Front Page Titles (by Subject) SECTION 13.: ASSUMPTION OF JUDICIAL POWERS AND PATRONAGE BY LEGISLATURES. - Construction Construed and Constitutions Vindicated
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SECTION 13.: ASSUMPTION OF JUDICIAL POWERS AND PATRONAGE BY LEGISLATURES. - John Taylor, Construction Construed and Constitutions Vindicated 
Construction Construed and Constitutions Vindicated (Richmond: Shepherd and Pollard, 1820).
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ASSUMPTION OF JUDICIAL POWERS AND PATRONAGE BY LEGISLATURES.
The usurper, Augustus, could never be persuaded to re-establish the Roman republick. What hope is there, if one man was thus inexorable, that three thousand should be persuaded to renounce the unconstitutional powers which they have assumed? With ten times his honesty, they have ten times as much of that invigorating aliment of a love of power, called conscious integrity; and our strongest ally may therefore become our strongest adversary. Augustus no doubt persuaded himself, that his government would make Rome happier, than the restoration of the republick; and our legislatures undoubtedly have as good reasons for believing, that their usurpations will be better for the community, than our constitutional division of powers; but both he and they in such reasoning look only at themselves, without weighing their successors in the scales of probability. He did not anticipate a Caligula, nor do they a French revolutionary assembly. The solid value of representation is a plausible and seducing argument in favour of usurpations, and yet nothing has been more fatal to science in general, and especially to political science, than the art of extracting erroneous conclusions from sound principles. The framers of all our constitutions, sensible of this truth, have laboured to enforce it, by limiting the powers of legislative representatives, to prevent an accumulation of power, which is invariably overwhelming. Their chief precaution has been to take care, that they should none of them be representatives of any judicial power, by assigning judicial power to other trustees; and, therefore, representation in exercising judicial powers acts exactly as the judges would do, by exercising legislative power. Through inattention, however, to a very visible constitutional distinction, all our legislatures have fallen into an error, which all would condemn if committed by the judges.
The delicacy of the proposed subjects is as deterring, as their importance is imperative. The difficulty of writing in a style, vigorous enough to convince, and yet polished enough to please the very gentlemen, who must either be censured, or the proposed reformation abandoned, becomes extremely formidable when we reflect, that the reformation to be recommended depends entirely upon the persons, so likely to be offended. I have no reliance upon myself for getting over this risque; but I have great reliance upon the consideration, that patriotism and integrity do yet greatly preponderate in our legislative bodies; and that these qualities would view with scorn a sacrifice of truth at the shrine of power, and will pardon arguments enjoined by loyalty to her dictates. Besides, our representatives are themselves governed the greater part of their lives, and their families and friends belong entirely to the governed class. For this reason they would prefer a rough pleader in favour of constitutional principles, to the smoothest flatterer of temporary power. My apprehensions, therefore, are gone, and I will consider the subjects with the same integrity, by which the representatives of the people are themselves actuated.
Let us take a glance at the origin and progress of judicial power in England. It was at first considered as an attribute of sovereignty, and whilst that was supposed to reside in the king, he either exercised it himself, or delegated it to judges, dependant on his pleasure, and guided by his will.
The judicial power of the house of lords is a remnant of the feudal power of the barons. The caprices, the passions and the partialities of feudal kings and barons, in the administration of justice, had scourged England for centuries, and long called for remedies in vain. At length the king was deprived of his sovereign judicial power, and the house of lords moulded into a jurisdiction less objectionable. Had that house exercised the power of receiving original suits, and deciding upon ex-parte testimony, the zeal, address or eloquence of individual members would have directed each decision; and innumerable fraudulent individuals would have taken tickets which cost nothing, in a lottery which might yield prizes.
The progress of intellectual improvement gradually introduced several remedies for these evils. The original jurisdiction of the barons became appellate, so as to exclude the discussion of facts, and the frauds of ex-parte affidavit testimony. But the house of lords, still conscious of the inadequate nature of a numerous assembly for dispensing justice in particular cases, have been invested with a power of requiring the assistance of the judges; so that this appellate jurisdiction is practically exercised by twelve men of the best legal knowledge. By providing thus against fluctuating and inconsistent decisions and by subjecting the parties to costs, the incitement to try luck by frivolous suits has been suppressed.
The expenses of the English government were for a long time chiefly defrayed by lands appropriated to kings, but which soon came to be considered as national property, and when squandered by regal donations, were frequently as such reclaimed. The disposition of this national property, by the will, caprice, or favour of the sovereign, without any judicial interposition, guided by established laws and rules of evidence, was naturally infected with the taints of waste, and injury to the publick, so incurable, that in spite of the occasional resumptions of this landed national property, that resource for sustaining the government was at length exhausted, and taxation was necessarily substituted for it. At first, the king or sovereign claimed and exercised an absolute power of disposing of the national property in the shape of taxes, according to his pleasure; but, it was soon discovered that this pretended sovereign right over the national property operated upon taxes, just as it had done upon lands; and produced the same capricious misapplications and prodigality. After various struggles between the kings and the commons; by the first to retain, and by the second to destroy the royal sovereignty over the national property; the evil was at length imperfectly corrected by the establishment of a treasury department, under the superintendence of a court of exchequer, both subject to known laws, and fixed rules of evidence. The parliament, however, retained the sovereignty over the property of the nation, of which the king had been so justly deprived; and the innate viciousness of this political principle has produced in their hands, the same profusion which it caused in the hands of the king. Still however, it deserves the praise of having established a court to prevent its own time from being diverted from great national concerns, and expended in the trial of trivial private suits. It may perhaps be thought, that the English lords and commons deserve no eulogy for a regulation, so wise, economical and just, because they receive no wages; and that, had they been paid by the day, at a rate fixed by themselves, each house would have entertained all private suits for publick property, and would long since have grown into courts of exchequer, the most whimsical, burdensome and inconsistent which can be imagined; and that as judges, whose income depends on their business, will draw before them as many suits as they can, a perpetual session of these two numerous courts, would long since have been the consequence. I confess that all men, and particularly the lords and commons of England, have disclosed sufficient indications of a respect for money, to justify a supposition, that if they could have acquired comfortable annuities by assuming a judicial power over the property of the nation, it is not impossible that they would have yielded to the temptation.
But, besides the want of daily pay by these lords and commons, there was another obstacle to their trying suits and rendering judgments. The king had long been considered as the fountain of justice, and they had laboured to deprive him of a power to render it personally, or by during-pleasure judges. It would have been an awkward business therefore for them to practice that, which they had forbidden to the king as tyrannical, after they had gotten during-good-behaviour judges. The king would forcibly have retorted upon them their own arguments. “You”, he might have said, “have successfully proved in my case the mischiefs arising from a judicial power in one man, neither subject to impeachment or any appellate jurisdiction. You have proved, that judges ought to hold their offices during good behaviour, without being subject to be dismissed from office, should I dislike their judgments. Are you subject to impeachment as judges, and removal from office; or to an appellate jurisdiction? Do you hold your places during good behaviour, as you say all judges ought to do? May not you be influenced by electors, as during-pleasure judges were by kings? If these judges would buy the vote or good will of the king by giving him the property and even the lives of individuals, in order to keep their offices; may not you be tempted to buy the votes or good will of electors, by giving to them the property of the nation? And are not you moreover exposed to the great influence of private friendship and family connexions, in acting as exchequer judges, or exercising an arbitrary power over the national property, from which my during-pleasure judges were free?” The English lords and commons have avoided much of this retort, by forbearing in a considerable degree to meddle with judicial business.
The habit, which prevails in all the legislatures of the United States, of trying individual suits or claims for publick property evidently bears a strong resemblance to the old feudal modes of dispensing justice and expending the publick property. Testimony is ex-parte. Evidence is not weighed by any rules. Oratory and influence generally supply its place. No witnesses are examined or confronted. The trial by jury is excluded. Decisions are never directed by law, but always dictated by policy, influence, selfish views or benevolence, except when they are the result of accident, inattention, fluctuation of the judges, ignorance of the truth, or some species of cunning management. In short, our exchequer legislative judgments are generally rendered in the same mode, that legislative attainders and confiscations were enacted during the most tyrannical periods of the British histories.
It may however be objected, that looser principles are justifiable in the disposition of the property of a nation, than that of one man; and that what would be robbery in one case, is munificence in the other; just as the killing of a single person is murder, and the extirpation of a nation, heroism. Supposing this reasoning to be sound in general, (and it must be admitted to be so, if usage makes moral rectitude,) I think that it may be controuled by national constitutions. It is admitted that all civil powers are appendages of sovereignty, and that sovereignty may of course bestow them as it pleases. If a sovereign monarch should appoint one set of men to form a code of laws, and another to execute them, neither would think of discharging the functions of the other, nor would he suffer it. If we were to select the plainest intention disclosed by the sovereignty of the people, none could be preferred to the separation of legislative and judicial power; nor can I see how the legislatures of the state or federal governments can have acquired any judicial powers, except they can shew, that the sovereignty of the people is dead, having devised its estate, with all the appurtenances, privileges and emoluments, to the legislative department. Though no such will has been produced, yet the fact of the death of the sovereignty of the people seems to be presumable, from the sundry law suits about the division of the estate. All civil powers being appendages of sovereignty, if legislatures can assume judicial powers, they are undoubtedly entitled to the rest. The federal court has indeed made a division of the intestate’s estate, among a family of political spheres, nominally upon principles of distribution, but essentially according to those of primogeniture, except that it is difficult to determine whether congress or itself is heir at law; or rather, according to the tenure called borough English, by which the youngest son gets all the estate. But this distribution, however it may reserve to the court something like legislative and even constituent powers, by no means invests legislatures with judicial, and menaces such a usurpation, by hurling a gauntlet at unconstitutional laws.
If the sovereignty of the people be however still alive, and we look into the commissions to make laws, we shall find no trace of a power to try suits. The law-makers take no judicial oath. They have no power to enforce the attendance of witnesses; nor does a single precaution exist for obtaining from legislators upright judgments, because they were not empowered to try any suits at all. In fact, the sovereignty of the people established a judicial power distinct from and independent of all other political spheres, for the purpose of securing property; and improved upon the principles of the English system of government in relation to it, by the identical maxim, considered among us as the only solid security for that and all other civil rights. Our maxim is, that a government is not a sovereign, but a trustee of the sovereignty of the people, invested only with limited powers and composed of co-ordinate departments established to discharge specified duties. This maxim withholds from these departments all the appendages of sovereignty, and only entitles them to exercise the powers bestowed. It deprives them of the absolute power over the lives and property of the people, claimed and exercised by every other species of sovereignty. Hence the creation of a judicial sphere became necessary, which would have been useless had legislative power possessed a sovereignty over property; since it could in that case have moulded courts according to its will, so as to make them subservient to its wishes. This corrects that principle of the English government, which has produced the greatest evils, “that the parliament is invested with an “absolute sovereignty over property and all other rights.”
Whilst I contend that it is true in theory, that our legislatures do not possess a power of giving away the national property according to their caprices, or even from motives of benevolence; because, they are not invested with a sovereignty, but only with a trust in regard to it; I admit that an adherence to this undoubted principle must, in a great measure, depend upon themselves. If, however, the men who compose them should turn their attention to this subject, and be convinced of the truth of the doctrine advanced, this dependance is far from being insecure. Our system of government is happily contrived to unite interest and patriotism; and deviations from its principles, which may inadvertently arise, will therefore be corrected as they are discovered, so long as the system itself remains uncorrupted.
The practice of transferring the property of one man, or of one class of men to another, directly and unequivocally, gradually became unsafe even to despotism itself, and therefore it has been abandoned by the best of those governments which yet retain a sovereignty over property. But, although this species of tyranny has become too atrocious to be borne by any of the Europeans except those subject to the Turk, when inflicted without disguise, yet it is still pursued to a most oppressive extent by their governments, concealed behind exclusive privileges, pensions, and a variety of abuses, by which the evil is disseminated over a whole nation, and every individual, except the objects of its bounty, is injured.
Between the declaration of independence and the establishment of our present federal constitution, sundry legislative exertions of sovereign power had occurred, which displayed some of the evils deposited in that principle. Laws of attainder had past, and many partial confiscations of private property had been made, by laws of tender, and for suspending the administration of justice. The injustice and tyranny of these legislative usurpations, under pretence of being invested with a sovereign power over persons and property, induced the states to apply a remedy, by prohibiting themselves “from making any thing but gold and silver a tender, from passing any bill of attainder or ex post facto law, or any law impairing the obligation of contracts.” These appendages of sovereignty, prohibited to the states, are not delegated to congress. This constitutional fact proves, that none of our governments is invested with sovereign powers, and is particularly adverse to the novel idea of spherical sovereignties; for, if the union of all our political spheres will not constitute a sovereignty, surely it is not constituted by their separation. If neither of our departments constituted by the sovereignty of the people, nor all of them united, are a sovereignty, then they can only be coordinate deputies entrusted with appropriate powers. As no one is a sovereign, neither can suppress another. The legislative department cannot suppress the judicial, nor the judicial the legislative. The former cannot prohibit the latter from rendering judgments according to law, nor the latter prohibit the former from legislating. In short, no department can constitutionally suspend the functions of another, because all derive their authority from the sovereignty of the people.
What then is the obligation of a contract, how is it to be enforced, and how may it be impaired? The obligation of a contract arises from the consent of the parties, entered into under the sanction of the existing laws; and the constitutions under which we live, are a notification to them, that it is to be enforced by the judicial department having a jurisdiction of the case. The prohibition to impair contracts is directed to that quarter from whence only the impediments can proceed. This is legislative power. From hence the impediments which produced a positive vindication of the true spirit of our constitutions proceeded; and if the remedy be so construed, as to permit the very evil it designed to remove, both its reason and its end must be disregarded.
Every suspension of the payment of debts by law is an actual sequestration, which almost invariably terminates in a partial confiscation for the benefit of the debtor. If our legislatures do not possess a sovereign power to take away directly the property of one man, and give it to another, they have no power to do the same thing indirectly. Their office is to pass laws for establishing rules by which property is to be distributed; but when the right is vested under those laws, so long as they exist, it is beyond the cognizance of legislative, and appertains to judicial power. Laws cannot constitutionally transfer the property of debtors to creditors, nor of creditors to debtors, any more than they can transfer that of the rich to the poor or of the poor to the rich. It is our policy, that property should be divided by industry and not by any species of sovereign power; and our judicial departments were established for the preservation of that policy against whomsoever should molest or impair it; and particularly against executive and legislative power, by which the principle has been generally overturned.
A suspension of debts by replevy or any other laws, not only impairs contracts, by defeating the mutual risque, as to the fluctuation of money, voluntarily incurred by the contracting parties; but is always intended to operate, and generally does operate, as a confiscation of a portion of the property of the one, for the benefit of the other. In contemplation of this effect only are such laws either solicited or past. Besides this unconstitutional character, such laws are highly penal upon innocence, ex post facto, and participate largely of the nature of legislative attainders. Man cannot live over again the days he has past, nor postpone his wants until his incarcerated property is liberated. Though robbed of it but for a year, it is still a robbery in the proportion that year bears to his chance for life. He may starve, he may suffer, or he may be forced to sell his deferred stock at a loss, to get the necessaries of life. When the prison doors are unlocked, some is always found to have perished in jail, and all returns impaired by confinement, in its value. But such laws have effected their intention, though they violate the constitution; for the depreciation they produce in debts, by the fear and distress they inflict upon creditors, never fails to diminish their value, and to enable debtors to obliterate them by modes, incorrectly called payments. What species of patronage can be more unjust?
The evil of bad examples by governments is often greater, than the immediate mischiefs arising from the act itself. The replevy laws which have conferred on many individuals the use of property belonging to others, and invented easy modes of getting rid of debts, have induced the bankers also to exercise the power prohibited to the states; and taught them to refuse to pay their debts, in order to make money by sequestering the property of others, or to take time for effecting a confiscation, by becoming insolvent. The same example solicited individuals to seek for wealth by speculation in preference to industry, from a reliance on legislative shelter against payment. The catastrophe arising from the excitement to incur debt, happened in a year of exuberant plenty, as a providential demonstration of the inveterate malignity, contained in the principle of a sovereignty over property and its exercise by impairing contracts, to human happiness. The year 1818 produced unexampled abundance and unexampled complaints in the United States. The fields teemed with crops, and the newspapers with lamentations. All the comforts of life were plenty and cheap, but the United States resounded with distress. The beneficence of the Deity was insufficient to remedy or to satisfy the speculations of avarice. Disappointed in the hope of amassing wealth by cunning, it asserts, that the patronage of industry by providence ought to be countervailed by a patronage of speculation by legislatures. Despising constitutions from its innate depravity, it proposes to invest congress and the state legislatures with a common power of suspending specie payments in favour of banks, and the latter with a power of impairing all other private contracts. Banks stand at the head of the faction, which pretends to a degree of merit so transcendant, as to require the sacrifice of the second best principle of our political system. Their character defines that of their progeny. They have caused the nation to divide its money among swindlers, and those who have gotten it, request that the remnant of justice left to the injured may be converted into an additional reward for the guilty. The banking projects of England, exhibited in all the finery of fancy, are said to be worthy of our imitation; whilst the squalid legions they have helped to generate, the misery only controulable by a great army, and our own experience, are passed over as proving nothing. A sovereignty over private property is the European principle of government, to which I ascribe most of the European oppressions. An essential principle of our policy is, that private property cannot be constitutionally transferred by law to others, except for national purposes. To a deviation from this principle I ascribe many of our own sufferings.
A legislative sovereignty over the national property seems to me to have been unconstitutionally exercised to a great extent, and in a mode highly pernicious by what I shall call legislative patronage. It is true that in a few cases of a particular kind, the state legislatures are wisely invested with the power of making appointments; but with respect to the federal government completely, and to the state governments generally, the legislature raises the money, whilst some other department designates the person who shall receive it. The framers of all our constitutions must therefore have seen a distinction between legislation and patronage, and have conceived that our free form of government would be destroyed by their union in one body of men, if we may draw a conclusion from their efforts to keep them disunited. Personal calculations constitute the chief danger to be avoided in legislative bodies. If these can tax, bestow, and designate the receivers of publick money, personal calculations to a countless extent must be awakened. The advantages and gratifications resulting to ourselves from pecuniary favours to our friends, relations and partisans, influence most the minds of the ambitious and dangerous; and there is but little difference in the degree of corruption between patron and client. Kings and popes, who could corrupt civil and religious principles by patronage, could never remain virtuous themselves. The senate of Rome was converted into a despicable body of men by uniting legislation and patronage. The legislative assemblies of France owed both their crimes and their fate, to an honest opinion, that their conscious integrity and representative character might safely exercise both legislation and patronage. But the experiment terminated in a despotism. A division of the powers to raise and appropriate money for publick use, and to nominate the receivers of that money, is our constitutional precaution for sustaining a frugal and honest system of legislation; and for excluding stratagems for purchasing votes, providing for friends and gratifying vanity and avarice, from those bodies of men, upon whose purity and patriotism the continuance of a free and easy government depends. Even commiseration will be successfully implored to weep over the calamities of individuals, and easily persuaded to gratify its feelings at the publick expense; and to overlook the wounds it is inflicting on the constitution of its country, by assuming a sovereign power over its property.
It was an object of our constitutions to secure a common feeling between legislators and constituents under the operationof laws, whether good or bad. This is confessed to be a wise and just, and some think, an indispensable security for good laws. Can a legislator, who gives away the publick money to his friends, his clients, or his partisans; who is interested in the traffick of corporations, to be created and nurtured by his laws, or who can increase his own wages by protracting a session in trying private suits, by any other than a representative of him-self?
Congress has already enlisted state governments among its clients, and these, like the Roman provinces, are reduced to the necessity of providing patrons in the senate. An union between legislation and patronage will enlist an assortment of suitors, composed of individuals who ask for dollars, of companies who ask for millions, and of states which ask for bounties, roads and canals. Patronage begets clientship. States will soon vociferously demand local favours, to balance other local favours. Why should not congress endow schools in the old, as well as the new states? I see no end to the parties, intrigues and animosities, by an usurpation on the part of the federal government of internal and local powers, and of unlimited patronage. These will not be less dangerous, for being geographical. Federal favours are at first silken fetters to the states, which will gradually be converted into iron by the menstruum of precedents, as soft stones exposed to the atmosphere become hard. Yes, I do see an end to this baleful policy, and I write only as a humble assistant to abler advocates of our constitution, towards obstructing its arrival. I see a nation dissected into pecuniary and political corporations; legislation dabbling in the frauds it fosters, and sharing in the spoils it bestows; representation converted into personal motives, incapable of detection; legislatures sinking into exchequer spendthrifts; hordes of speculators gambling with legislative judicial patronage, for private and publick property; the recommendations of frugality as indispensable to the continuance of our free form of government, so often recommended, and so steadily practised by two of the wisest and most virtuous patriots who ever blessed a nation (Washington and Jefferson) derided; in short, I see a picture bespangled with noxious meteors, gliding between our eyes and the admired system of government, under which we have enjoyed so much happiness.
The judicial mode of patronizing individuals has been assumed by legislatures, under a garb apparently innocent and lovely, nor have they perceived the corruption and unconstitutionality with it covered. It is the right of the people to petition, and the duty of the representatives to redress grievances. But no individual has a right to petition legislatures to perform judicial functions, or to expect that a constitutional division of powers and duties should be confounded for his benefit. Legislatures are well qualified to ascertain general principles, and utterly incompetent to ascertain particular facts. The first comprise the field of their power, and the second object, with the means for effecting it, is committed to the courts of justice. Can that be a legitimate jurisdiction, which is unable to come at truth, and of course, to do justice? A court of this character, which can only decide in favour of the plaintiffs; which cannot subject him to costs; which cannot give a final decision, nor prevent the most vexatious reiteration; which is annual or duennial, and also subject to influence in various ways; and where the judges must act as solicitors or attornies; is certainly a judicial monster. If this court should assume a power of trying suits between individuals, its incapacity would be instantly discerned even by itself; and yet it is better calculated for rendering justice in suits between these, than between individuals and the publick, because it would not be influenced by a notion of a sovereign power or right over the money in dispute, nor by ambition or a love of popularity. A judge between individuals could not benefit himself or a partisan to any great extent. If this be true, how can it be imagined, that our constitutions designed to exclude legislatures from a power to try suits between individuals, and yet to invest them with a right of trying suits between an individual and the publick? Is it to be imagined, that in the establishment of a judicial department, the security of the property of the whole nation was not at all regarded, whilst that of the poorest individual was protected by a salutary division of power?
The federal constitution include within the jurisdiction of the federal courts “controversies to which the United States shall be a party.” How then can congress try them? It enables congress to tax, not as having a sovereignty over property, but “to pay the debts, and provide for the common defence and general welfare, of the United States.” How then can it indulge a patronage in favour of individuals, or impose taxes for conferring local benefits? The courts of all the states are open against the government; therefore, the state legislatures by exercising this judicial legislative patronage exercise a concurrent jurisdiction with these courts; and it is often a reason for entertaining a cause, that the courts would decide against the claimant. Nothing has been more oppressive to nations, than the practice of kings, to buy popularity at their expense. Should this practice become established here, as we shall have three or four thousand kings, exercising sovereignty over the property of the nation, one need not be a conjurer to foresee the consequences. If the annual docket of all our legislative bodies were published, reasoning would be superfluous. It would account to a great extent, for our deviation so rapidly from that frugality, deemed essential to the preservation of liberty by almost all the real patriots who have ever appeared. Or, if our pension list were compared with the pension list of Great Britain, I believe we should be found to have already outstript her in the application of the maxim, “that governments are sovereigns over national property.” The reason I suppose to be, that she has only one sovereign, whereas, according to the new opinions, we have at least two, each of which possesses an unlimited spherical sovereignty over property; and these, instead of being units like those of Lacedemon, are above ten times as numerous as were the sovereign conscript fathers of Rome. If legislators are publick servants, their numerosity will be our salvation; but if they are sovereigns over our property, and exercise without control judicial legislative patronage, the same numerosity must be our ruin. Avarice and ambition deride political restrictions, and talk of estimating how much liberty a people can bear; but the fact is, that governments by their own morals mould them into a capacity to be free or to be enslaved. The French nation was soon moulded by the patronage and judicial usurpations of legislatures, into a fitness even for a military despotism; and then the sophistry which inflicted the evil, under pretence that the nation could bear good government, prevailed; but these legislative errors were in fact the stepping-stones of fraud, the corrupters of the nation, and the ladders of ambition.
The reason why a nation is oppressed and enslaved, whenever one man, or any body of men, though elected by the people, shall absorb and exercise a sovereign power over property, is obvious. It disorders all balances, and overturns all checks, and establishes an irresistible authority. The framers of our excellent system of government, sensible that election and representation, however inestimable, were yet insufficient, alone, to prevent an evil which has frequently proved fatal to republican governments, called in divisions of power, checks and balances as auxiliaries. They divided legislation between local and internal objects, and those of an external or general nature; they excluded legislation from judicial functions; and they denied to every department of government the appendages of sovereignty. All were only fiduciaries, and the duties of each trustee were defined and limited. But if the congress, one of these departments, can pass local and internal laws; if it can give away the publick money by no rule but its own pleasure; and if it can exercise judicial functions, it cannot be in conformity with those principles upon which our system of government was established.
I recollect but two classes of claims, which can be offered to legislatures by individuals or corporations; the gratuitous, and the just. As to the first, if legislatures are only trustees, and do not possess a sovereign power over property, they have no right to exercise benevolence at the expense of its owners. As to the second, they are constitutionally prohibited, and internally disabled from dispensing justice to individuals. Particular laws for rendering individual justice, instead of general laws extending to all similar cases, are substantially judgments and decrees. Their character resembles a scheme of jurisprudence, which should exclude general rules of inheritance, and leave it to legislation to provide for each case. They are exactly the same in principle with the mode of rendering justice, adopted in Turkey. A fluctuating will and pleasure decides upon an imperfect enquiry after facts, instead of a general law, to be executed by judicial investigation. If the individual grievance be real, it ought to be the basis of a general law extending the remedy to all similar cases; and if such a law would be an evil to the community, the supposed individual grievance cannot exist. The multitude of suits for publick property, instituted before legislatures, evinces that such claims are not solitary, but similar to a great extent; and that there would be no great difficulty in framing a law, by which the just might be reached, and the unjust excluded. Thus fixed rules of decision would be commuted for fluctuating, truth might be discovered, and our legislative bodies might avoid a waste of time, in trying frivolous claims in an imperfect manner, which no other legislatures that I know of have ever incurred.
We have not lost sight of our great question of internal legislation by congress, in considering this subject. On the contrary I contend, admitting the state legislatures to possess a sovereignty over property, and a right to bestow the publick money upon objects of benevolence, that it is a subject for internal and local legislation, not comprised within the powers of the federal government. It is true, that the federal constitution invests congress with a limited and special power in relation to persons, but it cannot act upon persons beyond the power bestowed. By referring to the constitution it will be found, that all the powers over persons given to congress are intended to effect some general federal end, and not to confer any right to legislate over persons, except for such a purpose. As for instance; the power over persons in the imposition of taxes is given for the purpose of providing a revenue. No power to lavish the revenue thus obtained, in donations to individuals, is bestowed; on the contrary, it is limited to the use of the United States. If this reasoning be correct, the donation to the remnant of the revolutionary army, (a remnant more numerous than the army itself at the end of the war, after an interval of above thirty years,) was unconstitutional. Whether this donation was constitutional or not, it is a monument of what is to be expected from the principle of a legislative sovereignty over the national property, and the effects of a casual humoursome enthusiasm, which has slept for near forty years, and was awakened, not by reason or justice, but by the sound of a drum.
President Adams has somewhere said, I believe, that liberty consisted in an equality of laws. The definition is good, as far as it goes; but it is imperfect in being only one ingredient of liberty. An equality of oppression, which may exist with an equality of laws, cannot constitute liberty. It would be a better maxim to say, that liberty cannot subsist under an inequality of laws, by which one portion of the society or associators is endowed with exclusive benefits. Upon this maxim the union of the states was founded. The states were the associators, and in their compact laboured to prevent congress from being able to distribute among the members of the association, by the instrumentality of exercising local or internal powers over persons or things, unequal advantages; because, an inequality of laws would destroy the equality of rights among the associators, intended by their compact to be established. Hence that body was only invested to legislate upon subjects common to all. Suppose that a body of guardian were appointed to take care of an estate held in common by twenty-three virgins, each of whom held also a particular estate, over which these guardians were not invested with any power. If these guardians should endeavour to corrupt and seduce some of these virgins by using the profits of the estate held in common, to improve several of the particular estates, by cutting canals or making roads; by granting bounties or exclusive privileges to some of the tenants of the particular estates, to be paid by the tenants of other particular estates; or by bestowing pensions on others of these tenants, to be paid out of the profits of the common estate; what maxim of equality, of justice, or of liberty, would they fulfil?
The constitution of the union prohibits to the state governments a power of regulating currency, and limits the power of congress to the establishment of a metallick currency. These restrictions of power, in relation to the representative of property, do not recognize in either government an absolute power over property itself. On the contrary, it was idle and vain to limit the powers of government as to the sign of the thing, if the government possessed a despotick power over the thing itself. Where is the difference in principle between giving away fifty millions of the national property in pensions, and in giving away the whole? And what power over property can be more despotick than a power thus to dispose of it? The restrictions as to currency, combined with the division of legislative and judicial powers, evince, that this sovereign power over poverty did not exist under our principles of government.
The restrictions as to taxing property, imposed upon both the federal and state governments, also recognize only a limited power over it in either; and as to the application of taxes, it is, in the case of the former, expressly limited to the execution of the powers delegated, for which purpose and no other the power of taxation was bestowed. Among the powers delegated, there is none to grant pensions, or to dispose of the public money according to the dictates of caprice, or benevolence, as the English kings claimed a right to do. As to the state governments, the same principle, which is the only sound security for civil liberty, ought also to be a security for property. As trustees, they have no better right to give away one than the other. If they cannot take away the property of A to give it to B, what right have they to take away property from the whole alphabet, to give it to B?
Societies are not instituted for the purpose of enabling governments to destroy natural rights; and as no man possesses a natural, or necessary, or convenient power over the natural rights of another, a majority of men cannot have a right to surrender to a government an absolute power over these natural rights. I have previously endeavoured to prove, that the freedom of conscience and of labour are essentially natural rights. If it be the intention of a society to erect a government for the purpose of protecting both, an invasion of either is a deviation from that intention; and nothing can be more unconstitutional than a stab at the vital part of our political system. Neither nature, nor necessity, nor convenience, has invested the people, or their representatives, with an absolute power over private property, or over conscience; and though mankind were long deluded by fraud into an opinion, that civil government could not subsist without one species of tyranny, this imposition is so thoroughly exploded, that it ought to suggest a strict examination of the other. The same orators, whose eloquence so long suppressed the rights of conscience, now plead, that civil government cannot subsist without regulating property by charters, establishments, corporations, exclusive privileges, bounties and pensions; the same instruments by which they contended that conscience ought to be regulated; for they say, that free opinion as to the use of property will be as pernicious to the publick, as free opinion in relation to religion was, according to their exploded doctrines. Luxury is now made the heresy, by which the new order of apparent zealots, but cool calculators of dollars and cents, advance their designs. Wealth and power to priests was the pretended cure of heresy; wealth and power to corporations and combinations and pensioners, is the pretended cure of luxury. The orators long persuaded mankind, that they would damn themselves by heresy, if they enjoyed a freedom of opinion as to religion; they now endeavour to persuade them that they will ruin themselves by luxury, if they enjoy a freedom of opinion as to property.
In selecting general principles, we ought to be guided by general effects, and not by particular cases. Several devout ministers undoubtedly deserved the salaries derived from an absolute power in a government over the freedom of conscience; and several worthy pensioners undoubtedly deserve also the pensions derived from an absolute power in governments over the freedom of property; but both powers are so incurably exposed to abuses, and an exercise of judicial powers and legislative patronage so incurably infected with qualities of irreconcilable enmity with the virtue, happiness and interest of a community, that the policy of being led astray from the general good, by particular cases, is simply that of preferring an oppressive to a free and moderate government.
It is an error to suppose, that the people approve of bad measures, because they are silent. In all nations, the majority approve of political morality; and they are silent, both from the influence of government and a want of time or information to detect its infraction. Therefore, they are seldom roused into resistance, except by the extremity of the evil. Our governments are so happily contrived to influence those in power in favour of truth and justice, as to infuse into the people a reliance on their structure, which yet farther disposes them to be inattentive to the laws. But, this reliance dictates a cautious watchfulness against the introduction of any new principles, by means of laws or legislative patronage, undermining the basis of the reliance itself, by having the effect of exchanging an influence in favour of truth and justice, designed to be established by the structure of our governments, for an influence in favour of partiality, exclusive privileges and erroneous principles. It is impossible to convince the suitors of legislative tribunals, the feeders upon legislative patronage, or the receivers of exclusive privileges, bestowed, not by constitutions, but by laws; that legislative bodies ought not to possess the unholy power of converting publick property into private donations: but, if the question was propounded to the people, silent as they have been upon the subject, “whether legislatures had not better employ the portion of their sessions, worse than wasted in trying and deciding cases of cupidity, in a thorough examination of treasuries, and an annual disentanglement of the destinations of the taxes,” would the answer of their moral sense and common sense accord with the practice, to which they have indiscreetly submitted? Do they really approve of the new policy of sacrificing the general good to private interest?
When the human mind receives a strong impulse towards either truth or error, it is difficult to check the current of conviction or prejudice, and to give it a new direction. The impulse derived from our revolutionary principles was strongly adverse to legislative sovereignty and exclusive privileges, and a counter-current in their favor has been gradually introduced. One flows from truth, and the other from error. Being opposed, they are of different characters. In which are we to look for that mercenary temper which has notoriously generated for the few last years an unusual number of instances of moral turpitude, and materially affected the national character? Morals are regulated by religion or by laws. Our religion will not be accused of imperfection. A love of money or of property, nurtured by fraud, becomes sordid and base; but nurtured by justice, it is a source of civilization, of virtue, of happiness, and the bond of society. If it could be destroyed, civilized society would perish. But the value of property is a temptation to fraud, and the end of government is to restrain and correct this temptation. If then, governments themselves shall yield to it by contriving means to transfer property from the community to individuals, each culprit in contemplating their example will conclude, that if this be right in relation to a whole nation, it cannot be wrong in relation to one man; and so the national character is changed.