The Online Library of Liberty

A project of Liberty Fund, Inc.

• To the Publick.
• Preface.
• Construction Construed, and Constitutions Vindicated.
• Section 1.: The Principles of Our Revolution.
• Section 2.: Construction.
• Section 3.: Sovereignty.
• Section 4.: The Union.
• Section 5.: Division and Limitation of Power.
• Section 6.: Property.
• Section 7.: The Bank Decision.—corporation.
• Section 8.: The Bank Decision.—sovereignty of Spheres.
• Section 9.: The Bank Decision.—supremacy.
• Section 10.: Bank Decision—common Defence and General Welfare—necessary and Proper—convenient—national.
• Section. 11.: The Bank Decision.—precedents.
• Section 12.: Protecting Duties and Bounties.
• Section 13.: Assumption of Judicial Powers and Patronage By Legislatures.
• Section 14.: The Laws of Nations.
• Section 15.: The Missouri Question.
• Section 16.: The Distresses of the United States.

SECTION 14.

THE LAWS OF NATIONS.

This formidable phalanx has with great ingenuity been impressed into the service of spherical sovereignty. The philosophers who invented them, were actuated by the benevolent intention of civilizing the intercourse between nations, and softening the evils of war; and not by the wicked design, of increasing domestick oppression, by dissolving restrictions imposed for the security of civil liberty. They did not intend by restraining the ravages of avarice and ambition, when exercised against nations, to turn them loose upon individuals. Little would be gained from these laws by mankind, at the expense of opening those sluices at home, though which they have so often been flooded with misery; and if the laws invented by one set of benevolent philosophers, to civilize nations in their commerce with each other, should demolish those contrived by another set of benevolent philosophers, to procure internal national happiness, the former will evidently produce more evil than good. The self-constituted legislators, who compiled the laws of nations, drew their conclusions from the then established principle “that governments were invested with sovereignty;” but our constitutions, framed by legitimate legislators, are founded upon the principle “that there is no sovereignty among men, except that species which resides in the people or society.” The question therefore is, whether a false principle shall destroy a true one; or whether rules recommended without authority ought to supersede those established in the most perfect mode. The old principle placed nations in a state of vassalage to governments; the new one places governments in a state of dependance upon nations. Without launching into the ocean of despotism, created by the old principle, it will suffice to observe, that governments could sell or give away the people, or their property, and alter or abolish the form of the government itself. The power of treating away a part of the community, and transferring them to any degree to tyranny, far transcends that of taxing them without their consent. The cortes of Spain saw the enormity of this power, and endeavoured to moderate it, by prohibiting its exercise, without the concurrence of a representative assembly: but we have gone farther; and by withholding from our governments the powers of sovereignty of which this was one, abolished it entirely, by rooting out the error from which it sprouted up. The rights of declaring war, and of creating corporations or granting exclusive privileges, as considered by the writers upon the laws of nations, were rights of sovereignty; but the case of war is specially provided for by the federal constitution, because the federal government, as having no sovereignty, could not otherwise have declared it; whilst no provision is made for the cases of corporations and exclusive privileges, because none was necessary; these, therefore, were abolished, as being powers derived from the old doctrine of a sovereignty in governments. As the powers of making war and peace were necessary, it became necessary also to provide for them, not as emanations from the principle of a sovereignty in governments, but as delegated powers conferred by the social sovereignty, or natural right of self-government. Several conclusions result from this reasoning. No powers in relation to war are derived from the old doctrine of a sovereignty in governments under our system; and none can be justly inferred from the conclusions of the writers upon the laws of nations, deduced from that old doctrine. As it was thought necessary to delegate powers in relation to war to the federal government, it is plain that without such a delegation, the framers of the constitution did not conceive that the federal government would possess any powers at all in relation to war. If the federal government would have possessed no powers at all in relation to war, had none been delegated to it by the states, because it has no sovereignty, either innate or conventional; the conclusion amounts to a demonstration, that it has no power to create corporations, or grant exclusive privileges, because such powers must either flow from an innate sovereignty, or from an express delegation, and neither of these sources of power exists in the cases of corporations, pensions and exclusive privileges.

But this reasoning is endeavoured to be overthrown, by inferring the powers of sovereignty from a delegated power; as the power of establishing banks, from the power of taxation; the power of granting exclusive privileges and pensions, from the power of regulating commerce and appropriating publick money; and the power of making roads and canals, from the power of declaring war. To deduce the powers of sovereignty from the delegated powers, the greater powers from the lesser, undefined and unlimited powers from defined and limited; is an evident inversion of reasoning, which terminates in the conclusion, that the limited powers substituted for the unlimited powers of sovereignty, supposed to have been abolished, furnish inferences which revive these same unlimited powers of sovereignty.

But in the case of war, this mode of reasoning was not foreseen. When two nations are at war, a third may subject itself to a legitimate attack from either, by certain actions; yet even in this case, which calls for a prompt decision, the constitution pays no regard to the idea of a spherical sovereignty; and disregarding the language of the laws of nations, assigns the power, as in every other case where a declaration of war may be necessary, to a department, not as being sovereign, but as being a trustee of the sovereign power. This trustee alone possesses a right to involve the United States in war; and no other department, nor any individual, has a better right to do so, than a constable has to bring the same calamity upon England. As the laws of nations cannot deprive congress of any power with which it is invested by the constitution, so they cannot invest congress or any other department, with any power not bestowed by the constitution. If the laws of nations could bestow any powers under our system, there would be great difficulty in ascertaining the department which should receive them. They contemplate the powers of declaring war and making peace, as residing in an executive department; but the constitution divides them, and does not intrust the president with either. Which then of these three departments shall receive the new powers, drawn from the law of nations? As to these, the constitution is silent, except that so far from recognizing any sovereignty in either, it rejects the idea entirely by a division of powers allotted to sovereignty by the laws of nations. As these laws cannot find a sovereignty to receive their bounty, is it to be bestowed according to their recognition of executive power as the recipient; or can there by any recipient at all under the federal constitution, which only creates departments with limited powers, and does not create any species of sovereignty? If congress does receive the powers of sovereignty from the laws of nations, then it may create corporations, because being invested with sovereignty, these laws have an object to act upon, and to endow with powers; but, if these laws cannot give sovereignty to congress, they can give it nothing. Upon this hinge the right of creating corporations turns, as belonging to the powers of sovereignty. If the power of creating corporations results from a paramount spherical sovereignty, all other powers allowed to sovereignty by the laws of nations follow it, and henceforward, considering the liberality of the laws of nations to sovereignty, the difficulty will not be, to discover what powers congress has, but what it has not. The question, therefore, is, whether these laws of nations or our constitutions have delegated powers to our political departments. If it should be decided in favour of the constitutions, sovereignty and the laws of nations united cannot create corporations, nor confer any power whatsoever; if against them, these allies can convey every other power, as well as one to create corporations.

It was wholly unnecessary to the advocates of a power in congress to make corporations, roads and canals, to append the two latter among the wide spreading branches of the war-making power, if a paramount spherical power to remove obstacles, by setting aside the state power of internal taxation, existed; because this species of sovereignty would as easily be made to reach internal things, as persons: but still there is much ingenuity in the habit of allowing limitations to this prolifick source of power, whenever one is drawn from it, because this language is less alarming to the nation, than an undisguised claim of power in virtue of spherical sovereignty, construed by the laws of nations. It is agreed, that the powers of congress, inferred from the paramount sovereign power of declaring war, are limited to things useful in war, and only roads and canals are as yet specified as among these useful things. Now mark the united effect of the concession, and its example; and it instantly appears, that they cover all the ground which the most absolute sovereignty can occupy, or at least enough to satisfy the utmost greediness for power. Men, food, agriculture, manufactures, clothes, horses, iron, leather, powder, lead, liquors, and many other things, are more useful in war than roads and canals; and are not of a more local, and internal nature. It would be ridiculous to say, that a flourishing state of agriculture would be a less useful preparation for war, than a power in congress to make roads and canals. If the powers of congress are impliedly extended to means useful in war, they must embrace such as are important, as well as those which are trifling. Insignificant as these roads and canals are in themselves, they cover a boundless political space. They carry the powers of congress, to be exerted according to its own will, to every thing at least, equally useful in war. By this doctrine, congress may create corporations to provide food, clothes, horses, iron, powder, lead, liquors, and even men for war; or to manage agriculture and manufactures; for, these are undoubtedly as convenient and necessary for war, as banks are for taxation. The doctrine by which this construction is asserted, collected and condensed, is this: “The federal constitution has not prohibited implied powers; whatever is useful, necessary or convenient in the execution of the delegated powers, constitutes an implied power; the receiver of the expressed power is the sole judge of the extent of the implied power, in two cases only; those of congress and the supreme court of the United States; congress in virtue of a paramount spherical sovereignty may remove every obstacle to its action from subordinate spheres; the states are subordinate spheres, and congress may restrict their right of internal taxation, if it obstructs the execution of any implied power in the opinion of the federal court; but this court is not a subordinate sphere to congress, and it has the exclusive power of obstructing the action of congress by setting aside laws as unconstitutional.” This medley of conclusions is collected indiscriminately from the constitution, the idea of sovereignty, and the explanations of that idea scattered in the laws of nations; but there is no confusion in their design. They unequivocally tend to the destruction of the state governments, and the erection of some non-descript federal government upon their ruins.

The road precedent is enough to justify congress in a restriction of the state right of taxation, to a demolishing extent, according to the decision of the federal court in the bank case; as it might legislate upon every other object useful in war, and the court would determine that the states could not tax those objects. I can recollect nothing which might not, according to the doctrines advanced, be made an object of exclusive legislation by congress. It might abolish slavery as useful for war. It might legislate over the class of free blacks, for some useful war purpose. Let war be the propositum, and all means useful to prepare for, or prosecute it, are considered as its legitimate progeny of powers, and the federal judges must have erred, in admitting the federal government to be a limited one. It would resemble the praying wheel of some Russian hordes, patched round with prayers, from which the Deity may pick and choose as he pleases.

To me this new notion of a constitution by implication is, I confess, exactly like no constitution at all; nor has it been proved to my satisfaction, that principles ought to be lost in verbal definitions, or property crushed in the jaws of sovereignty by its prerogatives, to create corporations, exclusive privileges and pensions, bestowed upon it by the laws of nations. I have not the least doubt that the United States, though they thought the federal government highly trust-worthy, as is proved by the great powers with which the invested it, thought themselves trust-worthy also, in relation to the inferior powers retained; nor was it presumptuous, whilst they were granting a power to raise armies, to imagine that they might be confided in for making roads. If they cannot, with what right affecting the publick good, can they be trusted? and if this pitiful suspicion is sufficient to deprive them of a power so inconsiderable, ought not the mistrust to swell as a power becomes greater, and the reason for an assumption of local powers by congress, to reach every case of more importance than roads?

I think the constitution contains internal evidence, adverse to that construction, which, taking its stand upon a supposed paramount spherical sovereignty, and armed with mining tools by the laws of nations, endeavours to work out a new division of powers between the federal and state governments, by the pioneer implication. Where was the necessity of adding the power of raising armies to that of declaring war, if this pioneer could dig new powers out of those expressed? Surely the raising of armies was as much an appurtenance of declaring war, as making roads. Arguments of this kind might be greatly multiplied, but I will endeavour to include them in a general observation. Supposing all means convenient or necessary for the execution of an expressed power to pass with it by implication, the powers of taxing and declaring war would include, with less violence than one is made to include banks and the other roads, many of the powers also actually given to congress, together with so many more, as to obliterate to a great extent, or entirely, from the constitution, the idea of a limited government. Now, as means which would have been included by the implication-mode of defining powers, are yet expressed, does it not follow, that other means not expressed are not delegated by implication, since otherwise the expression of any was a mere tautology? It was bestowing powers by a specification, which, as this mode of construction supposes, had before passed, along with the mother power, by implication. There is no such incongruity in that mode of construction, which supposes, that a division of internal and external means, as well as of internal and external powers between the federal and state governments, was intended to be established by the constitution. The publick confidence does not seem to have been exclusively extended to either of these governments in the division of powers; was it suddenly withdrawn from one, in the case of means? In this view, as means are powers, their division between governments intended as checks upon each other was as necessary as a division of any other powers; and the local and internal rule, applied to powers expressed, was equally called for by implications of new powers under the disguised name of means.

It is obvious, that this word “means” is only a tautology of the words “necessity and convenience,” and therefore I will illustrate the nature of the coalition by another quotation. In the famous trial of Hampden in the case of ship-money, the decision of all the judges of England, except Crook and Hutton, was in these words: “That the king might levy taxes without grant of parliament in cases of necessity, or when the kingdom was in danger; of which danger and necessity his majesty was the sole and final judge.” Lord Clarendon, though a court-writer and partial to the king, makes the following observation upon this decision: “The damage and mischief cannot be expressed, that the crown sustained by the deserved reproach and infamy that attended this behaviour of the judges, who out of their courtship, submitted the grand question of law to be measured by what they called the standard of general reason and necessity.” And, says another historian, “the people by this decision were struck with despair, “and concluded very justly, that magna charta and the old English constitution were at an end.” How nearly related are this “general reason” and “the laws of nations!”.

Means being only necessities or conveniences, the application of this precedent to our subject is obvious. To measure the grand question of the parliamentary right of taxation by the standard of general reason and necessity, was the same thing, as to measure the state right of taxation by the same standard. In both cases, a plain positive right would be subverted by necessary or convenient means. The king’s claim of an exclusive right of judging as to his means, was equivalent to an exclusive right by congress of judging as to their means. If this spherical power in the king was sufficient to destroy magna charta, and the old constitution of England; it is sufficient to destroy the new constitution, of the United States. The destruction in England would have been effected by annihilating the balancing powers of the lords and commons; the destruction it will effect here, will arise from the annihilation of the balancing powers of the state governments. This decision in England was bottomed upon the words paramount and sovereignty as construed by the laws of nations. Had the judges considered the principle of co-ordination as applicable to king, lords and commons, they could never have decided that one sphere might resort to means for taking away powers form the others. But by endowing, one sphere with a paramount sovereignty, and then enquiring of the laws of nations what was meant by a paramount sovereignty in the king, it was discovered, that it was something which had a right to remove all obstacles to its action, proceeding from subordinate spheres (as the lords and commons were supposed to be,) out of the way. So here, by rejecting the principle of co-ordination as inapplicable to the federal and state governments, and endowing the former with a paramount sovereignty, and then enquiring of the laws of nations what a paramount sovereignty is, the conclusion also follows, that it is something which has a right to remove all obstacles out of its way. The judges decided, that the royal sphere was only limited by spherical sovereignty, supremacy, necessity, convenience, and means of which the king was to be the sole judge; but the nation considered the decision as destructive of its constitution. If our congressional sphere be only limited by spherical sovereignty, supremacy, necessity, convenience, and means of which it is the sole judge, can the nation believe that it will preserve the constitution of the United States?

The security, arising from representation, is so repeatedly urged to defeat the force of these observations, that it must be repeatedly noticed. The undeniable fact, that sovereignty expounded by the laws of nations has in every form oppressed mankind, suggested to them the idea of dividing it, before they had conceived the idea of a government throughout responsible, and subservient to the interest of the community. In these divisions, representation has been subjected to restrains; but if it cannot be restrained because it is representation; if it can destroy the checks imposed upon itself, then no government can admit of checks, balances, or divisions of power, in which representation is an ingredient; and mankind after a long travail have returned to the very doctrine they have been trying to abolish, namely, that they must inevitably elect between a despotism in one, a few, or in many, because representation may be trusted with unlimited power. Confined to such a choice, they have generally agreed that the last species of sovereignty is the worst of its bad associates.

But we have encountered the doctrine of sovereignty in representation, because it is representation, by a great variety of constitutional limitations and restrictions upon representation; thus expressing a publick opinion, that, invested with sovereign power, it could not be confided in. We have made executive power a representative of the people; shall this, like legislative, extract sovereignty from representation? But, as if to puzzle inextricably the extractors of sovereignty from representation, we have made both the federal and state governments representative, and given to each the quality said to absorb sovereignty; nor is there any way of getting over this unlucky moral equality, but by asserting that representation is paramount to representation.

An interlude was played off many years ago between the treaty-making power and the house of representatives of congress, applicable to this idea of a spherical sovereignty. The treaty-making power contended, that the house of representatives had no right to contravene the means it had resorted to within its sphere of action, but were obliged, in obedience to its paramount spherical sovereignty, to appropriate money for carrying a treaty into execution. But it being a case at which the federal court could not get, there was no tribunal able to remove the obstruction of a refusal to surrender a constitutional discretion, as to appropriating money by the house of representatives; and they arrayed the positive powers conferred by the constitution, against the implied powers and paramount means claimed by the treaty-making power, though defended by many quotations from the laws of nations. The positive power, of taxation reserved to the states, has not been so fortunate in its controversy with the implied power in congress to create a bank, merely because a powerful ally of the latter has interposed; for I cannot discern any distinction between the cases. The doctrines of a paramount spherical sovereignty, of means, of convenience and of necessity, drawn from the laws of nations, were the pillars which sustained the pretensions of the treaty-making powers over the house of representatives, as they are now repeated, to deprive the states of a power as expressly reserved to them by the federal constitution, as the power of appropriating was to congress. But, co-ordinacy kept its ground in one case, and subordination is imposed in the other.

I think this concubinage between these words and the laws of nations is very fairly detected, by observing that the 8th, 9th and 10th sections of the constitution comprise a system of delegated and prohibited powers, by which some are expressly prohibited to the states, and others expressly delegated to congress. Delegation is a species of prohibition, which begins where delegation ends. The objects in view were, to bestow exclusive powers on a federal government, to retain exclusive powers to the state governments, and to invest both with concurrent powers. This third class was the least numerous, and consisted chiefly of taxation and promoting arts and sciences. If a specification of the concurrent powers bestowed on congress was not intended as a limitation of this class of powers, congress may exercise any power which the state governments can exercise; if it was, congress cannot exercise concurrently with the state governments, any power not contained within the specification of that class. If the specification of the exclusive powers given to congress be a limitation of that class of powers, the specification of the concurrent powers given to congress must be a limitation of the class also; because candid reasoning does not admit of a different construction of the same cases in the same instrument. The specification of both classes of power, the exclusive and concurrent, must therefore prohibit congress in both cases from extending the powers delegated, or in neither. Yet, as if the principles by which these two classes of delegated powers are limited were not the same, the catalogue of exclusive powers has received no addition that I recollect, whilst that of concurrent powers, originally much the shortest, is daily growing. The precedents of the alien and sedition laws, and of the bank corporation, recognize a concurrent power in congress with the state governments, over persons; and that as to roads, a concurrent power over every thing useful in war. Under the operation of these precedents, which have arisen merely from selecting six or eight very comprehensive words, and making a glossary of the laws of nations, the federal constitution is rapidly becoming an instrument, by which sundry very great powers are exclusively bestowed upon congress, and by which nearly all other powers are consigned to the concurrent class, so as to leave very few exclusive powers to the state governments, except those which go to the organization of the federal government.