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Construction construed, and constitutions vindicated online

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difference between our policj lind that of the finglish ; in its
origin ; in expelling from it two of their principles entirely ; in
rejecting the balances for the better security of co-ordinate de-
partments; and in witb-holding from these departments, either



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niuf^jfui uBMed» tiMm^ts of sovereigBtj, as exaxised bj the
Engiish goveramenLJ/rhe first diyision of power we have esta-
Uished accoi^og to this new policj, consists of the limited
lights delegated by the people to their governments or trustees ;
mad of all the residue of the attributes ai sovereignty, retained,
as not having been delegated bj the people. Under the English
form of govemmeat, this division, with its concomitant limita-
^sms, is utterly unknown,
q, j^ur second division of power, also unknown to the English

^iystem, is that between the governments of the states, and the
l^vemment of the union. Previously to our revolutionary war,
the colonies had been thorou^ly lectured upon the subjects of
sovereignty, supremacy, and a division of powers. The English
parliament contended, that its sovereignty or supremacy in-
claded all means necessary or convenient, in its own opinion,
to effect its ends. The colonies admitted its supremacy in
maJcifig war and peace, and in regulating commerce ; but denied
tbat tiiis admission included, a concesHon of means, subversive
of tlkeir own right of internal or local government; as to which
they claimed a supr^aaacy for themselves. The ps^rliament con*
tesidedi that the right of making war, conceded by the colonies,
implied a right of using all the means necessary for obtaining
success; such as raising a revenue, appointing collectors, rais-
ing troops, quartering them upon tlie colonies, and many other
internal laws; and that the right of regulating commerce, also
iavolved a right of imposing duties, and establishing custom
hooves for their collection ; arguing, that it would be absurd to
allow powers, a^ with-hold any means necessary or proper to
xarry them into execution. The colonies replied, that it would
be more lUisurd to limit powers, and yet concede unlimited

y .means for their execution* by which the internal supremacy,
upon which their liberty a^d happiness depended, though nomi-
nally allowed, would be effectually destroyed : That the terms
« soverei^ty or supremacy," however applicable to the parlia-
ment, ware applicable also to the colonial governments, as to
internal powers : That the neces^ty of controuling supreme,
sovereign or absolute power, in governments, had been proved
by experience, particularly in Englftnd; where ma^ia charta,
the petition of right, and many decUu'atory laws, had limited its
means to a great extent : and that however the meanis contended



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for by the parliMDent, mi^t be usefal fw carryiiig, en war er
regulating commerce ; yet, that a restriction of those means
would be still more useful, because it was necessary for tlxe pre-
servation of their liberties. The parliament closed the debate,
by declaring that it had a right to legislate over the cdonies in
all cases whatsoever; and denying Uie distinction between in-
ternal a^d external legislation, imposed some trifling taxes of
the former character, as an entering wedge into the colonifd
claim of local supremacy, to be gradually driven up to ike head»
In that on tea, the ingenuity was used of attempting to establish
a ruinous precedent, by conferring a pecuniary favour, in dimi-
nisliing the price of the article in favour of the colonies. But
the colonies, too wary to be caught by a gilded hook, detected,
resisted and defeated the artifice.

The controversy lasted for many years. It drew forth the
talents of the ablest writers on both sides the question ; and
those of the great Doctor Johnson were exerted to the utmost,
in favour of the passive obedience due to sovereignty or supre-
macy. All the treasures of wisdom, and all the sensibilities of
interest, united to attract the attention of both countries to the
subject. There never was one more ably discussed, or better
understood. And no national interpretation of the terms used
in the debate could possibly be more complete. Their right to
local supremacy and internal legislation, was asserted by every ^
colony, ably defended by many individuals, and conclusively
proved by our early congresses composed of a rare body of men.
This thorough investigation produced a conviction, never I hope
to be eradicated, which dictated our political system, prescribed
the terms both o[ the first and- second union, and defined the
Aature of the division ef powers between the state government^*
and the government of the union.

I have never met with but one respectable authority amcmg
our own writers, by which the correctness^ of the colonial prin-
ciples has been questioned ; and this is only comprised in a
relation of facts, without being stampt by the concurrence of
the author. In Marshall's life of Washington, vol. ii. 71 and
72, it is said, " that many of the best informed men in Massa-
'< chusetts, had perhaps adopted the opinion of the parliamen-
" tary right of internal government over the colonies , that the
" English statute book furnishes many instances of its exercise ;-



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^ thtt in no case recollected was their authority openl j cimtro*
^ verted ; and that the general court of Massachusetts on a late
** occasion, explicitly recognized iiie same principle." These
historical facts »e undoubtedly designed to warn us of the
stealth with which oppression approaches, and the enormities
towards which precedents travel ; that they ought not to be sanc-
tified by time nor repetition ; and that the best informed men
may be led by them into the most obvious errors ; for the same
book abounds witii eulogies upon those who denied this doctrine ;
and concurs, when the author expresses his own opinion, in the
propriety of resisting it The essays of president Adams, writ-
ten in 1774 and 1775, fully explain how it happened, that many
of the best informed men in Boston took a side, opposite to that
which was embraced by almost all the philO)M>phers of Europe^
who annexed a degree of veneration to the characters of our
own patriots, in which even other nations participate. These
essays, lately published, are replete with profound observations
upon the principles we are considering.

It is sufficient however for my argument, if the people of the
colonies believed in the doctrines which they asserted, bled for
and established ; because the influence of opinions thus rivetted,
upon their political measures, will be weighed by impartiality
and admitted by candour. During, and soon after a war, firm-'^
ly waged for eight years, to resist a right to legislate for them,
locally and internally, inferred from parliamentary sovereigntj'
or supremacy, the colonies or states constructed two unions, and
estabitshed in both a division of power, bearing a strong simili-
tude to that upon which they were willing to have continued
tiieir union with England ; yielding to her tiie regulation of war,
peace and commerce, and retaining for themselves local and -
internal legislation. The first *• union between the United
States of America for their common defenet and general wd-
fare^^ begins where the second ends. The first ** retains the
sovereignty and rights to the states not delegated to the United
States,^^ The second •* reserves to the states the powers not
delegated to the United States.^ The first confers upon con-
gress, almost all the powers of importance bestowed by the
second, except that of regulating commerce ; and among them
the power of establishing a post office. The second only ex-
tends the means ior executing the same powers, by bestowing



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56

on congreBa a limited ppwer of taKation ; bat these means were
by neither intended to supersede nor defeat those ends retained
, or reserved by both. By the first, unlimited requisUions to meet
** the charges of war and all other expenses for the common ife-
fence and general welfare^ ^ were Xo be made by congress np^
the states. By the second, congress are empoweired to lay tai^
under certain redtrictipns " to provide for the common defence
i emd general welfare.*^ But a sovereign and absolute right to
dispose of these requisitiohs or taxes without any restriction is
I not given to congress by either. The general terms used in
both are almost literally the same ; and therefore they must
have been used in both, under the same impressioo of their im^
port and ^ect. By connecting in one view the controversy
with England, the "first, and the second union; the vindicaticA
of colonial, local and internal government |>y a long war, and
innumerable publick acts ; the reteatmn of it by the first union,;
its reservation by the last ; and the accommodalion proposed
with England on the terms of allowing to the parliament tb^
powers of war, peace, and regulating commerce, given to con-
gress ; it is impossiUe not to discern a series of testimony, de-
monstrating a strict subserviency of each distinct item to tbe
primary end, of establishing a division of power, by which an
independent internal government should be secured, first to the
colonies, and subsequently to the states. Nor can a better ex-
positor of particular words and phrases, than this primary end»
be discovered.

In fact, the question between England and the colonies was
far more favourable to the fwmer, t;han that which has arisen
between congress and the states. The colonial governments
were chartered bodies politick, and tlie acceptance of these
charters was an acknowledgment of a supremacy in the grantor*
As the English king in granting these charters acted as the
agent of the English policy, he had no better right to dismember
the pariiamentary sovereignty by chartet^, than congress have
to dismember the state sovereignty by the same instruments^
Therefore these charters could not contract the parliamentaqr
supremacy of legislation. But they contained no restriction of
it, nor any reservati(ms or donations to the colonies of ea^bi^im
internal le^slation. Now, the state governments are not chai>
tered by congress, and instead of a tacit acknowMgment of a



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flupremacy in that body, or in any other department ot the go-
Temment of the union, the states have expressly asserted and
retained their respective internal sovereignties. The case is
yet strcNSger against the claim on behalf of congress. The go-
vernment of the union is chartered by the states. Had the
<»dimies, under their charters from the king of England, claimed
a supremacy over the parliament, their pretension would have
been equivalent to a claim of sapremacy by the government of
4he union over the states. The grant of a charter implies a
ret^ition of every power not granted, just as a deed of gift or
ttde for a portion of an estate leaves unimpaired the tiUe of ibt
owner to the portion he does not convey away. A conveyance
9i part doea not entitle, the grantee to take more, or the whole
rf liie residue if he pleases. The people were the true owners
of a great fee rimple estate. Tliey have granted one portion of
it to the state governments, another to the government of tbt
union, and retained the residue for themselves. The grants
were in trust for their benefit ; and created the division of power
between the government of the union, and the state govem-
ments, which we are contemplating. Now, if one trustee can
by construction or by force, despoil the other of his p(u^n, he
will become so rich, as to be able to betray his trust, and de-
prive the owner of the part of his own estate retained. To
allow, that a claim of sovereignty or supremacy in the govern-
ment of the union, over the state governments, stood on as
strong ground) as the same claim of the English parliliment
over the colonies, would be a concession more favourable than
the fftct; and, if neither the opinions of several well informed
men in Massachusetts, nor the continued endeavours of the
parliament to sustain the more plausible pretension, could
pnffice to obliterate the necessity of a division if power for the
preservation of liberty, between the English and colonial go-
vernments, able to resist the assaults of encroachment ; neither
c^inions nor precedents ought to unsettle the division of power
between the state and fedend governments, dictated by the
same motive. Many of the arguments which convinced the
colonies of the necessity for suoh a division in relation to En-
gland^ Apply forciUy to the government of the union ; and a
supremacy at London or at Washington, however more direfol
to liberty at one place, would not be diverted of terrors at the
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other. The ofcjectkmg ftriBing from distance, though the eol«*
nies should be repretented in the parliament, were forcibly
tti^ed ; and the experience of Ireland has subsequently fomish-i
od a proof of their propriety. From the same source, a number
of weighty arguments may be drawn by the reader, siifficienl
to prove, that the great extent of the United States will not
admit both of a central supremacy, and of a free form oi p^
iremment ; and that the preservation of liberty must depend
on the division of power between the state and federal govern-
ments ; or an accurate distinction between the powers bestowed
and reserved^

Our system of civil policy, having established two dtvinons
(rf" power; that between the people and their government^ anA
that between the state governments and the government of tbo
snion; proceeds to avail itself of all the advantages whick
could be extracted from the English form of government. Had
it set out from this point, I do not deOy that it might have gives
some countenance to sundry constructions to which it has been
exposed ; but, if I am right in ascribing to it the two previous
principles for which I have contended, they seem to be insure
mountable obstacles to such inferences as the British syste«i
controuled by no such obstacles, might supply. But though it
has derived an intimation from this system, that, the principle
of dividing power is a good one, it is far from copying its checks
and balances ; and after having established the two great and
^[>eradve divisions we have passed over, it proceeds to those of
an inferior character, and continues to enforce the princi^ of
division in a mode wholly new and entirely intrinsick. It re«
jects two of the English balances or divisions, and substitutes
for them, an elective president and senate. It substitutes for
the unsettled IMea of the balances, a co-ordination of depart^'
ments, a definidon of the powers of each, and a subserviency
of ^1 to the power of the peo^de. And it advances judicial
power to an equivalency of independence, by an allotment ot
powers and duties conferred by the same constitutions, which
prescribed tile powers and duties of the other departments.

Our political philosophers surveyed the world of governments^
nGt for the purpose of a servile imitation, but to collect, to com^
pare and to weigh facts, in order to enrich their own by im*
provements; and by a more reined orgamzation, to'reap the



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hm^Stb^, tmalloyed hj tlie calamities of the models which they
eentemf^ated. Far from belieying that maQ» whilst constantly
adyaneing in his other attainments^ had gotten to the end ef
his capacity in the science of government, and ought still to
expect liberty in the lethargick lap of a political vis inertise;
they saw that an extraordinary shock had aroused his &culties,
and wisely seized upon a serks of hapfi^ dispensations, tp ga^
liier. the morsd blessings, which Providence seemed to have
revealed.

The divisifms, balances or linuitations of power, in Greece,
Italy, and England, had all been the result of civil wars, per*
ional ambition, or domestick commotions ; and therefore none
had provided any visible restrictions for preventing, assuaging
•r deciding the hostilities which must forever ensue, between
political departments invested with the right of controuling each
other. Such hostilities between the people and senate of RomOf
and among the king, lords and commons ef England, had pro*
duced consequences which inculcated two truths; one, that a
division of power so imperfectly delineated as to cause perpetual
snd violent collisions, was nevertheless greatly preferable tQ
any form of government, founded in the most perfect series rf
subordination; the other, that these violent collisions were se^
rious calamities, and seeds of frequent revolutions or settled
despotisms. The oljject of our wise and good patriots, was to
reap the benefits and avoid the evils arising from a division of
power. By the declaration of independence, they solemnly
stationed our social institutions upon solid ground, f6r the pur*-
pose of effecting both ends. It proclaims it to be " the right
** of the people to alter, abolish and institute governments, as to
«* them shall seem most likely to eflfect their safety and happi^
^ness.'' This right had been previously exercised by balanced
orders. Their usurpation was thus subverted. A powerfiil
supervisor and arbitrator, for moderating and deciding the con-
troversies of political departments, was formed and recognized
in the people; and a great defect of the old thfeory of the bar
lances, in supposing there was none, removed. The same source
of civil society furnished a specification of the rights and duties
of each co-ordinate political or civil department, to which the
theory of the balances was inadequate, as neither member of
this llieory could submit to another to ascertain its rights and



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powers, without being reduced to insignificaBce; and therefore^
the rights and powers under the balancing theory, were left to
be distributed by perpetual contentions, secret frauds or open
violence. But when this genuine authority for defining and
limiting the rights and powers of political departments was
found, the contentions between regal, aristocratical and demo-
cratical orders ceased ; and a new species of political subordi*
nation, more perfect than any subsisting under the theory of
balanced orders, succeeded. I ask the reader's attentive con*
sideration of the doctrine I am about to advance, i» the truth
or error of many subsequent observations will depend upon it»
Between balanced orders there is no supremacy and no subor<^
dination^ The supremacy they possess is over the nation, and
the subordinadon they inlHet, is not upon each other, but upon
the nation, and upon the inferior officers of government. Are
eur political departments, balanced orders ; if so, one depart*
ihent cannot be subordinate to another, according to the English
system. Indeed a supremacy of one check or balance, over
that check or balance intended as a controul or abridgment of
this one's power, would obviously defeat the check or balance
designed to be substantial. By the authority of the right of sei#>
\ government, we have with great deliberation established divi*
Tl sions of power, created political departments subordinate to
flie people, defined the functions of each, and prescribed to in-
dividuals and the inferior officers of each, the obedience respec-
tively due to these departments. The only supremacy bestowed
on these departments, is over the persons and things specifi-
cally Bubjected to the limited power of each ; and the only su-
bordination due to them, is from such persons and things. No
supremacy is given to one department over another ; and tiie
sovereignty and its relative, subordination, contended for and
admitted, as an indissoluble attribute to civil government, is
established between the people and these departments ; whilst
good order is secured by the subordination of individuals and
inferior officers, to the political departments to which they are
severally subjected. Of this improved system for dividing and
Kmiting power, we took the hint from the balances between
monarchy, aristocracy and democracy, as established, not by a
deliberative choice, but by violence; but whilst we adhered to the
principle practised by this triumvirate for self-preservaticm, wie



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I^Hed it to the preservation of lite genend liberty, bj creati^
eo-ordtnate and collateral political departments, with distindt
powers, for the special design of making them mutoal ckecki
. upon each other. For this end we hme divided power between ^
the people of each state and their governments; betw^n the
legislature, executive and judicature of the state governments;
between the people of the United States and the government of
the union ; between the legislature, executive and judicature of
the government of the union ; and between the state governments
and the government of the union. These divisions are snrelj
as natural and practicable, as that between moni^rchj, demo*
cracy, and aristocracy. If a subordination of the king to the
house of lords, or of the Iwtls to the king, would destroy the
intention of that division of power; a subordination of the go-
vernment of the union to the governments of the states, or of the
governments of the states to the govemmentjof the union, would
also destroy the intention of this. The same idea applies with
equal force to our other divisiims of power, and proves, that an
exchange of their nnitual independency of each other, for a de-
pendency and subordination upon one, would be contrary to the
only principle, for which the balances and checks of kings, lords, ^
«nd commons have been so much applauded. If two of these
co-ordinate divisions of power were subordinate to the third,
tiiat system would be destroyed, because its essence, the cheeky
and balances, would be no more. Should either of our co-ordi-\
nate divisions of power acquire a supremacy over another, th^^V
effect would be the same. Less than two centuries ago, the iden-
tical question we are now considering was debated wHh great
pertinacity by tiie ablest writers in England, and was finally
settled by a civil war. Filmer and Sydney espoused opposite
Bides. The former, with his co-adjntors, asserted the supremacy
of the regal balance, and taught the Stuiu^ts this principle, which
lost the throne, and rendered their names detestable to poste-
rity. Sydney became a martyr to the contrary faith. All the
eulogies to the En^ish system have been paid to their checks
and balances; and all the liberty of the English nation, has
been ascribed to the principle of dividing power. If, having
more studiously laboured to avail ourselves of this principle,
s^nsidered even in England as indispensable for the presi^rva-
tion of liberty, than any nation ever did; we have yet stupidly



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annihilated it, by investing one check or one balance with m
•npremacj over the rest, we had better go back to the Englidi
sjstem, where it imperfectly exists, but in a degree to do some
good, than to surrender it entirely. Bitt if we construe our
system of go'r emment as the English do theirs ; that is, with
an eye to the preservation of our checks and balances, as the
only securities for a free government ; its superior theory will
secure to us more beneficial consequences, than they have ever
experienced. A great defect of the English system is, that
although in theory it professes to have created three co-ordi-
nate departments of power, it has neglected to specify the rights
^ each with any precision; wherefore the triumvirate havo
bad many violent contests to settle th^m ; and these contests
have only subsided in one mighty chaldron of corruption. But
by ours, the powers of the several co-ordinate or bdancing de-
partments, £Eir from having been left undefined to be scrambled
for, are specified' with such deliberative exactness, that each
foay very easily descry its own, unless it be blinded by ava-
rice and ambition. Collisions are therefore likely to be more
rare. But should they occur, our system has provided a safe
referee and impartial judge, sufficient to prevent them from pcio«
ducing the aggravated consequences, which have been so often
experienced in England for want of this powerful moderator.
After having thus given practical effect, to the great princiido
<^ checking power by division, recommended by all sound poli*
ticians ; constituting the boast of England and the envy of alt
other European nations; with an ii^enui^y and success, hitherto



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 6 of 34)