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Construction construed, and constitutions vindicated online

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power of declaring war. But it restricts ^e means of exe*
eating this power, by limiting the right of taxation ; by with-
holding the light of ordering the militia without the United
States; l^ withholding tiie right of impressing seamen or
landmen ; by confining appropriations for an army to two years*
and by excluding the government of the union from the appoint- '
m^t of militia officers. This last power, positively reserved
to the state governments, is evidently intended as a check upciii
the power of the sword, by dividing it between the two govern*
ments ; and a volunteer militia, officered by the president,, or a
g^ieral, is a mean, both convenient for the end of w^r, and
also for impairing or defeating the end designed to be accomr
plished by the constitution. Is tiiis inferred convenience, a
fair abrogation of the specified end? Again; a sudden inroad
under the authority of the president into a country at peacft^



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wiUi BSt might beJi beneficial and cmivemoit Hiodeof I
a war, and a m«an towards ultimate success; but the right of
myohring us in war, is exclusively Kmited to congress for ends
infimtely more beneficial to the nation. Ought these more ra-
hiable end« to be sacrificed, f6t the sake of one less raloable?
So coi^^ss is empowered to borrow, and to coin money; and
as one m^n for ^e execution of this power, to provide for
the punishment of counterfeiting the securities and current coin
of the United States* Ought this restraint of a power to create
or punish crimes^ to be extended by co]»truction, to a power
of punishing counterfeiters of corporation or individual piqier ?
Such a powder was not given, because a paper currency was not
recognized. To secure a fair exercise of the legislative power
of congress, two means are resorted to. One, that no legislator
f^ll receive an office created, or the emoluments of which
shall Imve been increased, during the time for which he was
elected ; the other, that no person holdii^ an office under the
United States, shall be a legislator, if corporations are used
to enable members of congress to be both legislators, office-
holders, and emolument-receivers under their own laws, the
means for effecting this triple violation of the constitution
ought surely to be coppared, if the word ** beneficiaP is to
decide 'the preference, with the means for preventing it The
judicial power is invested with the right of deciding contro-
Tersies between private persons, and between individuals and
our governments, and even between states, to prevent the mis-
ehie& of legislative patronage and adjudication. A legislative
judicature is both excessively imperfect and expensive, and
also defeats one of the most beneficial means, for attaining the
great social ends of &ir trials and impartial decisions.

A specification of some means for the attainme)it of ends,
is a proof ftat means were not intended to be unlimited ; but
as it was impossible to specify all which might be constitution-
ally used, for the execution of the powers delegated to the go-
vernment of the union, or reserved to the states, those not
specified were unaToidably left tabe controuled by the division
of powers and rights, which was specified. This controul is
indispensably, necessary lor giving the intended effect, to all
the minor divisions of power in the state constituticms, and
also to tte major division of- power, between the state govern-



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86

g- ments and the goyernbent of the ttnion, as well as to the infe-

rior divtsioDS of the latter. By rejecting this controtil, ottr
whole system of sociid policy would be rent to pieces from top
tolxyttom. If the unspecified means of the states for execut-
ii^ the powers reserved to them, were not limited by the pow-
'Ky ers delegate to-congre8s» the state governments might defeat
the latter powers, by the instrumentality of means. But, if .
*• the unspecified means which the stated may use to effect llite
ends committed to their care, are limited by the powers dele-
gated to the govertiittent of the uiuon,it follows, as being the
same principle, thtt the unspecified means which congress may
/use to effect the endd committed to the care of the government
, ; of the union, are also limited by the powers delegated and rc-
j served to the states. Neither government can, under cover
vof such words as ** sovereign, convenient, necessary and su-
I preme," legitimately resort to means which ivould impair their
co-ordinacy of origin, or the distribution of ends made by the
people for their own security ; and both or neither must be
restrained by a principle, exactly common to both. Otherwise,
the words " sovereign, convenient, necessary and supreme"
will enable the same parties, factions and exclusive interests,
which have been changing and modelling the English form of
government from time immemorial, gradually to wort^ up
ours into a similar compound pf exclusive privileges and emo«
luments, le^slative corruption and Venality, excessive taxation,
and stock aristoctacy. Our civil revolution Will tiien have
eventuated, precisely like the regions revolution in Englaml
under Henry the 8th. The pope was gotten rid of, but tbe
tithes and the episcopal aristocracy remained.

But, the wise men who framed our fM*m of government ne^
ver intended, that its great princij^^s and great ends should be
altered and modelled from time to time, by the means and
ends of factions, parties or individuals; to render it quite un-
steady, liable to important innovations without any real refer-
ence to the people, or to the right of self-government; and to
carry it back to the same unfixed principle or no principle of
the English form of government ; in which, change has been so
constant, and constitution so changeable, that it is said in a
late Edinburgh Review, that the old English reporters do not



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■ %^ - *'<'W]'^''^'



87



eontftui a sio^je precedent which is now law ; and ia Eog^d^
law is constitutioD.

Qn the cODtrary» they intended to erect a political fabrick,
with separate compartments, ea<^ watered hy dbtinct streams
of power ; and hot, whilst ajqiarently perfecting a work so
glprieas, to invent coTertly a machiae, then nameless but now
called the <' supremacy of means," for diverting the streams
assigned to some department^ into others, so as to famish some
occupiers and poison others by a plethora. Though the outside
walls of the &brick may stiU stand after the operations of this
machine, like those ol* an old Gothick castle, and occasion-
ally attract the admiration of future connoisseurs; yet they
will no longer be capable of sheltering liberty against the
Masts of ambition or the reptiles of venality, after the apa^
ments cease to be habitaUe.

Having thus opened the way for a more particular conside^-
ration of the opinion of the court, I shall proceed to exhibit to
the reader extracts from the quotation, arranged with a view to
the perspicuity of the argument.

^ The creation of a corporation appertains to sovereignty^"
This position, the fountain frmn whence the court draws all its
arguments, is assented to ; but I shall endeavour to prove, that
if their proposition be true, their inferences are false.

There are some words innately despotick, and .others in-
nately liberal. Among those of the former character, corpo-
ration and hierarchy bear the most exact analogy to each oth^r,
the first being used to destroy civil, and the second to destroy
religious liberty. . Both are aj^rtenances of sovereignty, and
sovereignty being despotick because it is indefinite, both are
appurtenances of despotism. The fruit uniformly produces a.
tree Hke that on which it grew. The English sovereignty has
availed itself of these two appurtenances to a great extent
Kings and towns conspired in the use of corporations ; Kings
to purchase partisans, reduce the barons, and increase their
own power ; towns to obtain more liberty than the rest of the
people* Kings soon discovered, that the sovereign right pf
granting exclusive privileges was much better adapted for get-
ting money, corrupting factions, and gratifying minions, than for
di&sing liberty ; and they substituted this new appurtenance
of sovereignty for its old prerogatives, with the advantage



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which a pUuaible novelty posseisefl over a d^eeted f^resrion*
Commerced mcmopolies^ commercial compain^» local immuoi-
ties and personal privileges, fully compensated their ambition
ai|d avarice for the loss of prerogatives, and the word *' corpo^
ration" ha9 furnished history with a list of grievances, often
resisted, occasionally redressed, again revived in new fbn^&»
and terminating u\ taxation and pauperism, both so excessive*
that England is ^ ripe for reformation, as it was under royal
{Hrerogative ii^ its most aggravated form. The word was
adi^ted into Eq^ish jurisprudence, and endowed with . a cha-?
racter both sacred and indefinite, by r^l " during pleasure"
judges, to enlarge re^l power, to obtain regal favqpr, and to
avoid regal displeasure. It was thrust into the English law
books by sheq>, clothed in ermine by lions, and sanctified by
precedents bottomed upon fear, hope and flattery. From these
receptacles, wherein it hides the heart of a prostitute under the
habiliments of a virgin, it has found its way into the heads of
lalvyers, seduced by the habits of intercourse, or deceived by a
primness of feature, adjusted to conceal imposture, and to im-
pose upon credulity. But it did not get into our constitutions,
and the question is, whether its congeniality with their pria^-
ciples is sufficiently apparent, to justify our judges in supply-
ing the oversight of the people. R^al sovereignty was its
father, and r^al prerogative (a respectable matron in E^land,
though not much beloved here,) its mother.

The English dictionaries, in accordance with their intention. '
and effects, define corporations to be ** bodies politick." Sove-
reignty alone could create bodies politick, and therefore it ex-i
clusively granted the charters or enacted the laws by whichL
they were Created in En^and. The English law books them-
selves do not recognize a right in some bodies politick to ere*
ate other bodies politick. Whether our governments are sove-
reigns, or only bodies politick created by the charters of the
only sovereignty we acknowledge, is a question, involving in
my view the existence of our form of government. If they
are sovereigns, it must be admitted, that according to the En-
glish precedents, they have a right, to prop and secure tiiem-
selves by all bodies politick, capaJ[>le of defending an absolute,
unquestionable, ai\d indefinite power^ the attribute of ,sove«
reignty ; but if they are hot sovereigns, they can only be bodies



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89

pdtticfci created bj ihe charters^ cafled constitotions, and as
«ich, according to the incorporating principles of the Bnglish
law books, they hare no right to create other bodies politick*
If we are to be boand by the laws of England, those' laws
ought surely to be correctly constmed. Do these allow bodies
politick cr^tted by the sovereignty of that country, to create
c^her bodies politick, without the asseiit of itd sovereign power ^
Is it less necessary for the safety of the sovereignty of the peo-
ple, to attain its appurtenant power of creating bodies politick,
than for the sovereignty of a king or ji government ? It is
undoubtedly a power, which cannot be surrendered by any
species of sovereignty, without ultimately losing the sovereignty;
because, after its attributes are gone, an empty shell only re-
mains. If ttierefore it be true, as the English authorities assert,
that the opinion of the court admits *< that the creation of cor-
porations appertains to sovereignty,'^ and if sovereignty among
us appertains to the people, it follows that the creation of cor-
porations does not appertain to either of our governments, or
td either of their departments.

There is no political influence capable of producing greater
impressions upon the sovereignty of the people, or their forms
of government, than a system of legislative patronage, or of
sbedding wealth upon corporations, and lustre upon Ambition.
By incorpora^ons, great bodies politick, whole parties, and en-
tire states, may be degraded into clienti^e, and bribed to obe-
dience; and legislators themselves may participate in every
bonus they bestow. Among these, an exempi»>n from taxation
extended to a gireat mass of incoiporated wealtii, is an exclusive
privilege, of a value sufficient. to purchase the most abject
submission to political projects, the expense of which is im-
posed upon other classes of society. This mode of purchasing
tiie adherence of priests and nobles was universally resorted
to by European kings, and is still practised by all European
governments. And although our system of election and re-
presentation, is often urged as a complete security against this
palpable injustice to the rest of society, yet it must be admit-
ted, that the additional, securities we have provided against an
evil so general, by divisions and restrictions of power; that
the experience of the whole world; that' the example of En-
gland in particular; tlmtthe concurrence of all political wri-
M



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90

ters ; unite in concluding, that election, alonei is in^uficieBt,
and requires many auxiliaries. Whj should these auxiliaries-
be renounced, if the consequence is ^knowledged, under the
pretext, that election, unaided by divisions a.nd limiti^tions ixt
power, has universally failed to prevent the evil P

Confess is prohibited from legislating respecting the es^,-
bUshmeni of religiop. Bu^ if it possesses a sovereign pow^r
to create corporations, it may nevertheless incorporate a sect,
ivithout estat^ishing a religion, inyest that sect with a right to
acquire wealth; and protei^t that wealth ag^st taxatiop,
under the doctrine contended fpr in the case of banking cor-
porations* The states might exercise the same power. And
thus, a positive priqciple of our constitutions might be e^vaded
by the sovereign incorporating privilege, which has every where
sufficed to beget the most enormous oppression. But supposing^^
that this species of incorporation is prohibited by our constitu-
tions ; yet, allowing that it would have sufficed to destroy reli-
gious liberty, had it not been prohibited, it follows, that a
sovereign power to create civil corporations would also suffice
to destroy civil liberty. The wise men who prepared the con-
stitution of the United States, conceived, that as no power
was delegated to congress to create religious corporations* its.
exercise was sufficientlj prohibited ; and such was the cofi*
etruction of the instrument before its adoption.. Hence it fol*
lows» that, this patriotick convention was of opinion, t^at the
same absence of any power, to create civil cor iterations, also>
prohibited its exercise. And though the object of adopting
the constitution suggested the amendment referred to, for qui-
edng unfounded apprehensions, yet the weight of this respecta-
able contemporaneous opinion remains unshaken. If the con-
vention was mistaken, and really conferred upon congress ao,
unlimited incorporating power, though it intended to do no
such thing, then congress may create an East India corporation«
settle it upon the Pacifick oceap, aiid under the power to dis-
pose of the lands of the United States, endow it vrith a western
territory ; or it may create commercial corporations i or it may
. incorporate towns ; aQd shield all against taxation. I need not
remind the reader of the political consequeiices which would
flow from such measures.



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91

A ^wer df excusing either personal or real property from
taxatron, id so far from being found in the constitution of the
YJnit^d St&tes, that it contains positive prohibittons against it,
in the noidd^ prescribed for taxing both. Congress is prohibited
fhnik exempting the whole personal or real property of a state
from taxation by tiiese prescribed modes, atid not inrested with
d po^e^ of granting partial exemptions to any portion of either,
feten in the imposition of taxes for the benefit of the union ;
but, if it may assuhie the latter power, it may in detail defeat
the actual prohibition. If however it cannot exercise this par-
tiality even in taxing for the benefit of the union, the con-
struction, which supposed that it may partially exempt real
6r personal property in particular states from state taxation,
as still more violent, cannot be admitted.
' - A power to exempt, is equivalent to a power of imposing ;
since the deficit it creates, must produce a relative accumulation
upon property not exempted. The whole field of taxation not
delegated to congress, is reserved to the states. A construc-
tion which imposes a restriction upon the states, where ther^
is none; and destroys tiie restrictions to prevent partialities .
kctually imposed upon congress, is doubly at war with a con-
litruction, drawn from positive rules. There is rio distidction
in th& right of taxation reserved to the states, between real sLnd
personal property. Their original right to tax both is Reserved
to theih as it stood, and a right to tax both in specified modes
only id delegated t6 congress* If congress can exempt per-
gonal property from taxation by the instrumentality of corpo-
rations, it may exempt real, as the stock of banks as well as of
other corporations, may as easily be composed <^ lands as of
money; and thus accumulate direct tastation upon lands not
€ixempted.

But it may be said, that though congress possess a dispen-
sing power of exempting both real and personal property from
state taxation, by first inferring from a gratuitous sovereignty^
never created, a right to create corporations, and then inferring
from this inference, a right to exempt the property of these cor*
poratiohs from taxation ; and though ^ese same inferences from
the gratuitotis sc^vereignty allowed also to the state govern-
ments, we Rejected; yet, that congress may tax the property of
tirese corporations^ itnd obseire In i^ doings some degree of



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ttDiformitj. But suppose their stock is SHide to iNmsist of had.
Is this land to be taxed by the rule of population ? If so, a i^u-
sand acres of landed corporate stock, in a state having fifty-
thousand people, will only pay one-twentieth of the amount to
be paid by a thousand acres in a state having half a millioni
and states having no land stock, would pay no part of this
direct tax. The same inequalities would ensue from th6 tax-
ation of personal stock by congress. This power of exemption
clai^med on behalf of congress, (for congress ha& never claimed
it for itself, and I believe never will,) must have the effects /of
rendering state taxation unequal and unjust, by shielding
masses of state property,) real or personal, from contribution ;
and also of rendering union taxation unequal and unjust, or of
placing corporation property beyond its reach: thus it is in
fact already exempted from taxation, great as it is, imd greater
as it may become ', and exactly occupies the privilege of the
clergy and nobility of France, which caused the revolution of
that country. By taxing state banks, congress has acknow-
ledged the injustice of exempting corporate property from tax-
ation.

There is no idea expressed in the constitution, of any object
of internal taxation, or any species of internal property, within
tiie reach of congress, and without the reach of the state gov-
enunents. Their 'power, as to all such objects, is evidently-
considered as concurrent, except where the taxing power of the
state govemuients extends farther than the taxing power of
congress. Whatever internal property congress may tax, ik^
state governments may tax, and therefore corporation property
must be exposed to state taxation, or it must be entitled to an
absolute exemption from paying taxes, both to the state govern-
ments, and tl;ie government of the union. Thus, the power ^
exemption claimed will defeat the concurrent power of taxation,
bestowed for the mutual security of both governments; and
also introduce either an inequality of taxation, or a complete
exemption from it, both of which are inconsistent with a fair
and free government, and neither of which was intended to be
introduced by the general or state constitutions. Both partial
exemptions and partial douceurs have the same effect, as if
congress should tax in accordance with the formalities pre-
scribed by the c<mstitution> and then restore their proportional



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eontributions to istates or individuals) kstead of applying them
to pfafalick use. A shield against unequal taxation, which can
be pierced by any of ^ese contriyances, is no shield at all.

Letus suppose^ that the state governments could diminish the
ejects of the concurrent right of taxation^ on the part of con-
giress. The gratuitous sovereignty conceded to both, carriea
with it the mutual right, it is supposed, of establishing corpora-
tions. So far the doctrine of the court, though erroneous, is
consistent. But at this point it becomes eccentricL Having
created mutual sovereignties, and having endowed them with
a mutual right of creating corporations, it becomes suddenly
disloyal to the sovereignty bestowed^ upon the states, and denies
to it the same appurtenance, claimed for the sovereignty be4*
towed upon congress ; although these sovereignties must^ be
cO'^nrdinate, whether they are bestowed by the people or the
judges. But, consistency required an acknowledgment, that if
the state, governments cannot controul or defeat the sovereignty
of congress, so neither can congress con^oul or defeat the
sovereignty of the state governments, as to incorporations ; these
being included mthin tlie spheres of both governments. Now,
if the9tate governments could diminish by corporations, the
.concurrent objects of taxation on the part of congress, it is very
evidl»it that by multiplying them they migb^ weaken wad
endang^ the government of the union. This daii^r both con-
gress and the court have distinctly discovered. Congress have
warily resisted it, by the precedent of a slight tax on state
blanks ; and the judges have wisely sacrificed consistency io
prevent it. But then this foresight, both oi congress and the
court, as to the danger to the government of ^e union, fr(mi a
power in the state governmei^s to diminish the objects of a
^^tmcurrent right of taxation on the part of congress, ought not
to make the governments and courts of the states blind, as to
their danger from a power in congress, to diminish, the objects
of -the concurrent ri^t of .taxation on the part of the states.

There is no view, in which a power to create bodies politick
with pecuniary privileges and exemptions, is more manifestly
unconstitutionali, than in its capacity to subvert the distinct
divi^oa of pow^^ between the general and state governments.
It has been remaik^ed, that the opinion of a state right to local
and internal regulation* was derived from the [nrinciples of our



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renriirtHm ; tad Ibat the kieft of a um wat ienmi fro*
general relalMiis» and not from local coosideratioiis. To tteae
•oarcesy boft die special powers gitea to coi^;re9S, and liic
midaaiy powers resenred to the states, mast be icfeii eA.
The creatioii of bodies politick bj the states or bj congress;
endowed with pii f il ege s inconristent in anj degree, with tiM
ends and duties expected from either, is snbstantiall j \
atitational ; and substance is the best lexicographer for i
taining both political rights and wrongs. There are two pria-
eiples pre-emmently nnfaroaraUe to a free goremment ; tt
absence of checks and balances, and a partialitjr in taxatioa.
The judgment of the court snbrerts our best counterpMse of
power bj power, and admits of an exemption from taxati«i la
fkToor of wealth*

The admission, that our priaurj ditisions of power were co-
ordinate, was liberal, if the general goremment was created bj
a union between states politically existing ; because a claim of
tuperioriQr rather appertains to the creator, than to the created;
and because this co-ordinac j is the highest ground, upon which
the created power can be placed, and is precisely its guardian
angel ; since a superiority ni one and a subordinatioa in the



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 9 of 34)