Front Page Titles (by Subject) SECTION. 11.: THE BANK DECISION.—PRECEDENTS. - Construction Construed and Constitutions Vindicated
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SECTION. 11.: THE BANK DECISION.—PRECEDENTS. - John Taylor, Construction Construed and Constitutions Vindicated 
Construction Construed and Constitutions Vindicated (Richmond: Shepherd and Pollard, 1820).
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THE BANK DECISION.—PRECEDENTS.
I shall conclude this subject, by an examination of an argument with which the court began. It remarks, that “banking was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department in cases of peculiar delicacy, as a law of undoubted obligation.” This remark must either furnish the conclusion, that precedents may change the federal constitution, or it has no weight. As it was intended to have weight, it deserves an attentive consideration.
In consolidated societies, subject to one sovereign government, having but one legislature, and but one judicial power, where law is omnipotent, the omnipotence of precedents is a component part of the form of the government; but in a federal republick, having two co-ordinate and distinct legislatures, and two judicial powers, where law is not omnipotent, and where the governments, instead of being sovereigns, are only invested with limited powers, it would be an incongruity with the form of government, to allow to precedents the same force. The constitution does not invest either the state or federal governments with an exclusive power of changing its principles by precedents, because it would destroy their co-ordinacy, disorder the division of powers, and subject one to the other. Nor can such a power be common to all these governments, because the different precedents, which would thence arise, must soon make as many federal constitutions as we have governments. In countries where the unity and sovereignty of the government is the primary political principle, these objections to precedents would have no weight; but here, where neither this unity nor sovereignty is to be found, they would, if used as they are used under those governments, destroy our existing system; because, a right to make precedents in any one of our departments is an acknowledgment of a sovereignty in that department. The reader will remark, that I am speaking of political precedents, which ought not to be confounded in any degree with municipal or forensick, established for ascertaining private rights, because we did not intend by constitutions to subject the national liberty to so uncertain a tenure.
If, however, we should even be governed in relation to charters, by the precedents of other nations, and other forms of government, they would furnish us with a volume of authorities, subversive of their sufficiency to sustain our banking corporations. In England, the granting of charters was an executive, not a legislative act; and as the English king, (the grantor) never dies, so his act could never be revoked. But all our legislatures die regularly, and the precedents of repealing laws are numerous enough, if the right of repeal depends upon precedents to establish it beyond a doubt. In England, it never was even contended, that the parliament could not annul charters, and therefore charters cannot have drawn from that country a sanctity for precedents, with the help of which they may annul constitutions.
It would be tedious to collect the changes made by laws in the English magna charta. This charter itself has been so entirely obliterated by laws, as to have become useless, and to deserve a very opprobious appellation bestowed upon it by an English judge, but yet so appropriate as to have been long commemorated. The commercial charters granted by queen Elizabeth, and other English monarchs, were often annulled or revoked by law; and even by the kings themselves, in spite of their legal immortality. The south sea charter was annulled, and remedies applied by the guardians of the publick good, to the evils of chartered frauds. Precedents therefore pronounce, that legislative power is not prohibited by corporation fictions, not even by the ancient fiction that the king never dies, “introduced at a very early period of our history, recognized by many successive legislatures, and acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation,” from shielding nations against any calamities produced by charters. The mischiefs of having south sea directors in the English parliament were so apparent, as to have suggested a law prohibiting the officers of revenue from even voting at elections; and this is a very pointed precedent, applying to the case of filling our legislatures with bank directors and stockholders, who receive nearly the whole of our taxes both state and federal, and make a profit on all these deposites. So that like English revenue officers, the higher the taxes the greater will be their income.
Many precedents in relation to charters have been “introduced at periods of our history” still earlier than banking; have “been recognized by many successive legislatures,” and have been “acted upon by judicial departments in cases of peculiar delicacy as laws of undoubted obligation.” Virginia, when a colony, oppressed by a mercantile or money-making charter, having the acquisition of wealth, and not the good of the colony for its object, was saved by taking refuge from it under a king; even a king of the Stuart family. The same king divided Virginia in violation of charters. Carolina and other colonies were in like manner divided. All the colonies broke through charters to get at publick good and national safety. The effects of bank charters were not better understood when these laws, so nick-named, were passed, than the excessive extent of a few colonial charters, when they were granted. This unforeseen extent demanded and received remedies. Even since the revolution, it was a subject of debate in congress. The smaller states asserted, that justice demanded a restriction of the charters extending to the western ocean, and an application of unsettled territories to the general benefit; and the states possessing such charters yielded to the call of justice, and the general interest. Is this a precedent for sacrificing both to banking charters, and for re-instating musty feudal errors, so very soon after we have subverted a host of them; by subjecting our property and industry to a ruinous tenure, renewable forever by those who receive the rents?
Let us look at the logick which supposes that acquiescence makes precedents, and that precedents make reason. All precedents or laws are at first theory, and acquiescence alone can convert them into practice. Banking began as a theory; and political augurs differed in their prognostications of its effects. The worst precedents are often but little felt in their infancy, because they move with caution, until they gather strength; and the worse they are, the more time is often required to develope their character. Some foretold that banking would be beneficial; others, that it would be pernicious to our country. It would be an odd judgment, however honest, which should assert, that fulfilment ought to destroy, and falsehood to establish an augury, because just at the time when experience has converted the theory of banking into evidence, both felt and understood, acquiescence has also mellowed the same theory into a precedent, and a precedent deprives us of the benefit of experience; so that the time, expended in ascertaining the truth or falsehood of an augury, renders it impossible to remedy its imposition, just at the moment when it is discovered.
Judicial precedents are commonly the work of one man or a very few men. An opinion becomes an authority, and as it rolls along, it magnifies by others which adhere to it, not because it is right, but because it is authority. In my view, it bears no resemblance to the species of consent by which we make constitutions.
The submission of the people is one argument of little or no weight to prove the constitutionality of laws. The influence of government, and not the approbation of the people, generally causes a submission to laws; and therefore, it is but a bad argument for sanctifying precedents. But under the federal constitution, the argument has moreover a fraudulent aspect, because its provisions for amendment have taught the people to believe, that there are no other modes by which the constitution can be altered; and lulled them into security against precedents. Expecting solemnities and publick discussions before their own solemn compact could be changed, they would be caught by the snare of precedents, from an opinion that no such snare existed. It would have been better to have declared, that all laws which should live to a certain age should be engrafted into the constitution, because it would have kept the people attentive to legislation, and induced them to save such laws as were good, and to check the vigilance of governments in making precedents favourable to power. Suppose, it had been proposed to amend the constitution in either of the prescribed modes, by investing congress with powers to create banks, to bestow bounties, to grant exclusive privileges, to make roads and canals, to annex conditions to the admission of new states into the union, and to prohibit the state governments from taxing the persons or property it should invest with exclusive privileges; would all these powers have been as quietly and silently obtained in the constitutional mode, as by precedents? There is no fair way of deciding the doubt, except one, which I wish to see resorted to, namely, a formal proposal in congress for conferring all these powers upon itself, by a positive amendment of the constitution. The inconsistency between limiting a government attended with prescribed modes of amendment, and the doctrine that this same government might extend its powers by its own precedents, is sufficient to have deluded the people into an opinion, if it be a delusion, that the constitution was not liable to be altered by precedents; and that whatever law could do, law could undo. Precedents would make a strange species of constitution, according to our notions; they would be repealable by the legislatures which made them. In those countries where the governments are absolute, this is no objection to them; but here precedents are nothing but laws, and the question, whether they are constitutional or not, must forever remain attached to them, unless it can be proved that it is a question of no importance after they have obtained the title of precedents. It will then become a matter of very great importance, to ascertain by whom this title is to be bestowed.
The Stuart family were mighty sticklers for precedents, and sedulous builders of these political forts to hold the ground gained by construction from time to time, by its inroads upon constitutions; because, successive encroachments terminate in conquest. To prevent these encroachments, as a fatal appendage to all governments invested with sovereignty, we have deprived ours of the right to modify our constitution by precedents, by prescribing the modes of modification. The precaution was suggested by two very important considerations. One, that every government which has possessed a power of modifying its own form, has used it fraudulently and oppressively: The other, that we having established co-ordinate governments, state and federal, a right of modification by precedents must either be equal or exclusive. If it was equal, inextricable confusion would ensue; if exclusive, the principle of co-ordinacy would be abolished.
The distinction between limitations and restrictions imposed by the people on their governments by constitutions, and those imposed by the governments on themselves, by their own precedents, is manifest. There is no similitude between the cases. Constitutions and precedents perform contrary offices. The first tie, and the second untie. It has always been difficult for nations to tie governments by precedents; and to give them knives, for precedents are such, to cut these constitutional knots, would make every government an Alexander. Each administration would have as good a right to make precedents, as its predecessor; and this guillotine of restrictions would seldom lie idle. Veneration for our constitutions is the best security for the endurance of our free form of government, and the best infusion for elevating the national character. But, how can a nation love an embryo litter of fluctuating precedents, concealed in the womb of time, each of which as it grows, hustles some principle out of the constitution, as the cuckoo does the sparrow out of its own nest? Had Pygmalion’s beautiful statue, after it was animated, been seduced to produce bastards, would he have loved her the better for it? What should we say to a husband, who should surrender the custody of his wife to a set of professed rakes? That which ought to be said of a nation, which entrusts its constitution to the care of precedents. They are only the projects or opinions of successive legislators, presidents, judges, generals or statesmen, none of whom will acknowledge that their laws, actions, decisions, orders or schemes are unconstitutional, though they will be forever as various and contradictory as the characters from which they proceed. Mankind have generally, however, confided in this chance medley current of governmental promulgation, for the preservation of their happiness; but we have preferred principles, maturely considered, carfeully selected, cautiously approved, and distinctly defined, as a better security. Our mode of establishing the principles in which we confide is infinitely preferable to the European practice, of leaving them to be found and to be lost, by a succession of precedents; from the consideration, that our conventions have no other business, and reason acts, uncorrupted by avarice or ambition; whereas, after a government is in operation, the whole tribe of selfish motives becomes active, and time for inventing and practising stratagems is endless. France, by deviating from our mode, and investing her constituent assemblies with the current powers of government, received a lecture upon the consequences of deriving constitutional principles from the governing power, which she has cause to remember, and which we ought not to forget.
It is admitted, that precedents, both good and bad, ought to have weight in fixing our conclusions. They are practical demonstrations of wisdom or folly; and constitute the fund of experience, by which the faculty of reasoning is supplied with materials. But discrimination is as applicable to precedents, as to any other species of evidence; and if mankind have improved in the theory of political morality, their age only suggests a suspicion of their goodness, and the propriety of their rigourous examination. As rigourously ought current measures to be subjected to the test of an improved political system, because its value depends upon its practical effects. It is true, that power, to prevent this necessary examination of precedents, has in all ages attempted to fortify them by a spurious sanctity, for the purposes of fostering usurpations, and securing its acquisitions; and that the worse they are, the more earnestly is their sanctity asserted. The exclusive power and wealth they obtain from the general evils they inflict, are zealous preachers in self defence, which never fail to convince themselves. Hence no improvement in civil government has ever been made, or can be preserved, but by a subversion of precedents, until a form is discovered incapable of corruption. Being numerous as foes, and few as friends of liberty, she must constantly have recourse to constitutional principles to keep them in check, or fall a victim to their power. By surrendering its constitution to precedents, a nation would surrender its strongest fortress to its strongest enemy; and would subscribe to the opinion, that the best mode of defending itself, is to throw down its arms. Constitutions are exposed to the jurisdiction of experience; but precedents presumptuously renounce it, and impiously say to improvement “stop;” so that when experience has discovered an evil, our sensibility of its affliction is rendered more poignant by the veto of a precedent against the remedy.
An exaltation of precedents to an equality with constitutions would exceed their pretension, however it might dissatisfy their arrogance; and yet a dignity so extravagantly gratuitous would not absolve them from construction by a reference to principles, nor entitle them to complain of a treatment, which they apply to constitutions. But, if we reduce precedents to their just rank, we shall discern that they are exposed to two tests, to which constitutions are not subject. They are amenable both to constitutions and expediency. The enquiry upon the first ground is not, whether the precedent is better or worse than the constitution, but whether it is conformable to constitutional principles; and if it is, the precedent is still amenable to the second enquiry, whether it is working good or evil. If a succession of wrongs can constitute rights under the name of precedents, as in Europe, then indeed they are beyond the reach of these enquiries, and have obtained a degree of insubordination, to which constitutions themselves do not aspire; otherwise, they are always liable to an arraignment for disloyalty to constitutions, or injury to society; and if found guilty, constantly exposed to the mild punishment of suppression. If they should slip by constitutions, upon the smooth profession of benefiting society, they ought certainly to be arrested, should the profession turn out to be fallacious.
But suppose, as the court contend, that banking “having been introduced at a very early period of our history, been recognized by many successive legislatures, and been acted upon by the judicial department in cases of peculiar delicacy, as a law of undoubted obligation,” is settled by a cloud of precedents to be constitutional; and that the question should be considered under an admission so copious, of the efficacy of precedents. Yet this same efficacy is as strong to sustain positive, as to sustain implied constitutional articles. The court does not say that the federal constitution bestows a positive power on congress to create banks, and only asserts that “there is no phrase in the constitution which excludes incidental or implied powers,” among which it includes banking. A concurrent right of taxation is a positive power given and reserved to the federal and state governments by the constitution. It has been exercised to great extent from the commencement of our constitutional history; it has been recognized by many successive legislatures; and it has been acted upon by the judicial departments in cases of peculiar delicacy, as undoubtedly constitutional. If a cloud of precedents can establish an incidental or implied power, another cloud of precedents ought to establish a positive and expressed power. The finest effort of ingenuity to be found in the opinion of the court, is, that of availing itself of precedents in a point only incidental, and of passing them by altogether in reference to the true question to be decided. The state of Maryland had not disputed the constitutionality of the bank, but had exercised its concurrent right of taxation; and the court refers to the multiplicity of precedents as a proof of its constitutionality, and forgets the same species of multiplicity as a proof of the constitutionality of the concurrent right. There was a sound reason for doing so. The intended decision was to make a new precedent, to overthrow the whole multitude of precedents establishing the concurrent right of taxation, and therefore it was wise to transfer our attention from the precedents applying to the question, intended to be destroyed, to make a shew in the back ground, as some generals have gained a victory by formally arraying the scullions of their army, and deceiving their adversaries into an opinion, that they were really soldiers. Besides, it held out an aspect of paying respect to precedents, under cover of which they were actually to be overturned. There was no precedent at all by which the court could abridge or modify the concurrent powers of taxation established by the constitution; but a multitude of precedents in favour of the constitutionality of this concurrency, had arisen from its mutual exercise. Congress had established it by many laws, especially in taxing the state banks by a stamp act. If the establishment of state banks was within the state spheres, congress had no right to throw obstacles in the way of their sphere of action, except by virtue of the concurrrent power of taxation; and if this power justified congress in taxing state banks, the same power justified the states in taxing the banks of congress, though these latter were also constitutional. But, the court, instead of considering the precedents in relation to the concurrent right of taxation, have insisted at large upon those which relate to the constitutionality of banking, and adhered to the precedent of searching for a goose, when the thing lost was a cow. The excessive departure from the true question by this process, will be seen at once by supposing all that it could prove, namely that the constitution had given to congress a positive power to create banks. We should then have seen it in a state of equality, as to origin, rank and obligation, with the positive concurrent power of taxation; and the question would have come fairly forth, whether one power revokes another equal to itself, because they clash? If this question was answered affirmatively, and the revoking power ascertained, it would be easy to prove that very little of the constitution would remain. I suppose it will hardly be asserted, that an implied power is better than if it had been expressed, because though it may be moulded so as to defeat other implied powers, it can hardly be made to destroy a power expressed. The concurrent right of taxation reaches all property real and personal, and had banking been positively allowed, still it would not have followed, that any modifications of property thus subjected to taxation, by the state or federal government, should discharge it from the liability to which it is clearly subjected. The property could not evade the constitution by changing its shape. The authors of The Federalist have considered this concurrent right of taxation in the federal and state governments as a plain, positive and vital principle of the constitution; and the court has merged it in the implied constitutionality of banking, as by precedents established.
If I have overlooked any argument used by the court, it has been done undesignedly; and if I have any hope of victory, in a contest between a dwarf and half a dozen giants, it is founded in the following consideration. It seems to me that the argument of the court may be defined “an exquisite sample of artificial phraseology;” and that the simplicity of ignorance may possibly break through fine webs spun from the wombs of single words, because truth can be seen without being dressed in such flimsy robes. Mystical interpreters extract from texts whatever doctrine is necessary for their purpose, but sound logick is not like money; an hundred light arguments will not make a heavy one, as an hundred cents make a dollar; and I cannot discern an argument in the opinion, which weighed singly, seems heavy. When I read those extracted from the words “sovereign, supreme, sphere, paramount, necessary and convenient,” I thought I saw the end of the sound revolutionary good sense by which our governments were constituted, as Rome saw puns and quibbles substituted for the masculine eloquence which preceded the age of Augustus. It seemed like extracting poison from vipers, under an opinion that it would be medicinal. If I were asked, how it has happened that men in power can inveigh against, oppose, support, and practise the same maxims? I should reply, by artificial phraseology. How are political parties drilled into contradictions? By artificial phraseology. How has the reasoning of the court been assailed, whilst its conclusion is allowed to be correct? By artificial phraseology. How is the right of incorporating banks conceded, when the mode of defending the right is censured? By artificial phraseology. And what is this artificial phraseology? It is the vocation of stripping evils of unseemly attire in order to dress them more handsomely, or of subjecting the federal constitution to the needles of verbal embroiderers, in obedience to the saying “the tailor makes the man.”