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Construction construed, and constitutions vindicated online

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lished. A power, prohibited to the states and not delegated to
congress, can be exercised by neither. A power, the dir^t
exercise of which is prohibited, ought not to be indirectly ex-
ercised. A power, prohibited or not delegated to the princi-
pal, cannot be delegated by that principal to another. Biil^
of credit are distinguished from other objects of tender laws^
which had been numerous among t^e states^ and are prohibited
absolutely, whether the quality of being made a tender for
debts was annexed to them or not. Otherwise, it would have
been unnecessary to mention tiiem at all. The powers of
** coining money, emitting bills of credit, and mali^ing $ny thing
l>ut g(^d and silver coin a tender in payment for debts," being
prohibited to the states ; and the first power only being delega-^
ted to coi^ress ; it follows that tite other two are prohUuted
and not delegated. And it seems to me, that it may be as



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speckraslj contended, according to the kle fashion of construc-
tton» that the states may make any things hut gold and silyer,
a tender ; as that either congress or the states can delegate to
individnals or corporations a power to emit bills of credit ; or
impair contracts bj suspensions of pajments in favour of
thmr own creatures, or of unlucky speculators. Either woukl
be a usurpation of a sMrereign power over property^ not dele-*
gated to one department, and expressly prohUnted to the other.
It may be also remarked, that the power given to cong^'ess ^* to
provided for the punishment of counterfeiting the securities waA
current coin of the United States" by omitting bills of crediti
recc^izes their exclusion, and does not include bills of credit
emitted by corporations*

From these efforts to protect the rights of private prepertyy
or rather the right of individuals to what belongs to them, let
us pass on to those for security the national property, col*
lectively« Here the question is, whether conoress derive from
the power of taxation, a sovereign power to expend the money
ihus raised, according to its own will and pleasure, like an
English parliament or a Russian emperor. If congress possessed
an unlimited power to appropriate the publick money raised by
taxes, tiiere was no occasion to specify the objects to which
it might be applied, such as to raise and support armies, to
provide and mainUmi a navy. Among these objects, all the
powers granted, requiring an expense, are enumerated; and
this ^mmeration proves, that no deject of expense, not in-
cluded within m^ delegated powers, can be constitutionally
adopted by congress. For where was the necessity of any
enumeration at all of the objects of expense, if congress were
not subject to any restriction in the appropriation of the pub-
Itok money P The widest scope for appropriation is included
in the ¥Fords <' to pay the debts and provide for the common
defence and general welfare of the United States.^' The de-
fence and welfare of the United States, without any explanatory
words, would of themselves refer to tlie affairs of the union,
and exclude those of the states; but the words ^etieraZ and
cofftmotti are used in contrast to local and individualf for the
purpose of more-explicitly excluding congress, in the appropri*
ation of the money raised to be iqiphed to the benefit of the
United States, from indulging a sovereign legislative patrom^
in favour of local* pvivato or individual interests.



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Let us sappoBe» tiutt a recoiiciliati<m hid isaken place between
Great Britain and the colonies, by which precisely the same pow-
ers of taxation for the common defence and general welfare bad
been conceded to the British parliament, ^e same objects of
expense specified, and the same reservations of local and inter-
nal goYemment to the colonies made, as are contained in the
consti^tion of the United States. Iftkt not obvious, that an
assumption (under a compact intended to provide for the com-
mon^ and not for the separate interests of these parties,) of a
power to appropriate the common purse to local or personal in-
terests, would have . infringed its intention, and would gra-
dually have swallowed up the rights reserved? The same
chastity of construction may possibly be necessary to preserve
our union, which would certainly have been indispensable for
the preservation of such a reconciliation*

It is true that the doctrine of absolute sovereignty, witii its
indefinite catalogue of appendages, can adduce in its defence
many plausible arguments, and enumerate sundry conveniences
which might result, from its unlimited capacity to devote
both persons and property to whatever purposes it may think
proper* What conveniences may arise from the abscdute^sn^
bordination i^ppertaining to it, in war ! How wonderful are its
energies, in punishing crimes which will for ever elude estab*
lished laws ! How inexhaustible are its resources for reward*
i^g merit, fostering the arts, and rearing pyramids ! Limited
powers and co-ordinate departments, occupied by dependant
trustees, are often incompetent to effect ends really good, and
never able to perform exploits, which historians have called
magnificent; whilst sovereignty can enshrine itself in splen-
dour, and dazzle the quietism with which it is able to encircle
its throne. Such indeed are the advantages arising from a 9^
vereigttty in governments ; but, to decide whether it b prefera-
ble to our system of self-government and a division of power*
a strict comparison between the whole mass of good and evil
resulting from both forms, ought to be made. As imperfection
is an attribute of every human contrivance, comparison is the
only resource for a judicious preference. In the particular
case of property, if we were to confine it to the good and evil
derived by nations from a sovereign or limited power in govern-
ments oyer the publick purse, a dismal balance of evil would
render the first principle even hideous ; and inspire a horror.



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ftuflkient to nrnke the latter* with all its imperfections, appear
beautifdl. Evil is indissolubly attached to good ; and therefore
the inconTentences, arising from the sovereignty of the people
and a limited power in governments over persons and property,
are by no means sufficient to establish the expediency of under-
mining these principles. Many wise and good men, howevei^
alarmed by the illusions of Rousseau and Godwin, and the
atrocities of the French revolution, honestly believe that these
principles have teeth and claws, which it is expedient to draw
and pare, however constitutional they may be ; without conr
sidering that such an operation will subject the generous Hon
to the wily fox ; or to speak without a metaphor, that it will
subject liberty and property to tyranny and fraud. In short;
that if our new principle of a sovereignty in the people can
be disarmed of its property, by transferring to the government
an unlimited power over it ; the old English principle must in-
evitably swallow it up, with all its appurtenances* \^

The reader perceives, that the freedom of property is the
chief principle, which distinguishes governments founded in the
rights of nature, from those founded in some arbitrary act.
^r societies were instituted by a resignation of such natural
rights, as was necessary for the preservation of those retained.
Property was only made a common stock, so far as the social
safety and happiness required ; but social safety and happiness,
far from requiring that governments should possess a power
of dooming one portion of the people to indigence and igno-
rance, and another to opulence and insolence, by supplanting
industry, and substituting law, as the dispenser of private pro*
perty, require a system precisely the reverse, v Modern phi-
losophers, without discerning, or if it was discerned, without
assailing the usurpation of an absolute and despotick power
over private property, have yet strenuously contended for a
system of policy^ founded upon the opposite principle ; which
tiiey have called the economical system ; and have agreed al-
most unanimously, that there is littie hope of free governments, '
until it is better understood, and mwe actively eiforced. The
difference between judicatures to secure, and corporations to
defraud private property, concisely displays both the power
delegated, and the right reserved under our system of govern-
ment ; and the possibility of reaping a social blessing by a li-
mited power, without the alloy of a social curse, by an unli-



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mited pow«r oTer priTate firoperty. Common iatarest i» ili«
object of a restricted power, and tiierefore it dispenses general
prosperity; an accnmnlation ci individual bononrs or wealth
comprises all the business in which an absolute power over
property can engage ; and therefore it dispenses comparative
disgrace and poverty npon the mass of society. The freedom
of property from the indefinite despotism of sovereignty, is
the best security to be found against those unjust laws by
which social liberty is so often injured ; and agiunst that des-
potism of majorities, by winch it has been so often destroyed.
This wise and just. principle even denies to the sovereignty of
the people, a right to the private property of individualsr be*
cause the conventional act by which tiiat species of sovereignty^
was created, conceded a right to tax for social purposes only,
and witiiheld a right to tax for individual aggrandizement* I
conclude therefore, that neither the state governments nor eon^
gress have a sovereign power over property ; that nether of
them has any right at all to create tnodes fdn: transferring it
artificially from one man or one interest to another ; that the
right of taxation, with which they are invested, is limited t^
the attainment of social ends or specified objects ; and .Mu^
the right of appropriation, being merely an appendage of tiie
right of taxation, is restrained to the same ends or ot^eets..

But, admitting the truth of this conclusion, though much will
be gained, the difficulty of distinguishing between qrarioun
and genuine ends or objects will still remain ; and the impos-
sibility of conceiving a complete catalogue of either leaves no
remedy but a watchful attention to current measures, and %
fair investigation of the principles by which they ought to be
justified or condemned. Yes, there is another; If the honour-*
able, just and patriotick men, who abound in our legislativi^
bodies, should consider the subject and concur in the conclu-
sion, they will, in obedience to an essential social princi{^e,
through affection for their country, and from a zeal for its glory^
forbear to impair tlie foundaticm upon which it has be^i erected.*
They will no# approach towards the rival principle arrayed in
calamities to mankind *' that governments possess a sovereigntjp
over property," without a sensation of horror, and shrinking
from its contamination. Hie right to property or labour is
involved with our whde subject, and as it must coni^quentl^
be often adverted to, its ccmsideration is not here conelnded.



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SECTION r.

THE BANK DEClSION^p-CORPORATION.

The prerieiis ptges have been devoted to the establishment
of several important principles^ from an opinion, tiiat they are
better expounders of our constitutions, and sounder sr^ters
of construction, than dictionaries. The philosopher, who is
led astray from thii^ by signs, resembles a botanist whose
taste leads him to wander in a wilderness of flowers, and to
contemplate their hues, without caring whether their fruit is
noxious <»" wholesome. Principles are the fruit of words; and
ais no man in his senses would swallow poison, because it grew
from the beautiful flower of the poppy ; so bad principles
ought not to be recommended «or good ones defeated, by a
verbal Mosaick, however ingenious. By the standard of prin*
ciples, I shall therefore proceed to examine several measures
and c^inions ; and beginning with the most recent, select a
few others, without regard to chronol<^cal brder, as opposite
to such as I believe to be constitutional.

An examination of the opinion of ihe court of appeals,
against ^e right of the state governments to tax the bank of
the United States, not with arrogance, but with humility ; not
vrith confidence, but with distrust ; will I hope be pardonable.
Against the talents and integrity of that respectable body of
men, I have no counterpoise but my creed ; against the acute
argument by which their decision is defended, I have no
•ftet, but an artiiess course of reasoning. An unknown writer
is but a feather, weighed against acknowledged uprightness,
erudition, and well merited fmblick confidence; yet under
all these disadvantages, as wisdom and virtue are sometimes
liable to error ; as the battle is not always to the strong, nor
the race to the swift ; and as enquiry is the road to truth ;
'I shall endeavour to reconcile my respect f<»* the court, with my
right, perhaps 'my duty^ as a citizen of our happy common-
wealth.



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Bcrfore 1 proceed, as some defence of this preramptioti» I
quote a judicial precedent* The decision of a bad or a cor-
rtipt judge would not ap}^ j ; but one rendered by the great,
the good, the wise Sir Matthew Hale, so late too as the seven-
teenth centurj, is quite in point This judge, of superior
talents and spotless integrity, condemned and put to death two
poor old women as witches ; and the correctness g[ his judg-
ment was not questioned. Behold in this case, confidence
yoked to fallibility. Perhaps the time may arrive, when it
would be as absurd to contend for the witchcraft said to be
lurking under the words sovereignty, supremacy, necessary
and convenient, as it would be to prove now, that it does not
lurk under a wrinkled visage ; and when it would be thought
as superfluous to prove, that our constitutions ought not to be
destroyed by one species of witchcraft, as that old women
ought not to be burnt out of compliment to the respectable
Judge Hkle's decision establishing the other.

The following quotation from the opinion of the court is
copious, from an apprehension of omitting any thing material
towards a thorough knowledge of the question.
' ** Banking was introduced at a very early period of our his-
'* tory, has been recognized by many successive legislatures*
** and has been acted upon by the judicial department in cases
** of peculiar delicacy, as a law of undoubted obligation."

'< It has been saidj that the people had already surrendered
** all their pofwers to the state sovereignties, and had noting
*^ more to give."

** If any proposition could command the universal assent of
** mankind, we mightVexpect it would be this ; that the govem-
** ment of the union, though limited in its powers, is supreme
« in its spliere of action. This would seem to result necessft-
** rily from its sphere of action. It is the government of all;
*' its powers are delegated by all, it represents all, and acts
" for all. The people have said < This constitution and the
<* laws of the United States, which shall be made in pursuance
<< thereof shall be the supreme law of the land, any thing in
*» the constitution or laws of any state notwithstanding."

** There is no phrase in the constitution which excludes
«* incidental or implied powers." " Its nature requires that
« only its great outlines should be marked." « We find in'



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*' it the great powers to lay and collect t«xeai to borrow moiiej,
<' to regulate commerce, to declare and conduct War, and to
<^ raise mid support armies and nanes. Gati we adopt that
*' construction, unless the words imperiouslj require it, which
** would impute to the framers of the instrument, when grant*
** ing thesie powers for the .publick good, the intention of irape*
** ding their exercise by withholding a chmce of means ? The
** instrument does not profess to enumerate the means by which
** the powers it confers may be executed^ nor does it prohibit
** the creation of a.ccnporation, if the existence of such a thing
^. be.,es8entid to the beneficial exercise of those powers. The
'^creajtion of »> corporation appei^ns to sovereignty."

*• The powers of sovereignty are divided between the govern-
'Vment of the union anjd those of the states. They are each
** sovereign with respect to the objects committed to it, and nei-
*^ ther soverei^ with reqpiect to the oligects comnutted to fiie
"other." ,

" Congress shall l^ave power to make all laws necessary and
*y proper to carry into execution the powers of the govempnent."

V Let the end be legitimati;, let it be within the sc<^e of the
«* ^:onsUtution, and all means which are af^ropriate, which are
*' f^nly adapted to that end, which are not prohibited, but
" consist with the lett^ and spirit of the constitution, are c<m-
« stitutional."

*\ That banking is a convenient, a useful, and essentiid in-*
** strument in the prosecution of fiscal operations, is not now
" a subject of controversy.'* v ^

** The power of taxation by the states is not abridged by tiie
** grant of a similar power to the government of the unimi ; it
<< is to be concurrently exercised by the two governments. The
" states are forbidden to lay duties on exports or imp(>rts. If
"the obli^tion of this prphibitiop must be conceded; if it
** may restrain a state from the exercise of its taxing power on
" imports ^d exports, the same paramount character would
" seem to restrain as it certainly may restrain, a state from
" such other exercise of this power, as is in its nature incom-
** patible with and repugnant to the constitutional laws of the
•Vunion." v

" All subjects over which the. sovereign power of the state
" extends, are olyects of taxation r but those over which it does
L



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r *«ii0t extmidt are upon the soandest princjides exempt from

1, . «« taxation. The aovercigntj of a state extends to every thing

« which exists by its own authority, or is introdoced by its pcr-
*f misriont but does not extend to the means employed by con-
<* gress to carry into execution, powers conferred on that body
<< by the people of the United States."

" Such is the character of human language^ that no word
« conveys to the mind, in all situations, one sin^e definite idea.
« It is essential to just construction, that many words which
•• imply something exccs8ive# should be understood in a more
** mitigated sense.''

" We find, on just theory, a total failure of the ori^nal right
^ to tax the means employed by the genend government of ik%
" union for the executioQ of its powers."

" That tte power to tax involves the power to destroy j that

« the power to destroymay defeat and render useless the pow-

« er to create ; that there is a plain repugnance in conferring on

^ « <Mie government a power to controul the constitutional mea-

** sures of another, which other, with respect to those very

j <« measures, is declared to be supreme over that which exerts

C " «< the controul, are propositions not to be denied."

V A «* The le^slature of the union can be trusted by the people

^ with the power of controuling measures which concern aU»

** with the cmifidence that it will not be abused."

•* The principle,. for which the state of Maryland contends^
<< is capable of arresting all the measures of the general govern-
«* ment, and of prostrating it at the foot of the states."

« It is a question of supremacy." ** It is of the very essence
» of supremacy to remove all obstacles to its action within its
<< own sphere, and so to modify every power vested ip subocdi*
« Bate governments, as to exempt its own operations.from theiyr
«* influence.' '

^ Hie result is a conviction, that the states have no power by

« taxation or otherwise to retard, impede, burden, or in any

*< manner controul the operation of the constitutional laws en*

** acted by congress to carry into execution the powers vested

.' % *^ in ebngress. This we think the unavoidable consequence^

*< tiie supremacy, which the constitution has declared."
4 The essential conclusion of this opinion is, that an absolute

^' ^ sovereignty as to meims does exist, where there is no sovereigntf



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83

•t all as to ends. This doctrine seems to me> to be evufently
kieoniistent with the principle of dividing, UmitiDg» balancing
and restraining political powers^ to which all onr cwstilations
have unequiv'ocallj resorted, as the onlj resource for the -pre-
I Nervation otn free IRornr of goyemment. If liie means to which
k the government of the umon may resort ibr execu^ng the
^v*jpdWers confided to it, are unlimited, it may easily select such
as will impair or destroy the powers confided to the state
Vgovernments. If a delegation of powers impGeg a delegation
of an unrestrained choice of means for the execution of those
powers, then this unrestrained choice of means was bestowed
by the people on the state ^verttments, by the double act of
delegation and re8ervatk>n> and is attached to their powers ;
and the same principle, by which it is contended that the go-
vernment of the union may impair or destroy the powers of the
state governments, entitles the state governments to impair or
destroy those of the government of the union. It will be ad-
mitted, that the powers delegated and reserved to the state go*
vernments, are positive limitations of the powers d^egated to
the government of the union ; and liiat the powers delegated
to the union, are limitati<nis of those delegated and resterved to
the state governments; and from this assignment of powers^
made by the saihe authority, it arises, that both are limited
governments. The ends with which these governments are
respectively entrtisted, are allowed to have been exclusively
bestowed, and neither could constitutionally use its le^timate
ends, io defeat or absorb the legitimate ends assigned to the
other. So far tiie array of ends against ends a|>pears to have
been placed by the constitution on equal ground^ and this
equality justifies the inference^ that a mutulil check upon the
* Exercise of political power by each government was intended.
In dividing these ends, the constitution of the 4inion is positive
and explicit; but, it is quite silent as to the means to be em-
ployed ;by the «tate governments for effecting the ends com-
mitted to them hy the people ; and also as to the means to be
employed by the government of the union, in some degree.
And this silence is attempted to be exclusively appropriated
to tiie government of the unioni so that by the instrumentality
of a monopoly of means, it may supplant and destroy the equality
of ends plainly est^^shed by the constitution, subdue ,the state



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ends by the appendages of the union ends, though neither Cata-
logue of these ends would be allowed openly to batter down
the other; and thus eflfeetually overturn by implied meMis^ ova*
whole positive division of ends» made for the purpose of limiting^
cheeking and moderating power. As ends may be made to
beget means, so means may be made to beget ends, until the
co4iabitation shall rear a progeny of unconadtutional bastards^
which were not begotten by the people; and their rights being
no longer secured by fixed principles, will be hazarded upon a
game at shuttletock with ends and means, between the general
and state governments. To prevent this» means as well as
ends are subjected by our constitutions to a double restraint.
The first is special. In many instances, the means for exe-
kuting the powers bestowed, are defined, and by that definition,
limited. The other is general, and arises necessarily from the
division of powers ; as it was never intended that powers given
ito one department^ or one government, should be impaired or
destroyed, by the means used for the execution of powers given
;to another. Otherwise, the indefinite word ** means" might
defeat all the labour expended upon definition by our consti*
tutions. Numberless illustrations might be adduced in support
of this reaftoning^ but those which have appeared, are preferable
to inch as are coiytctural. Hie constitution of the United
States contains many posiUve restrictions of the means for
executing the powers bestowed. It bestows on congress the



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 8 of 34)