the principles of representation are thus care«
folly preserred, by the natnre of the powers delisted, a coa^
strucdon which supposes that they are destroyed by a taot
permission of means, inconsistent with the design expressed*
fes, in my view, both literally and morally incorrect; literally,
by the care to del^ate such powers only as would operate
equally upon all the members of the union ; morally, by the
equal care taken to preserve the essential principles of repre«>
sentation. Some years i^, much was said about virtual repre^
mentation. Under this idea, it has even bc^n contended, thi^
hereditary kings and nobles were national representatives.
And it must be admitted, that they participate mm-e lai^Iy
of that character, than a. body of le^slatMrs elected by one ^
our states, whilst making local regulattons to be imposed upim
another; because, kings and nobles of the same state may fed
their own laws to a great extent We have however an exact
parallel of the local powers claimed on behalf of our Congress,
in the recent congress of European kings for settling the ai&irs
of timt quiurter of the g^obe, hardly larger than our share of
tiiis« These kings, as re{»^sentatives of some states, under^
lake to make local relations for others, which, far front ieel*
ing themselves, were dictated by their avarice and ambition*
if our ccmgress can also make local regulations, which may
gratify the avarice or amUtion of particular states at the ex-
pense of others^ I do not discern any difference between the
ciases.

But, thou^ tiie exercise of local l^slation by congress may
be evidently incon^tent with reason, with the essential cha-
racters of representation, and with the primsif^es deemed hj
us indispensably necessary for tiie preservation of liberty, yet
in this slave question, as in some others, the pure and invigo«
rating Sforit of the eonstitttticm has been assailed by \he science
<tf constiruction ; and its words are turned into worms for eat*
ing up its vitals. A sect called Pharisees* by preferring.cere^
n»>ny to essentials, and signs to substance, contributed laigety
tontards the comiptioi^a&d ruin evea of a theocracy ; and there*



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Are Hm speeies of tepUstfy demvidt alltfie atteatiOD, wImIi
iti cftpacitj to d» mischief deaenres.

«JVW itato may be admitted bj congress into this unioikV
Skidi is the vriiole power. But then this powor is a spherical
sovereignty, and it is an appendage of sovereignty to an-
nex cofiditions to its grants. Such is^ the r^^nt constnic-
tiea of the words quoted* The meaning of the. word " sti^"
is first to be settled. We have understood it to mean "a po^
<«litical association of people* able to confederate with siknilar
^ associations.'^ It was never before iraagined» that congress
^mM make a state. The power is to admit, not to mdle. fi
e&agttw cannot mould, it cannot modify a s<3ite* It must be
tile work of the sover^;nty of the peof^e, associatii^^ by tbek
tMe to self-goTemment. Do congress participate of this sove^
relgnty with the people of Missouri, w is its supposed spheri-
cal soverMgnty paramount to the soverdgnty of nature ? Tka
parties to the assodation composing a state, are the indivyuals
by whom it is formed. By what principle can a body of m^i^
neither collectively nor individually parties to this association*
dictate its terms, except that of arbitrary power P The consti^
tution abounds with instances to prove, that it did not mean by
fine term " states," a moral being capable of being created or mo-
delled by congress, but we vrili confine ourselves to the special
power under consideration. "JWw states." Old being the rda-
five to new, both words are predicates ctf the same subject A
new state was, therefore, literally contemplated by the censtitii^
tion, as exactly the same moral being, created and moulded hf
tiie same right to self-government, with tiie dd. There was a
good reason, why congress should be only entrusted with thenar
ked power **to admit." Had it been empowered to annex condi^
tions to this admission, it might easily tiave enlarged its own
powers, and obtained ain authority dangerous to thethirte<^ ori*
ginal stat^. It was foreseen, that the new would in time ex-
ceed the old states, in number aiid population ; and the old
states, therefore, for their own security, withheld from ccm-
^ss ttie dangerous power of modifying the new, by condi-
tiions ; as such a power might easily be Immght to bear up«i
tbemselves, and mi^t be used materially to alt^ ike coistittt^
tion. Suppose the naked power of admission had been given
io tlie president Wcmld he also have had the power of amiesv



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iag eoiutitid&s» by ^Mat of exeovtiye tfhenuXMmmigidj^ If
it would have been in his hands a mere personal power of re-
jection or admission, without conyejing to him a power of an-
nexing to admission a local law for the goTemment of thestile^
it must be the same in the hands of congress ; fwr the nature of
a trust is not changed by the name of the trustee* Congress
have frequently conferred upon the president certain trusts.
Could he have annexed conditions not warranted by these
laws? As in the cases of his being empowered by proclamation
to abrogate a law» upon the performance of some specified act
by a foreign nation. Could he have enacted a new law» kgr
annexing a condition to the execution of this trust? The power
of appointment or nomination is exactly similar to the power
4^* admitting new states into the union. No conditions can be
annexed to the execution of such trusts. Congress are intrust*
ed eventually with appointing a president, as well as with ad-
quitting states into the uni<m. Does the power involve a right
to annex^ conditions, in one, in both or in neither of these cases?
The reason for intrusting congress with the power of admit-
ting new states, was not to enlarge the powers of that body»,
Qor to bestow on it a species of l^^lation, purely local* but to
jivoid the inconveniences which would have resulted from the
reservation of the right by the parties who held it Hence, is
H mere naked power or trust was conferred, there exists a pre-
cipe description in a few words, of the body politick to be ad-
mitted, and also of the compact of which it was to become a
member, ^ew states were to be admitted into « this umonJ'*
I do not discern any words which could more exactly have de-
scribed parties and rights. , The new parties were to be the
same as the old, and the rights received were to be those cen-
ferred or secured by " this union." If, therefore, « this union"
does not empower congress to legislate exclusively in relaticm
to the interaal civil government of each old state, it cannot so
legislate as to those adnutted. In fskct, « this union" would,
never have existed, had such a power been proposed by tho
constitution. The people of no one state claimed any power of
Jipcal regulation oyer another. They neither thou|^t of« nor does
there exist any compaict, conveying such a power to a mi^mty
Qf states. There existed no primitive power by which one stiUo
or several possess^ a right 1» form a^ ei3mdinJ6m$mi9 ^^^
% O



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AM

itttemal Uwt fcr tiie yv cn w p eat rf aaotiiar etate; aadiiMft
i0Wld principle^ that a dekfiated power cannot exoeed the
pow«r from wUdi it was derhred.

A power in congreMof annexiDg conditions to the admission
of states into t)ie uniim would be in its nature monarchical, and
lttalo|0«s to the feadal STstenu Chiefs established that system
•pon the principle, that conquests were made for them ; and
thus obtained tl^ r^t of annexing conditions to grants. But
Mth us» conquests are made for the community, and not for
congress ; and the principle which sustained the right of an-
nexing conditions, in the case of feudal chiefs, fails in the case
of congress. The community, therefore, presoibed the rule by
WUch conquered lands were to be erected into states, in doing
Whioh they have not invested congress with a power of annex-
ing feudal conditions to this disposition.

fittt,this feudal power of annexing copditions to the settle*-
ment of a conquered or acquired territory, by the goremmetit
of the country making the acquisition, has even been ex{4oded
m tyrannical both here and in England. One of our principles
in the coloniid state was, that emigrants to such territori^
earned with them their natire rights. The colonies claimed
the rights of Englishmen, and not only obtained them, but have
I hope greatly extended them. But thb would not be the caae^
if our emigrants should be suligected to a diminution of their
native rights, by the pleasure oi congress. All of them eiyoy^
ed tiie r^t of forming lociU constitutions and laws before their
emigration. If congress cannot l^islate over the states from
wfaehce they removed, and may do so by annexing conditions
to a trust, over that which the emigrants from these states maf
create^ it is obvious that these citieens must have lost some rerj
important native rights, by an ^nigration from one part oi our
tonntry to another. If the cc^onists emigrating from England
were correct in asserting by force oi arms, that they brought
With them all the rights conferred l^ the English system of go-
vernment, our emigrants may also contend, that they carry with
Ihem ail the rights conferred by our system. Among these,
the unoooditional right to make ikeir own local constitution^
iSttd Uwsi without being subject to any conditions imposed by
an extraneous anthorHy^ has been the mostimportimt ; and uiii-
versally exercised by every state in the union.



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The 8&H|e priociple has been judideHy decided te f4mttrt
Some of the kings of England (of the Stuart family I ticti^toi)
in admitting several West India isUnds to establish mpre-
sentative governments, annexed the c<mdition to their grauti,
that these islands should pay to the crown a perpetual revd-
nne of four and a half per centum on all exports ; and sfvo-
nd of the legislatures were so weak as to pass lawa eonfirpi-
ing the condition, which soon became excessively oppressive*
and greatiy impeded the prosperity of the isliMids upon wht^
it was inflicted. Grenada alone both clumed a right to repi>e-
apntative government, and disputed the validity of the condip
tion. And an English judge, even lord Mansfield, no enih^-
'aiast for liberty, no enemy to the crown, decided in favour of
the island, which retained its government, annulled the condi-
tion, and prospered far beyond its paler-livered comrades.
This decision was founded upon the rights of Englishmen,
NvhicH adhered to these emigrants, and which bring rights, eould
not be suljjected to conditions.

In answer to a precedent, so fully up to the point, it is sup'*
posed tiiat congress possess an arbitrary power to refuse the ad*
mission of new states into the unicm, the language being permiit
eive and not imperative. I consider even this olgeotioa as only
literally plausible, and as substantially flimsy. Had congreSi
attempted to retain our wide-spreading new states under its go*
Temment, it would have been im enormous grasp at powfr» not
intended to be bestowed upon that body, but intended to he pre*
vent^ by the proviskm fin* multiplying states, as territories ex-
tended. The old states would, by an attempt on the part of
pongre$s» so flagnatly adverse to the princi^s of the coo^tUn
tion, have been instantaneouriy excited ; and have united with
the new territories in preserving their own rights, and vindioat-
ing those of their fdlow citizens. Whilst the constitution liiKt*
ect the local powers of congress to ten miles square, it hardly,
intended to invest that body with perpetual and unliimted local
powers over a country more extensive, and likely to become
more numerous, than the thirteen states which adopted it The
reason of the case was coopered as sufficiently mandatory,
and has hitherto proved to be so ; and if the constittittonlias not
provided for a viphition of tlie trust, it must have been upon the



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\ gnand, tkttthe Uwsof Rmne prorided nopaniriimeiitfor
a son who shmld marder his &ther.

But, the decision of Lord Mansfield discloses a sufficient rea*
son, wh J the framers of the constitution thought it unnecessuy
to solijoiii to the trust, a prohihition upon congress to annex con-
ditiMis. The J knew that the execution of the trust would be
¥aUd, and that all conditions would be Toid. An affirmatiTe
power does not require any prohibition against its being exceed-
ed. Suppose then Missouri should have been admitted into the
union upon the condition proposed. Her membership would be
perfect, and the condition would be yoid. She might at nny
time adopt a new constitution. Everj state retains that ng^;
and maj, in that mode, abolish or re-establish slavery at its own
pleasure. The proposal of this condition was therefore an in-
vitation to congress to rush over rocks and precipices in pur-
suit of a phantom.

The conditions, annexed to the grants of kings, were founded
on the fictions of an absolute sovereignty over persons and prtK-*
p^y. If a similar power here can be engrafted upon our new
•terns, called spherical sovereignty, no restraints would exist
upon its exercise, as in the case of kings. Congress, by condi-
tions, might mould states into as many Varieties as it chose, as
kings did colonies; and render one as little like another, as an
eagle is like a buzzard. It might create forfeitures of lands bjL
annexing conditions to patents, or even forfeitures of mem«
bership in the union, and revive the principles of the Boston
port bill, enacted by the English parliament. And indeed, feu*
dal might be substituted for allodial principles to an incomputa-
ble extent If a trustee for the sale and conveyance of lands
should annex conditions to the deed, suggested either by his in-
terest or benevolence, and not specified by the trust, it must be
admitted that the titie of the purchaser would be good, and tiie
conditions void ; because it would be derived from the princi-
pal, by whom no such conditions were required. But if the con-
ditions annexed should be prejudicial to the interest of the prin-
cipal, the case would become infinitely stronger ; as no power
to perform a special act for his benefit was ever construed either
in law or equity, as an unlimited or general power, to do tiiai
which was injurious to him» Now a power in congress of exer-



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ds&ng a conenrprat right with the stat€g, botii as to their eoasti-
tutions and laws, is obviouslj injurioas to all the states in ih%
iMftoa, from which, as principals, the trust of admitting new
states is derived.

Ramsay's United States, vol. 3, p. 8, *' In these arrangements
** the difference between American and European principles in
*^ colonizing is strongly marked. In the latter, the object has
**'been pre-eminently the b«>nefit of the parent state: In the
^ former, the joint bmefit of both, by a free communication cf
** equal r^jMs and common privileges* In the one case, some
" commercial advantages of the mother state has been pursued ;
** in the other, the good of mankind, by extending the benefits
** of civil government, on terms of equality and independence.
** Congress give no charters to their colonies ; but sell lands in
^ absolute property to settlers, who, /row ihe gift of €hd, were
'* in the actual possession of the rights of man, and invite them
** as such to join in a common, equal, social compact, llie
«* soverdgns of Europe gave lands to their colonists ; Imt re-
** served by tharters a right to controul their property, privi-
•* leges and liberties.^^ This quotation is too explicit to need
much comment. It is however remarkable, that the power
claimed for congress of colonizing by conditional charters, ex-
ceeds the similar power exercised by the kings of England. The
Idngs gave away the lands as their own absolute property. Con-
gress sd2(s the lands, not as an owner, but as a trustee for the
proprietors; a power of annexing conditions to the sale of pro-
perty belonging to the United States far exceeds a power of
annexing conditions to a gift of property belonging to the king.
The trustee by the first power might depreciate the value to the
kijury of the owner. The receiver under the second may re-
ject the donation, if he dislikes the conditions. When the docf-
trines of spherical sovereignty and law charter shall have
reached an entire ^tate, and comprised more than the charters
of the king of England 2ould do in the case of Grenada, it will
be impossible to foresee how far they may be extended.

The last argument, (for I exclude declamations addressed to
our passions or prejudices,) in favour of the proposed condition
to the admission of Missouri into the union, is deduced from
the fourth section of the fourth article of the constitution, which
is this : *< The United States shall guarantee to every state in



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<* ihU anicMi, a rqpttblkaii form of gOTanunent ; aad sball pro-
^ feci each of them agtinst uiTasioD, and on applieation ef the
^ legiilaiur$t or of the executive, (when the legislature caniiot
^ be coDTened,) against domestick violence.'' It has been con-
toided, that this duty to guarantee a republican form of gorem-
ment to each state is by this section imposed upon congress;
Ihat to discharge it, that body must determine what is a repub-
lican form ; and that this oUigation comprises a power of im-
posing conditions <m a new state, necessary to ffilfil the guaran-
tee. Admitting this construction, the argument either fails, or
proves too much. It fails, if negro slavery does not destroy a
repuUican form of government And it proves too much, sup*
posing that it does, by investing congress under the powers of
a guarantee, with a power to emancipate all the slaves in the
union* All the states in the first confederation were slave*
holding states^ when they formed their constitutions. If slave-
holding states possessed the contemplated republican forms of
government, then that circumstance is not inconsistent with
such forms, and if not, it cannot justify an imposition i^ cona-
tions upon Missouri under the authority of the section quoted,
though it shall be so construed as to invest congress with the
guarantee expressed. But even this in my view is an evident
misconstruction. The 8th section of the first article is devoted
to the enumeration of the powers bestowed upon Congress $
and tiie fourth article is chiefly emplojred in stipulating duties
to be performed by states to states. Among these, the fourth
section declares, that the United States shall guarantee to every
state in the union a republican form of government The terms
"United States" are frequentiy "used in the constitution, to
convey a different idea from « congress." ** We tiie people of
"the United States." "A constitution for the United States.*^
«A congress of the United States." "The senate of the Unitel
"States." "A citizen of the United States." "A president
<«of the United States." And in the section immediately pre-
ceding, "United States" is twice used. A substitution of
"congress" for the " United States" in all these instances
would be manifestly absurd, and, therefore, I am unable to dis-
cern how it can be consistentiy done in that under considera*
tion. But the section is internally unequivocal. The plural
and the singular are grammatically of the same genus. OtiW



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su

lU'row ifi the tiddnd of oar emblematiciil eag^e r^^reMiti mt
state, and nobody ever suspected that all the arrows were em-
blematical of congress. ''The United States shall protect each
"qf them against invasion/' '*Each" is singular and relative,
and ** them" is plural and antecedent The relative and antece-
dent are "every state and the United States," unequivocally
i'ecognizing the stipulation of guarantee, as entered into by
the contracting parties for the preservation of their mutual
liberty. What is a guarantee ? Undoubtedly a compact or
undertaking. Now how could congress, neither in existence
nor a party to the compact between the states, enter into any
engagement whatsoever to preform a guarantee for the mutual
safety of these States ? It is by no means rare or useless, for
ipdependent states to enter into engagements for the sake of
individual safety; buti if the United States of America, by en-
deavouring to guard themselves against arbitrary power, with
the bulwark of a mutual guarantee, have conveyed to congress
an absolute power over the forms of their governments, they
have not only committed a mistake which is rare, but one,
which is, I think, solitary in the annals of mankind. The arti-
cle proceeds, " and shall protect each of them against invasion,
^ and on application of the le^slature or of the executive (when
*f the legislature cannot be convened) against domestick vio-
•« lence." ** Legislature and executive," terms applicable to
states, are used because the whole section is speaking in refer-
ence to states. And ** congress and president," terms applica-
ble to the federal government, are not used, because the section
has no reference to that government The mutual protection
here stipulated for, is by an assistance to be rendered by states
to states upon such emergencies, as would make contiguity
ftnd dispatch important General powers for defending the
whole union had been previously bestowed upon congress. It
was empowered to declare war, to raise armies and navies, to
call forth the militia, to suppress insurrections and repel inva-
sions. These powers are not subjected to any special restric-
tion, and the two last cases, ''insurrection and invasion" are en-
tirely tantamount to "invasion and domestick violence," men-
tioned in the section containing the guarantee. Now, it would
have been absurd, after bestowing an unrestricted power on con-
gress iu tUe first article of the con8titation» to have conferred



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the stme power ufoa it» ta be exercised cmlj ^on offheatum

*'ofthe legislature, or of the execuiiveJ^ The reasons are ob-
vious, why congress are not to withhold assistance in all cases
of invasion and insurrection, until applied to by the legislature
or executive of the suffering state, and why the states are. It
is the duty of the federal government to provide for the com-
mon defence of the whole union, but it would not have been the



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 30 of 34)