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John Taylor.

Construction construed, and constitutions vindicated online

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unexampled ; shall we imitate some whimsical artists, who after
having invented a beautiful machine, throw it away?

Let us go back to the quotation from the declaration of inde-
pendence, foi* the sake of remarking, that its assertion of ike
** right of the people to alter, aboli^ and institute governments^'
could only have a reference to the conventional or collective
beings, under that denomination, then existing. These were a
people of ^ach state. Accm^dingly the people of each state
executed the vindicated right, and no body thought of any other
people. By virtue of this right, the people of each state esta-'
blished certain co-ordinate divisions of power, without investing
one with a supremacy over the others ; and by virtue of fte
same right, solemnly asserted in that sacred instrument, the



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game people uniting with each other» established other co-OFdi«
ttate divisions of power, still excluding an inyestiture ^ oae»
with a snpremacj over the others. If this last act, so umilar
to the first, left an unexpressed supremacy to be found by cfm*
struction; .the first is exposed to the same species of ingenuitj
for abolishing from our entire political system, every thing ana-^
If^us to checks and balances : For, legislative, executive and
judicial mutual independence, cannot in my view, be placed
upon stronger ground, than the independence of the govenn
ments of the states and of the union upon each other.
, Lest however some future Filmer may undertake to prove,
that one df these departments may constitutionally assume »
supremacy over the other, by the instrumentalUy of means to
effect good ends ; as Charles the first did over the lords and
commons, by resorting t<^ ship money, as a convement or neces-
sary means* to effect an end highly beneficiid to the English
nation ; I sh^l, on account of my own deficiency in authorit/,
conclude this section with a few quotations^ leaving their
application to the reader. Ramsay's history of the United
States voL ii. p. 167. •• The rejection of British sovereignty
theveiore drew after it the necessity of fixing on some aOier
fvindple of government.'^

P. 172. '* The far-famed socisd compact between the people
and their rulers, did not apply to the United States. The
sovereignty was in tiie people. In their sovere^n capacityi bj
their representatives, they agreed to forms -of government &r
their own security, and deputed certain individuals as their
agents, to serve tiiem in publick stations^ agreeaUy to conUitu*
tions tvhiek Ijtmf preseribed for their condtkctJ^

P. 173. <^ It is hoped for the honour of human nature, that
Ae result will prove the fallacy of those theories, which sup-
pose- that mankind are incapable of self-government."

P. 174. «« Political evil will at least be prevented or res-
trained with as much certainty, by a proper separation or eom-
HnaMon of power, as natural evil is lessened or prevented, by
tiie application of the knowledge or ingenuity of man to
domestick purposes.

"From history the citizens of the United States had been
taught that the maxims, adopted by the rulers of the earth, that
society was instituted for the sake of the governors, and that



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64

the iiiterest of the many was to be postponed to the conTe-
nience of the privileged few, had filled the world with blood-
shed and wickedness ; while experience had proved, that it is
the invariable natural character of power, whether entrusted
or assumed, to exceed the proper limits, and, if unrestrained,
to divide the world into masters and slaves* Thej therefore
began upon the opposite maxims ; that society was instituted,
not for the governors but governed ; that the interest of the
few should in all cases give waj to the interest of the man j ;
and that exclusive and hereditary privileges were useless and
dangerous institutions in society. With them the sovereignty
of the people was more than a i^re theory. The characteris-
tick of that sovereignty was displayed by their authority in
written constitutions." '

P. 175. " It therefore became necessary to run the line of
distinction between the local legislatures, and the assembly of
the States in congress."

Federalist p* 81. H. " The general government can have no
temptation to absorb the local authorities left with the states.
Commerce, finance, negociation and war, comprise all the ob-
jects of a love of power. All those things which are. proper td
be provided for by local legislation, can never be desirable cares
of general jurisdiction. It is therefore improbable, that there
should exist a disposition in the federal councils, to usurp the
powers with which they are connected. Bat let it be admitted,
for argument sake> that mere wantonness, and lust of domina-
tion, would be sufficient to beget that disposition ; still it may
be safely affirmed, that the sense of the people of the several
stat^ would controul the indulgence of so extravagant an appe-

tiu:^

P. ^54. M. " The federal and state governments are in fact
but different agents and trustees of the people, instituted witk
different powers, and designed for different purposesJ*^

P. £82. H. *' In the compound republick of America, tiie
power surrendered by the people, is first divided between two
dtstinct governments, and the portion allotted to each sub^
divided among distinct and separate departments* Hence a
double security arises to the rights of the people. The different
governments unll controul each other, at the same time that
eadi will be oontrouled by itself."



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P. 288. H. <* The federal legislatare will not only be res-
trained by its dependance on the people, but it will be more-
over watched and coTitrouled by the several collateral legisla-
tures."

P. 30£. H. " I am unable to conceive, that the state legisla-
tures, which must feel so many motives to watch, and which
possess so many means of counteracting the federal legisla-
ture, would fail either to detect or to defeat a conspiracy of
the latter against the liberties of their constituents."



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SECTION 6.
PROPERTY.



JMAckstone has treated of '* The rights of persons, and the
. i%hts of things ;" but the rights of man include life, liberty and
I^pertj, according to the prevalent fashion of thinking in
the Umted States* The last right is the chief hinge upon
which social happiness depends. It id therefore extremely im-
portant to asoertain, whether it is secured bj the same princi-
ple with our other ri^ts; and whether the security, if the
same, ought to be equivalently efficacious ; before we proceed
to the contemplated examinati(m of several constructions of
our constitutions. The rights to life, liberty and property, are^
so intimately blended t(^ther, that neither can be lost in a>
i^te of society witiiout all ; or at least, neither can be im-^
paired without wounding the others* Being indissolubly united^,
a principle which embraces eidier must embrace^ all ; and by
allowing it to constitute the only solid security for one, we
admit it to be theonly solid security of the rest. A sovereignty
in governments, of every form, has universally claimed and
exercised a despotick power over life, liberty and property.
Whether enjoyed by a monarchy, aristocracy, democracy ,^ or
by a mixture of the three, it acknowledges no controul, and
submits to no limitations. In England, this sovereignty has
in many instances legislated death, banishment, and confisca-
tiooi ; and in many more, exercised a despotick power over
property, by giving aw&y the national wealth, not for the na-
tional benefit, but according to its own will, or to purchase
adherents to sustain its own power. All this is & correct and
le^timate consequence of the principle of a sovereignty in
governments. Every thing within the scope of a sovereignty
belongs to it; therefore the sovereignty of king, lords and com*
mons in England, exercises an unlimited power over every things
not only in the direct modes of cutting, off heads, confiscating



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68

property, and lavishing the national money upon themselves and
their dependants; but by the indirect modes of exclusive and
corporate privileges, for enabling some individuals to obtain the
property of others. To avoid such calamities, we have adopted
the policy of transferring this illimitable power called sovereign-
ty, from the government to the people 5 and the present question
is, whether the transfer is partial or complete; whether our
governments still possess a sovereign power over our property,
like the English government 5 or whether they are only trustees
in respect to that, as they are in respect to our lives and liber-
ties.

In deciding this question, our suffrages are solicited by two
distinct and opposite principles ; the principle of a sovereign-
ty in governments, with its boundless appendages ; and the prin-
ciple of divided, tiefined and limited powers, under the super-
vision and controul of the people. If we waver between them,
we cannot guide our policy by any fixed rules, nor pursue any
steady ends. If our accomplished men should halt between the
two opinions, sometimes leaning towmis one, and then towards
the other; the people must rove in conjecture for representa-
tives, be deprived of the means of judging as they wish by the
distractions of complicated professions, and may often catch a
tartar instead of a friend. If, like an archbishop Laud, leaning
sometimes towards the church of Rome, and at others towards
the church of England, politicians of high standing should
endeavour to find a medium between these two principles, in-
finitely more remote from each other than the two churches ;
they may generate evils more calamitous than he did ; and
prepare the nation for a revolution, by weakening its affection
for our present form of government For my part, when I
contemplate on one hand, the justice, the mildness, the fe*
straints upon arbitrary power, the subordination of individuals,
the security of property, and the social harmony, flowing from
the sovereignty of the people, and the division and limitation
of power by their tiuthority ; and on the other, the endless
catalogue of overwhelming evils which have flowed from a
sovereignty in governments ; veneration and abhorrence seem
as instinctively to rush into my mind, as in viewing the most
lovely or the most hateful objects. Under such impressions,
my reason is wholly unable to conceive what advantage can



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69

arise to mankitid, from leaving property in bondage to govern-
ments ; after otiier human rights have been released from the
same species of thraldom, by transferring sovereignty to nations,
and reducing governors to trustees. A constitution which
should secure life and liberty, but invest the government with
an absolute power (^er property, would only have the merit
of forming a society of naked people, divested of those appen-
dages upon which social happiness depends.

Pecuniary patronage, and the creation of corporations to
transfer prc^rty, are among the a{^)i^dages of sovereignty,
because its power over property is unlimited and absolute ;
and mankind have undoubtedly suffered more injustice and
oppression, from the exercise of these two sovereign rights,
when sovereignty is lodged in governments, than from all the
rest. In the civilize^ worid, prop^ty is the franklin for con-
ducting the eJectrical stream, either of liberty or of slavery,
to invigorate or to M^rade mankind. If therefore in exer-
cising the right of setf-govemment, and vindicating the sove-
reignty of the people, we have left a sovereign power over
property, in the hands either of the state governments or the
government of tiie union, all our work will be fruitless ; be-
cause we shall have placed in the hands of power the precise
instrument, With which it can root out any restriction however
carefully planted. This error is the rock,, upon which most
republican governments have split. Possessing a sovereign
power, that power included a right of disposing of and regula-
ting both national and private property, by the will of the go-
vernment; and the greater the number of individuals who
participate of this sovereign right, the more people there will
be whose avarice must be gratified at the public expense, and
bf private oppression. It has been owing to this uniform con-
sequence of investing republican governments with a sovereign
power over property, that nations have been constantly driven
to take refuge from a host of sovereigns, under one, as the
lesser evil of the two* The history of Athens furnishes us
with many instances of the great wealth amassed by these
republican sovereigns^ and that of Rome exhibits the frauds
and tyranny produced by a republican sovereignty over pro-
perty, to an extent which Would have been incredible, except
that the enormous wealth rf the few, the great poverty of the



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70

ro^my, the peqtttatl strogi^ betw€«i these t«ro puiieft for
riveting or subverting the abuse, and its exchange for the sove-
reignty of one man, testify to their truth. These consequenees
of a sovereignty over property in a republican form of govern-
ment, demonstrate ,the importance of the enquiry to ours^es^
whether our governments do, or do not possess it.

The sovereignty over property, always claimed and oltea
c^xercised by governments, regal, aristocratical* or republican^
is a subject for historical research, whieh neither my capacity
nor the limits of this work, will allow me to attempt. Suck n
history would detail the different forms it has assumed, the
struggles it has produced, and the evils it has inflicted. It
would prove that the notion of a sovere%nty over private pro-
perty Was derived in En^and from the feudid system, and
borrowed by us from En^and. Kings bestowed and resumed^
seigniories, and barons sub-divided them ; both givii^ and tak^
ing away property at their will, and placing it in a state of
vassalage to sovereignty. Out of the vassalage of property
gained by conquest,^ grew the vassalage of property gained by
industry. Under the impression of lius hidntual way of think-
/ ing in England, our revt^utionary stru^es commenced ; and
before we had transferred sovereignty from the government ta
the people, we yielded to its, force, by only contending for re^
presentation as the solitary protector of private {Hfvperty. In
the ardour of asserting that representa^on and t«Eation ought
to be indissoluble, and from the forbearance of our govemmei^
for a long time to assert a sovereignty over private property
the other securities it derives from our consUtutional prinoiv
pies, have been too much neglected. In contending that our
7>roperty could not be taken from us without our consent by
our representatives, it was admitted, ^ilst we spoke in refsn-
ence to the English system of government, that it might be
both taken and expended by our r^resentatives, without res-
triction; because, an unlimited power over property was m
attribute of the English sovereignty* But whcai we separated
from that government, this admissk)n, suggested by the wish
for a compromise, was renounced by the adopticm of forms of
governments founded in the principles, ^tsorereignty resided
in the people, and that these governments were their trustees*
Far from acknowledging that representation was the sovereign



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ud^mMurf past&km of tiie T%htB ef'^persons or of property,
acocNrding to the En^ish sjstefkf, we abandoned ^t doctrine
by s^dttloQBlj iaventing and prescribing snndrj additional
securities for betii, as I M»U presently shew. We resorted to
Section and representation, not to liberate our representatives
from tbe principles and restrictions of onreonstitutions ; nor to
invest tbem with an absolate power over either persons or pro-
pitrtj ; bnt as modes of carrjing those principles into practical
effect Ejection is one secoritj i^inst tlteir infringement,
«id cannot tifceref ore be a good argument for jnstifjing it. Such
ai'gttnients at« ^jnonjmons to- that ui^ed by criminals to ex-
cuse violations of civil laws. They teach their consciences to
believe, that a risque of pnni^ment- balances every crime, as
an exposure to the judgment of election is fdeaded as an abso-
lution from conforming to p^iticid law. In both cases, the
remedy is ei^isted as an ally of the misdeed, and converted
uito an inc&Eitive to commit tiiat wMch it was intended to pre^
vent. .

The first, the mol»t <^idous and the most conclusive argu-
ment to prove, that our governments including those of the
atates, do not possess an absolute or sovere%n power over the
national property, arises from the admission, that they are the
^ustees of the people. The relation between principal and trus- I
tee is sufficiently understood to induce the reader to accord in '
the concluuon^ that the trustee, so fur fron^ possessing an unli-
mited poww over the^property of his principal, is limited to the
exercise of his authority and the execution of* his trust, by the
intention with whi^ it was conferred. It has often been
imagined that the state governments have been absolved from,
an obligation so obvious ; and their absolute sovereignty has
kfifim frequently asserted, without considering that the doctrine
would iBubvert the great principle (the sovereignty of the peo-
|Jie) upon which our p<^itical superstructure is founded. But,
if that principle is held sacred^ then it follows, ^at the powers
not delegated by the people to the state governments, are as
imdoubtedly reserved to them, as the powers not delegated to
the government of the United Stetes j and thiit the exercise of
uny undeleted power by either» under a belief that it will
advance the pubiickgood, is unconstitutional in both cases ;
because a right to seek for the puUick good, ^thout our con-



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stitational limits, iiiTol^s a power of findiog pnUkk haniL.
No reservation of powers not bestowed can be necessary ; nor
can this superfluous precaution in the constitution of tiie Uni-
ted ' States invest the state governments with a sovereignty
Dver property, and only leave to the people the franchise of
election for its security ; so as to slide it back upon the scatea
of modern construction and old prejudices, under the same
bondage which exists in Englabd. This would be to repass
the Rubicon, after we had gotten safely over it.

If the state governments are not sovereigns and only trus-
tees, then their powers are restricted by the intention of their in*
stitution, and when this intention is ascertained, the restriction
is also discovered. Were they invested with an unlimited
power of taxation for the purposes of sustaining civil govern-
ments, and meeting national exigencies ; or for those of trans-
ferring property from one man to another, or of gratifying
personal friendship, charity or a love of &me, at the expense
of their constituents ? A sovereign has a right to exercise his
caprice, his partiality or his benevolence at the expense of his
subjects, because both their persons and property are. his, and
his power over both is uneontrouled. But, as mankind advai^
ced in knowledge, the tyranny and falsehood of this doctrine
were gradually detected ; and therefore in many civilized na^
tions it has ceased to be openly avowed, whilst it is yet indi-
rectly practised; ^ avoid the effects of an overwhelming
popular indignation, which the unconcealed despotism would
inspire. In the greater portion of Europe, regal sovereignty
at this day exercises an uneontrouled power over property by
taxation, by an unfettered appropriation of taxes, by exclusive
privileges, by corporate bodies, and by an unrestrained patron-
age. Thus th^ pretext of publick good is made into a maak
with which to hide publick oppression. To this pretext, in
England, and at length in France, has been added election ;
not to subvert the false principle from which the evil has arisen,
but to render the sovereignty of the government over property
stUl stronger ; and harder to transmute from being an instru-
ment for inflicting private misery, into one for securing na-
tional happiness. Accordingly, the sovereignty over pn^>erty»
claimed by the English government, has been more grievously
exercised^ than in neighbouring countries^ vdiere election has



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73

BOt been used to betray, that which it was designed to preserve.
Yet the English government does not derive its absolute power
over property fnnn the partial franchise of election, but claims
ktis being one of the a]^ndages belonging to the illimitable
power called sovereignty ; and indeed, two of the branches of
that government have no {nretensions to an accession of ri^ts
from the former source. If then this absolute power over
property flows from sovereignty, and not from election ; and if
the people of the United States, and not their governments^
possess the sovereignty; it follows, that the source of that
stream of despotism, called a sovereignty over property, which
has flowed over mankind immemorially, being dried up here»
our system of government ought not to be poisoned by its
effluvium. A sovereignty in the government is the propo-
si^on, from which an absolute power over property is inferred;
but if the proposiUon be false, the inference fails.

Having established a princifrfe so distinct, let us proceed to
enquire, whether the state and federal constitutions recognize or
explode it To avoid prolixity, the reasoning must be often
generalised. In some of the state constitutions, exclusive pri-
vileges are prohilnted, because they operated fraudulently upon
private property. In all, great attention is bestowed upon the
publick treasury, to ensure the proper application of the pub-
lick property. And for both objects, divisions of power, dis-
tinct departments, specifications of rights and duties, and spe-
cial assignments of patronage, were instituted. These unite
to indicate an anxiety in the people to preserve their property,
and to withhold an absolute power over it from the government
Suppose a state legistoture should^ as sovereigns have often
done, directly take by law the property of one man and bestow
ftupon another* Would the judges sustain an act so despotick ?
And upon what ground eould they annul it, except that the
legislature were trustees only and not sovereigns P Is there any
difference between offending against the same principle, directly
nr circuitously ?

One of the chief motives for amending the union, was the
sovereign power, unwisely assumed, and imprudently exer-
cised by the state governments. To correct an usurpation in
theory, and an evil in practice, the constitution of the United
States prohibits the state govenunents from passing << any bill
K



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I of attiunder er expost facto Uw^or aoj law impairiiig thei obU*
I gation of contracts^'' and empowers oongreas " to coin mowtj
' aod fix the standard of weights aad measures.^ These pre*
cautions for defendiag property against modes for assailing it,
lire examples for establishing its substantial rights^ and prece-
dents against a recourse to other medes^ infringing 4he principle
upon which these prphiiHtions are imposed. And a specified
permission to congress, by which the j may establish modes of
measuring propartj for the whole union, would bave been
unnecessary, had that body possessed any species of sove*
reignty over property itself; because such modes would have
been included among its appendages. No power is g^ven to
congress to do that which the state governments are thus pro-
hibited from doing; and if some species of sovereigpify can
extend the power of congress to ends not delegated, it can
also extend the powers of tiie state governments to ends pro*
hUiited ; and efifectually undermine our system of government,
made up of del^ation and prohibitioA. The power to ** cmn
money and regulate ftmreign coin" is limited by the terms ^ coin
and foreign" to the precious metals, because it could not ex-
tend to native paper currency, without including foreign; as^
a standard of weights, respecting money, vef^rs to money ca«
pable of being weighed. The states are prohibited *' frem
coining money, emitting bills of credit, or making .any thing but
gold ^nd silver a tender in payment of debts." The distinc-
tion between specie and paper currency is in this clause estab*



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 7 of 34)