Front Page Titles (by Subject) SECTION 6.: PROPERTY. - Construction Construed and Constitutions Vindicated
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SECTION 6.: PROPERTY. - John Taylor, Construction Construed and Constitutions Vindicated 
Construction Construed and Constitutions Vindicated (Richmond: Shepherd and Pollard, 1820).
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Blackstone has treated of “The rights of persons, and the rights of things;” but the rights of man include life, liberty and property, according to the prevalent fashion of thinking in the United States. The last right is the chief hinge upon which social happiness depends. It is therefore extremely important to ascertain, whether it is secured by the same principle with our other rights; and whether the security, if the same, ought to be equivalently efficacious; before we proceed to the contemplated examination of several constructions of our constitutions. The rights to life, liberty and property, are so intimately blended together, that neither can be lost in a state of society without all; or at least, neither can be impaired without wounding the others. Being indissolubly united, a principle which embraces either must embrace all; and by allowing it to constitute the only solid security for one, we admit it to be the only solid security of the rest. A sovereignty in governments, of every form, has universally claimed and exercised a despotick power over life, liberty and property. Whether enjoyed by a monarchy, aristocracy, democracy, or by a mixture of the three, it acknowledges no controul, and submits to no limitations. In England, this sovereignty has in many instances legislated death, banishment, and confiscation; and in many more, exercised a despotick power over property, by giving away the national wealth, not for the national benefit, but according to its own will, or to purchase adherents to sustain its own power. All this is a correct and legitimate consequence of the principle of a sovereignty in governments. Every thing within the scope of a sovereignty belongs to it; therefore the sovereignty of king, lords and commons in England, exercises an unlimited power over every thing, not only in the direct modes of cutting off heads, confiscating property, and lavishing the national money upon themselves and their dependants; but by the indirect modes of exclusive and corporate privileges, for enabling some individuals to obtain the property of others. To avoid such calamities, we have adopted the policy of transferring this illimitable power called sovereignty, from the government to the people; and the present question is, whether the transfer is partial or complete; whether our governments still possess a sovereign power over our property, like the English government; or whether they are only trustees in respect to that, as they are in respect to our lives and liberties.
In deciding this question, our suffrages are solicited by two distinct and opposite principles; the principle of a sovereignty in governments, with its boundless appendages; and the principle of divided, defined and limited powers, under the supervision and controul of the people. If we waver between them, we cannot guide our policy by any fixed rules, nor pursue any steady ends. If our accomplished men should halt between the two opinions, sometimes leaning towards one, and then towards the other; the people must rove in conjecture for representatives, be deprived of the means of judging as they wish by the distractions of complicated professions, and may often catch a tartar instead of a friend. If, like an archbishop Laud, leaning sometimes towards the church of Rome, and at others towards the church of England, politicians of high standing should endeavour to find a medium between these two principles, infinitely more remote from each other than the two churches; they may generate evils more calamitous than he did; and prepare the nation for a revolution, by weakening its affection for our present form of government. For my part, when I contemplate on one hand, the justice, the mildness, the restraints upon arbitrary power, the subordination of individuals, the security of property, and the social harmony, flowing from the sovereignty of the people, and the division and limitation of power by their authority; and on the other, the endless catalogue of overwhelming evils which have flowed from a sovereignty in governments; veneration and abhorrence seem as instinctively to rush into my mind, as in viewing the most lovely or the most hateful objects. Under such impressions, my reason is wholly unable to conceive what advantage can arise to mankind, from leaving property in bondage to governments; after other human rights have been released from the same species of thraldom, by transferring sovereignty to nations, and reducing governors to trustees. A constitution which should secure life and liberty, but invest the government with an absolute power over property, would only have the merit of forming a society of naked people, divested of those appendages upon which social happiness depends.
Pecuniary patronage, and the creation of corporations to transfer property, are among the appendages of sovereignty, because its power over property is unlimited and absolute; and mankind have undoubtedly suffered more injustice and oppression, from the exercise of these two sovereign rights, when sovereignty is lodged in governments, than from all the rest. In the civilized world, property is the franklin for conducting the electrical stream, either of liberty or of slavery, to invigorate or to degrade mankind. If therefore in exercising the right of self-government, and vindicating the sovereignty of the people, we have left a sovereign power over property, in the hands either of the state governments or the government of the union, all our work will be fruitless; because we shall have placed in the hands of power the precise instrument, with which it can root out any restriction however carefully planted. This error is the rock, upon which most republican governments have split. Possessing a sovereign power, that power included a right of disposing of and regulating both national and private property, by the will of the government; and the greater the number of individuals who participate of this sovereign right, the more people there will be whose avarice must be gratified at the public expense, and by private oppression. It has been owing to this uniform consequence of investing republican governments with a sovereign power over property, that nations have been constantly driven to take refuge from a host of sovereigns, under one, as the lesser evil of the two. The history of Athens furnishes us with many instances of the great wealth amassed by these republican sovereigns; and that of Rome exhibits the frauds and tyranny produced by a republican sovereignty over property, to an extent which would have been incredible, except that the enormous wealth of the few, the great poverty of the many, the perpetual struggles between these two parties for riveting or subverting the abuse, and its exchange for the sovereignty of one man, testify to their truth. These consequences of a sovereignty over property in a republican form of government, demonstrate the importance of the enquiry to ourselves, whether our governments do, or do not possess it.
The sovereignty over property, always claimed and often exercised by governments, regal, aristocratical, or republican, is a subject for historical research, which neither my capacity nor the limits of this work, will allow me to attempt. Such a history would detail the different forms it has assumed, the struggles it has produced, and the evils it has inflicted. It would prove that the notion of a sovereignty over private property was derived in England from the feudal system, and borrowed by us from England. Kings bestowed and resumed seigniories, and barons sub-divided them; both giving and taking away property at their will, and placing it in a state of vassalage to sovereignty. Out of the vassalage of property gained by conquest, grew the vassalage of property gained by industry. Under the impression of this habitual way of thinking in England, our revolutionary struggles commenced; and before we had transferred sovereignty from the government to the people, we yielded to its force, by only contending for representation as the solitary protector of private property. In the ardour of asserting that representation and taxation ought to be indissoluble, and from the forbearance of our government for a long time to assert a sovereignty over private property, the other securities it derives from our constitutional principles, have been too much neglected. In contending that our property could not be taken from us without our consent by our representatives, it was admitted, whilst we spoke in reference to the English system of government, that it might be both taken and expended by our representatives, without restriction; because, an unlimited power over property was an attribute of the English sovereignty. But when we separated from that government, this admission, suggested by the wish for a compromise, was renounced by the adoption of forms of governments founded in the principles, that sovereignty resided in the people, and that these governments were their trustees. Far from acknowledging that representation was the sovereign and solitary guardian of the rights of persons or of property, according to the English system, we abandoned that doctrine by sedulously inventing and prescribing sundry additional securities for both, as I shall presently shew. We resorted to election and representation, not to liberate our representatives from the principles and restrictions of our constitutions; nor to invest them with an absolute power over either persons or property; but as modes of carrying those principles into practical effect. Election is one security against their infringement, and cannot therefore be a good argument for justifying it. Such arguments are synonymous to that urged by criminals to excuse violations of civil laws. They teach their consciences to believe, that a risque of punishment balances every crime, as an exposure to the judgment of election is pleaded as an absolution from conforming to political law. In both cases, the remedy is enlisted as an ally of the misdeed, and converted into an incentive to commit that which it was intended to prevent.
The first, the most obvious and the most conclusive argument to prove, that our governments including those of the states, do not possess an absolute or sovereign power over the national property, arises from the admission, that they are the trustees of the people. The relation between principal and trustee is sufficiently understood to induce the reader to accord in the conclusion, that the trustee, so far from possessing an unlimited power over the property of his principal, is limited to the exercise of his authority and the execution of his trust, by the intention with which it was conferred. It has often been imagined that the state governments have been absolved from an obligation so obvious; and their absolute sovereignty has been frequently asserted, without considering that the doctrine would subvert the great principle (the sovereignty of the people) upon which our political superstructure is founded. But, if that principle is held sacred, then it follows, that the powers not delegated by the people to the state governments, are as undoubtedly reserved to them, as the powers not delegated to the government of the United States; and that the exercise of any undelegated power by either, under a belief that it will advance the publick good, is unconstitutional in both cases; because a right to seek for the publick good, without our constitutional limits, involves a power of finding publick harm. No reservation of powers not bestowed can be necessary; nor can this superfluous precaution in the constitution of the United States invest the state governments with a sovereignty over property, and only leave to the people the franchise of election for its security; so as to slide it back upon the scates of modern construction and old prejudices, under the same bondage which exists in England. This would be to repass the Rubicon, after we had gotten safely over it.
If the state governments are not sovereigns and only trustees, then their powers are restricted by the intention of their institution, and when this intention is ascertained, the restriction is also discovered. Were they invested with an unlimited power of taxation for the purposes of sustaining civil governments, and meeting national exigencies; or for those of transferring property from one man to another, or of gratifying personal friendship, charity or a love of fame, at the expense of their constituents? A sovereign has a right to exercise his caprice, his partiality or his benevolence at the expense of his subjects, because both their persons and property are his, and his power over both is uncontrouled. But, as mankind advanced in knowledge, the tyranny and falsehood of this doctrine were gradually detected; and therefore in many civilized nations it has ceased to be openly avowed, whilst it is yet indirectly practised; to avoid the effects of an overwhelming popular indignation, which the unconcealed despotism would inspire. In the greater portion of Europe, regal sovereignty at this day exercises an uncontrouled power over property by taxation, by an unfettered appropriation of taxes, by exclusive privileges, by corporate bodies, and by an unrestrained patronage. Thus the pretext of publick good is made into a mask with which to hide publick oppression. To this pretext, in England, and at length in France, has been added election; not to subvert the false principle from which the evil has arisen, but to render the sovereignty of the government over property still stronger; and harder to transmute from being an instrument for inflicting private misery, into one for securing national happiness. Accordingly, the sovereignty over property, claimed by the English government, has been more grievously exercised, than in neighbouring countries, where election has not been used to betray, that which it was designed to preserve. Yet the English government does not derive its absolute power over property from the partial franchise of election, but claims it as being one of the appendages belonging to the illimitable power called sovereignty; and indeed, two of the branches of that government have no pretensions to an accession of rights from the former source. If then this absolute power over property flows from sovereignty, and not from election; and if the people of the United States, and not their governments, possess the sovereignty; it follows, that the source of that stream of despotism, called a sovereignty over property, which has flowed over mankind immemorially, being dried up here, our system of government ought not to be poisoned by its effluvium. A sovereignty in the government is the proposition, from which an absolute power over property is inferred; but if the proposition be false, the inference fails.
Having established a principle so distinct, let us proceed to enquire, whether the state and federal constitutions recognize or explode it. To avoid prolixity, the reasoning must be often generalised. In some of the state constitutions, exclusive privileges are prohibited, because they operated fraudulently upon private property. In all, great attention is bestowed upon the publick treasury, to ensure the proper application of the publick property. And for both objects, divisions of power, distinct departments, specifications of rights and duties, and special assignments of patronage, were instituted. These unite to indicate an anxiety in the people to preserve their property, and to withhold an absolute power over it from the government. Suppose a state legislature should, as sovereigns have often done, directly take by law the property of one man and bestow it upon another. Would the judges sustain an act so despotick? And upon what ground could they annul it, except that the legislature were trustees only and not sovereigns? Is there any difference between offending against the same principle, directly or circuitously?
One of the chief motives for amending the union, was the sovereign power, unwisely assumed, and imprudently exercised by the state governments. To correct an usurpation in theory, and an evil in practice, the constitution of the United States prohibits the state governments from passing “any bill of attainder or expost facto law, or any law impairing the obligation of contracts,” and empowers congress “to coin money and fix the standard of weights and measures.” These precautions for defending property against modes for assailing it, are examples for establishing its substantial rights, and precedents against a recourse to other modes, infringing the principle upon which these prohibitions are imposed. And a specified permission to congress, by which they may establish modes of measuring property for the whole union, would have been unnecessary, had that body possessed any species of sovereignty over property itself; because such modes would have been included among its appendages. No power is given to congress to do that which the state governments are thus prohibited from doing; and if some species of sovereignty can extend the power of congress to ends not delegated, it can also extend the powers of the state governments to ends prohibited; and effectually undermine our system of government, made up of delegation and prohibition. The power to “coin money and regulate foreign coin” is limited by the terms “coin and foreign” to the precious metals, because it could not extend to native paper currency, without including foreign; and a standard of weights, respecting money, refers to money capable of being weighed. The states are prohibited “from coining money, emitting bills of credit, or making any thing but gold and silver a tender in payment of debts.” The distinction between specie and paper currency is in this clause established. A power, prohibited to the states and not delegated to congress, can be exercised by neither. A power, the direct exercise of which is prohibited, ought not to be indirectly exercised. A power, prohibited or not delegated to the principal, cannot be delegated by that principal to another. Bills of credit are distinguished from other objects of tender laws, which had been numerous among the states, and are prohibited absolutely, whether the quality of being made a tender for debts was annexed to them or not. Otherwise, it would have been unnecessary to mention them at all. The powers of “coining money, emitting bills of credit, and making any thing but gold and silver coin a tender in payment for debts,” being prohibited to the states; and the first power only being delegated to congress; it follows that the other two are prohibited and not delegated. And it seems to me, that it may be as speciously contended, according to the late fashion of construction, that the states may make any thing, but gold and silver, a tender; as that either congress or the states can delegate to individuals or corporations a power to emit bills of credit; or impair contracts by suspensions of payments in favour of their own creatures, or of unlucky speculators. Either would be a usurpation of a sovereign power over property, not delegated to one department, and expressly prohibited to the other. It may be also remarked, that the power given to congress “to provide for the punishment of counterfeiting the securities and current coin of the United States” by omitting bills of credit, recognizes their exclusion, and does not include bills of credit emitted by corporations.
From these efforts to protect the rights of private property, or rather the right of individuals to what belongs to them, let us pass on to those for securing the national property, collectively. Here the question is, whether congress derive from the power of taxation, a sovereign power to expend the money thus raised, according to its own will and pleasure, like an English parliament or a Russian emperor. If congress possessed an unlimited power to appropriate the publick money raised by taxes, there was no occasion to specify the objects to which it might be applied, such as to raise and support armies, to provide and maintain a navy. Among these objects, all the powers granted, requiring an expense, are enumerated; and this enumeration proves, that no object of expense, not included within the delegated powers, can be constitutionally adopted by congress. For where was the necessity of any enumeration at all of the objects of expense, if congress were not subject to any restriction in the appropriation of the publick money? The widest scope for appropriation is included in the words “to pay the debts and provide for the common defence and general welfare of the United States.” The defence and welfare of the United States, without any explanatory words, would of themselves refer to the affairs of the union, and exclude those of the states; but the words general and common, are used in contrast to local and individual, for the purpose of more explicitly excluding congress, in the appropriation of the money raised to be applied to the benefit of the United States, from indulging a sovereign legislative patronage in favour of local, private or individual interests.
Let us suppose, that a reconciliation had taken place between Great Britain and the colonies, by which precisely the same powers of taxation for the common defence and general welfare had been conceded to the British parliament, the same objects of expense specified, and the same reservations of local and internal government to the colonies made, as are contained in the constitution of the United States. Is it not obvious, that an assumption (under a compact intended to provide for the common, and not for the separate interests of these parties,) of a power to appropriate the common purse to local or personal interests, would have infringed its intention, and would gradually have swallowed up the rights reserved? The same chastity of construction may possibly be necessary to preserve our union, which would certainly have been indispensable for the preservation of such a reconciliation.
It is true that the doctrine of absolute sovereignty, with its indefinite catalogue of appendages, can adduce in its defence many plausible arguments, and enumerate sundry conveniences which might result, from its unlimited capacity to devote both persons and property to whatever purposes it may think proper. What conveniences may arise from the absolute subordination appertaining to it, in war! How wonderful are its energies, in punishing crimes which will for ever elude established laws! How inexhaustible are its resources for rewarding merit, fostering the arts, and rearing pyramids! Limited powers and co-ordinate departments, occupied by dependant trustees, are often incompetent to effect ends really good, and never able to perform exploits, which historians have called magnificent; whilst sovereignty can enshrine itself in splendour, and dazzle the quietism with which it is able to encircle its throne. Such indeed are the advantages arising from a sovereignty in governments; but, to decide whether it is preferable to our system of self-government and a division of power, a strict comparison between the whole mass of good and evil resulting from both forms, ought to be made. As imperfection is an attribute of every human contrivance, comparison is the only resource for a judicious preference. In the particular case of property, if we were to confine it to the good and evil derived by nations from a sovereign or limited power in governments over the publick purse, a dismal balance of evil would render the first principle even hideous; and inspire a horror, sufficient to make the latter, with all its imperfections, appear beautiful. Evil is indissolubly attached to good; and therefore the inconveniences, arising from the sovereignty of the people and a limited power in governments over persons and property, are by no means sufficient to establish the expediency of undermining these principles. Many wise and good men, however, alarmed by the illusions of Rousseau and Godwin, and the atrocities of the French revolution, honestly believe that these principles have teeth and claws, which it is expedient to draw and pare, however constitutional they may be; without considering that such an operation will subject the generous lion to the wily fox; or to speak without a metaphor, that it will subject liberty and property to tyranny and fraud. In short, that if our new principle of a sovereignty in the people can be disarmed of its property, by transferring to the government an unlimited power over it; the old English principle must inevitably swallow it up, with all its appurtenances.
The reader perceives, that the freedom of property is the chief principle, which distinguishes governments founded in the rights of nature, from those founded in some arbitrary act. Our societies were instituted by a resignation of such natural rights, as was necessary for the preservation of those retained. Property was only made a common stock, so far as the social safety and happiness required; but social safety and happiness, far from requiring that governments should possess a power of dooming one portion of the people to indigence and ignorance, and another to opulence and insolence, by supplanting industry, and substituting law, as the dispenser of private property, require a system precisely the reverse. Modern philosophers, without discerning, or if it was discerned, without assailing the usurpation of an absolute and despotick power over private property, have yet strenuously contended for a system of policy, founded upon the opposite principle; which they have called the economical system; and have agreed almost unanimously, that there is little hope of free governments, until it is better understood, and more actively enforced. The difference between judicatures to secure, and corporations to defraud private property, concisely displays both the power delegated, and the right reserved under our system of government; and the possibility of reaping a social blessing by a limited power, without the alloy of a social curse, by an unlimited power over private property. Common interest is the object of a restricted power, and therefore it dispenses general prosperity; an accumulation of individual honours or wealth comprises all the business in which an absolute power over property can engage; and therefore it dispenses comparative disgrace and poverty upon the mass of society. The freedom of property from the indefinite despotism of sovereignty, is the best security to be found against those unjust laws by which social liberty is so often injured; and against that despotism of majorities, by which it has been so often destroyed. This wise and just principle even denies to the sovereignty of the people, a right to the private property of individuals, because the conventional act by which that species of sovereignty was created, conceded a right to tax for social purposes only, and withheld a right to tax for individual aggrandizement. I conclude therefore, that neither the state governments nor congress have a sovereign power over property; that neither of them has any right at all to create modes for transferring it artificially from one man or one interest to another; that the right of taxation, with which they are invested, is limited to the attainment of social ends or specified objects; and that the right of appropriation, being merely an appendage of the right of taxation, is restrained to the same ends or objects.
But, admitting the truth of this conclusion, though much will be gained, the difficulty of distinguishing between spurious and genuine ends or objects will still remain; and the impossibility of conceiving a complete catalogue of either leaves no remedy but a watchful attention to current measures, and a fair investigation of the principles by which they ought to be justified or condemned. Yes, there is another. If the honourable, just and patriotick men, who abound in our legislative bodies, should consider the subject and concur in the conclusion, they will, in obedience to an essential social principle, through affection for their country, and from a zeal for its glory, forbear to impair the foundation upon which it has been erected. They will not approach towards the rival principle arrayed in calamities to mankind “that governments possess a sovereignty over property,” without a sensation of horror, and shrinking from its contamination. The right to property or labour is involved with our whole subject, and as it must consequently be often adverted to, its consideration is not here concluded.