mited power over private property. Common interest is the object of a restricted power, and therefore it dispenses general prosperity; an accumulation of individual honours or wealth comprises all the business in which an absolute power over property can engage; and therefore it dispenses comparative disgrace and poverty upon the mass of society. The freedom of property from the indefinite despotism of sovereignty, is the best security to be found against those unjust laws by which social liberty is so often injured; and against that despotism of majorities, by which it has been so often destroyed. This wise and just principle even denies to the sovereignty of the people, a right to the private property of individuals, because the conventional act by which that species of sovereignty was created, conceded a right to tax for social purposes only, and withheld a right to tax for individual aggrandizement. I conclude therefore, that neither the state governments nor congress have a sovereign power over property; that neither of them has any right at all to create modes for transferring it artificially from one man or one interest to another; that the right of taxation, with which they are invested, is limited to the attainment of social ends or specified objects; and that the right of appropriation, being merely an appendage of the right of taxation, is restrained to the same ends or objects.

But, admitting the truth of this conclusion, though much will be gained, the difficulty of distinguishing between spurious and genuine ends or objects will still remain; and the impossibility of conceiving a complete catalogue of either leaves no remedy but a watchful attention to current measures, and a fair investigation of the principles by which they ought to be justified or condemned. Yes, there is another. If the honourable, just and patriotick men, who abound in our legislative bodies, should consider the subject and concur in the conclusion, they will, in obedience to an essential social principle, through affection for their country, and from a zeal for its glory, forbear to impair the foundation upon which it has been erected. They will not approach towards the rival principle arrayed in calamities to mankind "that governments possess a sovereignty over property," without a sensation of horror, and shrinking from its contamination. The right to property or labour is involved with our whole subject, and as it must consequently be often adverted to, its consideration is not here concluded.

SECTION 7.

THE BANK DECISION-CORPORATION.

The previous pages have been devoted to the establishment of several important principles, from an opinion, that they are better expounders of our constitutions, and sounder arbiters of construction, than dictionaries. The philosopher, who is led astray from things by signs, resembles a botanist whose taste leads him to wander in a wilderness of flowers, and to contemplate their hues, without caring whether their fruit is noxious or wholesome. Principles are the fruit of words; and as no man in his senses would swallow poison, because it grew from the beautiful flower of the poppy; so bad principles ought not to be recommended nor good ones defeated, by a verbal Mosaick, however ingenious. By the standard of principles, I shall therefore proceed to examine several measures and opinions; and beginning with the most recent, select a few others, without regard to chronological order, as opposite to such as I believe to be constitutional.

An examination of the opinion of the court of appeals, against the right of the state governments to tax the bank of the United States, not with arrogance, but with humility; not with confidence, but with distrust; will I hope be pardonable. Against the talents and integrity of that respectable body of men, I have no counterpoise but my creed; against the acute argument by which their decision is defended, I have no offset, but an artless course of reasoning. An unknown writer is but a feather, weighed against acknowledged uprightness, erudition, and well merited publick confidence; yet under all these disadvantages, as wisdom and virtue are sometimes liable to error; as the battle is not always to the strong, nor the race to the swift; and as enquiry is the road to truth; I shall endeavour to reconcile my respect for the court, with my right, perhaps my duty, as a citizen of our happy commonwealth.

Before I proceed, as some defence of this presumption, I quote a judicial precedent. The decision of a bad or a corrupt judge would not apply; but one rendered by the great, the good, the wise Sir Matthew Hale, so late too as the seventeenth century, is quite in point. This judge, of superior talents and spotless integrity, condemned and put to death two poor old women as witches; and the correctness of his judg ment was not questioned. Behold in this case, confidence yoked to fallibility. Perhaps the time may arrive, when it would be as absurd to contend for the witchcraft said to be lurking under the words sovereignty, supremacy, necessary and convenient, as it would be to prove now, that it does not lurk under a wrinkled visage; and when it would be thought as superfluous to prove, that our constitutions ought not to be destroyed by one species of witchcraft, as that old women ought not to be burnt out of compliment to the respectable Judge Hale's decision establishing the other.

The following quotation from the opinion of the court is copious, from an apprehension of omitting any thing material towards a thorough knowledge of the question.

"Banking was introduced at a very early period of our his"tory, 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."

"It has been said, that the people had already surrendered "all their powers to the state sovereignties, and had nothing more to give."

"If any proposition could command the universal assent of "mankind, we might expect it would be this; that the govern"ment of the union, though limited in its powers, is supreme " in its sphere of action. This would seem to result necessarily from its sphere of action. It is the government of all; "its powers are delegated by all, it represents all, and acts "for all. The people have said This constitution and the laws of the United States, which shall be made in pursuance "thereof shall be the supreme law of the land, any thing in "the constitution or laws of any state notwithstanding."

"There is no phrase in the constitution which excludes "incidental or implied powers." "Its nature requires that only its great outlines should be marked."

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"We find in

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"it the great powers to lay and collect taxes, to borrow money, "to regulate commerce, to declare and conduct war, and to "raise and support armies and navies. Can we adopt that "construction, unless the words imperiously require it, which "would impute to the framers of the instrument, when granting these powers for the publick good, the intention of impeding their exercise by withholding a choice of means? The "instrument does not profess to enumerate the means by which "the powers it confers may be executed, nor does it prohibit "the creation of a corporation, if the existence of such a thing "be essential to the beneficial exercise of those powers. The "creation of a corporation appertains to sovereignty."

"The powers of sovereignty are divided between the govern"ment of the union and those of the states. They are each "sovereign with respect to the objects committed to it, and nei"ther sovereign with respect to the objects committed to the "other."

"

Congress shall have power to make all laws necessary and proper to carry into execution the powers of the government.” "Let the end be legitimate, let it be within the scope of the "constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but "consist with the letter and spirit of the constitution, are con"stitutional."

"That banking is a convenient, a useful, and essential in"strument in the prosecution of fiscal operations, is not now a subject of controversy."

"The power of taxation by the states is not abridged by the "grant of a similar power to the government of the union; it "is to be concurrently exercised by the two governments. The "states are forbidden to lay duties on exports or imports. If "the obligation of this prohibition must be conceded; if it may restrain a state from the exercise of its taxing power on imports and exports, the same paramount character would "seem to restrain as it certainly may restrain, a state from "such other exercise of this power, as is in its nature incompatible with and repugnant to the constitutional laws of the

"union."

"All subjects over which the sovereign power of the state "extends, are objects of taxation; but those over which it does

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"not extend, are upon the soundest principles exempt from "taxation. The sovereignty of a state extends to every thing "which exists by its own authority, or is introduced by its per"mission, but does not extend to the means employed by con"gress to carry into execution, powers conferred on that body "by the people of the United States."

"Such is the character of human language, that no word "conveys to the mind, in all situations, one single definite idea. "It is essential to just construction, that many words which imply something excessive, should be understood in a more "mitigated sense."

"We find, on just theory, a total failure of the original right "to tax the means employed by the general government of the "union for the execution of its powers."

"That the power to tax involves the power to destroy; that "the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on "one government a power to controul the constitutional mea66 sures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts "the controul, are propositions not to be denied."

"The legislature of the union can be trusted by the people "with the power of controuling measures which concern all, "with the confidence that it will not be abused."

"The principle, for which the state of Maryland contends, " is capable of arresting all the measures of the general govern"ment, and of prostrating it at the foot of the states."

"It is a question of supremacy." "It is of the very essence "of supremacy to remove all obstacles to its action within its "own sphere, and so to modify every power vested in subordi"nate governments, as to exempt its own operations from their ❝ influence."

"The result is a conviction, that the states have no power by "taxation or otherwise to retard, impede, burden, or in any manner controul the operation of the constitutional laws en"acted by congress to carry into execution the powers vested "in congress. This we think the unavoidable consequence of "the supremacy, which the constitution has declared."

The essential conclusion of this opinion is, that an absolute sovereignty as to means does exist, where there is no sovereignty