Front Page Titles (by Subject) Section Three: A General Discussion of Tyranny and the Choice that Americans Face - Tyranny Unmasked
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Section Three: A General Discussion of Tyranny and the Choice that Americans Face - John Taylor, Tyranny Unmasked 
Tyranny Unmasked, ed. F.Thornton Miller (Indianapolis: Liberty Fund, 1992).
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A General Discussion of Tyranny and the Choice that Americans Face
The preceding answer to the report of the Committee is offered as one proof that tyranny is at hand. If its arguments are sound, the conclusion would certainly follow, except for the uncertainty as to the meaning of the word “tyranny.” Had we possessed a precise definition of this single word, or known exactly how the people of the United States understand it, we should have a test for the arguments already advanced, and for those which are to follow. But as we are without these guides for our enquiries, each of us must form his own idea of tyranny, and apply it to the reasoning advanced or to be advanced. It is therefore necessary for me to express my ideas as to what constitutes tyranny, because their correctness or incorrectness, will either sustain or defeat the arguments by which they are enforced.
Theoretical and actual tyranny generally subsist together, but they are not inseparable. Actual liberty may subsist with theoretical tyranny, and actual tyranny with theoretical liberty. These States when British Provinces, were a proof of the first position, and revolutionary France of the second. Liberty and tyranny are neither of them inevitable consequences of any form of government, as both depend, to a great extent, upon its operations, whatever may be its form. All that man can accomplish, is to adopt a form, most likely to produce liberty, and containing the best precautions against the introduction of tyranny. An absolute monarch may occasionally dispense liberty and prosperity to a nation, and a representative government may occasionally dispense fraud and oppression. Such events under both forms of government, may be rare, but history proves that they are possible. If liberty consists in cutting off heads, the United States are as free as any other countries, but not more free than some; if in not transferring property by unnecessary taxation and exclusive privileges, they are less free than when they were provinces, and have nothing to boast of when compared with some other countries. As provinces, both their heads and their property were safe for nearly two centuries; in revolutionary France, with a popular representation, neither heads nor property were safe for two years.
A passion for carnage, is the tyranny of savages. Ambition and avarice are the passions which produce civilized tyranny. A policy for encouraging the latter passions, is like one for training savage nations to become bloodhounds. If ambition is cultivated by feeding it with excessive power, it extorts from industry the fruits of its labour; if avarice is cultivated by feeding it with excessive wealth, it acquires political power to pillage industry also. Enormous political power invariably accumulates enormous wealth, and enormous wealth invariably accumulates enormous political power. Either constitutes a tyranny, because the acquisitions of both are losses of liberty and property to nations.
Tithes to established churches have had these effects, although they are far less powerful engines for transferring property and power to a separate combined interest, than exclusive privileges, because they are limited in amount. They are also less pernicious in suggesting new abuses, because the establishment of one church, does not beget an endless establishment of churches, each endowed with tithes; and less injurious to national manners, because opinion, as in the case of female chastity, imposes a demeanour on the ministers of religion favorable to virtue. All other modes of transferring and accumulating wealth by law, are perpetually growing, and inculcate frauds. If they do not usually cut off heads, they invariably combine in themselves two of the three worst characters of tyranny. They transfer property and nurture vice.
By our political theory, the people are supposed to be the patrons of the government, and not the government the patron of the people. A theoretical reversal of this principle, is a theoretical advance towards tyranny; and a practical reversal of it, either by an assumption of power by a government, to prescribe constitutional regulations to the people, or to use their property in donations to individuals or combinations, is in my view, both theoretical and actual tyranny.
Having thus endeavoured to establish an idea of tyranny, theoretical or actual, let us proceed to enquire whether we are verging towards it in one or both forms. In its latter aspect the inquiry is most important, but this importance reflects great weight upon the enquiry as to its theoretical aspect, because tyranny in form is the first step towards tyranny in substance; and because great reliance is reposed on the argument “that our good theoretical system of government is a sufficient security against actual tyranny,” Admitting that the argument has great weight, it becomes more material to preserve a theory which is good, and to prevent it from sliding into a theory which is bad. The moment this takes place, the argument fails, because its basis is gone. It even recoils upon those who urge it; since, if a good theory is a probable security for a free government, its gradual change into a bad one, will probably introduce tyranny.
The theoretical maxims best established by our political principles, is, that the people by special conventions have a right to make or alter their constitutions or forms of government, and that the government itself can do neither. If the entire government, or any department of it, shall exercise either of these powers, the essential principle of theoretical liberty, and all the securities against tyranny deduced from it, is destroyed. This primary maxim ought therefore to be vindicated, if violated in the slightest degree, because its preservation is indispensable for the preservation of liberty. Nobody asserts that either Congress or the Supreme Court, or both united, can make a constitution for the United States or for any one State. It is also conceded, that they cannot separately or in union, alter constitutions already made. Both prohibitions result from our primary maxim; but both are cyphers, if either can be evaded.
An alteration of the Constitution of the United States by Congress and the Supreme Court, would undoubtedly be an evasion of one prohibition. It is founded (to borrow from a former work) in the distinction between political and civil law. The people enact the former, legislatures the latter, and the judges act upon what legislatures enact. Political law is intended to restrain governments; civil, to restrain individuals. By adhering to this distinction, we are enabled to detect the attempts of governments to destroy the first principle of theoretical liberty, not less subversive of it, than if the people should undertake to make civil laws.
But the difficulty is to distinguish between civil laws and judgments, and political laws and judgments. This difficulty was foreseen and provided for by our system of government, by establishing divisions and limitations of power, as the only means of establishing theoretical liberty. For that purpose the divisions and limitations of power between the Federal and State governments were established. That such a constitutional division has been made, is not denied; but if no means for its preservation have been provided; if one of the departments or copartners has a power to usurp rights allotted to another; it is obvious, that this next most important principle of our theoretical liberty, is wholly nugatory and ineffectual. It would be perfectly evident that no security was obtained for it by divisions and limitations of power, if Congress or the Supreme Court, or both, could exclusively determine, whether their laws or judgments did or did not destroy the two principles of division and limitation. To say that these principles are left to be enforced by the people only, that they alone can keep political departments within their spheres, and that these departments cannot check each other, amounts to an assertion, that our theory for the preservation of liberty is grossly defective; far more so than the English; as not containing any internal means for self preservation. The argument, if sound, defeats all the checks, limitations, and divisions of power, to be found in our theoretical structures for the preservation of liberty. If the State governments should violate the limited theoretical powers, given to the Federal government, or if the Federal government should violate those reserved to the States, the argument asserts that our theory contains no internal provision against either violation, and that there is no remedy save that of going back to the people for a new theory. The consequence of this doctrine is, that no theory could be devised, capable of self-execution; and that every check which could be contrived for the preservation of liberty in current affairs of government, would be useless and inoperative; or only operative in requiring perpetual appeals to the people upon every collision of opinions between political departments. If either the legislative, executive, or judicial departments should usurp powers, one from another, the injured party would possess neither a right, nor the means of self-defence; and in all such cases, this theoretical imperfection would make it necessary to consider society as dissolved, and to go back to the people for a new one. To me however it seems that such collisions have been foreseen and provided for by our constitution, as perfectly as the case would admit of, by its checks and divisions of power. Far from designing to establish an imperfection so glaring, as that of perpetual appeals to the people upon every collision of opinions between departments, it has invested each department or division of power with the means of self-defence. If such was the design of the constitution, in order to secure theoretical liberty—by destroying these means, the theory itself is destroyed; and if the theory established by the people for the preservation of their liberties is destroyed, it can be no longer capable of effecting the intended end.
If the State and Federal governments are political departments, considered theoretically, as important for the preservation of liberty, as the legislative, executive, and judicial departments of these same governments, it cannot be even imagined, that a limb of either was intended to be invested with a power of overturning the entire structure of the other. It would be like telling a stranger, that the chamber of the Supreme Court was the whole Capitol, because the architect had covertly invested that chamber, with a power of swallowing up all the rest. Nor would this new notion in the art of building be much mended, by supposing that architect had, by some magical contrivance, invested the great Capitol at Washington, with a power of swallowing all the little Capitols of the States.
It is said, however, that the political architecture of the Federal constitution, must be considered as having copied such imaginary models, because it is extremely difficult to distinguish between laws and judgments which will change our political theory, and those made in subservience to it; and that it would be also highly inconvenient to be without a tribunal invested with a power of deciding whether laws or judgments were constitutional or not. Both the difficulty and the inconvenience is admitted. This very difficulty of distinguishing between laws and judgments for dispensing justice, or for destroying constitutions and liberty, demonstrated the magnitude of the danger, and the necessity for a remedy able to withstand it; and the inconvenience of having no such remedy was too obvious to be overlooked. It was this very danger and inconvenience which suggested divisions of power and distinct political departments, as independent tribunals for arresting that species of laws and judgments intended to work out a political revolution. As the Senate and House of Representatives are each an independent tribunal to judge of its own constitutional powers, so the State and Federal governments are independent tribunals to judge of their respective constitutional powers. The same principle is applicable to the legislative, executive, and judicial departments, both State and Federal. It never could have been forgotten or disapproved of in the formation of the State and Federal departments. Being an essential principle for preserving theoretical liberty, used by the Federal constitution, it never could have designed to destroy it, by investing five or six men, installed for life, with a power of regulating the constitutional rights of all political departments, or at least of the most important. Suppose the Supreme Court should attempt to settle collisions of opinion between the Senate and the House of Representatives: are not the political rights of all the States as important for the preservation of theoretical liberty, as those of one of these houses? It was foreseen by the framers of the constitution, that the difficulty of distinguishing between political laws and judgments, and those intended for the distribution of civil justice, would not be diminished by the supremacy of a concentrated power, and that it required the acuteness of collateral powers to detect and control it. The remedy provided for this difficulty, is the only remedy hitherto discovered; and has been interwoven in some shape with the texture or forms of all governments, pretending to a construction at all calculated for the preservation of liberty. It consists of a mutual veto. All our checks, balances, and divisions of power, are founded in the difference between a negative and affirmative; and the only practicable mode by which one department of any form of government, can be prevented from usurping the rights of another, is that of investing each with a negative able to stop such usurpations. The great difference between a negative and an affirmative power is, that one can only prohibit, whilst the other can create; and this difference has settled the judgment of the soundest political writers in estimating the inconveniences resulting from a negative power, able only to prevent laws from being enacted or having effect; or from an affirmative power able to enact and enforce laws, contrary to the theory established for the preservation of liberty, without being subjected to any negative check. All such writers have united in the opinion, although these negative checks may produce occasional inconveniences, that an affirmative creating power without them, will produce inconveniences much greater and more lasting. No form of government has ever pretended to any merit, or been allowed to possess any recommendation, except what has been derived from negative checks. The Roman tribunitial veto, however imperfect as a novel experiment, was considered by the people as the best safeguard of their rights; but by a senate installed for life, as highly inconvenient. The veto of the English king is the security for his prerogatives. The mutual negative powers of the two legislative chambers, is the security for their respective rights. An executive negative preserves executive power. And the negative pronounced by the judges on unconstitutional laws, preserves the judicial department as established by the constitution. In all these cases it is well established, and universally admitted, that the rights of a political department cannot be preserved, unless it is invested with a defensive negative power; and theoretical rights, unattended with the only means by which they can be preserved, are considered as equivalent to no rights at all.
Can it then be imagined that the States, when forming a constitution, and reserving a considerable share of political power to themselves, could have intended that this reservation should be merely didactick, and utterly devoid of the only means by which it could be preserved? Such a doctrine amounts to the insertion of the following article in the constitution: “Congress shall have power, with the assent of the Supreme Court, to exercise or usurp, and to prohibit the States from exercising, any or all of the powers reserved to the States, whenever they shall deem it convenient, or for the general welfare.” I cannot perceive that a negative, able to prevent such aggressions, which may alter the theory of our government, is less necessary for the preservation of liberty, if the integrity of the State rights is necessary for that purpose, than the tribunitial, regal, executive, senatorial, representative, and judicial negatives. All these negatives are considered as necessary to preserve rights and powers, constituting portions of sundry theories contrived for the purpose of securing civil liberty, and unite to prove, that without this practical mode of defence, theoretical reserved rights and a division of powers, are insufficient for that end. It is equally inconceivable to me, that our State governments will be more corrupt than tribunes, kings, presidents, senates, representatives, and judges, and are therefore less worthy of being entrusted with a negative power for self-preservation. If such was the opinion of the framers of the constitution, why were they entrusted with so much power; but if they were thought trust-worthy, as to the powers given and reserved to them, could they have been considered as unworthy of being trusted also with the same means of preserving these powers, conferred on all other political departments? It might even be contended that they are less likely to corrupt the principles of the constitution than the Federal government itself, and that therefore a negative power in their hands for self-preservation, would cause fewer inconveniences, than an affirmative power in the Federal power to change the constitution, unsubjected to any State check. But whether the State political departments are necessary or unnecessary, convenient or inconvenient, good or bad, they have been established, however erroneously, upon a supposition that they were really very important members of our political theory for the preservation of liberty; and, therefore, whilst they last, we ought to reason upon the supposition that they are so. We must then conclude, that if a power to preserve the rights conferred on them for this end, must attend the rights, or they cannot effect the end, the want of such a power, or whatever may render them dependent on another constituent of the same theory, must be a movement towards theoretical tyranny.
The answers to this reasoning which I recollect, are, first, that an express power is given to the legislative and executive departments to control each other, but not to the Federal and State governments. The reply seems easy and conclusive. The mutual negatives between our two legislative chambers, and that given to the President, are expressed, because they do not result, exclusively, from the inherent right of self-preservation common to all collateral political departments, but from an intention to organize the legislative formulary, to prevent the passage of inexpedient laws. But no form in passing them was intended to make unconstitutional laws obligatory, and no reason existed, for declaring that these negatives were given to arrest such laws, because they would be as void after they were passed as before. Such a declaration would have admitted, that if neither house of Congress, nor the President, stopped a law or bill by a veto, it was to be considered as constitutional. No express negative upon unconstitutional laws is given to judges; yet they claim and exercise a negative over them. Of the same nature is the negative power of the States. Being at least as much political departments as the courts of justice, they derive from that character the same power to reject unconstitutional laws, as the judges do from theirs. So far this right of rejection is equal, but in other views, that of the States is infinitely the strongest. As contracting parties to the Union, this right is an appendage of that character. If they are not to be so considered, it goes to them as representatives of the people, because it is an appendage of the political powers with which they are invested by the people. It is absurd to allow that they were entrusted by the constitution with these powers, and yet prohibited from looking themselves into the constitution, that they might exercise them faithfully. The States possessed political powers antecedent to the constitution, as is acknowledged by their reservation. These State political powers previously possessed, never surrendered and expressly retained, inherently comprised a moral right of self-defence against every species of aggression; and the constitution, instead of saying that they may be taken away by the Federal government, expressly declares that they shall not; that they are without the compass of that instrument, and not embraced by it at all. Here then is a positive constitutional veto, clearly precluding both Congress and the federal court from touching the reserved State rights. Is this veto to be considered as a mere didactick lecture, or was the moral right of defending the powers, reserved with the powers themselves, so as to convey positively to the States the right of resisting unconstitutional laws for their own preservation? Thus the State political departments appear to have a much sounder right to disobey and resist unconstitutional laws, than even the judicial department. That State reserved political powers exist, is not denied, but it is contended that their moral right of self-defence is constructively taken away because it is inconvenient to the Federal government that it should exist, against which the reservation was directed. If that government may suppress one part of the constitution, because it is inconvenient, it may apply the same reason to any part it pleases. The Roman consuls and senators, when committed to prison by the tribunes, for resisting their right of veto, doubtless thought it very inconvenient that these tribunes should use the means necessary to sustain the right. When the inherent moral right of self-defence as to the reserved powers, is invaded, and the States are told that it will be inconvenient if they resist the invasion, they have undoubtedly to elect between the alleged inconvenience and the loss of the right. The State governments are in fact tribunes of the people, entrusted with rights bestowed for the preservation of their liberty, and if they surrender these rights, by surrendering the power of defending them, they will be as faithful to the people, as the Roman tribunes would have been had they surrendered their veto to the consuls and senate, or to the praetors. But what will be said to the silence of the constitution, as to any right in the Federal government to resist unconstitutional State laws? Certainly, that the donation of federal powers by the people, carried with it the indissoluble moral appendage of a right to resist aggressions upon those powers. Another donation of powers was made to the State governments by the same donors. How came these to be deprived of the same appendage? The people gave to each of these governments a fine horse to parade on: but it is said that the tail of the horse given to the State governments did not pass, and that the Federal government, as representing the people, have therefore a right to cut it off. If so, the State governments will soon be ashamed of their horse.
But it is answered, secondly, that an inherent right of self-defence, is an appendage neither of the Federal, nor of State governments, and that the Federal court is the guardian of the rights of both governments, with a power to cut off the tails of both their horses; that is, that the people divided certain powers between these governments, but withheld from both a right to defend its own allotment, and invested the Federal court with a power of making new divisions from time to time. This tremendous power is not expressly given to the court by the constitution, and is claimed by a string of inferences. If they can be made to reach such a power as this, it is surely time to enquire where they will stop. I have never heard before so novel a political doctrine, as that courts of justice are instituted to dispense political law to political departments. It is to be found in no writer; it has never been a component part of any government; and it is highly probable when the constitution was made, that not a single person in the United States contemplated the idea, of its having empowered the Federal Supreme Court to divide political powers between the Federal and State governments, just as it does money between plaintiff and defendant. Why should truth be suppressed? There is probably not a man in Congress who would subscribe to this doctrine, and who would not indignantly resist the least effort of the court to transfer Federal powers to State governments. Is it the power of impeachment which causes Congress so patiently to receive State powers through the same channel? The question is, whether the general idea attached to judicial power is, that its office is to distribute justice between individuals; or, whether it has been considered as extending to a right of distributing powers between political departments. It is contended that the great latter power, never before thought of by any political theory, has been tacitly conveyed by the constitution to the Supreme Court without any provision against its abuse. The novelty of the doctrine, the silence of the constitution, and the absence of any effectual check upon a power so enormous, are strong proofs, that the rights of both Federal and State governments, were not intended to be surrendered to six men, so as to make them administrators of powers to political departments, and guardians of the guardians of liberty; as well as of justice to individuals. Had the constitution considered the Supreme Court, as a political supervisor of departments entrusted with the preservation of liberty, it would have devised some security for enabling them to discharge a trust so important, in case the court should have interrupted their efforts for effecting the great end of society. None was devised, because the universal idea of judicial power confined its operation to individuals, and had never extended it to political departments. The inherent right of self-preservation was considered as attached to the State and Federal departments, and of course there was no reason for prescribing the mode by which it should be defended against judicial aggression, especially as no power was given to the court to aggress at all. There is no difficulty in distinguishing the power of the court to disobey unconstitutional laws, from a power to govern political departments. It is comprised in the difference between civil and political law, and the difficulty is gotten over, if it is the office of the court to dispense justice to individuals, and not to dispense powers to political departments. Whenever the constitution operates upon collisions between individuals, it is to be construed by the court, but when it operates upon collisions between political departments, it is not to be construed by the court, because the court has a power to settle the collisions of individuals, but no power to settle those of political departments. Suppose a collision of opinion to happen between the Senate and House of Representatives, or between Congress and the treaty-making power; could the court settle these collisions, or must they be settled by these departments themselves? Suppose Congress by a law should dissolve the State governments, or consolidate two States into one, and enforce the law by an army: could the court settle these collisions? An utter incompetency in the court to settle a multitude of collisions between political departments, is a proof that they were not empowered to settle any. The argument of inconvenience is as strong in those cases of collision which they cannot reach, as in those which they can; and had their supervisorship been contemplated as a remedy for such collisions, a mode of applying it to all would have been devised. Can the State governments defend themselves against a usurpation of those rights by the federal court, which the federal court is unable to preserve, but not against a gradual absorption of them, which the court is able to accelerate? If they may constitutionally defend themselves in the first catalogue of cases, it must be in virtue of an inherent right of self preservation. Where is the distinction to be found by which they are entitled to apply this right to cases of the first character, but not to those of the second? Good theories for the preservation of liberty are most liable to be destroyed by piecemeal; bad ones, by a single blow, and therefore as ours is exposed to most danger from the detail mode of destruction, it is more important to the States to possess the right of self-preservation against the insidious enemy, than against one which dares not even show his face.
Let us apply the right of mutual veto to some of the constitutional questions which have occurred, in order to estimate the inconveniences attending its existence or abolition. In the bank case, which is most detrimental to our theory for the preservation of liberty—that a State should negative the establishment of an exclusive privilege within its territory, or that Congress should acquire an affirmative power of abolishing the State right of taxation? The State veto only prevents the introduction of a new political machine; the affirmative power impairs, and is a precedent for destroying a right given to the States, without which they cannot exist. In the lottery case, the State veto only prohibits an immoral practice; but the extension of an absolute power over ten miles square, to the whole United States, abolishes the distinction between limitation and reservation. On which side do the inconveniences in these cases preponderate? In both, affirmative federal powers are conferred by the court, containing political innovations radically assailing the powers reserved to the States, considered as essential for the preservation of liberty whereas their prohibition by the State veto, leaves our political theory unaltered. These two cases themselves prove, that there is no danger in a mutual State and Federal veto. Would our liberty be lost by suppressing banks and lotteries, and are the States to be considered as dangerous usurpers for resisting either? The cases, indeed, discover a difference of opinion between departments as to the regimen necessary for its preservation, but surely the States are not so egregiously in the wrong, that they ought to be deprived of their constitutional right of self-defence.
A State attempt to destroy a Federal tax, is equivalent to a Federal attempt to destroy a State tax. A mutual veto can defeat both attempts. The Federal tax law may be executed by the Federal courts, and the State tax law by the State courts. As the Federal courts would disregard the interposition of the State courts, to prevent the exercise of a right conferred upon the Federal political department to tax, so the State courts ought to disregard the interposition of the Federal court to prevent the exercise of the right to tax reserved to the State departments; both courts acting upon the same principle of self-preservation, because the constitution has not extended it to one department and withheld it from the other. There is no uninferred Federal power that I recollect, except one, capable of being interrupted by the State resistance to Federal laws, upon the ground of unconstitutionality; because the Federal government possesses internally a power to execute all laws founded upon powers expressed. If a State can prevent by exerting any of its reserved powers, the execution of a Federal law, it is a presumptive proof that it is unconstitutional. The power of exercising expressed Federal rights, is a security for the Federal government; but a veto against unconstitutional Federal laws impeding the exercise of State rights, must belong to the State governments, or the exercise of State rights must depend on the will of the Federal government. A correspondent power of exercising their respective rights must be mutual to the two governments, because if either should exclusively possess such a power, it will swallow up the other.
But may not the States pass unconstitutional laws? In answer to this question, I shall select the chief case of their having done so. The stay-laws as they are called, are admitted to be of this character, and they serve to illustrate the provision made by the constitution, against State unconstitutional laws. The first and chief provision, is the internal capacity of the Federal government to carry into execution all the Federal powers expressed. The second consists in its jurisdiction between citizens of different States, given for the purpose of preserving union between the States. But the expression of this jurisdiction excludes a jurisdiction over the internal operation of local laws between citizens of the same State, and therefore these stay-laws do not in that case fall under the jurisdiction of the Federal courts. How much stronger is the case of a State tax law? The third provision against unconstitutional State laws is the oath taken by State judges to observe the Federal constitution, by which they are entitled to determine upon the constitutionality of State laws. A fourth provision is, that a State government cannot pass unconstitutional laws, which will operate externally, but the Federal government can pass unconstitutional laws operating upon all the States, or upon a single State; and if there exists no remedy against them but an appeal to the joint supremacy by which they are made and executed, a consolidated government is their inevitable effect. The excepted case is that of the Massachusetts militia during the late war. This case I suppose to have been an executive act. As checks upon this violation of the constitution, if the Federal power over the militia is insufficient to meet it, which I do not admit, the Federal government can both refuse to pay misemployed militia, and also raise armies. But this is a case which demonstrates the incapacity of the Supreme Court to supervise the unconstitutional acts of either the Federal or State governments. They could not make the militia march. And an incapacity to restrain the unconstitutional acts of these departments, which might be carried to a great extent, was, therefore never thought of as the guardian of the constitution.
The mutual veto of the Federal and State governments, or the mutual inherent rights of self-preservation, is rendered infinitely more safe, and less inconvenient or dangerous, than the exclusive veto claimed by the court, by the check of election. This is a powerful control upon unconstitutional laws passed by either, and may be applied against an improper resistance by the people of a State, without dissolving society and appealing to a convention; whereas no such control exists to prevent the Supreme Court from altering the constitutional division of political power. Can there be the least difficulty in deciding between the safety, inconvenience, and danger, attached to the mutual vetos of the State and Federal governments, when both are frequently exposed to the restraint of public opinion; or to the judicial veto, exposed to no such restraint? The Roman tribunitial veto was exposed to the same popular control, and thus only rendered useful towards preserving the liberty of the people. The veto of the English king is liable to no such control, and therefore it is used, not to advance liberty, but to gain and preserve power. The veto upon State laws assumed by the Court, is of the latter character. It is under no responsibility to foster and defend liberty, and may, without control, disorder and subvert the primary division of power, established to preserve it. Departments for its preservation, over which they retained a control, were confided in by the people; but the Court step into the place of the people, substitute themselves as controllers of these departments, and make them responsible to a tribunal by which they are not elected. It was somewhat erroneous to say, that the assumed judicial veto was of the same character with the regal. It is in fact infinitely more dangerous, because judgments are affirmative as well as negative. They can make as well as abrogate laws. Their capacity to do both displays forcibly the difference between civil and political laws, and discriminates very clearly one from the other in the hands of a few men not responsible to the people. If the Supreme Court should misconstrue a civil law, or make a new one, the legislative power is able to correct the error; but if they make or misconstrue a political or constitutional law, the injured legislature has no power of correction. Hence arises the necessity of a mutual veto in the State and Federal governments, since otherwise the Supreme Court would be able to alter both State and Federal constitutions, transfer the allegiance of representatives from their constituents to themselves, and deprive the people of the most valuable jewel attached to election, namely, its power to preserve their constitutions.
The only argument urged to prove that a veto in the Supreme Court, is better than a mutual right of self-preservation in the Federal and State governments, responsible to the people for its proper exercise, is the liability of the judges to be impeached by the House of Representatives, and removed by the Senate of the United States. The State departments can neither impeach the judges, nor bring them even to trial, for any violations of State rights, however flagrant; whilst the Federal department can do both, and also dismiss them for any violations of Federal rights, however trifling. These two are the chief classes of powers which can come into collision, and these judges are said to be safer guardians of them, or more impartial arbitrators, than a mutual right of self-preservation under the control of the people. I deny that there is a single man in the world, who can possibly believe this to be true, or who would risk his tooth-picker upon such jurisprudence. Let us make a case of it. A and B are at law with each other. A has six men employed by great salaries to do his business, whom he can accuse himself, try himself, condemn himself, and dismiss himself. He proposes to B these very men as arbitrators between them. There is not a B in the whole world who would not laugh at the proposal. Gentlemen lawyers, is there one of you who would advise a client to listen for a moment to it? The check of impeachment, as it is called, is a threat to impartiality, and an admonition against justice, in deciding Federal and States collisions. It is oftener used as a party instrument, than to secure judicial independence, even in cases where neither the accusers nor triers are parties in the controversy; and is oftener an engine of persecution, than an encouragement of integrity. What then is its security to one rival for power, when wielded by his adversary? If not a single man in his senses, not a single B can be found, who would submit his property to such arbitrators, can we make out even a possible case to sustain this doctrine, by supposing whole States to be Bs, so utterly ignorant of man and his passions, and so infatuated by the word “impeachment,” as to have created A's officers for arbitrators of collisions foreseen and feared with this same A? Would they not have retained some choice in the appointment, the accusation, or the trial of arbitrators, able to deprive them of their whole estate? Would they not have secured for themselves at least a trial permedietatem lingua?Could Massachusetts have forgotten that she had rejected as an insult upon her understanding, the idea of confiding in judges paid by the king; and all the other States, their concurrence in the same opinion? Considering the extreme jealousy of the States lest the Federal Government should encroach upon the reserved rights, they certainly never meant to say, by not saying “let Congress and the Federal Court cut and carve among these rights at their pleasure.” We must either charge them with an absurdity so egregious, or believe that they meant to retain an inherent power of self-preservation. If this was their opinion when they established the constitution, no verbal inferences, however plausible, can accord with its intention; and any construction at enmity with the intention of the contract, is unexceptionably erroneous. If it was not the intention of the States, or of the people, to invest the Supreme Court with a power to deprive the former of their powers, and the latter of their elective influence; in fact, to model society according to its own pleasure, without being under responsibility to the people or to the States, the question is decided; and, unless this was not their intention, we must conclude, that language is unable to express the design of contracts.
The impeachment of Judge Chase demonstrated the inefficacy of that mode for preventing unconstitutional Federal laws, by which State rights are invaded. The opinion, that the sedition law was unconstitutional was so general, as to effect a revolution of political parties. Having changed the majority in the House of Representatives, it is highly probable that the new majority concurred in opinion with the people, when it impeached Judge Chase; but a love of power was too strong even for party spirit; and therefore his having executed an unconstitutional law and fined and imprisoned men without law (for it is admitted that unconstitutional laws are not laws) was not even made an article of his impeachment. This omission was a tacit acknowledgment that the sedition law was constitutional, and will be quoted to prove it, whenever a party may have occasion for another. Thus the event has already confirmed what the States must have foreseen, namely, that no Federal judge would ever be impeached, much less removed, for executing an unconstitutional Federal law; and experience justifies what the theory plainly predicts, that impeachments of Federal judges, far from being a check upon such laws, are the most effectual means for sustaining them. It is therefore impossible to imagine that the States ever intended to surrender their inherent right of self-defence, for the sake of holding their powers by tenure of the impeaching power, exclusively given to Congress. The fact has already fully disclosed the nature of such a tenure. The court has nearly established the doctrine, that it is almost impossible for Congress to pass an unconstitutional law; and positively asserted, that no law of a State, which contravenes a law of Congress, can be constitutional.
We may obtain a correct idea of the piecemeal mode of destroying theoretical liberty, by supposing that the first Congress under the present constitution, had published a declaration in the following words:
Congress has power to assume the State debts; to confer on bankers a vast annual income by a monopoly of currency, to endow capitalists with an equal bounty by a monopoly of manufacturers; to pass alien and sedition laws; to prohibit negro slavery; to make roads and canals; to prohibit the importation of all foreign commodities; to provide for the poor by pensions; to try all individual claims for public money; to give public money gratuitously, and as a sinecure, to whomsoever it pleases, without limitation; to model State constitutions; to give away the public lands; and to legislate internally without restriction, in virtue of its power to legislate for ten miles square. No State can pass any law which shall contravene a law of Congress. No State possesses a right of self-defence against encroachments of the Federal government. The supreme Federal court can abrogate any State law, and reverse any State judgments. It can regulate and alter the division of powers between the State and Federal governments: and it can constitutionally execute unconstitutional Federal laws by which State rights are infringed.
How would such a declaration of power have been received, when the principles which had dictated our theoretical system for the preservation of liberty, were fresh? Should we not have heard the universal cry of “consolidation and tyranny.” Because it is safer to pull down a fortress by piecemeal than to blow it up once, lest the fragments of the explosion should knock in the head some of the engineers, it does not follow that the fortress will not be destroyed by the first mode. Had all these successive blows been thus condensed into one, would it not have been considered as an attempt to blow up at once, our theoretical fortress for the preservation of liberty, and have produced a general and animated resistance; or should we have submissively petitioned the Supreme Court to protect us against the threatened calamity? Yet all these blows have been successively given to our theory; proving that the gradual and piecemeal mode of destroying it, and for substituting a tyranny in its place, is the most dangerous because it is the least alarming.
It is not expressly asserted, that the Federal court may constitutionally execute unconstitutional Federal laws, by which State rights are infringed and only that should it do so, the States have no remedy, and must surrender their rights. But is not the latter power perfectly equivalent to the other? Would not the court act unconstitutionally, by executing an unconstitutional law of Congress? Have the States no remedy in such a case, whatever of their rights such a law might take away; and must these political departments, or sovereign States, or whatever may be their title, tamely surrender the powers confided to them by the people for the benefit of the people, and submissively betray the sacred trust? Even the individual right of suffrage, being a political right, is not left to be extended or contracted by the civil law courts; but as a subject too high for their jurisdiction, is exclusively entrusted to popular representatives. How then can it be possible to suppose, that the same system, so wary in withholding this political right of an individual from the jurisdiction of the Supreme Court, could have intended to have invested it with a jurisdiction over all the political rights of the States, and incidentally to weaken extremely the right of election itself?
The insufficiency of the constructive judicial power to regulate political departments, may be further demonstrated, by considering to what extent it can operate upon the Federal department. Were the powers of this department made subservient to the jurisdiction of these six men? If not, the check would be insufficient. Are some of the Federal powers subservient to this jurisdiction and others not? Then the unsubservient may be used by the Federal department to invade the powers of the State department. Suppose the Federal department should use its military power against the State department; it is obvious that the Supreme Court could not prevent the aggression. Such would be the case also, if the State department should assail the rights of the Federal department by its military power. In both cases, the judicial power would be unable to preserve the rights of the department attacked. Whence does this imbecility arise? From its civil nature; from its action having been limited to private cases; from its incapacity to govern these political departments. Could the constitution have relied upon this imbecility for their preservation? Why has it divided military power between them, except to confer on both the means for exercising the mutual right of self-preservation? In establishing this mutual check, it recognizes the existence of the right. Powers must be equivalent, to be able to check each other. If the judicial power is unable to govern these two political departments; or if it can govern one and not the other; it could not have been contemplated as the means for preserving the powers of both. The constitution, when it bestowed these powers, must have contemplated some better means for their preservation. What these can be, except the mutual rights of self-preservation and self-defence, is not discernible. If one of them does not possess these rights, neither can the other; and by establishing their political subordination to the court, we should exhibit to the world the political phenomenon of two governments, neither possessing a right of self-preservation, and both subjected to six men, not elected by the people, but nominated by one man. Had the Supreme Court consisted of one man, he would have been a very powerful monarch, invested with the right of making, or which nearly amounts to the same thing, of modeling constitutions, claimed and exercised by a few of the monarchs of Europe. The court therefore resembles a holy alliance of six monarchs.
The Amphictyonick council of Greece, created by a union of seven states, was instituted for the purpose of preserving peace, and providing for the general defence; and not to model the internal governments of the States forming the Union, or to meddle with their local laws. It never claimed a right to do either, because it was composed of representatives from these United States. If it had been made subordinate to the Areopagus of Athens, one of the united and rival states, we should have had a precedent for that species of security for state rights, now contended for. This supervising tribunal constituted by one rival state, would have been equivalent to our six judges, appointed and removable by a rival department; except that an Amphictyonick council would have been selected from all the confederated states, whereas our supreme judges may be selected from one, and must be selected from a minority of the United States. Their removal by the Athenian department, would have rendered them subservient to the ambition of that department, when directed against its rivals. Such a Grecian-federal theory, for the preservation of the liberty of the confederates, would have been sufficiently unpromising, but we are endeavoring to make ours more so. It is said that our federal theory bestows supreme power on six men, not one of whom are appointed by, or representatives of any of the confederates. Congress are our Amphictyonick council; but this doctrine places over it a superior council, constituted as the Grecian council would have been, had it been appointed and removable by the Athenians alone, able, it is said, to govern both the confederates themselves, and their representatives. The Grecian Amphictyonick council however, strongly resembled our judicial political council, in being unable to prevent, though it could easily excite wars between the confederated States.
The tribunitial veto at Rome was sometimes entrusted to six men; but this precedent does not sustain our novel doctrine, because the tribunes were annually elected by the people. Had the senate indeed appointed and removed these tribunes to prevent senatorial aggressions upon the rights and liberties of the people, and had such a theory prevented the senate from committing them, it would have forcibly supported the project of preventing the Federal political department from trespassing on the State political department, by the newly invented veto of judicial tribunes, appointed by, and responsible to, the Federal department.
We may, however, very nearly find a precedent for our judicial negative, in the imperial theoretical system discovered by Bonaparte for the preservation of liberty.
By reserving to himself the exclusive right of proposing laws, he obtained a previous veto upon every effort by the representatives of the people, for the good of the people. But his veto was not quite as objectionable as the judicial. He could prevent, but not create unconstitutional laws; the court can establish or even create them by construction. His was only a negative, theirs is a power affirmative as well as negative. Bonaparte's legislative power had a negative upon the laws proposed by him: Neither the State legislatures nor State courts are supposed to have any negative upon unconstitutional laws established or created by the court. Bonaparte prohibited debates; the Supreme Court only render the deliberations of the State legislatures and courts, idle and useless. The veto of the English king can strangle usurpations in their birth: the veto of the court cannot prevent their conception and delivery, but it can give them life and power. The vetoes of Bonaparte, the English king, and the Supreme Court, are alike in being exercised by characters, neither representing, nor responsible to the people. But they are unlike in a very material future. Bonaparte was not the creature of the French senate and tribunate. Instead of his being their instrument, they were his instruments. They could neither appoint, impeach, nor remove an emperor, who should oppose their love of power. The English king, in like manner, is independent of the lords and commons, and these imperial or monarchical vetoes being both free, might dare to do right. The Supreme Court under the influence of the Federal government, is neither independent nor free; and it cannot dare to do right for any length of time, or it will display a degree of boldness and disinterestedness, never yet practised by any body of men exposed to an equal influence. It will therefore be easier for the Federal government to use it as a sham court for advancing its power, than it was for Bonaparte to use his senate and tribunes as a sham legislature for feeding his ambition.
The enormities of the French revolution planted a diffidence in republican theories, which has spread its branches to the United States, and is causing us gradually to cheat ourselves of our own principles. It having been imbibed by many honest, wise, and good men, frauds joyfully unite themselves with the prejudices it inspires, in order to make use of virtue and talents to gratify vices. Thus it has happened that the political provision, called a negative or veto, has been perverted from the original purpose of preserving, to that of destroying, liberty. Tyranny is wonderfully acute in transferring to itself, the weapons of liberty. It has converted charters invented for her use, into pick-pockets for robbing her. It has used even representation to lash her. And we are now sharpening a new instrument, which can only be described by contradictions, namely, an affirmative negative, to stab her outright. Bonaparte first discovered that his previous veto, united with a subservient legislature, was a good instrument for this purpose; and we have discovered that an affirmative negative power, united with a subservient court, is a better. There is something in human nature, wonderfully fond of new inventions, and extremely desirous of improving them, if they bring us either power or money.
The political principle, called a veto or negative, has hitherto been applied to collateral political departments, and wherever it has been given to one, it has been balanced or checked by the same responsive or equivalent power, bestowed on another. In England, the king's veto upon laws is balanced by that of the lords and commons. At Rome, neither the senate nor tribunes could pass a law, against the consent of the other political department; but the judges had no veto restricting the powers of the senate, the tribunes, the tribes, or the centuries, because they did not possess the character of a collateral political department. Both in the Federal and State governments the veto is responsive between departments necessary to concur in legislation. But I recollect no case of investing any man, or body of men, whose concurrence to an act is not necessary, with a veto against that act. The concurrence of the Supreme Court is not necessary either to Federal or State legislation; and therefore, they are not susceptible of the equivalence and reciprocity attached to the political principle of a veto, and of course cannot exercise it, for want of the essential principle, by which it is constituted. The concurrence of the Federal government in making Federal laws, and of the State governments in making State laws, being necessary; the principle of vetos is applicable to both, lest one department should make laws for the other; it is equivalent, reciprocal, and necessary for the preservation of their respective rights: whereas the Supreme Court being no party to the legislative acts of either, have no rights to defend, and no equivalence or reciprocity of restraint, to bestow on either of these governments, to balance an usurped veto upon the political acts of either.
There was, indeed, a time in England, whilst the judges were removable by the king, when he used them so effectually to circumscribe the rights of the other political departments, and enlarge his own, as to produce a long and bloody civil war. Our ancestors, taught by severe experience, that it was a very sufficient mode for introducing tyranny, suppressed it. Are we destined to make the same discovery at the same expense? Their experience plainly informs us, that a judicial power in the hands of one political department, may be effectually used to destroy its rivals, expunge checks, consolidate political powers, and introduce tyranny. It completely exhibits the difference between fairly balanced reciprocal vetoes, and enlisting under the banner of one, a subservient judicial power, so as to destroy the balance. The balanced vetoes keep out usurpations; a destruction of the balance by the judicial ally, is the very mode for letting them in. The first sustains the rights of both the political departments; the second destroys those of one. The first prevents; the second excites civil wars. The king, lords, and commons, now very easily adjust their political powers by equivalent and reciprocal vetoes, and if they cannot agree, the measure dies in peace; but when the judges could act affirmatively on the side of the king, being dependent upon him, they of course fostered usurpations, which could only be killed by the sword. The consequences of a fair, or a foul pair of vetoes; of a veto in one political department, but not in its collateral department instituted also to preserve political liberty; or of an active affirmative power exercised under the pretext of an uncreating veto; are the items of inconveniences to be computed, in order to ascertain which will be most unfriendly to liberty. On the one hand, we must contemplate a negative power in the States, incapable of making a new constitution; on the other, a power in Congress and the Court, to change the constitution, like the king and his dependent judges. A mutual check between powerful political departments, to be exercised by a reciprocal veto, seems to be the best theoretical principle hitherto discovered for securing liberty, and the only mode by which one can be prevented from swallowing up another; and its absence seems to destroy all constitutions, balances, limitations, and divisions of power, which can be devised.
It is again admitted that, according to our political theory, the judges are invested with a species of political power, not for the purpose of destroying or altering constitutions, nor to disarrange the powers of political departments, but for that of securing the rights of individuals. Constitutions and their divisions were designed for the same end, and it was not intended that one precaution should destroy the other. Both State and Federal judges in the trial of private suits, are obliged to say what is law, and what is not law. And, as unconstitutional laws are not laws, they could not render justice to an individual, by leaving him to suffer without, or against law. If Congress, or the State legislatures, pass unconstitutional laws, it would be no more obligatory than a law passed by a mob, calling itself a Congress or a legislature. Could the Supreme Court force the States to obey the law of a mob? And why not? Only because the States possess an inherent right of self-preservation. The two supposed laws being of equal validity, are equally liable to be met by this right, or it could meet neither. There is no difficulty in reconciling the right of self-preservation mutually possessed by political departments, with the right of dispensing justice, attached to judicial power. Both the rights subsist in England, and one does not invade the other. One ends where the other begins. The rights of political departments are of a different order to those of individuals, and were bestowed as safeguards for these individual rights; but if the rights of political departments are destroyed, they cannot fulfil the intention of preserving individual rights; the purpose for which they were constituted. It is therefore an obvious error to suppose that a judicial power, created as an additional security for the rights of individuals, can destroy or impair the rights of political departments, created also for the preservation of individual rights. The people have confided the custody of their political rights; divided, as they conceived, in the best mode for their security, to the Federal and State departments, prohibiting both from exercising powers intrusted to the other, and no power is given to the judges to compel one department to submit to the encroachments of the other; they have only to leave collisions to be settled by the mutual veto attached to the mutual right of self-preservation, as is done in all other countries by judicial power, and as it does here in all cases of collision between the two legislative departments.
Nothing can be more subversive of acknowledged principles than a habit of inferring from one security for individual liberty, a power to overturn others. Constitutions, so far as they comprise a previous negative for its preservation, are a recent, and have been considered as a happy, discovery; but if they have tacitly blundered into the still newer idea of exalting judicial above political power, and investing it with an irresponsible right of modeling political departments, they have obliterated their chief principles for the preservation of individual liberty, and tacitly expunged what they have expressly enacted. They proceeded upon the principle thoroughly established by experience; that independent, collateral, political departments, mutually able to control the usurpations of each other, were indispensably necessary for the preservation of individual liberty: and to these securities ours have added the new one of a limitation of legislative power, within the sphere prescribed for it by constitutions. But a judicial power in society was also necessary, and out of the constitutional limitation of legislative power, the Supreme Court has very ingeniously extracted for itself, a power to defeat the constitutional limitation of legislative power, by asserting, that their assent to a law, though unconstitutional, will make it obligatory. The liberty of individuals would be infinitely more secure, if independent, collateral, political departments, are safeguards of it, under the conjoined doctrines, that the State and Federal departments should both retain their inherent right of self-defence against their mutual usurpations, and that the judges should have no right to disobey unconstitutional laws; than by uniting in the Supreme Court a right to enforce unconstitutional laws, with a power of destroying or disordering the division of powers between the Federal and State departments. The first policy, however objectionable, would leave to individuals the securities arising both from representation and a division of powers; the second weakens both these securities to a great extent, and also exposes them to the calamities of a civil war.
The four essential principles of our theory for the preservation of liberty, are, that State constitutions ought to be the act of the people; that the Federal constitution ought to be the act of the people and the States, and should not be altered without the concurrence of three-fourths of the State governments; that a definite and permanent division of power should subsist between the State and Federal governments; and that each should possess a right of taxation, which the other cannot take away. The first has been violated by the exercise of a power in Congress, to dictate an article for a State constitution, enforced by the penalty of being excluded from the Union. The second, by the exercise of a joint power, said to reside in Congress and the Supreme Court exclusively to construe the constitution. The third, by the consequent exercise of a power to usurp or control State rights, and to alter the division of power between the State and Federal departments. And the fourth, by restricting the State right of taxation, as is attempted to be done in the bank case. It is unnecessary to recite minor infractions of our theoretical system for the preservation of liberty, because, sooner or later, a multitude of them must inevitably follow those of a vital nature, if they establish themselves. When the States have lost the right of making for themselves such constitutions as they please; when the right of altering the Federal constitution is transferred from the people and the States to Congress and the Court; when the Federal department have acquired the right of usurping powers confided to the States, and the latter have lost the right of self-defence; and when the State right of taxation is restricted by the comprehensive maxim, that they can pass no law which may obstruct the success of a law passed by Congress, will not all the vital principles of our theory be effectually destroyed? Whether this absolute power in Congress and its Court, was intended to be vested by the constitution, is the first question; if not, then the claim to it is a visible deviation from our political theory, and a visible advance towards tyranny, if that theory is better calculated for the preservation of liberty, than the proposed substitute. This doubt has, however, suggested a second question, which has an illicit influence upon the first to a great extent, namely, whether an absolute power in Congress would not be a better political theory, than that established by the people and the States, with the State and Federal ingredients. I shall presently enter into the consideration of this second question, trusting that the reader will perceive the difference between cheating the people into a new form of government, and openly proposing it for their consideration. The permission of a furtive interpolation, even if good in itself, brings with it the great defect of changing political theories without the concurrence of the people; exposes the new theory to the same artifices used to destroy its predecessor; and renders it impossible to maintain a permanent form of government.
The second point however to be considered, will shed some light upon the opinion, that an absolute power in Congress, will more effectually promote social liberty and happiness, than a mutual check between the Federal and State departments. Congress and the court seem to believe that it will, and the States and the people have been inattentive to the subject. It is not quite impossible, that such an absolute power may produce practical liberty, because absolute monarchies have occasionally done so: and therefore it is contended that a representative Congress may do the same. But the experiment of a consolidated republic, over a territory so extensive as the United States, is at least awful, when we can recollect no case in which it has been successful. If the people had believed it practicable, it would have been preferred to our system of division and union; and even if it had been adopted, from a confidence in the efficacy of representation to sustain a consolidated republic, the reasons against endowing six men with a political power co-extensive with the consolidated territory, would have been still stronger, because it would, to a great extent, have relinquished representation, the only principle relied upon, for sustaining so large a republican empire.
It must yet be admitted, that but little practical tyranny or oppression is to be feared from judicial power. Too feeble to be the source of tyranny itself, in acting oppressively it has been, and must for ever be, the instrument of some stronger power, because it neither wields the sword nor commands the treasury. If judicial power must be subservient to a stronger power, it would be a very imperfect mode of disclosing the origin of oppression, by hiding it under an odium against the Supreme Court. No, let not the tyrant hug himself in his supposed elevation beyond the reach of censure, by leaving crimination to exhaust itself upon his ministers, whilst he is furnishing them with materials, and reaping the fruits of their labours. What can this court do, except as the instrument for enforcing the laws and usurpations of Congress? In this body therefore, and not in the court, lies the source of all the mischiefs of which we complain. By supposing that the court can shield the States against the usurpations of Congress, we should concede to it the power of arranging, preserving, or defeating the division of political powers between the Federal and State departments, and surrender the question of right in the complaints of partiality. Congress forges the weapons, with which the court hack and hew principles, and the court is liable to be punished by Congress if it does not use them. We ought therefore to turn our attention from the judicial to the legislative power; as the latter is the real engineer by whom the pillars of our political system can be undermined or battered to pieces. Congress passed the sedition law, the bank law, the lottery law, and most other laws, which have generated constitutional questions. Perhaps it would have been requiring too much of the Federal court, to expect of it a steady disobedience to all the unconstitutional acts of Congress; even our Presidents, though elected by the people, have but rarely arrested them; or perhaps it conscientiously concurs with Congress, in the opinion, that Congress, as well as itself, possesses a supremacy over the States and the Constitution; a supremacy resulting from an exclusive right of construction; or perhaps it may at least believe that they ought to obtain it. From one of these causes, it has probably happened, that the instances of a bold opposition to unconstitutional laws by State judges, have been so much more frequent than similar proofs of independence on the part of Federal judges. But these considerations do not obliterate truth. It must be admitted that legislative power is the source of nearly all the violations of our political theory. Is it not more magnanimous to assail the principal than his agent? Is it necessary seriously to observe that the English precedent of impeaching the minister for the crimes of the king, is not sufficient to screen Congress by censuring the court? There is a sort of fashionable judicial etiquette, a kind of family pride, which sanctifies precedents, often sustains errors, and deserves the respect to which too long a consistency is sometimes entitled. But legislative bodies never regard this species of decorum, except as an affectation when it accords with their designs, or countenances their encroachments. The argument of consistency is with them as strong as a rock to defend, and as brittle as glass to defeat, acquisitions of wealth and power. As they never entangle themselves in a web of precedents, are quite familiarized to revocation, and are the real sources of our retrocession towards tyranny, both theoretical and practical, it is from them and them only, that redress can be required or obtained.
This remedy is by no means so rare as to be hopeless. From the many instances of its efficacy, I shall select one, which seems particularly applicable to our case. The declaration of rights proclaimed by the English lords and commons, upon the expulsion of James the second, contained a renunciation of pernicious powers, and destroyed several abuses, legislative, executive, and judicial, though sustained by precedents of long standing. Whigs and tories united in recovering the principles of the government. Are they better patriots than federalists and republicans? Is it not possible that a patriotick Congress may also appear, which will, by a similar declaration proclaim the constitutional rights of the States in which they live, and of the people to whom they must return? Will a vanishing power for ever inspire a spirit which causes one Congress to adhere to the errors of another? It would be the best imaginable compromise, for the people to agree to forgive all those of an existing Congress, if it would correct those of its predecessors. Congress can both forbear to pass unconstitutional laws, and also prevent the judges from giving laws an unconstitutional construction, either by provisions in the laws themselves, or by subsequent laws. Thus the bank law might have contained a provision that it should not be construed to impair the State right of taxation; the lottery law, that it should not be construed to extend beyond the ten miles square; and the court law might have forborne to invest the Supreme Court with an unconstitutional jurisdiction. These laws may yet be chastened by Congress of any construction which it condemns. In all cases wherein the Supreme Court has been or may be charged with extending a law of Congress by construction to any unconstitutional object, Congress has the remedy in its own hands; and its silence is therefore a recognition and a confirmation of the court's opinion, of which, advantage will be made for multiplying such constructions. As Congress is both the maker of the law, and the justifier of the court's construction, it is in vain to expect that the court will ever renounce precedents so powerfully sustained; or that they can be defeated, except by a patriotick Congress, or the State right of self-preservation.
That no effort has ever been made by Congress to defend State rights against judicial construction; and that we should be losing sight of its responsibility, by pursuing the pompous, but metaphysical judicial phantom, is an instance of fatuity, which would, without some solution, be inconceivable. It must either be the effect of a conviction in Congress, that the States possess a power to preserve their own rights, and therefore, that there is no reason, and perhaps an impropriety, that Congress should interfere between them and the Supreme Court; or, of the party spirit begotten and fostered by ambition and avarice. The nation has successively attached itself to two parties, called Federal and Republican. How can a majority bear to censure the legislature it has chosen? Is not opposition to any measures of a reigning party considered as an enlistment under the banner of the rival party? Yet no opposition can be of any practical use, but to the measures of a reigning party. Nations are always enslaved by the ingenuity of creating a blind confidence with party prejudices. A reigning party never censures itself, and the people have been tutored to vote under two senseless standards, gaudily painted over with the two words “Federalist and Republican,” repeated, and repeated, without having any meaning, or conveying any information. One party passed the alien and sedition laws; the other, the bank and lottery laws; and both, many other laws, theoretically unconstitutional, and practically oppressive; but neither has overturned unconstitutional precedents, though they have often charged each other with creating them, and both have waved the ensigns of a party majority before our eyes, which we have followed to a state of national distress. If a man had successively married two wives, one called Lucretia, and the other Penelope; and should believe in their chastity, after having seen both in bed with several gallants of the worst characters, should we call him a blind cully, or an acute observer?
But there remains a mode of getting over these difficulties. The Supreme Court cannot be considered as the republican party, and therefore, we shall not wound our attachments by resisting its violations of Republican principles. If Congress has foreborne to restrain it from an opinion that the States are able to defend their rights, it only stands aloof and views the combat as an unconcerned spectator, because it knows that the States can bring into the field the competent forces confided to them by the people for their own preservation, to secure a victory. Should Congress condescend to become a partisan for the court, the title of republican party must be surrendered, because the court are not that party; and then we shall no longer be prevented by party prejudices, from considering whether the doctrines of the court tend towards the destruction of a federal, and the introduction of a consolidated republic. Congress may not be incorrect in believing that its interference between the States and the court would be unconstitutional, as implying that State rights were subjected to its protection, and that the States had not a power of self-defence.
In considering whether we are acquiring actual tyranny, our theoretical innovations needed not to have been proved; because as actual tyranny inflicts actual misery, it is unimportant to the oppressed under what theory they suffer. A subversion of the tyranny in fact, and not a war of constructions, is the only effectual remedy. But if a deviation from the principles of our constitutional theory for the preservation of liberty has been proved, and we shall now discover that actual evils have also multiplied, it will demonstrate the connection between bad principles and bad consequences.
To discover whether actual tyranny is coming or has arrived, let us endeavour to establish some unequivocal evidence, by which tyranny may be known; some characteristick, as obvious to the senses as the difference of colours; and as clear to the understanding, as that two and two make four. The plain good sense of mankind has long since escaped from the intricacy of metaphysical reasoning and discovered an infinitely more certain mode of ascertaining the existence of tyranny; but the artifices of ambition and avarice have constantly laboured to extinguish a light too luminous for their designs, and to perplex evidence too strong to be denied. When nations are induced, by the dexterities of ambition and avarice, to sear their senses against the plainest of all truths, their situation becomes hopeless, and their subjection to actual tyranny certain. The conviction of the truth of that which I am about to advance, is so universal, that abuses never venture to deny it; but use all their ingenuity to evade its force, by urging that present evils will produce future good. They either endeavour to hide actual tyranny by some eulogized theory, or to draw off the public attention from it, to some distant prospect embellished by the imagination, or to win confidence by ample promises. There is no resource for defeating such artifices, but that of clinging to the universal conviction of mankind.
Money is a more accurate measure of liberty and tyranny, than of property. It is not only the best, but the only permanent measure to which civilized nations can resort, to ascertain their quantum of either, and for discovering whether tyranny is growing or decaying. What was the object of assuming the State debts, and appreciating depreciated paper? Money. What is the object of the banking exclusive privilege? Money. What is the object of the protecting-duty policy? Money. What is the object of extravagant expenditure and heavy taxation? Money. What is the object of the loaning system? Money. What is the object of the enormous pension list? Money. And what suggested the lottery mode of getting power? Money. As a measure therefore of liberty or tyranny, money is infinitely more correct than any other, and mankind are therefore oftener guided by it, than by all others.
Philosophers have observed that the present age contains the rudiments of that which is to follow; and the accuracy with which the observation has been verified by our experience, is remarkable. Funding, banking, loaning, protecting duties, pensions, extravagance, and heavy taxation, have followed each other in orderly succession. When then is the halcyon future, the happy millennium, promised by all moneygetting projects to arrive? When a new child of this family is born, he never dies; but lives to see a long line of grand children wallowing like himself, in money. It would be some comfort to the present age if it was certain that its sufferings would secure liberty and happiness for its posterity. This pure philanthropy, the most gratifying compensation to benevolence for its labours and privations, made the hardships of the revolutionary war light. To forget ourselves for the benefit of posterity, is magnanimity; but when we can only preserve posterity from oppression by remembering ourselves, insensibility both for our own sufferings, and those of posterity, deserves a very different character. If it is true that the present age sows the seeds of happiness or misery for future ages, shall we gratify that exalted species of philanthropy, which induced the revolutionary patriots to win and transmit liberty to their descendants, by sowing exclusive privileges, monopolies, and heavy taxation, under a notion, that the relicks of a theory left to us by these venerated patriots, like the bones of a saint, are able to work miracles for its preservation? When cockle is sown with wheat, does it not gradually get the upper hand, and invariably eat it out.
In addressing nations, by conforming to a maxim which they strenuously believe to contain the most perfect definition of liberty and tyranny, we advocate their own opinion, and only give efficacy to their own conviction. All reflecting individuals, except those bribed by self-interest, believe that liberty can only be preserved by a frugal government, and by excluding frauds for transferring property from one man to another. In no definition of it has even its enemies asserted, that liberty consisted of monopolies, extensive privileges, legal transfers of private property, and heavy taxation. In defining a tyrant, it is not necessary to prove that he is a cannibal. How then is tyranny to be ascertained? In no other perfect way that I can discern, except as something which takes away our money, transfers our property and comforts to those who did not earn them, and eats the food belonging to others.
To prevent these convictions from telling nations when tyranny is coming, the generosity which too often flows from the people towards their governments, in a stream so copious as to wash away the foundations of their liberty, is used in modes which have enslaved them. Declamation represents frugality as niggardly and base; and flattery calls extravagance, liberal and exalted. Thus, the purest of all virtues is robbed of her garb to disguise the worst of all vices. Stripped of its stolen feathers, the jay is easily known; and the flatterers of nations will appear as an higher order of parasites, differing only from those who work upon vain and giddy individuals, in having views more extensive, and causing calamities more cruel. What a hopeless doctrine do these declaimers and flatterers preach to nations? Experience has demonstrated over and over again, that a free government cannot subsist in union with extravagance, heavy taxation, exclusive privileges, or with any established process by which a great amount of property is annually transferred to unproductive employments. Such a system is tyranny. How then can it harmonize or live in the same country with liberty? But liberty is always addressed by it, as if she was vain, foolish, and even blind; as if she was only fortune. A free government can only be made lasting by frugality and justice; but it is said that frugality and justice are niggardly and base, and that only extravagance and fraud are liberal and great. Must nations then either lose their liberty, or act basely to preserve it? Have we grossly erred in mistaking Washington for a patriot? His frugality was not liberality to a nation, but niggardly and base. Both he and Jefferson were ignorant of the sublime in politicks, and these two narrow-minded men, only grovelled in the sordid principles necessary to preserve a free government. Are the patriots who have struggled for practical liberty, and devoted their lives to the real good of mankind, already eclipsed by the splendors of extravagance, and the frauds of patronage? A sympathy for general happiness is illiberal, and an abhorrence of all modes by which industry is pilfered, is dishonest. Such is the argument by which the facts now to be urged are attempted to be defeated, and such is the obloquy to which the inferences they furnish are exposed.
By comparing the former with the existing transfer of property, the difference in amount, allowing for the difference in population, will disclose the quantum of our former liberty and our existing tyranny: To come at truth we must take into the computation the expenses of all our governments, and the acquisitions of all our sinecures and exclusive privileges. The difference in amount between the property now transferred, and that transferred in the time of Washington, proves, that we have at least fifty times more tyranny and less liberty than we then had, considering the fall in the prices of products. At that time, less than one fifth of the value of our exported commodities paid all our expenses, or balanced all uncompensated transfers of property now, these expenses or transfers absorb an amount of property twice or thrice exceeding the value of all our exported commodities. The reader will recollect the former computation to ascertain the respective quotas of liberty enjoyed by the people at each period; and, although like myself, he may not possess the materials for coming at accuracy, yet, by devoting some attention to the computation, he will discover that the difference is enormous.
Taxation disguised in any way, is disguised tyranny, so far as it exceeds the genuine necessities of a good government. It is disguised by giving different names to different taxes, because capitation taxes are allowed to be highly oppressive. But in fact, all taxes are capitation. In every form they are paid by individuals, and ultimately fall on heads. Taxation is also disguised to a great extent, by calling the taxes paid to exclusive privileges, by other names, though there is no distinction between these taxes and those paid to governments, except that the latter are necessary, and the former unnecessary. They both fall on heads, and the heavier they are, the more these heads lose of that erect posture maintained under a light weight. Recollect reader, that you are paying heavy capitation taxes to exclusive privileges, and then boast of your liberty if you can. Is a maniac, who believes himself to be a king, really a king? Are the European nations really free? Yes, if heavy taxation to supply the extravagance of governments, and enrich exclusive privileges, constitutes liberty. Are they oppressed? Yes, if enormous taxes for both purposes constitute oppression. What! are they both free and oppressed? Yes, if money is not a measure of both liberty and tyranny. By rejecting this practical measure, and confining our ideas to the political theory of the United States, we have nearly or quite obtained that kind of liberty enjoyed by the Europeans; theoretical, but not actual. But by measuring tyranny with the correct standard of money, we discern that the kind under which they suffer is near at hand, or already arrived, and may resolve to receive it with open arms or clenched hands, as we choose. To determine which is the case, we have only to compare our taxes paid to governments and exclusive privileges, with those paid by other nations, and we should probably discover that no countries, except Britain and Holland, are equally oppressed by this real species of tyranny. I doubt whether these are, but if they are, numerically, the burden is less oppressive, because they are aided in bearing it by valuable foreign possessions, a highly improved system of agriculture, and a surplus of manufactures; auxiliaries which we are without. If therefore we rival them in taxation, we must excel them in oppression. But this would not be the case, if money was not a correct measure for ascertaining the approach or the arrival of tyranny.
Naples is despised by the world for surrendering her liberty to a physical force; the United States are surrendering theirs to political frauds. To which country will future historians assign the greatest portion of moral degradation? May they not say that Naples could not have maintained her liberty if she wished it, but that the United States could have kept theirs if they would? Naples had to contend with an overwhelming army of soldiers; the United States with only a small unarmed faction. There would be but one excuse for the United States. It might be said that it was as natural to conquer liberty by patronage, taxation, and exclusive privileges, as for tyrants to conquer it by armies; and that there is in fact no difference between the two modes of subjugation, because both terminate in the same result. It may be further urged, that both modes are executed by troops equally mercenary, equally disciplined, and equally ready to obey orders; and that if a regular army is an overmatch for an undisciplined militia, a government combined with troops of exclusive privileges, must also be an overmatch for the unorganized, unpaid, and unsuspicious militia of equal rights. This is an argument of great force for placing Naples and the United States upon the same ground, and also for justifying efforts to put the weapon of information into the hands of equal rights, to be opposed to the stratagems of a mercenary and disciplined civil army. It is only like putting arms into the hands of the militia, and teaching them their use, for repelling the invasions of the other species of hired troops.
In this great republic, comprising a variety of climates and interests, it is impossible to keep equal rights long asleep, and if they are awakened by violent blows, the consequence will be a revolution. Such blows are already falling upon great districts; and upon all occupations except the privileged. Money will at length be discovered to be the best measure of liberty or tyranny, and when by using this measure it is discerned that some districts suffer more tyranny than others, and that the privileged pecuniary occupations enjoy more liberty than the rest of the nation, a civil war, or a revolution without a civil war, will be the consequence. The inland regions are already more oppressed than the maritime, because they have fewer resources to bear the tyranny introduced by the instrumentality of money, that is, by extravagance, exclusive privileges, loaning, and pensions, for transferring property from the many to the few. Even if the seat of government was removed to an inland situation, these frauds would continue to be chiefly monopolized by a few maritime capitalists; the remedy would be confined to a small circle around the capital; and a great majority of the people every where would continue to be sufferers; because the proportion of individuals, possessing and knowing how to use capital, sufficient to accumulate wealth by the intricate speculations of the property-transferring policy, is quite inconsiderable. In the inland regions this disparity is greatest, and must for ever remain so, from the superior facilities for acquiring capital afforded by maritime situations, and therefore the inland regions must suffer most by this policy. And however indignantly the vast majority of the maritime people ought to receive the suggestion of a partial compensation for the money of which it is defrauded, from the residence among them of a few individuals, in whose hands it is accumulated; the inland people must participate far more slightly even in this most inadequate retribution. Every species of internal taxation, and especially excises, contemplated by the Committee as the resource for sustaining the property-transferring policy into which we have plunged, will conspire with the frauds of this policy to destroy the Union. Pecuniary oppression drives men from republican into monarchical governments; it will more easily induce them to dissolve the Union, and try some other republican form. Frugality, a suppression of frauds for transferring property, and light taxation, or a great mercenary army, are therefore the only means for preserving the Union, and between these we must choose. The avarice and ambition of individuals would be nothing in a conflict with a love for the government, which would be inspired by a system of frugality and justice, diffusing equal liberty and general happiness. But the inequalities and oppressions attending heavy taxation and exclusive privileges, create materials for ambition; and laws for fostering avarice complete a system contrived for gratifying the two passions, by which governments are either overthrown or made despotick.
In about twenty years the French revolutionary government passed, it is said, between seven and eight thousand laws; of which, about one hundred now remain in force. I know not a better proof of bad government than a perpetual flood of time-serving laws. To this flood of legislation is justly ascribed much of the concurrent dissatisfaction which subverted theory after theory, and terminated in an impetuous recurrence to a military despotism. In the United States about four thousand laws are annually passed, amounting in forty-five years to one hundred and eighty thousand. When there were fewer States, the annual number of our laws may have been less, but now it is probably more. In future, if the rage for legislation continues, the number of laws will considerably exceed this computation. A great majority of these laws are passed for the purpose of transferring property from the people to patronized individuals or combinations. They are annually shaving and shaving the fruits of industry, and have greatly contributed towards reducing it down to its present state. It is at length nearly drowned by this deluge of legislation. What must be the consequence of a perseverance in this pernicious habit? If it is an evil of portentous and present magnitude, ought not its cause to be sought for and removed, by all those who prefer a good to a bad government? Have the individuals who compose legislative bodies no such preference? Ought they to pervert money from the office of multiplying enjoyments, to that of contracting them; from the end of exchanging and increasing comforts, to that of transferring them? Is not this tyranny?
If our inundation of laws fosters real and practical tyranny, it ought to be checked, and the check is suggested by the cause. This is undoubtedly high legislative wages, which have fostered a habit of transferring property, in order to reap pay. It is not contended that the wages of public officers, the legislative excepted, are too high; or that their rate has had any pernicious effect towards introducing the oppressive system of transferring property by law, of nurturing extravagance, and of increasing taxation. Let the distinction between legislative, and other public officers, arising from the difference between employing one's time occasionally in public service, or devoting a whole life to it, be waved; and the consideration of the two cases to be confined to the consequences of high salaries to legislative and other public officers. The wages of other public officers are limited; legislative wages are not only increased by a prolongation of sessions; but this prolongation causes also an increase of expenditure, because it can only be effected by patronizing the frauds of individuals. The former salaries being defined, are kept within reasonable bounds by public attention; the latter are incidentally increased without attracting the public attention, by wasting time in transferring property, and thus doubly aggravating taxation; evils which other public officers cannot introduce for the purpose of increasing their wages, and uniting to aggravate pecuniary oppression. The argument in favour of high legislative wages, is, that poor merit is thereby enabled to serve the public; but if they have the effect of corrupting this merit, and inducing it for the sake of pecuniary acquisitions, to hurt the public by an inundation of laws for transferring its property to individuals and combinations; the argument entirely fails unless it can be proved, as the transferring policy seems to suppose, that the public has no property, and though legislatures have no moral or constitutional right to give one man's property to another; yet that by combining the property of all men under the appellation “public,” they acquire both a moral and constitutional right to give the property of all men, to one man. To corrupt legislation by sordid motives, is a mode of obtaining individual merit, from which nations reap no benefit, but much oppression. Patriotism is legislative merit. But if it is induced by high wages to inundate a country with laws, and especially with those for transferring property, it is transformed into avarice, and a plunderer of the people. If the eminence and honour of legislative power ceases to be the only compensation to a legislator, beyond his bare expenses, he ceases to be chaste; because if he feels the inducement of money, he will feel for himself, and not for the community. He must legislate from motives entirely patriotick and unselfish, or he will legislate fraudulently, and nations must elect between legislatures actuated by one, or the other motive. High wages are incompatible with disinterestedness; and low wages the only security against the influence of avarice in obtaining a seat, or exercising legislation. The existing furorfor legislating, is a formidable foe to a true, honest, and liberty-sustaining system of political economy, from its necessity for new objects upon which to exercise itself. There are two kinds of political economy. One consists of a frugal government, and an encouragement of individuals to earn, by suffering them to use; the other of contrivances for feeding an extravagant government, its parasites and partisans, its sinecures and exclusive privileges; one makes a nation rich and happy; the other creates enormous capitals in a few hands, at the national expense; one requires but few laws, and few tax gatherers; the other requires a multitude of both; one must have penalties and petty officers without number, to enforce its own frauds; the other being founded in justice, has no use for these instruments to prevent or punish treasons against fraud; one demonstrates the existence of a politick people, who know how to keep their property; the other demonstrates the existence of a political combination, which knows how to get their property; one kind of political economy, is liberty; the other is tyranny. When we see the bad kind cultivated with zeal, and the good kind treated with contempt, we are forced to conclude that selfishness has inspired the ardour, otherwise inexplicable. Economy is frugality. How can the economy which teaches governments to extort all they can from the people, and to accumulate their burdens by loans, bounties, exclusive privileges, and extravagance, be distinguished from the economy of the landlord who grinds his tenants, that he may be a prodigal? The frugality of transferring property by partial laws; a wasteful frugality, a fraudulent frugality, is the European species of political economy, by which real tyranny is inflicted upon the people, under any form of government. Can it be admired by a politick nation? Our deluge of laws proves, that our legislatures have been tempted by some motive to run into this European species of political economy. Is it worth the increase of legislative wages, which we have paid for it? Few laws are necessary to preserve property; a multitude are required for transferring it. The last intention furnishes endless employment for legislatures, and the multiplication of laws is an evidence of the intention. The design and effect of four thousand new laws annually in the United States, is no longer matter for conjecture. If it cannot be seen, it must be felt. Their operation in transferring property has produced general distress, and exorbitant individual wealth. This is tyranny, if tyranny can be measured by money; and the question seems to be, Whether it is good policy in a nation to pay high legislative wages for the purpose of purchasing tyranny?
The present fashionable art of defeating the essential principles of the Federal constitution, sometimes by adhering to, and at others by amplifying its letter, is a formidable accomplice of the tyranny-bearing species of political economy. As governments mould manners, this disastrous constructive taste has tinctured the plain good sense of the people, and diverted it from the only effective, to the most frivolous, temper, for preserving their liberty. By exchanging the great principles established to secure it, for verbal constructions which prove any thing or nothing, the reservation of State powers is easily destroyed; and by the aid of an inundation of laws, the people are made the prey of exclusive privileges. Thus, the right of the States to tax, is taken from the States and transferred to bankers, who are empowered to tax a State to enrich themselves, whilst the State is prohibited from taxing them to support its government. Thus, also, the right of taxing States by lotteries is bestowed, and a power of taxation for public good is withheld, to confer powers of taxation for fostering private avarice. Thus, the preservation of good manners is taken from the States, and entrusted to combinations, whose own manners want improvement. And thus Congress has invented by the judicial law, a process by the name of a writ of error, equivalent to the odious writ of quowarranto, once used in England by the king and his judges, to destroy the rights of corporations. By our substitute the end is effected, as if Congress had empowered the judges to issue a writ of quo warranto directly against the State governments. The only difference between the cases is, that the English quowarranto destroyed all the rights of corporations at a blow, and that ours destroys the rights of State governments by degrees. But the end of both proceedings is the same; in England, it was to make corporations subservient to royal pleasure; here, it is to make State governments subservient to Federal pleasure. A dependence of corporations upon the will of the king, was evidently a subversion of the principles of the English government. If a dependence of State rights upon the will of Congress is also a subversion of the principles of our form of government, may not our quo warrantoprocess, under a new name, be a tendency towards tyrannical government; if the true principles of our form of government are as good as those of the English form for the preservation of liberty? The security of State rights may be as essential to our liberty, as the security of corporate rights was supposed to be in England; and a consolidation of States subservient to Congress, as dangerous to it, as a consolidation of corporations into a subserviency to royal sovereignty; especially if a consolidated republic over our vast territories, should turn out to be impracticable. These writs of error are as good instruments for establishing the property transferring policy, as the quo warranto was in England. For this purpose they have been used in the bank and lottery cases to come at the money or property of the people.
Political economy measures itself by money, and it therefore admits, that like money it may be used to establish either liberty or tyranny. To introduce the latter, it constantly asserts that contributions for creating great individual capitals, or taking away their money, is in fact, giving money to the people. Yet all writers agree, that capital can only be created by the industry and frugality of individuals. In governments, however, where the design is to transfer the capitals thus earned and saved, cause and effect are cunningly transposed, and it is pretended, that capital begets industry and frugality, instead of their begetting capital. Having taught the people to adopt this egregious error, the false species of political economy is freed from restraint, and entrenched against detection. It then launches into many contrivances for transferring property, under pretence that capital creates industry; and for impoverishing the people to create an order of rich capitalists, under pretence that this order will enrich the people. Writers, subject to this fraudulent species of political economy, are objects of compassion. They writhe under the effort to find natural causes for its effects, or to convert artificial phenomena into effects of natural causes. Hence they form complicated systems about labour, stock, profits, wages, rents, capital, and wealth, compounded of facts, without distinguishing those which may be called natural, from those which are artificial. By excluding from their systems an exposition of the artificial and fraudulent modes, used to produce the facts with which they build their theories, they have relinquished the true causes of the apparent phenomena, and assumed the artificial and legal causes of the existing European system of political economy, as being the legitimate children of nature. They have shrunk from the facts, that no one system of European economy regards natural rights; that all are merely artificial; that none are bottomed upon the freedom of industry and the safety of property; that no one enables individuals who earn capital, to save and employ it for their own use; that it is the object of all to transfer as much as possible of individual earnings to capitalists; to monopolize and not to diffuse capital; that these stratagems are fluctuating; and that their success is tyranny to a vast majority of every nation. How can these systems of political economy be relied upon, when they have excluded the consideration of the artificial modes by which the effects have been produced from which they reason; and of all those natural rights which a true and honest system of political economy will respect and preserve? Is it true, as they assert, that natural causes and not fraudulent laws, produce the transfers of property by which capital is accumulated, and nations enslaved? Were the feudal, the hierarchical, the banking, the funding, the lottery, and the protecting-duty modes of accumulating wealth in a few hands, all forged in nature's workhouse? Instead of detecting fraudulent laws, and then reasoning from the principle, that free will, industry, demand and supply, would naturally regulate the acquisition of capital; all the European systems of political economy, finally draw their conclusions, however copiously they may be sprinkled with just principles, from legal abuses. Their facts being chiefly delusive, as flowing from corrupted sources, their conclusions are all accommodated to the policy of transferring property by law.
Our protecting-duty system, borrowed from fallacious European theories, is only defended by the same mode of reasoning. The report previously examined has entirely excluded a consideration of natural rights; and wholly neglected to enquire what are the effects of the legal modes which we have adopted for transferring property and accumulating capitals, upon these rights; whether they have been good or bad, and whether they have both accumulated a few great capitals, and also enriched the people, as they have long been promising. Has political economy nothing to do with the legal and artificial causes which have conspired with unavoidable but temporary circumstances, to produce our distresses? Can it discover no difference between the payment of five or an hundred millions annually; taking into the account the fall in the price of products; by productive to unproductive labour? Is it unable to discern, that if money appreciates and prices fall, the distresses of productive labour must be correspondently increased by legal or artificial transfers of property, remaining, as measured by money, numerically the same? What becomes of its pretended sympathy for the general distress, when it shuts its eyes upon the chief circumstance by which it is caused? How can it cure evils which it will not see? It will not see that enormous transfers of property from industry to capitalists, is tyranny to the rest of the nation. It will not see that an appreciation of money and a depreciation of products has aggravated this tyranny. It will not see that the remedy is only to be found in a repeal of the legal modes for transferring property. It will not see that the oppression ought at least to be softened by reducing these transfers to the value meditated by the laws imposing them, instead of leaving them to be doubled or trebled in value, contrary to the intention of these laws, by suffering casualties to become legislators. But it can see that contributions to capitalists, though accidentally doubled or trebled, ought to be further increased by new laws. Is this species of political economy, blind to phenomena so glaring, blind to the general benefits resulting to the community from leaving capital in the hands of industry, and awake only to the policy of transferring it to a few capitalists, to be mistaken for a patriot upon its own word and honour? Or is it the very species of political economy adopted by European governments to plunder the people, and defended by European writers, to court the favour of wealth and power?
If I was examined upon oath, in perpetuam rei memoriam, my deposition would be as follows: This deponent saith, that he was twenty-one years of age at the commencement of the revolutionary war, from whence to this time he has paid all the attention in his power to the progress of public affairs, and to the prosperity and happiness of individuals, for which his opportunities have been considerable. That he believes both national prosperity and private happiness to have been considerably greater in the times of Washington and Jefferson than at present, and that he thinks the difference is entirely owing to the difference between the rates of taxation, the amounts of property transferred by exclusive privileges, and the restrictions upon commerce, at the respective periods.
To the truth of this deposition the report of the Committee bears ample testimony. It declares “that no national interest is in a healthful condition.” Capitalists are made sick by a plethora, and the people by too much evacuation. Do not these diagnosticks prescribe the remedy? We may trace these maladies from a few historical causes. A very extensive predilection for the English form of government existed at the commencement of the revolution, embracing a multitude of men of great talents, distinction, and virtue. Of these a small number became tories, as they were called; that is, they conscientiously preferred the English, and were adverse to a republican form of government. But by far the greater number, yielding to public opinion, were dragged by it to independence. Many of these, however, retained buried in their bosoms, an affection for the English form of government, and only transferred the predilection from its existence in England to its existence in this country. It certainly arose from an honest conviction, but this conviction was as certainly produced by former habits of thinking, and not by an unprejudiced estimate of the principles, most likely to produce national prosperity and individual happiness here. It is well known that at the termination of the revolutionary war, an intrigue was formed; not by the tories, who remained excluded from public confidence and public affairs; but by gentlemen of great influence, talents, and integrity, to introduce something like the English form of government; that a strenuous and ingenious effort was made to gain the army; that a crown or something like it was offered to the general; and that he magnanimously rejected the temptation. This rejection is a proof that Washington preferred our Federal policy, imperfect as it was, both to the English form of government, and to the consolidated republic. Shall we follow or renounce his example? Shall we receive a consolidated republic or a monarchy from pecuniary combinations and the supreme court, which he could not be induced to approve of by the most brilliant temptation, nor by the authority of many of his compatriots? We cannot all be made kings.
The defects of the old union soon suggested its improvement, and the convention for this purpose took place, before the predictions which had suggested the experiment upon the popular leader of a veteran army, were diminished. They were not effaced, because they could not find a Bonaparte, and being still alive, they naturally produced propositions for introducing a consolidated republic, by reducing the States to corporations, entirely dependent on the Federal government. These were probably sustained by the same arguments which had recently been urged to Washington to effect a similar purpose; but they were finally rejected. This rejection discloses a disapprobation of a consolidated republic by a majority of the convention, and subjoins to the opinion of Washington, the solemn judgment against this form of government, of a body of men as enlightened as any which were ever assembled. The weight of authority, patriotism, and talents, was thus so far opposed to a consolidated republic which is attempted to be introduced, without having recourse to any similar tribunal. But the respectable minority which then attempted by fair means to introduce it, caused an alarm. The secret leaked out, and suggested amendments to the constitution, for the purpose of preventing future indirect attempts to introduce a consolidated republic. “The powers, not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” If such was not the sole intention of this amendment, it had no intention at all; if it was to defeat this intention by absorbing these reserved State powers into a consolidated republic, it is unconstitutional.
The constitution came into operation when the predilection for the English form of government, or for a consolidated republic, still subsisted, and the respectable minority by whom it was conscientiously entertained, were soon reinforced by powerful auxiliaries. The partial funding system suddenly created a mercenary faction, fearful of losing a vast unearned acquisition, and well qualified as partisans for the power which bestowed and could only secure it. The old tories gradually re-instated themselves in public confidence, and brought an accession of principles favorable to a consolidation of power. Exclusive privileges for getting money were invented, and concurred with a gradual but vast increase of taxation, to bring over many detachments of mercenary troops, to a consolidating policy. And these successive reinforcements more powerful and less virtuous than Washington and his army, have united indirectly to introduce a consolidated republic positively rejected by the convention.
In favour of this old project entertained at the conclusion of the revolutionary war, and renewed in the convention, the old arguments then secretly urged, are now openly repeated. The States, it is said, will obstruct or defeat the measures of the Federal government, unless they are subjected to a negative on the part of that government upon their own internal measures; and also to an affirmative power, by which Congress and the Court may make internal local laws. A single State may make local laws contrary to the will of all the other States. Ambitious men may use their State influence, to disorder Federal affairs, and even to destroy the Union. The checking power of election is more to be relied on, when exercised by all the States, than when exercised by one. And a supreme federal power over all, is necessary to prevent these inconveniences. Such arguments were undoubtedly urged and refuted in the convention. They defend the proposition made and rejected in that body for establishing a consolidated, in preference to a federal, republic. But the existing attempt to introduce the former, is infinitely more objectionable, than that made in the convention. There, it was proposed to invest Congress with a negative or restraining power over the State governments; now, it is proposed to invest the Supreme Court with it. The difference between these remedies manifestly involves an essential contrariety in principle. The combined elective power of all the States may reach one chamber of Congress, and might check, in some degree, a negative or restrictive power in that body over the State governments; but it cannot reach a single member of the Court, nor influence in the least degree such a power in that body. The elective check would have been attentive to a negative or restraining power in Congress over the States, because it could reach and control it; but it must be wholly inattentive to that power in the Court, because it can neither reach nor control it. The elective check, relied upon to defend a sovereign controlling power in Congress over the States, yields no defence against the same power in the Supreme Court; and therefore, though the minority which proposed, in the convention, to invest Congress with this power, might have contended that it would be in part subjected to this indispensable principle for the preservation of liberty, the same minority would have allowed, that a similar power in the Court would have been founded in the principle which defines tyranny, as being a great political power, without any elective responsibility. It conclusively results, that the mode of consolidation by the instrumentality of the Supreme Court, is infinitely more adverse to the great principle necessary to preserve a free government, than that proposed and rejected in the convention.
But passing by the claim of the Supreme Court, to a negative or restrictive power over the State governments, in the exercise of their reserved powers, as too inconsistent with the representative principle, even to have been proposed by the admirers of the English policy themselves, the project of investing Congress with this power, though rejected by the convention, is again forced upon our consideration. It is said, that it is safer to rely upon the elective principle, when exercised by all the States, than when exercised by one. I deny that this assertion is either constitutionally or logically maintainable. Not constitutionally, because the elective principle is co-extensively used and relied upon for the preservation both of State and Federal rights, and instead of intending that one moiety of this principle shall swallow up the other, each moiety had a distinct office assigned to it; one half was to superintend Federal powers, and the other half State powers. The elective principle in one State, never had a moral or actual right, to control the elective principle in another State, and having no such power itself, it could not convey such a power either to Congress or the Supreme Court. The people of all the States, far from claiming a power over the elective principle in each State, have themselves, if they are to be considered as collectively the authors of the constitution, explicitly reserved it to themselves, for the regulation and superintendence of the State powers also reserved. If such was not the case, if the State powers reserved and the elective principle were bestowed by the people of all the States, the people of no State would have a right to alter their constitutions, or control their governments, because these constitutions, and the powers of the State governments were established by the supreme authority of the people of all the States. The supreme authority which reserved State powers, could only modify or take them away, and, until this is done, each State government would have a right to hold and exercise under the authority of the people of the United States, exactly the powers, neither more nor less, reserved to it by this supposed supreme power of the people of all the States, over the people of one State; because the inferior elective principle could have no right to undo that which the superior elective principle had established. But of this supreme elective principle in the people of all the States, over the elective principle in each State, as to reserved State rights, never did exist, and never was recognized, then as to these reserved rights, the elective principle in one State remains independent of the elective principle in every other, and possesses the inherent moral right of individual self-defence.
But how can the posture masters of words, dispose of the clear and explicit term “respectively” used in amendment of the constitution? Could a plainer [word] have been found in the English language to express its meaning? Powers are reserved to the United States “respectively.” Whatever these were, they were reserved by this expression separately and not collectively to the States. Either the right of internal self-government was among them, or no State has any such right. Among them, also, was the unimpaired right of election in the people of each State, for the purpose of local State government, or the people of no State have any such right. The people of each State held no other power which the reservation could secure. The reservation of this right, would have been quite nugatory, coupled with a power in Congress and the Supreme Court to render it inoperative. State local rights, being reserved separately to each State, cannot be either preserved, or taken away by the States collectively and a right of separate preservation must attend each separate reservation, or the reservation is void. Many men have no authority to defend one man's title to his estate. Massachusetts could not resist the aggression upon the local law of Virginia by the Supreme Court in the lottery case, nor that upon the local law of Ohio in the bank case. It was for this unanswerable reason, that the right of internal self-government was reserved to the States separately or respectively. There existed no medium between this separate reservation, and a consolidated republic which was proposed and rejected. Had the constitution, after having reserved the right of internal self-government to the States, or the people “respectively,” added, “but Congress or the Supreme Court shall have a power to control this reservation to the States or to the people, respectively,” it would have been an absurd contradiction, and the same absurdity attends such a construction of the constitution. If the States respectively, cannot resist aggressions, respectively or separately made upon the separate right of each to internal self-government, they cannot be resisted at all; because the right being separate, the resistance must necessarily be separate also, or a consolidated republic must ensue. To prevent this, the reservation was to the States “respectively.” The elective power in all the States, had no original right to control the elective power in each State, or to regulate its government either externally or internally. As to the former only, the separate elective powers of the States were united; but as to the right of internal self-government, the separate elective power of each State was left untouched by the limitation of powers confided to the Federal government; and also by the positive reservation. With respect to local State government, the States were left in the same relation to each other, which existed previously to the Union; and since this relation never invested the people of all the States, with any power to regulate the internal government of one State, the people of all the States could not invest Congress or the court with a power which they had not themselves; nor could Congress by a judicial law, invest the Supreme Court with the same power. It seems therefore, quite certain, that this project for introducing a consolidated republic, is literally inconsistent with the amendment, intended to preserve a federal republic.
The expediency of investing Congress or the court, or both, with a negative power over the local acts of the State governments, opens a wider field for reasoning. If it is conceded that fellow-feeling and responsibility bestow on representation all its honesty and all its value, it must inevitably follow, that the principle of election, as exercised by all the States in reference to the Federal government, does not possess either of these essential characters of representation, in reference to the State governments. These do not exercise their reserved rights in one mode, nor adopt the same internal regulations. It cannot therefore often happen, that a conflict will take place between federal and reserved powers, which involves all the States equally and it will but seldom happen that more than one State at a time will have occasion to resist an aggression upon its reserved rights, on account of the dissimilarity between the laws of the States respectively. In such cases the people of the other States possess neither of the essential characters of representation as to the State attached; and, therefore, by their election, they could not infuse these characters into their representatives. By considering the people of the other States or their representatives, as a representation of the people of the injured State, the great principles of election and representation for the freedom and security of internal State government, would be completely destroyed. It is obvious that sympathy and responsibility as to internal laws would be thus obliterated, or at least too feeble to repel particular aggressions upon the right of internal self-government, and that if some inoperative sympathy might exist, there would not exist a vestige of responsibility in the people of the other States, or in representatives chosen by them, to the people of the injured State. Neither of them feel an internal State law. By substituting this fungus of representation, this metaphysical prolusion, this oyster-like substratum, without an organ of active vitality, as a foundation for State rights, and the solitary security for a federal government, instead of State election and representation, the constitution is supposed to have created two of the most effectual weapons for the destruction of both which could have been devised. One is a maxim—Divide and conquer. Division is an inevitable security for victory, if the Federal government should be prudent enough to assail State rights successively, as indeed it must generally be, from the unconnectedness of State legislation. But as if this weapon was not sufficient for their demolition, it is rendered inevitably fatal by the superadded doctrine, that no one of these divisions, no single State when assailed, shall possess the right of self-defence, but must stake its existence or liberty on volunteers uninfluenced by fellow-feeling or responsibility, and who may possibly be influenced by an adverse local prejudice. If it is admitted that a division of Federal and State powers can alone prevent a consolidated republic, that this species of government threatens us with a worse, and that a genuine representation of local State rights is necessary to sustain this division; it is evident that this representation must be of the States “respectively,” or that the end cannot be effected. A proof of this conclusion results from considering the nature of the united representation of the States. There is great ingenuity in eluding this proof. We are told that it is the people of all the States; and that the people of all may be more safely relied upon to preserve both State and Federal rights, than the people of one. This is very plausible. Federal representation is the people, therefore we have already a consolidated republic; because the people of all the States are sovereign, representation is the people, and sovereignty can do any thing. The guardianship of State rights, reserved to the people of each State respectively, is thus transferred exclusively to Congress, which may again transfer it to the Federal court, and the work of introducing a consolidated republic is dexterously finished. But what were the powers which confederated? If they were not both something and also distinct, they could not have confederated. If they were any thing, they were different societies of people. The existence of societies supposes a sovereignty in each society, and this sovereignty can only be found in the people of each State as associated. If the Constitution is not a confederation, but the work of all the people of all the States, acting individually and not in an associated capacity, they yet thought it expedient for the preservation of their own liberties, to establish a Federal government for some purposes, and State governments for others; and resorted to representation for effecting both objects; but it is now urged that in this they acted unwisely and thus we are brought back to the old question of a consolidated republic, considered and rejected by the people themselves; if the convention was the people, and the project secretly proposed is now openly advocated, not in a convention, but by unknown, avaricious, or ambitious individuals.
The most recondite artifice and contradiction, and yet the most effectual for destroying the division of power once thought to be expedient and wise, couches under the great argument used to effect this object. Shall the people of one State construe the constitution for the people of all the States? The ingenuity of this argument consists in its capacity for receiving, from the advocates of a consolidated republic, the answers both no and yes. If the question is divided, and they are first asked, whether one State can defend its reserved rights, they answer No; but if they are asked whether Federal powers can be extended, through the instrumentality of one State, they answer Yes. In this case one State may construe the constitution for all the States, because it will advance the project of a consolidated republic; but not in the other, because it will sustain a federal republic. Thus, if one State submits to have one of its reserved powers questioned, tried, and abolished by the Federal court, this submission and decision becomes a precedent for construing the constitution, though the act of one State only, and is binding on all the States in the eyes of the consolidating project, though they were not parties to this species of political or constitutional law-suit, any more than they would be parties to a political collision between the Federal and a State government. Accordingly the bank suit of Maryland is to bind Ohio, and the lottery suit of Virginia is to bind all the other States. It might even happen that some interested but secret motive might, by these law-suits, bring in question State powers, with an apparent affectation of defending them, but a real intention of losing them; and that thus these State powers might be gradually retrenched and finally destroyed by the collusions of individuals. In point of wisdom, safety, and expediency, which is best—to depend upon ex parte or collusive law-suits for the construction of the constitution, which may alter it without the consent of the people or the States; or to depend upon the elective power of the people of each State, to keep their representatives within the bounds of the constitution? By one mode of construing the constitution, the right of internal self-government is lost to all the States; by the other, all retain it, because the resistance of one State to an unconstitutional aggression, leaves the rest free to use their own judgments, and to resist or not, according to their own will, should they also be attacked. But the mode of making constitutions as common law is made, by precedents made by judges, is conclusive upon the States, without any exercise of their judgments at all. If inconveniences may attend the right of a State to construe the constitution; which are however more speculative than real; yet it may be better to suffer them, than to incur the misfortune of a consolidated republic; or at least inferiour to those which will arise from suffering the Supreme Court by the instrumentality of one State, or some faction, or some individual fraud, to splinter the constitution. Election is a powerful remedy against inconveniences arising from the former policy; is none against those arising from the latter. It would be strange, whilst we cling to the idea of representation in making laws, that we should imagine it to be unwise in making constitutions. Ambition however has always thought it highly inconvenient. Here, as is commonly observable in the freest countries, it is particularly ingenious. It proposes to destroy a real and active majority, by the idea of an imaginary and inactive majority and a representation in fact, by pretending that it will produce more inconveniences than no representation at all. According to this recent doctrine, no one political department can vindicate the powers committed to it by the conventional majority, because no one department represents a majority of people in all the United States. This conventional majority being dead, and incapable of current use, is however made to furnish an idea with which to destroy the rights of the political departments created by it when alive. But the argument proves too much for those who use it. The climax by which it is brought out is this. The constitution is the act of the people of the United States; those representing a majority of these people, have the exclusive right of construing it; but the State governments do not represent this majority, and therefore they cannot construe it at all. If the argument is sound, the conclusion is, that as no political department represents a majority of the people of the United States, none can construe the Constitution. The legislative Federal department is far from doing so, from the construction of the Senate; and the House of Representatives is only one constituent of that department, of itself, imbecile. The argument, however, is unsound under any policy, by which a majority establishes divisions of power, because the checks and balances of such a policy are exercised, not by departments representing a majority, but by departments acting under the authority of the majority which created them; and if these divisions are deprived of the right of self-preservation, by which only such checks and balances can effect the objects intended, it is, under a feigned submission, an actual rebellion against the majority by which they were established. Therefore the powers of the States being bestowed or reserved by a majority of the States or of the people, no matter which; any State would disobey the majority, and thus betray the national right of self-government in the federal form, by suffering itself to be deprived of these powers. A division and a consolidation; checks and no checks; cannot exist together. Political checks are designed to counterpoise each other, and the majority which creates them, never intends that a pretended veneration for an inoperative idea of itself, should defeat its own precautions to preserve its own liberty. The majority which made the Federal Constitution, defined the only modes by which a majority for altering it could be brought into operation, and this definition proves that an inoperative idea of a speechless majority, was not contemplated as sufficient to destroy the divisions of power, established by an articulating majority. The provision for an articulating majority, was suggested by the consideration, that political divisions of power were not subjected to any other tribunal. Loyalty was expected from these divisions of power by the majority which created them, in exercising and defending their respective trusts; and by providing a mode for supervising them, by a majority only both of the people and of the States, it disclosed an intention that they should be supervised in no other mode. The specified supervising political tribunal would have been unnecessary, if the supreme court had been contemplated as such a tribunal. Suppose it had been proposed in the convention “that, for the preservation of the Union, no political department, not representing a majority of the people of all the United States, should have a right to defend and maintain the powers allotted to it.” Would the adoption of this amendment have been wise or expedient? Yet its adoption would have been exactly equivalent to the chief argument, by which the right of defending themselves individually is denied to the States.
This argument is enforced by the most exquisite derision of the States, of the people, and of human nature itself; the derision of contempt under an affectation of fear. It is gravely suggested that the Union is endangered by the ambition of the States. And what are the proofs of this tremendous ambition which meditates the destruction of the confederation? One State prohibits within its own territory an exclusive banking privilege, and another, the sale of lottery tickets. Is it not a broad grin at common sense to tell it, that such local State powers will destroy the Union? It was once asserted that the alien and sedition laws, like banking and lotteries, were necessary to preserve the Union. They are dead and the Union lives. Had the States resisted those laws successfully, by judicially liberating the persons unconstitutionally prosecuted under them, a great outcry would have been uttered by the consolidating party, that the Union was destroyed; yet it would have stood exactly where it now does. If the banking and lottery laws were also dead, might not the Union still live? Did either of these State resistances touch any of the Federal powers necessary to maintain the Union, or disclose the least symptom of ambition in any State to obtain any active power? The general interest was excited, though slowly, by the alien and sedition laws; because, though partially executed, they were of a general import, and produced a remedy, of which encroachments interesting only to one State are not susceptible. The laws were consigned to the grave, and the party which made them dislodged from power. Was this destructive of the Union, or did it teach a consolidating faction, that it was safer to assail the States in detail, than by general attacks? Two observations of great force present themselves; one, that as the Federal government was designed to operate generally upon all the States for the sake of union, its partial operation upon one or a few, dismembers the intended combination and reinstates separate inimical interests; and is therefore radically unconstitutional, as defeating the very end and design of the Constitution; the other, that these frivolous charges of ambition, though egregiously magnified by all the arts of misrepresentation, only demonstrate that no such ambition exists, or that the States do not possess the means for gratifying it.
But the same frivolity furnishes very different evidence against the Federal government. By exercising or assailing trifling local powers, having no force able to destroy the Union, and not weakening the great powers with which the Federal government is invested to preserve it, an intention of gradually establishing a consolidated republic, by which the very term “federal” will be substantially effaced from our political code, and the Union radically destroyed, is demonstrated. I know a rich man, having a large estate of fertile land, whilst his poor neighbour owned only one hundred adjoining acres of inferior quality. Upon this hundred acres, however, the rich man cast his eye; but as his neighbour did not choose to part with his land, the rich man by various little aggressions involved the poor one in successive vexatious law-suits; forced him to part, first with one acre, then with two, at length with three or four; and finally, the rich man got the whole hundred acres. Yet his partisans all along, loudly insisted, that the rich man was not avaricious, and had no design to get the poor man's land.
To advance a similar transfer of political property, it is said that the States have no original rights, and never possessed any character beyond that of mere corporations; and the inference is, that having no such original rights, their reservation had nothing to operate upon. Admitting the assertion to be true, the inference does not follow. If the people had a right to establish a government, they had a right to establish corporations. Suppose they had established a bank in each State, previously to a Federal constitution, with charters specifying the powers and rights of such corporations, and had declared by the confederation, that these powers and rights should be reserved to these existing corporations; could the Federal government have rightfully taken them away? The State constitutions are at least as good as such charters; and admitting that the convention was a meeting of the people of the United States, though such a people have never yet met, even by representation, since the Senate is not a representation of them; and that the pre-existing elements of political power were all dissolved by this ideal meeting; yet this meeting might certainly revive these elements, and divide political power among them, for the purpose of establishing a free government, or a federal republic.
I deny, however, that any such dissolution of existing political elements took place. So far from it, the political element of election and representation in the States respectively and separately, was that to which the Federal constitution was referred, and by which it was established. Did the meeting of the convention dissolve this political element? If so, it could not possess any right to establish or reject the constitution. Did the establishment of the constitution destroy both this political element and the State governments; if so, as the constitution does not re-create either, both these elements wrongfully exist. If they exist rightfully, not being created by the constitution, they exist separately and independently of the constitution, and of course independently of the people of the United States, even supposing that they made the constitution in a consolidated character.
The dissolution of the existing political elements could never have been contemplated, because the constitution from beginning to end, recognises their existence, and makes them the foundation of a confederation. If they were dissolved in any mode, nothing is left for the Federal government to stand upon. Were they however, first dissolved and then revived, this doctrine would still leave them invested with the same powers and rights. But it would be an egregious violation of an established political principle; since if our State constitutions and governments were both dissolved and revived by the people of all the States, the conclusions would follow, that the people of all the States may create constitutions and governments for each State; and that the people of each State have no moral right to create constitutions or governments for themselves. What does the right of self-government say to this doctrine?
Nor is it true, that the State governments had no original powers, except by supposing that “original powers” means powers which had no origin. As to political powers, the word “original” is not susceptible of this meaning, and it is sufficient that the State governments did possess political powers originating from the people, to confirm their reservation. This soundest origin of power, can never be overturned by any power originating in construction. The powers of the Federal government are only good, so far as they also originate from sources possessing a moral or natural right to confer them; and if political powers are obtained in any other mode; if they can be conferred by the words “sovereignty, construction, necessity, and convenience” as originally appertaining to them, the idea of self-government is not applicable to a community, and only to its government.
The most formidable weapons used for destroying a federal, and introducing a consolidated republic, are flattery, falsehood, and scurrility. The people are first flattered, by being told, that they are very wise and very watchful, and will therefore elect good Federal representatives, and also control their usurpations. Then they are reproached with being both foolish and heedless, to prove that they will elect State representatives, who will be lawless, ambitious, and ignorant; that these State representatives insult them by vindicating State rights, reserved by the people, to be preserved and exercised by these same representatives; that by such vindications they are endeavoring to deprive the people of self-government; that these insolent rulers of particular States, especially of large States, are endeavouring to destroy a Federal form of government; and that these same people, so wise and watchful, as to be a perfect check upon their Federal representatives, are so stupid and blind as to be no check at all upon their State representatives.
Similar declamations are invariably used to destroy every species of political check or division, to concentrate power, and to rob nations of liberty. Ambition can resort to them in every case. Does the President retain or use his legislative negative? It is a silent insinuation that the people are incapable of self-government, and unqualified for controlling Congress themselves. Does the Senate control the House of Representatives? It is an arrogant assumption of the rights of the people, by whom that House is elected. Do the judges control unconstitutional laws? They commit treason against the majesty of the people. Does a particular State resist a particular aggression upon its internal right of self-government? If it is large, it is ambitious; if small, it is contemptible; and either large or small, it behaves arrogantly to the people. Are Federal rulers ambitious? The people will control them. Are State rulers ambitious? The people will not control them. What are the people? Acute statesmen for introducing a consolidated republic, but egregious blockheads for preserving a Federal republic.
The use made of such contradictions, falsehoods, and flatteries, though fraudulent, unconstitutional, and illogical, requires great attention. Self-government is flattered to destroy self-government. It is not true that the people do govern themselves. They are governed by the governments which they have instituted for that purpose, and the essence of their right of self-government, consists in their reserved power to supervise and control these governments. Limited governing powers have been assigned to the Federal and State governments, reserving to the people in the former case a great portion, but not the whole, of this essence of the right of self-government, and in the latter, its complete essence, as the best security for civil liberty. If the control of the State governments is taken from the people by the Federal government, both their right of internal self-government is lost, and a power is raised up able to suppress, at its pleasure, the residue of the right. Various concentrations of power have proved able to do this, in a monarch, in an aristocracy, and in representative bodies. In France, the accumulation of powers in representative bodies, hoarded up a treasury of ambition and avarice, which proved to be an ample fund for introducing a despotism. Against the danger of an accumulation of power at one point, to their birth-right of self-government, the people established the division of powers between the Federal and State governments, reserving to themselves the control of both by election. One half of this control, constituting the essence of the right of self-government, is lost, if the Federal government should usurp the power of controlling the State governments, or if the State governments should usurp the power of controlling the Federal government. Will sovereignty, or the right of self-government, in the people, remain entire, after one half of it is taken away? How happens it that this principle is so excellent for the preservation of civil liberty in reference to Federal powers, and so detestable for the preservation of civil liberty in reference to State local power?
The flattery bestowed on the right of self-government, in order to transfer one moiety of its controlling power to the Supreme Court, still more evidently discloses the enmity of the consolidating doctrine towards it. How can the people, either by State or Federal elections, prevent the subversion of the division of powers, made to preserve their right of self-government, if this court can alter it? It maybe answered, by a convention. To this it is replied, that the same remedy will reach State governments, but that their usurpations may be also reached by the easy and current remedy of election, so that the principle of self-government is infinitely more applicable to the State governments than to the Supreme Court. It is also more perfectly applicable to the State governments than to Congress, because the Senate is not a representation of the people of the United States, nor exposed to any influence from the right of self-government, unless such a right is admitted to reside in the States respectively. I cannot discern how the right of self-government can exist in relation to internal State measures, by transferring its control over these measures, either to the Federal Senate and House of Representatives, or to the Supreme Court.
It is however said that this transfer will be wise, because State functionaries are or will be ignorant, ambitious, and avaricious. This argument is neither philosophical nor founded in truth. It is inconsistent with sound reasoning to suppose, that one set of men invested with power, will be exposed to these bad qualities, and another not. The inconsistency is moreover aggravated, by supposing, that the influence of ambition and avarice will be least, where the temptation is greatest. Our system of government is founded upon sounder principles. It evidently believed in two very different suppositions; one, that the community contained materials for both the Federal and State governments; the other, that the men invested with the powers of either, would be liable to the frailties of human nature. The reproaches of ignorance, ambition, and avarice, exclusively applied to the State functionaries, are therefore a direct attack upon the principles of self-government itself. What confidence can be placed in that principle, if the people cannot, or will not furnish individuals capable of executing a political system, deemed by them necessary for preserving the principle itself? And what more contemptible character can be given of the people, than that they are unable to discern the difference between concentrating and dividing the highest provocative of the lusts of ambition and avarice? If the erect and manly principle of self-government can be taught to believe, that the community will be exhausted of its talents, virtue, and patriotism, by supplying functionaries for the Federal government that those to whom the State rights are confided must be drawn from a moral wilderness; and that a monopoly of power will chasten men of ambition, just as a monopoly of money will chasten them of avarice (as it is also desired to believe) this great principle cannot be either a good theoretical or practical politician; it must be admitted to know nothing of human nature, and it is of course unable to preserve human liberty. Is it not notorious that a monopoly of power is at least as pernicious to human happiness as a monopoly of money; and that the capitalists of the first absorb, steal, or seize human rights even more atrociously, than the capitalists of the last do property?
If the Federal court can prohibit State legislation by injunctions; can sequestrate State treasuries; and can imprison State functionaries for contempts in obeying State laws; I know not what can prevent it from exercising the same powers over the Federal government; or why it may not imprison both Congress, the President, State legislatures, Governors, and Judges. Such a power over State functionaries only, enables it to stop the wheels of government, in spite of the self-governing right, and is as hostile to that right, as any concentrated power can be.
Until men are cleansed of ambition, it is to be expected in both the Federal and State departments. Self-government thought it best to make the ambition of one department, a counterpoise and check to the ambition of the other. It is now told that it will be made safer, by giving to one a monopoly of ambition, and enabling Federal ambition to enlist State ambition as an ally. But will not the right of self-government be more secure, by leaving to the people of each State the control of State ambition, than by converting it into an instrument for Federal ambition? If State legislatures shall usurp an unconstitutional share of power, election can control them. It is more frequently resorted to for this purpose in the States, than in the Federal government. Why will the people detect ambition in one department and not in the other? Why is the remedy good for every thing in one case, and good for nothing in the other? The people have two rights of self-government, one for Federal or general purposes, the other for State or local purposes. But a new idea is invented to destroy one right, under pretence that the destruction of one is necessary to preserve the other. It is contended that the Federal government must either be considered as an alien to the people; or, that it must have the right of the people to control the State governments in their internal regulations. If the word alien is applicable to the subject at all, it is in the relative situations of the States to each other, as to their local governments; and in the relation between Federal and State powers. The States may be called aliens to each other, with regard to their separate internal governments, as to which, no combination of States, in or out of Congress, have any right to dictate to one; and Federal and State powers, so far as they are divided, are alien to each other in the same way. If either of these aliens gains a right belonging to another, it must be by conquest or usurpation; and one or the other right of self-government must be taken from the people.
To flatter them out of one, they are told, that if their State governments should presume to defend it, they arrogantly intimate that the people are incompetent to defend it themselves. The same sophistry might, with equal propriety be urged against an attempt by their Federal legislature to defend the Federal right of self-government, as established by the Union. Must the garrison stationed in the political local fortress, called State self-government, be either traitors or calumniators of the people if they are faithful and brave?
In addition to the artifice of praising the Federal government in order to reflect contempt upon the State governments, the poorer trick is resorted to of calumniating entire States, which happen to be large, by charging them with a design of subjecting the rest, as a reason for increasing the power of the Federal government to guard against a danger so formidable. A great State is compounded of a great population, and the charge must either be true or false, applied to this population. There has not appeared the least symptom of a temper in the people of any State to infringe the rights of the rest. The number of the States is an insurmountable obstacle to such a speculation, and it is obviously fraudulent to use the petty struggles of individuals for offices or money, as evidence of so preposterous an idea in the people of any State. But the absurdity of this expedient for enlarging the power of the Federal government, even exceeds its destitution of truth. An increase of the power of the Federal government is the only mode, and exactly the best mode, for exciting the dormant ambition of the large States. Let that become supreme over State rights, and it bestows greater influence on the numerical superiority of the large States in the only branch of the Federal government, elected by the people. The reservation of State rights was dictated for the special purpose of preventing this numerical superiority from introducing a consolidated republic, by which the large States would acquire an unchecked jurisdiction over the small. It is by Federal, and not by State powers, that the smaller States are in danger of being swallowed up. The small States fixed their apprehension upon this danger, when the constitution was formed, and considered the reservation of State powers, and the limitation of Federal powers, as the only securities against it. If they were then right, by an extension of Federal power now, the power of the large States would be also increased, and the danger then feared, revived. If any great States are to be suspected of ambition, it must be those which pursue this policy, and not those which adhere to the policy of preserving State rights, originally suggested as a security against the ambition of the great States. The bank case did not proceed from the great States, nor the lottery case from the largest; and neither have any aspect capable of being tortured into the least proof of having proceeded from State ambition. Both these cases however illustrate the inattention naturally to be expected from States not directly assailed; and the ease with which the State right of self-government may be destroyed in detail, if it cannot defend itself. If the State right of taxation had been assailed in all the States, or if an emanation of internal power had been darted from the ten miles square, so as to be felt by every State, the opinion and sensation of every State in the Union, would have been the same with the opinion and sensation of the States particularly attacked. The impossibility of resistance where there is no practical injury, demonstrates a necessity for it where there is one, or there can never be any resistance at all. Virginia could not resist the aggression upon Ohio's right of internal taxation, nor Ohio the aggression upon the right of Virginia to prohibit the sale of lottery tickets. There are no rights where there are no remedies, or where the remedies depend upon the will of the aggressor.
To contend that the elective or self-governing right is sufficient to control the usurpations of the Federal courts, though limited to the House of Representatives; but that it is not sufficient to control the usurpations of State legislatures, though extended to both the Houses of which they consist; that it is wise and virtuous for one purpose, but weak and vicious for the other; that it is awake to its interest in one case, and asleep to it in the other and that the more it is restricted, the freer it becomes; is not less profound than curious. In such doctrines the cloven foot of the old English prejudices, which made tories of many respectable men, which suggested the intrigue suppressed by Washington, and which produced the efforts for a consolidated republic in the convention, is plainly discernible. The elective right of the people is limited in England to the House of Commons, as it is here to the House of Representatives, and the effort now making to confine all its efficacy within the bounds of this Federal restriction, will reduce it to the British model. This restriction was suggested by the purpose of securing, in the construction of the Senate, the existence of the small States, and not by the purpose of surrendering the perfect elective or self-governing right as to local State government, to the imperfect English model. As to the powers reserved to the States or to the people respectively, the perfect right of self-government was retained; but as to the powers bestowed on the Federal government, an imperfect right of self-government was submitted to; not for the purpose either of destroying the perfect right retained, or of forming a government by the English standard; but for the sake of effecting the union. It was never intended that the imperfect should swallow up the perfect principle, nor did the people or the States intend to transfer the custody of local rights as well as Federal powers, from the latter to the former. They have never expressed an opinion, that the representation in the British House of Commons is better for preserving the right of self-government, than the complete influence of election applicable to the reserved powers; and the eulogies on their virtue, wisdom, and capacity, for presuming the right of self-government, by electing only one legislative chamber, is like telling a pugilist that he will be a better match for his adversary by tying his right hand behind him.
To draw the people into the absurdity of considering their elective power over only one legislative branch, as the best security for all their rights both State and Federal, unbounded applauses of the Federal government are offered as proofs, that an unlimited confidence in that government, is better than the limited confidence reposed in it by the constitution. In biography, compounded only of encomiums, we perceive flattery and suppression of truth. If the Federal government has committed no errors, it must be super-human; but if it is administered by men, that, as well as the State governments, must be liable to mistakes. The present State of the country discloses the probability that errors have been committed by both, and the object of this treatise is to prove it. Instead of plunging into the endless war of commercial restrictions, may it not be better to adopt a system of neutrality? Might not a neutrality in wars of avarice be as beneficial to us, as a neutrality in wars of ambition, although we should be exposed to inconveniences from the commercial regulations of the belligerents? Might not our active and intelligent merchants often make those regulations beneficial to themselves? Would not the spoliations of cunning be more avoidable than those of force? Are belligerent exclusive privileges fighting for money at home, more avoidable than belligerent commercial restrictions fighting for money abroad? Is it wise in an individual to curtail half his expenses, when half his income is lost? Are not nations in this respect like individuals? If so, does not the question apply more strongly to governments which suffer the same expenses to remain, though doubled or trebled by a fall in the price of produce? Is there no similarity between a council of appointment to gratify factions with offices, and a Supreme Court to gratify factions with powers and money? Are such councils a better check upon ambition and avarice, than a genuine influence of the self-governing right? Are there not in every society, men who prefer a splendid and expensive government, as a fine market for their talents, to the general happiness of the nation; and will not these men constantly endeavour to repay the people for the money extracted from them, by approving the measures of a government which will gratify their lusts, and take away the comforts of the people, to buy talents or partisans at extravagant prices?
But the strongest argument in the eyes of those who are for introducing a consolidated republic, and the weakest in the eyes of those who are for maintaining a federal republic, is, that the first policy will preserve, and the second destroy the Union. To me it seems that these assertions ought to be reversed. The strength or weakness of a government ought to be graduated by the good or bad principles intended to be enforced or obstructed. A government well constituted for securing the principles of liberty, may be strong for that purpose, and if so, it must be weak for the purpose of oppression; and a government so constituted as to be able to oppress, must on the contrary be weak for the object of preserving liberty. Nations must construe the terms “strong and weak,” according to this distinction, or cease to be free. It is a sound distinction for obtaining a correct idea of liberty or tyranny. Every innovation which weakens the limitations and divisions of power, alone able to make a government strong for the object of preserving liberty, makes it strong for the object of oppression. A government strong to preserve liberty, and weak for introducing tyranny, is that best calculated for preserving the Union. Both this strength and this weakness, are admirably provided for by the division of powers between the Federal and State governments. To the Federal government is assigned the powers of peace and war, of taxation, of raising armies, and of commanding the militia. They were given that it might be strong enough to preserve the Union, but not to make it strong enough to change it into a consolidated republic. To the State governments are assigned the powers necessary to make them strong enough to sustain a Federal republic, but not to destroy the Union. The powers entrusted to the State governments, are too weak to destroy the Federal government, and those entrusted to the Federal government being by far the strongest, require a greater degree of watchfulness. How are the powers of the Federal government weakened, in relation to the preservation of the Union, by leaving to the States the minor powers of making roads and canals, of excluding banks and lotteries, of providing for the poor, of exchanging their local productions freely, and of imposing internal taxes? May not the Federal government preserve the Union, though the States shall exercise these powers? Why then should the Federal government fish for the minnows reserved to the State governments? Why should the strong David covet the poor Uriah's ewe lambs? If he gets them, will he love Uriah the better, or kill him through fear of his resentment? Is this the way to preserve the Union?
The British Parliament attempted to preserve the integrity of the empire by the same consolidating policy, now proposed for preserving the Union; but its effect was disunion. Had it pursued the contrary policy of respecting local provincial rights, of trifling importance compared with great Federal objects; the division of the empire would not have been accelerated. It is in vain to reply to this admonition, that the people of the Provinces were not represented in the British House of Commons, because it does not remove the causes for State dissatisfaction, which provoked Provincial dissatisfaction, if the right of internal State government is obstructed. It was foreseen that even the members of our House of Representatives would bring with them some portion of the local prejudices, local ambition, and local avarice, which caused the division of the British empire; and therefore they were inhibited from exercising the local powers reserved to the States, to avoid the risk of State dissatisfactions, as likely to produce a similar division. The dissimilarities between the customs, climates, and occupations, of the States, rendered Federal representatives almost as unfit for local legislators, as the British Parliament; and suggested a prohibition against their becoming such, as the best, and probably the only policy by which the Union could be preserved. But what shall we say to the construction of the Senate? If the construction of the House of Representatives could not exclude those qualities of human nature, which led to the dismemberment of the British empire, can it be supposed that the same qualities would be eradicated, without the application of popular election; that the members of the Senate will bring with them no local predilections; and that they will therefore be qualified for exercising local governing powers, without any risk of exciting local dissatisfactions? Would not a minority of the people by a local legislative power in the Senate, govern a majority of the people as to their internal State affairs; and might not a majority of States, by means of such a power, disorder or abolish local rights, contrary to the will of a majority of the people? Would this have a tendency to preserve the Union? In this view also, the alleged distinction between the British Parliament and Congress loses its force; and the reasons which suggested the preservation of local provincial rights for preventing the division of the British empire, suggest the most careful preservation of local State rights, to prevent the dissolution of the Union. The object of the British Parliament, in attempting to make the Provinces tributary, was great, however unjust; it risked much to gain much; but the attempt of Federal government to make the State governments tributary in little powers; in banks, lotteries, roads, canals, and exclusive privileges; is exposed to the same risk without the same temptation: it is like a child's crying for poisonous fruit; and it risks the Union without a chance of any compensation, adequate to the risk. Could not the Federal government go on without craving such trinkets? To what can an eagerness for baubles be ascribed, but an intention to weave a net of precedents, to catch, hereafter, higher game than butterflies? A greediness for the insects of power, evinces a taste for its ortolans. Cannot the Union subsist unless Congress and the Supreme Court shall make banks and lotteries? Will the States long endure the doctrine, that their homely fare ought to be made worse to pamper exclusive privileges? If one painter could draw so true a picture of monarchy, as to cause a general shriek of abhorrence, and make an impression on the mind sufficient to break the iron sceptre of British despotism; may we not expect from another, a declaration of independence against the vampires of private property, sufficient to break the necromantic wand of political conjurers used to transfer power and money; the very objects, in attempting to gain which, British lost about an eighth part of the habitable world? Can it be supposed that the policy of drawing from industry those earnings by which she improves agriculture, encourages commerce, nourishes manufactures, extends knowledge, and fosters useful professions; in order to feed idleness, nourish luxury, extend corruption, and introduce tyranny will be a better security for the continuance of the Union, than an expulsion of fraudulent money changers from the temple of liberty? Or are we ready to adopt the motto of dying Rome “omnia erant venalia?”
About fifty years past I read a description of a British ministry (Bute's, I believe) by Edmund Burke. As well as I recollect, he likened it to a tesselated pavement; a Mosaick work composed of different coloured shells; a motley assemblage of discordant materials; so that when the members met, they stared at each other, and each wondered how he could have gotten into such company. Let us see if we are not compounding a government according to the heterogeneous model of this corrupt administration.
The people of the United States, and not the people of the States, made the Federal government; and therefore the Federal government has a right to exercise the powers reserved by the people to the State governments,
The States have no original rights, therefore they could not confederate; nor could the Federal government make the State governments, before it was made itself. Both being nonentities when the constitution was made, and being created at the same time, the Federal government became heir to all the powers of the people, as their more bulky production, though not the first born; and thus obtained a supremacy over State rights, though it did not create them.
Election is a complete security against Federal unconstitutional acts. It is not security against State unconstitutional acts; because all the States will elect wisely, and each State will elect foolishly.
As the same people will elect good men to represent them in one legislative chamber of Congress, and bad men to represent them in two legislative chambers of each State, the one House of Representatives, not having a power to make laws, is a safer guardian of the State local right of self-government, than the two houses.
Powers are divided between the Federal and State departments to restrain ambitious men in both. They are accumulated in the hands of ambitious men in one.
A federal republic is the best for maintaining a republican form of government over a country so extensive as the United States. A consolidated republic is better.
Confederation is union. Consolidation is union.
Each State has a right to make its own constitution. Congress has a right to make a constitution for each State.
Each State has a right to make its own local laws. Congress and the Court can repeal them, and make local laws for the States.
The people of the States had a right to make the Federal constitution, and to prohibit its alteration, except with the concurrence of three-fourths of the legislatures of the several States. Congress and the Supreme Court may make alterations without the concurrence of a single State, or of a majority of the people of all the States.
Powers are divided by the terms of the Union between the State and Federal departments. A portion of one department may make a new division.
The people have two rights of self-government, State and Federal. It is expedient to take away, or neutralize one.
Election is the best security against unconstitutional laws for usurping powers withheld either from the Federal or State governments. The Supreme Court is a better.
A mutual right of self-preservation, both in the Federal and State departments, is the next best. Such a right in one, is indispensable; in the other, pernicious.
The protection of property is an end of government. Its transfer by fraudulent laws is another end.
Government has no right to take away the property of one man and give it to another. It has a right to take away the property of all men and give it to one.
Taxes ought to be imposed for national use. They ought also to be imposed to enrich corporations and exclusive privileges.
The States have a right to impose local taxes for State use. Congress may make corporations with a right to tax the States, and prohibit the States from taxing them.
State functionaries cannot discharge their duties, unless they are free. The Federal courts may put them in prison.
The Federal department cannot constitutionally invade State rights. It may do so if it pleases.
The English parliament may alter their government, because the people elect the house of commons. Congress and the Supreme Court may alter our government, because the people elect the House of Representatives.
State judges take an oath to be loyal to the State right of internal self-government. Federal judges who take no such oath, may force them to break it.
Legislative and judicial powers are divided by the Federal and State constitutions. Federal and State legislatures may exercise judicial powers.
Congress may establish post roads. It may make all roads. It may make war; that is, it may make canals.
It may dispose of public lands; that is, it may give them away. It was instituted for common defence, general welfare, and to preserve the blessings of liberty. It was also instituted to establish monopolies, exclusive privileges, bounties, sinecures, pensions, lotteries, and to give away the public money.
It is prohibited from taxing exports. It is allowed to invest a capitalist interest with a power to tax them very highly and very partially for its own benefit, by means of commercial restrictions which diminish their exchangeable value, and foster a monopoly enhancing the prices of those necessaries which the raisers of these exports must consume.
It is empowered to govern ten miles square. It may therefore govern all the States internally, with the concurrence of the Supreme Court. This closes the drama by a catastrophe reaching all powers whatsoever.
Such is the chaos which is obscuring the original effulgence of our system of government, and gradually intercepting the genial warmth it imparted, whilst inspired by home-bred principles.
It seems to me, that the property-transferring policy is the true cause of all the collisions which have occurred between the State and Federal governments; and that if this policy was abandoned, these collisions would cease. That it is also the chief cause of the existing hard times. Money has been the sole object of funding, banking, capitalist monopolies, lotteries, and pensions. The alien and sedition laws were also dictated by the design of retaining offices and money, but they were infinitely less oppressive than the other money-getting projects. I cannot see how such projects will preserve the Union; on the contrary, a conviction that this property-transferring policy subjects industry and liberty to avarice and ambition, suggested this humble effort against their deadliest foe, in my eyes. Nothing is advanced from the least antipathy towards individuals, or from any selfish motive; and nothing is suppressed which seemed necessary for sustaining my convictions. If the property-transferring policy has been unfelt by the community, my labour is only lost; and whatever may be my opinion, it must be left to the reader's better judgment, whether this treatise is calculated to advance or diminish the happiness of the people.
Is it enthusiasm or reason which causes me to behold the finger of God conducting the United States into a situation happily contrived to try and place at rest for ever, the doubt, whether human nature is able to maintain a fair, free, mild, and cheap government? No other people ever were, or ever will be in so good a situation to settle this question affirmatively; and their practical testimony will therefore be considered as conclusive. A great nation was made to nurture them up to independence. A despotick government was made an instrument towards effecting it. Their soils and climates bestow subsistence and energy, without possessing the exuberant fertility or alluring softness, by which conquerors are invited and the mind is enervated. They cover the largest space of the whole world, in which one language is spoken; so that ideas may be exchanged, prejudices encountered, and opinions examined, by one easy, rapid and familiar mode of communication throughout all their territories. A surprising concurrence of circumstances excluded orders and exclusive privileges; and the experience of two centuries taught them that they could do without these remnants of barbarous ages, and instruments of civilized tyranny. Various sects of Christians were wafted into them, without being actuated by the intention of establishing religious freedom, which yet it sprung out of this circumstance without man's agency, except as the humble instrument of an overruling providence. Had all emigrants been of one faith, this half of human liberty would probably have been lost for ever. Apparently, accident also produced a division of States, not less efficacious in favour of civil liberty, than are different sects in favour of religious. The wonderful concurrence of circumstances for effecting both ends, admonishes us to behold the division into States as also the work of providence. We have been taught that religion flourishes best, without oppressing the people by expensive establishments, as if to disclose to man the next great truth, that civil liberty does not require them. Make religion rich, and she becomes the patron of vice. Let a government become expensive, and it becomes the patron of ambition and avarice. In neither case can self-government exist, because both are founded upon a supposed necessity, that men must be robbed of their property to preserve social order; and this policy invariably terminates in despotism. Providence seems to have shielded us against it, by producing the division of religious sects, and of a vast territory into separate States; and as if still more securely to protect us against the endless pretext for exposing nations to enslaving privileges and impoverishing expenses, drawn from the contiguity of powerful governments, so often used to destroy both religious and civil liberty; it has blessed us with a geographical position, apparently, that our understandings might have the fairest opportunity to detect impositions framed with national antipathies, but directed against private property; and increased our population, so as to place us beyond the reach of fear. In these circumstances I behold a miracle, worked for the salvation of liberty, and creating an awful responsibility on the people of the United States. They seem to have been selected to evince the capacity of man for sustaining a fair and free government; and if by their failure, with such pre-eminent advantages, they shall renounce the favours of heaven, and consign a whole world of endless generations to the tyranny of expensive governments, they will be reprobated as another infatuated and rebellious people, who have rejected benefactions visibly flowing from an Almighty source.
The commissions to overturn political idolatry thus entrusted to the United States, like that to overturn religious idolatry entrusted to the Jews, requires only that portion of sagacity, sufficient to discover a fact, of universal notoriety, incapable of contradiction, and acknowledged by every honest man, learned or unlearned. It is, that no species of property-transferring policy, past or existing, foreign or domestick, ever did or ever can enrich the labouring classes of any society whatever; but that it universally impoverishes them. To this fact not a single exception appears in the whole history of mankind. What then can be more absurd, than that the agricultural and mechanical classes, or either of them, should conceive that they will be benefited by such a policy? What except labour, can permanently supply the property transferred? The mercantile class, as merchants only, must be impoverished by this policy; but a few individuals of this class, more frequently evade its oppression, than of other labouring classes, by blending the capitalist with the mercantile character; and becoming bankers, lenders to government, or factory owners. So far also, as the agricultural and mechanical classes, are interspersed with individuals endowed with pecuniary privileges, such individuals derive emolument from the property-transferring policy, not as mechanics or agriculturists, but in their privileged characters. Those who gain more by banking, by the protecting-duty monopoly, or by loaning to the government, than they lose by these property-transferring machines, constitute no exception to the fact, that the property-transferring policy invariably impoverishes all labouring and productive classes. A few individuals are enriched by every species of tyranny, as its essence in civilized countries consists of transferring property by laws. If the general good is the end of self-government, and if the property-transferring policy defeats the general good, it also defeats self-government. Therefore the United States cannot fulfil the great purpose to which they seem almost to have been destined, except by a degree of sagacity sufficient to discern, that the property-transferring policy in all its forms, however disguised, is a tyrannical imposition, only sustainable by the same species of political idolatry, which has blinded mankind to their interest, and is yet enslaving most or all civilized nations.
The United States “are the light of the world. Ought their light to shine before men, that they may see their good works, or to be put under the bushel” of the property-transferring policy.
“Seek, and ye shall find; knock” down this policy, and the blessing of a free and fair government “will be opened unto you.”
“When the blind lead the blind, both fall into the ditch.” Let us not follow then at the tail of the Europeans.
“Beware of false prophets, which come in sheep's clothing, but inwardly are ravening wolves. Every good tree bringeth forth good fruits, but a corrupt tree bringeth forth evil fruits. By their fruits ye shall know them.” The United States have tasted the fruits of the property-transferring policy. Are they sweet or bitter?
The freedom of property “is an easy yoke and a light burden.” But the property-transferring policy galls our necks and bears heavily on our shoulders.
Let us no longer “sow our seed for the fowls to devour.” Is it better to be governed by the costly pageants of the property-transferring policy, than by the free animating principle of fair exchanges and unplundered industry?