R E V I E
/ \o
OF THE
OPINIONS OF THE THREE JUDGES J
OF THE
SUPREME COURT OF PENNSYLVANIA,
AFFIRMING THE
VALIDITY OF ACTS OF ASSEMBLY
ACT HORIZI NO
Subscriptions bp IRutticipl Corporations
TO THE
ï
o
STOCK OF RAIL ROAD COMPANIES.
BY A MEMBER OF THE BAR.
I
S
\
HE
277/
jvifc
PITTSBURGH:
PRINTED Bï W. 3. HAVEN, CORNER OF MARKET AND SECOND STREETS.
1857.
Il
HB211 /
.PH R3
PREFACE.
The following remarks, with the exception only of the conclut
Were penned immediately upon the promulgation of the opinion^
they refer. The writer had labored vainly—without the prompting l.
Fessional motive, and solely from a desire to serve his fellow-citizens—to
the catastrophe foreshadowed in those opinions. He thought he saw h
power claimed—with as clear a vision as he sees them now—tho elements «
Bocial ruin, in the inevitable overthrow of all the securities of property.
He failed, however, to impress his own convictions upon those who were
then charged With 00 müch power for good or evil. His warnings, like
those of Cassandra, were Uttered to Unheeding ears. The results predicted
Were either regarded as impossible, or the argument drawn from them
treated as illegitimate. Judges could see no danger. They were but men,
looking like others through a rose-colored medium 5 and though ruin threat¬
ened, it was not supposed to he their business to avert it. With the people,
there was no remedy. They were without power. Their time had not yet
come. Their wishes were not even consulted, and their means of resistance
were nothing; while the surface current was hurrying madly along, and
drifting Courts and Legislatures everywhere upon the rocks. It was idle to
think of stemming that current. There was no car for remonstrance, and
no remedy but to wait until the fruit was ripened, and then test the sound¬
ness of both principle and policy, by actual results. The writer was content
to bide his time. It could not be long. His reading and observation had
taught him, that no great principle had ever been violated v4}hout speedily
vindicating itself. He looked, therefore, for the avenging Nemesis to follow
close upon the heels of this novel and monstrous aggression upon individual
rights. She has come with a swift foot; and come, too, like the rush of an
avalanche. There will be no want now of either argument or audience.
It is not, however, for the Profession only that these remarks are intend¬
ed. They want no instruction in the alphabet of freedom. They are gen*
erally familiar with its great issues. When Liberty is in danger, they may
be always trusted without a Mentor. They were its apostles in 1776, and
the ripest and ablest of them may be equally relied on now. But the sub¬
ject has a wider and more diffusive interest. The question is a political, as
well as a legal one, It is a question of governmental power. It involves the
welfare—it may be, the existence—of great communities. It is rudimental
iu its nature. It touches a right as sacred as life, which antedates all hu¬
man Constitutions, and underlies the social state itself. No question so
huge has agitated this nation. It was a money issue which gave it being.
That, however, was but taxation-^which is the taking of a fractional part
of tho property of the citizen, for the support of Government—or, in other
words, for purposes of protection. It was resisted to bloodshed, and resisted
successfully, as being no part of the governing power. This is eonfacation,
HE2/7T
.P^-K3
yáke i/;« whole, for any purpose whatever, The
icompatible with the idea of property or freedom>
saved by the Revolution. Nuy, it goes far be-
urrenders the civil conquesta of many centuries.
/ efore, for the people, and belongs eminently to their
ind to know—and it ia their right to inquire—by what
gislature has dared to embark their property in the hazards
/o transfer it and them to worthless Rail Road Companies,
, ir consent. They wish to be informed on what grounds a judi-
„•nce is to wrest it from them, without trial and without offense.
Ak\ that the power which can thus take one-third of it, may just as
/ily seize the whole. The possibility of such a thing is new to them,
wars alike against their education and their instincts. They have not
oeen accustomed to such invasions of their natural rights. They have been
taught to regard their property as their own. They find it registered in
their Constitution, amongst those "sacred and inviolable" things, with which
the Government was not to intermeddle. They have not supposed that Gov¬
ernments were commercial partnerships, where individual prudence was no
security against ruin. They were not aware that they could be forced into
trade, or farmed out to every needy and reckless adventurer, who might find
his account in obtaining a license to speculate upon their fortunes. It had
never entered into their contemplation, that they could be sold by the Legis¬
lature into perpetual bondage. They desire, therefore, to see and examine
the argument by which these things are excused.
Nor is this reference to the people to be interpreted into rebellion against
authority. They are themselves the sources of all power. The Government
is but their instrument. The rights they have reserved are excepted from
its control, and remain, of course, in their own keeping. They have not
trusted them either to Courts or Legislatures. The defection of a Court
cannot, therefore, destroy them. If it declines the guardianship, on the
plea of impotence, they must assume it themselves. They are, even under
the Constitution, the tribunal of last resort. They make the Courts, and
may re-judge the Judges. There is a class of questions—and this is one of
them—which Courts and Judges have not always successfully settled. With
all proper respeot for them, it has not been found that they are at all times
the safest depositaries of the liberties of the people. If they have been
suspected, elsewhere, of an occasional leaning on the side of power, they
ha\< confessed a kindred inclination here. Where a power is doubtful, it is
their admitted rule to affirm it. Regarding themselves as a branch of the
Government, they are always tender of the supposed rights of their co-ordi¬
nates. Where there is a question of prerogative, they do not affect to be the
defenders of privilege. In the very case before us, they have decided against
the citizen, on the principle—now first distinctly avowed—that there is one
rule—and a liberal one-—for the Government ; another—and a strict one—for
the pcopleJ They have decided, too, upon this rule, that a power which is
only implied, may be pushed beyond the necessity which creates it, even to the
destruction of the object for which it was created!! In so deciding, they have
revolutionized the State, and ruptured the tie of allegiance, by withdrawing
► ftts .protection from the citizen. They have thus made it peculiarly the busi-
Bess of the people to look to their own securities. To Buppose that they
■will surrender them without a struggle—or that the struggle will be a
brief and unsuccessful one—where a million of people—without any fault of
their own—are placed under a perpetual ban, and condemned to pay tithes
of their substance, and to be harrassed by repeated and irritating exactions,
is to ignore their moral sense, and to forget the history of a race, whose battles
for freedom have been fought upon the taxing power. They may not choose
to quarrel about a theory. Men do not always see danger in a principle.
The quick sensibility, and the keen perception of civil rights, which, accord¬
ing to Mr. Burke, distinguished our ancestors, above all other men, have
unquestionably declined under our Republican forms. The decision in
question is evidence of this. If it could have been safely made in 1776, our
Revolution would have found no place in. history. It is only actualities that
stir us now. A false and anti-American doctrine may find its way into a
law book, and slumber there undisturbed. When it awakens, however, into
destructive energy, and comes to grapple in its actual results with the uner¬
ring instincts of a free people, it can no longer go unchallenged. No rev¬
erence for authority will save it then. It will be flung to the earth, and
trodden upon, as no better than treason against man and nature. Authority
itself is only strong, when it reflects the popular conscience and instincts,
and bottoms itself on the great foundations of humanity. It can but suffer
in a conflict with a right, which descended upon man, when God gave him
sinews for toil, and proclaimed that in the sweat of his face he should eat the
produce of the field.
The writer would not be supposed, however, to assume that the time has
come—or ever will come—for p, conflict of this sort. The decision com¬
plained of, was by a bare majority—agreeing in nothing but their unfortu¬
nate conclusion—and upon an imperfect appreciation of the mischiefs which
it was supposed to threaten. It is not understood to have been yet expressly
ruled, that a law which does confessedly overthrow the securities of prop¬
erty, can bo sustained. He would be slow to believe that» any Court in
America would have the courage to meet that question full iu the face, and
answer it in the affirmative—and still slower to believe that such a decision
would be respected as an authority amongst any people who can point to
Magna Charta as one of their muniments, or show a historic record like our
own. It was the effect only of these laws that seemed to be questioned or
donied. It is now demonstrated by actual results, in the brief but disas¬
trous experience of these communities. "With these results before them, it
seems impossible that the Judicial mind can hesitate Respect for the
Courts forbids the supposition that they will deliberately declare that the
rights of property are so insecure amongst us^ that a Legislature, elected
mainly by others, may arm a mere handful of irresponsible men, with the
absolute power of stripping their brethren—resident and non-resident—of
all they own, and dwarfing forever the growth of these communities. The
force and legitimacy of the argument derived from the mischiefs of a par¬
ticular construction, are not denied even in ordinary cases. When it is
made to appear—as it does now—that one of the declared objects of this
Government is, in point of fact, defeated by the doctrine complained of,
a power, which is merely implied as one of its instruments—and, therefore,
ir
äff a means' of pY'óleeííon-^mxxst give way, fr ora necessity, unless the end iff
to bo sacrificed to the' mean». In Buch arr extremity, the people are not t<v
he put off with the answer, that they may be plundered with impunity, or'
that the Legislature may oppress them by the new and ingenious process of
enacting eYerr a moral impossibility—merely because they have not express?# for-
hidden it! If they are tobe treated with an argument, by way of compensation
for a right, it will require » sterner logic than this—a logic which shall sub-
due all doubts, and flash Conviction into all understandings—to reconciler
them to the in diction. They will demand something better than a mess of
pottage in effebange for a 5rrth-rigfk. To say that the thing is wrong, but
cannot be helped, wiTI not satisfy therm. If it is wrong, it must be helped!
They sfand Upon their eon-tract. They are entitled to protection, and will in¬
sist upon it If it is denied to them, what language will be left to the op-
pressed,but the passionate outcry of suffering Israel to Reboboam, when
lie spurned the adviee of the elders, and hearkened only to the counsels
of the youngr "What portion have we in David? Neither have we inher¬
itance in the son of Jesse. To your tents, ob Israel! Now look to thine-
own bouse, Bhvid.'*
To arvoid confusion, it is proper to add, that since the larger portion of
this Review was written, the Chief Juetiee to whom it refers has descended
from the Bench, and that the Judge who now" occupies his seat dissented
strongly and ably—as did his brother Lowrie, who is about to follow Mm in
Ike order of succession—from the opinion of the majority, and is not, there¬
fore, responsible for the very peculiar views of his predecessor. The argu¬
ment speaks as of the time when it was prepared, and the official denomi¬
nation, wherever it occurs, is to be understood, of eourse, as referring to
the previous incumbent.
Should the inquiry be made, however, why it is that so large a portion of
!he writer's attention has been directed to the retiring Judge, the answer
is—simply because the argument of that gentleman is by far the most elab¬
orate, and perhaps altogether the most ingenious defense which has been yet
made of this alarming innovation in American politics. Tbe writer could
see nothing in it to make him dread tbe encounter with any of its advocates,
ftv a fair field, with the privilege of free speech, and before either a profes¬
sional or popular audience. He desired to meet it in its most formidable
guise. It had found favor elsewhere, under eirenmstanees by no means
auspicious to the coolest investigation. It was destined to experience its
fullest development here. AU that had ever been said in its defense, wa9
here accumulated and rehearsed, with all the aids which great ability and a
vigorous elocution could give it. It could be only formidable, when it was
so defended. If it cowld be defended at all, there was no stouter arm than
that of the Chief Justice.
Si Pergama deztra
Defendí possent, etiam hác defensa fuissent.
If be has failed, it will not be set down to the account of the advocate. The
infirmity will be looked for, where it truly resides, and that is, in the cause
itself.
Pittsburgh, November 4, 1857.
REVIEW.
Respect for authority is habitual with the profession.
In the determination of mere questions of property be¬
tween man and man, where it is, perhaps, more essential
that the law should be settled, than that it should he settled
wisely, acquiescence may possibly be regarded as a duty.
There are cases, however, where silence would he criminal.
"Where doctrines are announced, and under color of those
doctrines, rights invaded, which involve the permanent
welfare of whole communities, by overthrowing the
securities of property, and striking at the foundations of
all legitimate government, the question assumes a different
aspect. The habit of deference is then no longer to be
worn. The lawyer becomes the citizen. lie feels that
he has other and higher obligations, than even those which
bind him to his client. He is called upon to lift his eyes
from the ephemeral struggles of the forum, to the relations
of country and of time, Hor can he remain indifferent. His
habits of thought and observation quicken his perception
of the dangers which may lurk even under an abstraction.
They teach him, in the fact that time sanctifies error, and
ripens even usurpation into law, the wisdom of the apoph¬
thegm, " obsta principiis," and the necessity of strangling
a false principle before it has been fully developed into
life; and he feels that, under such circumstances, indiffer¬
ence would be disloyalty to his profession, and acqui¬
escence, treason to his countrv.
/ V
These reflections have been suggested by the recent ex¬
traordinary decision of the Supreme Court of this State,
in the case of Sharpless and others against the City of Phila¬
delphia;, and will, perhaps, he received as a sufficient
apology for the review of an opinion which, deciding, as
2
it in effect does, that the mere delegates or representatives
of the people may single out any given community, and
authorize their own agents or appointees, without the
assent of the people thereof, to borrow money in their
names, and to pledge their property for its payment, to any
extent and for any purpose whatever, has startled and
shocked, beyond all past example, alike the professional
and the public mind of this State. It is admitted by the
.Court that 110 question of greater magnitude has ever
occupied its attention. It is conceded that the legislation
which it sustains, is " impolitic, dangerous and immoral."
It is even affirmed that it may, and most probably will,
result in the universal bankruptcy of our corporations, and
crush with its iron weight the industry of our people. It
is not to be doubted, therefore, that it menaces the over¬
throw of one of the most invaluable of those rights
which all governments are instituted to secure 'r and it
behooves us to inquire into the validity of the reasons,
upon which the Supreme Court has felt itself compelled
to abdicate its supposed duty to the people, and to sur¬
render them and their fortunes into the hands of the
Legislature.
There is another reason, however—if reason were
wanted—to justify this inquiry. If the decision referred
to, had been the result of an unanimous opinion of the
Court, it might have induced some hesitation on the part
of those who were disposed to question its soundness,
although its startling consequences were such as to
authorize an indefinite struggle for the re-establishment
of the principle which it surrendered. The decision
is, however, neither unanimous nor final. It is, at the
most, hut an accidental adjudication, by the mere force of
numbers, upon the majority principle, and upon an issue
strictly preliminary. It would scarce be entitled, there¬
fore, to any respect as an authority, even upon a mere
question of property. As a decision upon a great ques¬
tion of constitutional right, it must depend for its perma¬
nency, not on the number of hands which may have been
lifted up in its support—not on the insecure and shifting
3
tenures of particular Judges—not on the fluctuating
opinions of the people, which may be one thing when
money is to he borrowed, and another when it is to be
paid—but on the force of the reasoning by which it is
sustained. In such a controversy, the majority principle
has no legitimate place. Where the weapon is reason,
and not force, as in the contests of the forum, there is no
magic in the multitude of suffrages. Opinions are to be
weighed, and not numbered, and if they will not bear the
test of reason, it is morally impossible, in such a case as
this, that they can stand as law.
I propose, therefore, to test the arguments of the ma¬
jority by this standard. They will be found, if I mistake
not, to start from false principles—to rest on palpably
erroneous and heretical notions in regard to the theory
and structure of our government—to be grossly incon¬
sistent in themselves—to involve admissions which are
fatal to their own conclusions—to overlook the highest
authorities abroad, and to betray a most singular forget-
fulness of decisions of still higher authority at home.
And if it should appear, as I think it will, that, from the
admissions of the Chief Justice, his associate (Wood¬
ward) would have reached a different result, and with the
■admissions of his associate, the Chief Justice must have
paid him the same compliment, it will, perhaps, be con¬
ceded that there is no great force in a m£yority result,
patched up out of such incongruous elements as these.
I shall address myself, however, in the first place, and
mainly, to the elaborate opinion of the Chief Justice,
and then take up that of his elder coadjutor, in the way
of contrast. With the opinion of Judge Knox, I shall not
meddle, until it appears, as promised, in such .a state of
development, as will enable the profession and the public
to discover and examine the reasons upon which he has
felt constrained to co-operate in inflicting so deep a wound
upon the integrity of our institutions, and the rights and
liberties of the people.
The first of the remarks of the Chief Justice which
challenge our attention, are those which refer to the origin
4
and structure of our government, as furnishing the true
rule for the interpretation of its fundamental law. This
is the starting point, and it is a radical one. His whole
argument rests upon the foundation which he lays here.
If he is wrong in his premises, it infects every inference,
poisons every deduction, and overthrows every conclusion
at which he has arrived.
His theory is this : That in the beginning the people
held in their own hands all the powers of an absolute gov¬
ernment; that the transcendent powers of Parliament
devolved on them by the Revolution ; that if, after that
event, they had given all the authority which they them¬
selves possessed to a single person, they would have cre¬
ated a despotism as absolute in its control of life, liberty
and property, as that of the Russian Autocrat; that a
portion of this power was specifically delegated to the
Government of the United States; that the residue was
bestowed on the government of the State, with certain
limitations and exceptions expressly set down in the State
Constitution ; and that, without these exceptions, the vest¬
ing of the legislative power in the General Assembly, by the
mere force of the general words used in the Constitution,
would have given them an unlimited power to make all such
laws as they might think proper, and would have vested
in them the whole omnipotence of the British Parliament:
And, by way of corollary to all this, that, while the
Federal Government can do nothing but what is author¬
ized expressly or by clear implication, the State may do
whatever is not prohibited : and that the interpretation of
the State Constitution, unlike that of the Federal Govern¬
ment, is strict against those who stand upon the exceptions,
and liberal in favor of the Government I
Is this the true theory of our Government? I venture
to say that it has no support in any American authority;
that no enlightened jurist on this side of the Atlantic has
ever favored such a hypothesis ; that it is at war with all
Revolutionary sentiment in this country; that it is repu¬
diated by the highest names on the American Bench, and
denied by the solemn abdications of our Courts; that it
5
»
is in flat contradiction of the grounds assumed in the
Declaration of Independence, aud of the principles an¬
nounced in our own Constitution; and that it is as abhor¬
rent to reason, as it is anti-republican in its tendencies, and
pregnant with danger to our liberties. This is strong
language, but I know where I stand, and will now proceed
to show that it has not been used without warrant.
The idea of the Chief Justice is, that by virtue of the
separation from the British Crown, the people of this State
became, ipso facto, vested with the powers of an absolute
government, which imply an entire control over the
lives, liberties and fortunes of its subjects—that they
might have conferred these powers on one man, and that,
by the mere delegation of the legislative function, and
by force of the general words, they did confer them on
the General Assembly.
It will not be denied, of course, that if they could have
conferred these powers, either on one man, or on a Legisla¬
ture composed of many, they might, a fortiori, have exer¬
cised them themselves, as at Athens, in their own primary
Assemblies, and that, under either form, the government
exercising these extraordinary powers would have been
equally despotic. If the Chief Justice is right, therefore,
every State in the Union, upon the recognition of its inde¬
pendence, and before the adoption of the Federal Consti¬
tution, became, by virtue of the Revolution, and by way, I
suppose, of reward for its struggles and sacrifices in the
cause of liberty, ipso facto, a despotism; and the majority
of its citizens might lawfully have dethroned and abroga¬
ted the great law of nature, and taken away the lives,
liberties and property of their brethren ! According to
this idea, every social organization, in the absence of a
special contract, resolves itself at once, and naturally and
necessarily, into a despotism. That is, of course, the only
original, legitimate and pattern type or model of all gov¬
ernment, and all the rest are mere derivatives or mon¬
strosities. The social compact, therefore, implies an entire
abdication, on the part of every man who becomes a
party to it, of all his natural and civil rights ; and, if he is
6
not deprived of them, he is indebted for his immunity
entirely to the forbearance of his fellows. lie is a slave,
nntil he can extort from the society a recognition of the
inviolability of some right or principle. He becomes a
freeman only to the extent of that recognition, and he is,
accordingly, to be regarded in its construction, in the rela¬
tion of one who has robbed the State of just so much of
the jewels of its prerogative !
"Was this indeed the condition of the Colonies after the
Revolution ? Some of the States—one of them at least—
adopted no Constitution of government for many years
afterwards. The gallant little province of Rhode Island
stood upon a Royal Charter only, until within the few past
years; and yet a very different doctrine was held by the
Supreme Court of the United States, when a question
arose before that august tribunal, in relation to the powers
of that government and the rights of its citizens. Wil¬
kinson vs. Leland, 2 Pet. 654. And so, too, in the case of
Terret vs. Taylor, 9 Cranch, 43, the same Court held the
following language :
"By the Revolution the public property acquired by the Churches
did not become the property of the State. The title was indefeasi-
bly vested in them by their purchases. It was not in the power of
the Crown to seize it, nor of the Parliament itself to destroy the
grants. The dissolution of the regal government destroyed no right
of property. It did not involve a dissolution of civil rights, or an
abrogation of the Common Law. The State itself succeeded only
to the power of the Crown, with many a flower of prerogative
struck from its hands. It has been asserted as a principle of the
Common Law, that the division of an empire creates no forfeiture of
previously vested rights of property. Kelley vs. Harrison, 2 John.
C. 29 ; Jackson vs. Lunn, 3 do. 109 ; Calvin's Case, 7 Coke, 27.
And this principle is equally consonant with. the common sense
of mankind, and the maxims of eternal justice."
Rut if the people in the beginning had, in themselves,
as suggested by the Chief Justice, all the powers of an
absolute government—inert, it may be, but capable of
being exercised for the most tremendous purposes of
mischief—whence, we may well ask, were all these formi-
7
dable powers derived? Kot, certainly, from the Law of
Kature, because, in the original and primitive condition
of society, where that law would be the only rule, it is
palpable, as asserted by the Declaration of Independence,
that all men are equal, and no one man has any moral
power whatever over either the life, liberty or property of
his fellow.
Did it result, then, from the social organization, and as
a necessar}' consequence of the social state ? Are all gov¬
ernments, not depending on express compact, primarily
and essentially despotic ? This is clearly the idea of the
Chief Justice, as it is unquestionably the fountain-head
from which he derives all his conclusions, and the ground
upon which he rules this case. That it favors despotism,
and must result, if carried out, in the destruction of every
free government on earth, is not to be doubted by any¬
body. But how does he make it out? Is it a necessary
result of the creation of a law-making power ? Do the
objects and purposes of the social state infer any such ne¬
cessity? What are those objects? Does any one doubt
elsewhere, at this day—can any one doubt here, in the
face of the reiterated and authentic declarations upon that
point, that they are to protect the natural rights of the in¬
dividual, and thereby to secure his happiness? Is it ne¬
cessary, then, to effect this object, that he should make a
holocaust of all those rights, and surrender them into the
common treasury of power, to be doled and parceled out
again by the supreme authority, in such measure, either
stinted or otherwise, as it may think proper: that, like
King John of England, in his dealings with the Pope, he
should surrender his dominions to his temporal superior,
whether King or Legislature, and then go down on his
knees to accept a new investiture, and do homage there¬
for, as of the bounty of the sovereign ? Would the law¬
making power he ineffective to accomplish all its legiti¬
mate purposes, unless it were uncontrollable, absolute and
supreme ? Why should it be so ? Will it he said that
the reservation of those rights which governments are
especially designed to secure, is inconsistent with the
8*
idea of all government? If it be, then all government
is impracticable for wbat are tbe only legitimate purposes
of its institution ! It is not necessary, therefore, that such
a power should exist in order to accomplish the object;
and if not necessary, it is demonstrably clear that it did
not pass upon that footing—as it is equally clear that it
would be anything but wise to confer, what was much
better calculated to defeat than to subserve the general
purpose.
The idea of a free Government—and it is, in our view,
the only correct idea of all government—is, that it in¬
volves the surrender of just so much of the natural rights
of the individual, as is essential to the protection of the
natural rights of all; and it is clearly not to be presumed
that he intended to surrender anything more, unless he
has said so, or unless it be essential to the main pur¬
pose. In either case, however, it would stand upon his
own assent, either express or implied. The former is out
of the question ; and the latter cannot be shown, because
the ground of necessity is palpably wanting. "What, then,
becomes of the ruling idea of the Chief Justice—the idea
of absolute power in the community? It has not a foot
to stand upon.
Nor has this doctrine ever had any respectable support
from any quarter on this side of the Atlantic. It is true,
that some equally wild notions in regard to the power of
the people in convention, were broached in different parts
of this State, about the time of the election of Delegates
to amend its Constitution in 1886. It was asserted on
that occasion, by one or two individuals only, that the
Convention then about to assemble, might repeal char¬
ters, enact a code of laws as bloody as those of Draco, and
perform divers other feats not less extraordinary ; but the
people took the alarm, and the men who entertained
these opinions, though highly respectable in point of char¬
acter and ability, were not favored with the opportunity
of experimenting in that way. The Convention resulted
only in an abridgment of the governmental power, and the
opinions referred to have slumbered in merited oblivion,
9
until drawn forth and re-indorsed by the present Chief
Justice of this State. If they shall prevail with the peo¬
ple, under newer and more favorable auspices, we may
have another Convention, by and by, to do what the last
one omitted—under the old-fashioned impression, that it
could not be done—perhaps to divest the rights of the
minority, and to transfer their property to the dominant
party.
Is it true, then, that the people could have created a
despotism, and would have created it by a general grant
of the legislative power, either to a single person, or to
the General Assembly?
"We have shown that no such absolute power, as is
claimed for the people, could have belonged to them,
either on the footing of the natural law, or on any pre¬
sumption of consent arising out of the necessities of the
social state. But this is not all. "We are now prepared
to show that the people of this State could not, even with
the common consent, by virtue of any moral power which
resided in their concurrent and unanimous wills, have
created a despotism as absolute as that of Bussia ; and
that they would not have created it, by a general and un¬
qualified grant of the legislative power, either to a single
person, or to the General Assembly.
The authority to create Buch a Government as is de¬
scribed, involves, necessarily, the power on the part of the
individual to abdicate all his natural rights, and to'degrade
himself into a slave. The idea is derived most probably
from the notion that every man is lord over himself, and
that the power of the society is no more than the expres¬
sion of the collective will, whether signified by the com¬
mon voice, or by the voice of a mere majority. It is not
true, however, that either the individual, or the commu¬
nity speaking for him, and holding, of course, no larger
powers than he can confer himself, could, by any valid
compact, surrender to any man or to any government, the
entire control over his life, liberty and property, which are
the gifts of Providence, for his own uses, and not his to
be squandered with the prodigality of a thriftless heir.
10
If tlie Chief Justice of Pennsylvania himself, were called
on to pass upon a contract, by which any man in this coun¬
try had undertaken to barter away either his life or lib¬
erty, or his right of acquiring, and enjoying what he ac¬
quired, he would be obliged to say that it was not obliga¬
tory on the contracting party. He would be constrained to
declare that there was no consideration which would be
adequate to sustain it; and he would be apt to affirm,
with the emphasis which he knows so well how to em¬
ploy, that the man who had made himself a slave, by the
surrender of all his natural rights to a single person—as
it is now asserted he may do—stood absolved, in the sight
of God and man, from all obligation of obedience to the
master, for whose benefit he had been guilty of the moral
treason of abdicating his manhood, and surrendering the
priceless jewels of his natural inheritance. It is not to be
denied by anybody at the present day, that there are cer¬
tain rights pertaining to every man, which are, in their
very nature, inalienable. The Declaration of Indepen¬
dence, which is the authentic exponent of the causes of
our Revolution, and the principles which that Revolution
established, declares in its very first paragraph, as a "self-
evident truth," "that all men are created equal, and are en¬
dowed by their Maker with certain inalienable rights,
among which are life, liberty and the pursuit of happiness;
and that to secure these, governments were instituted
amongst men." Chief Justice Black declares that there
are no " inalienable rights " whatever, and that, by force
of the very organization of a government, those which are
so denominated, are, ipso facto, surrendered ! But the
contradiction does not stop here. The Constitution of
Pennsylvania enumerates, with equal emphasis, among
"the great, general and essential principles of liberty and
free government," the rights of life, liberty and property,
as "inherent and indefeasible.'1 Chief Justice Black sets
out with the antagonist opinion, as his postulate, and de¬
clares that the people of Pennsylvania might have surren¬
dered the whole of them into the hands of a single man,
and that they did surrender them to one hundred and
11
thirty-three of tlieir servants, by the mere general grant
of the legislative power!! If the Chief Justice is right,
the "self-evident truths" of the Declaration are a lie, and
the "inherent and indefeasible rights" of the Constitu¬
tion, are defeasible by the merest implication! It is his
privilege, perhaps, to dissent from the axiomatic enuncia¬
tions of the immortal Charter, whose every principle was
baptized in the blood of the Devolution, but it is most
respectfully submitted, that he is not at liberty even to
question any one principle which is announced as' "a
great, general and essential principle of liberty and free
government," in order "that it may be recognized and
established," in the written pages of our State Constitu¬
tion. That Constitution is his law, as well as ours. If he
cannot add to it, as he alleges, it is equally certain that he
cannot tal:e auythiug away.
It is clear, therefore, not only on principle, but on
authority, which the Chief Justice of Pennsylvania, at
least, is not at liberty to question, that the people of this
State could not have established a valid government such
as he describes. But, to give him every possible advan¬
tage in the argument, we will suppose, for the present,
that they could; and then inquire whether they would or
did, by force and virtue of the mere general grant of the
legislative power.
It is to be considered, in the first place, that the idea of
such a government involves, as stated by the Chief Jus¬
tice himself, the entire control over life, liberty and pro¬
perty, and of course the unquestionable power of divest¬
ing all rights, and abrogating all contracts, even the most
sacred; and that the question, therefore, is, whether all
these powers were conveyed by virtue of the general
grant, except so far as it may have been restrained by the
previous grant to the general Government.
To establish this heretical proposition, it is necessary, in
giving a construction to the grant, to discard the common
sense rule, of resorting to the evident intent and meauing
of the parties, and to adopt the exploded and unreason¬
able maxim, that a grant is always to be taken most
12
strongly against the grantor. If this were, however, a
sound rule of interpretation in the case of a Constitution,
it would not he applicable here, because there is another
rule which supersedes it—and that is, that in grants by
the Sovereign, nothing is to be taken by construction, and
nothing passes but what is expressly named. The English
books are full of authority on this point. 2 Black. Com.
847; 5 Rob. Adm. R. 182. The reported decisions of our
own State are to the like effect : Monongahela Co. vs. Coon,
6 TV". & S. 113 ; Mayor of Allegheny vs. Ohio and Pennsyl¬
vania Rail Road Co. 2 Casey, 360 ; and the same doctrine
is affirmed by the Supreme Court of the United States, in
the case of the Providence Bank vs. Billings, 4 Pet. 514,
and in the memorable case of the Charles River and
Warren Bridge Companies, 11 Peters, 420, wherein it was
solemnly held, after the fullest consideration, that in a
grant by the Legislature, a right which was essential to
the protection of the grantee, could not be construed to
pass by implication. In the case we are now considering,
the grant was by the Sovereign—which is only another
name for the people—and the rights claimed are, as
already shown, not essential even to the admitted pur¬
poses of the grant.
But that is not all. In the case referred to, the grant
was absolute and to a third person—a contract made upon
sufficient consideration, and therefore irrevocable. In this
case, the grant is but a delegation—a mere power of attor¬
ney—made for the benefit, not of the grantee, but of the
grantor—and revocable at his will and pleasure. If, there¬
fore, nothing passed by implication, under any sound rule
of construction, in that case, nothing, a multo fortiori, could
pass by implication or construction in this ; and nothing,
certainly, under any imaginable rule, .which was unneces¬
sary to accomplish the object, or was, in any way, calcu¬
lated to defeat it.
The doctrine of the Chief Justice, however, is that, by
the mere vesting of the legislative power, the very rights
were surrendered, which it was the declared purpose of
the grant to secure—that, under a power to make laws for
13
a specified purpose, the authority vested of making all
laws which they might think proper ; and that, by virtue
of the general phraseology, all those rights were abso¬
lutely aliened, which, by the express language of the
Declaration of Independence, and our own Declaration
of Eights, were declared to be inalienable !
The mistake of the Chief Justice, in regard to the effect
of such a grant, arises out of the erroneous notion that
there is in every government a supreme and uncontrol¬
lable power residing somewhere, and that it must, of
necessity, be lodged in the Legislature, because the busi¬
ness of the law-making power is the highest of all the
functions of government. The idea is obviously borrowed
from the remark of the great English Commentator, that
sovereignty and legislation are convertible terms. We are
not, however, to be misled, in a fundamental question of
this sort, by false analogies. The doctrine may be true, as
regards the British Constitution, where the Parliament is
affirmed by him to be omnipotent, while the people are
"entirely unknown, and the sovereignty must, as a conse¬
quence of that supreme or transcendental power, neces¬
sarily reside with it. If the Constitution of that kingdom
depends only on Acts of Parliament, and immemorial
usages, and its Legislature may abolish customs, abrogate
laws, uncrown the King, change the order of succession,
alter the very structure of the Government, and do any
thing, in short, which is not absolutely impossible, it is,
in point of fact, supreme, and legislation and sovereignty
are in effect the same thing. Kot so, however, with us.
There are many of these things which no American
Legislature can do. The people are the sovereigns here,
and their Legislatures only delegates acting under a
restricted authority. With us, therefore, the terms are
not convertible, as they are denied to be, upon high
authority, even in England. The Government here is not
the master, hut the servant. It exists, not for its own
sake, hut for that of the people, to whom it is subordi¬
nate. It is but a means to an end, and when it ceases to
answer its purpose, the people can change it. The law-
14
makiug power is not, therefore, supreme. 1 Story's Com.
sees. 207-8 ; Taylor vs. Porter, 4 Hill, 147 ; 2 Dall. 471-2.
The Constitution is above it, and so are those who made
both. "When we speak, therefore, of "vesting" the "legis¬
lative power," we mean the power to make such laws only
as do not interfere with any of tbose rights which the
Government was intended to secure, and such only as are
necessary to establish that security.
The remarks of John Quincy Adams, in his oration of
'July 4, 1831, cited by Judge Story, in a note to section
208 of his Commentaries, are so much to the purpose
that I cannot avoid quoting them :
"It is not true, that there must reside in all governments an
absolute, uncontrollable, irresistible and despotic power; nor is such
power in any manner essential to sovereignty. Uncontrollable power
exists in no government on earth. The sternest despotisms in any
region, and in every age of the world, are and have been under per¬
petual control. Unlimited power belongs not to man; and rotten
will be the foundation of every government leaning upon such a
maxim for its support. Least of all can it be predicated of a gov¬
ernment professing to be founded upon an original compact. The
pretense of an absolute, irresistible, despotic power, existing in every
government somewhere, is incompatible with the first principles of
natural right."
The conclusion of the Chief Justice is, however, met
practically and unanswerably by the fact, that in the Con¬
stitutions of several of the States of this Union—as well as
in Rhode Island, where there was no Constitution at all—
no declarations of rights were embodied at all, and that
these declarations were omitted, for the reason suggested
by Judge Nelson, in the case of The People vs. Morris, 13
Wend. 328, that they tended only to weaken, by enu¬
meration, the rights always understood to be reserved, by
giving color to usurpation on the footing of the omissions,
and thereby furnishing apologies to ingenious Judges, for
excusing legislative encroachments on the rights of the
people. They came out of the Revolution free, and with
the liberties of British subjects, not lost, as our Chief J ustice
supposes, but re-conquered and re-established by that
lfí
struggle ; an d it was not imagined by any body at tbat period,
that in creating a Legislature, as the mere organ of their will,
they were creating for themselves a master, and surrender¬
ing to that master the very rights for which they had been
contending. They had another reason, moreover, for the
omission, which was equally pertinent, and is well enforced
in the papers of "The Federalist;" and that was, that Bills
of Bights, being in the nature of abridgments of the pre¬
rogative, and concessions extorted from the Crown, would
be out of place in a government where the people, being
themselves the sovereigns, required no reservations for
their security. (Ko. 84.)
The doctrine of the Supreme Court of the United States
upon the unwritten Constitution of Bhode Island, may be
considered, however, an authoritative adjudication upon
the very question which we are examining, and is as
utterly destructive of the theory of the Chief Justice as
arc the Declaration of Independence and our own Declara¬
tion of Bights. The late eminent Judge Story, in deliv¬
ering the opinion of the Court in that case, say3:
" Rhode Island is the only State in the Union which has not a
written Constitution of government, containing its fundamental laws
and institutions. Until the Revolution, it was governed by a Charter
of Charles II. That charter has never been abrogated, and, except so
far as it has been modified to meet the exigencies of the Revolu¬
tion, may be considered now a fundamental law. By that Charter,
the power to make laws is granted to the General Assembly in the
most ample manner, 'so as such laws be not contrary and repugnant
unto, but as near as may be agreeable to the laws, «See. of Eûgland,
considering the nature and constitution of the place and people
there.' What is the true extent of the power thus granted, must
be open to explanation, as well by usage as by construction of the
terms in which it is given. In a government professing to regard
the great rights of personal liberty and of property, and which is
required to legislate in subordination to the general laws of England,
it would not lightly be presumed that the great principles of Magna
Charta were to be disregarded, or that the estates of its subjects
were liable to be taken away without trial, without notice, and without
offense. Even if such authority could l>e deemed to have been con¬
fided by the Charter to the General Assembly of Rhode Island as
16
an. exercise of transcendental authority, before the Revolution, it
can scarcely he imagined that that great event could have left the
people of that State subjected to its uncontrolled and arbitrary ex¬
ercise. That government can scarcely be deemed free, where the
rights of property are left solely dependent upon the will of a
legislative body, without any restraint. The fundamental maxims
of a free government seem to require that the rights of personal lib¬
erty and private property should be held sacred. At least, no Court
of Justice in this country icoidd he warranted in assuming that the
poVoer to violate and disregard them—a power so repugnant to the
common principles of justice and civil liberty—lurked under any
general grant of legislative authority, or ought to he implied from
any general expressions of the will of the people. The people ought
not to be presumed to part with rights so vital to their security and
well-being, without very strong and direct expressions of such an
intention. In Terret vs. Taylor, 9 Cranch, 43, it was held by this
Court, that a grant or title to lands, once made by the Legislature
to any person, was irrevocable, and that a different doctrine is utterly
inconsistent with the great and fundamental principles of a Repub¬
lican Government, and with the right of the citizens to the free en-
joymentof their property, lawfully acquired. We know of no case in
which a legislative act to transfer the property of A to B, without his
consent, has ever been held tobe a constitutional exercise of legislative
power, in any State in the Union. On the contrary, it has been
constantly resisted, as inconsistent with just principles, by every
judicial tribunal in which it has been attempted to be enforced.
We are not prepared, therefore, to admit that the people of Rhode
Island have ever delegated to their Legislature the power to divest the
vested rights of property, and transfer them without the assent of
the parties. The counsel for the plaintiff themselves have admitted
that they cannot contend for any such doctrine. Wilkinson vs.
Leland, 2 Pet. 657—8."
In the case of Terret vs. Taylor, which has been already
cited, the same Court holds this emphatic language :
" That the Legislature can repeal statutes creating private cor¬
porations, or confirming to them property already acquired under
the faith of previous laws, and by such repeal can vest the property
in the State, or dispose of it to such purposes as they please, without
the consent or default of the corporators, we are not prepared to
admit. And we think ourselves standing on the principles of natu¬
ral justice, upon the fundamental law of every free government,
17
upon the spirit and letter of the Constitution of the United States,
and upon the decisions of most respectable judicial tribunals, in
resisting sucb doctrine."
The opinion of the Supreme Court of New York, in
the case of The People vs. Morris, (13 Wend. 328,) is, if
possible, still more to the purpose. Justice Nelson, now
one of the Judges of the Supreme Court of the United
States, in delivering that opinion, says:
" Tbe only limitation to the powers of tbe legislative department
that can exist, must be found either in tbe Constitution of tbe
United States, or of this State, or in the natural and inherent
rights of the oitizens, which they cannot part with, or he deprived of
hy the society to which they belong. The latter qualification is un¬
defined, and, perhaps, undefinable by any general code, having a
just regard to the security of these rights. Some of the Constitu¬
tions of the States contain a declaration of these powers, and some,
also, declare (and all are, no doubt, so to be understood,) that the
enumeration shall not be construed as denying or impairing others
retained by the people. We have no Bill of Bights, though many
of the principles usually found in such an instrument are incorpo¬
rated in the provisions of the Constitution. The enumeration was
designedly omitted, because unnecessary, and tending to weaken, if
not endanger, those unnoticed. The limitation or qualification in
this respect, must depend upon the enlightened wisdom and dis¬
cretion of the Legislature, and the decisions of the judicial depart¬
ment. It is now considered an universal and fundamental propo¬
sition in every well regulated and properly administered government,
whether embodied in a constitutional form or not, that private
property cannot be taken for strictly private purposes at all, nor for
public purposes, without a just compensation; and that the obli¬
gation of contracts cannot be abrogated or essentially impaired.
These and other vested rights of the citizen, are held sacred and
inviolable, eveu against the plenitude of powpr of the legislative
department."
The same Court, in a more recent case,. (Taylor vs.
Porter, 4 Hill, 147,) speak in this wise :
"The owner of the land over which the road is laid, has not lost
the entire fee, but he has lost the beneficial use and enjoyment of
his property forever. It is not material, however, to inquire what
quantum of interest has passed from him. It is enough that some
2
18
interest—some portion of his estate, no matter how small—has
been taken from him, without his eonsent. The property of A is
taken without his permission, and transferred to B. Can such
a thing be rightfully done ? Has the Legislature any power to say it
may be done ?
''The right to take piivate property for public purposes is one of
the inherent attributes of sovereignty, and exists in every inde¬
pendent government. But even this right of eminent domain, can¬
not be exercised, without making just compensation to the owner of
the property; and thus, what would otherwise be a burden upon a
single individual, has been made to fall equally upon every member
of the State. But there is no provision in the Constitution that
just compensation shall be made to the owner when his property is
taken for private purposes; and if the power exists to take the prop¬
erty of one man, without his consent, and transfer it to another,
it may be exercised without any reference to the question of com¬
pensation. The power of making bargains for individuals has not
been delegated to any branch of the government; and if the title of
A can, without his fault, be transferred to B, it may as woll be
done without, as with compensation. This view of the question is
sufficient to put us upon the inquiry, where can the power be found
to pass such a law as that under which the defendants attempt to
justify their entry upon the plaintiff's land ? It is not to be pre¬
sumed that such a power exists; and they who set it up, should tell
where it is to be found.
"Under our Government, the Legislature is not supreme. It is
only one of the organs of that absolute sovereignty which resides
in the whole body of the people. Like other departments of the
Government, it can only exercise such powers as have been delegated
to it; and when it steps beyond that boundary, its acts, like those of
the most humble magistrate who transcends his jurisdiction, are
utterly void. Where, then, shall we find a delegation of power to
the Legislature to take the property of A and give it to B, either
with or without compensation I Only one clause of the Constitu¬
tion can be cited in support of the power, and that is the first sec¬
tion of the first article, where the people have declared that 'the
legislative power of the State shall be vested in a Senate and
Assembly.' It is readily admitted that the two Houses, subject
only to the qualified negative of the Governor, possess 'all the
legislative power of the State,' but the question immediately pre¬
sents itself, what Í3 that legislative power, and how far does it
extend? Does it reach the life, liberty or property of a citizen
19
who is not charged with a transgression of the laws, and where the
sacrifice is not demanded by a just regard for the public welfare?"
And Judge Kelson, in the same case, says:
"Whether the security of the citizen against such arbitrary legis¬
lation as the argument contemplates, depends upon this clause of
the Constitution, (that relating to the eminent domain,) or rests
upon the broader and more solid ground of natural right, never
delegated by the people to the law-mahing power} it is unnecessary
now to inquire. I am far from disputing the existence of the rule
itself."
And again, in the case of Fletcher vs. Peck, 6 Crunch, 87,
Chief Justice Marshall says :
"It may well be doubted whether the nature of society and gov¬
ernment does not prescribe some limits to the legislative power, and
if any be prescribed, where are they to be found, if the property of
an individual, fairly and honestly acquired, may be seized without
compensation? To the Legislature all legislative power is granted,
but the question whether the act of transferring the property of an
individual to the public is in the nature of a legislative power, is
well worthy of serious reflection. How far the power of giving the
law may involve any other power, in cases where the Constitution is
silent, never has been, and, perhaps, never can be definitely stated.
The validity of this rescinding act, then, might very well be doubted
even if Georgia were a single sovereign power."
These opinions are cited at some length, for purposes of
reference upon other points, which will be discussed
hereafter. It is scarcely necessary to add, that the prin¬
ciples which they enunciate are declared by Chancellor
Kent, to be universal, fundamental and constitutional
doctrines in English and American law.
But the theory of the Chief Justice is, if possible, still
more conclusively met by the unmistakable utterances of
our own Constitution. The 26th and last section of the
Declaration of Rights, after the enumeration of the prin¬
ciples and prohibitions which are contained in the pre¬
vious sections, declares that " to prevent the transgression of
the high powers herein delegated, we do hereby reserve every
thing in this article contained, from the general powers
of government, and declare the same to be forever sacred
and inviolate."
20
What is meant by this language ? If the powers dele¬
gated were absolute, by virtue of the general grant, it was,
of course, impossible that there could be any transgression
of them. "Where there is no to," the Apostle says,
"there can be no transgression;" and the like may be ob¬
served, where there is no limitation. This language im¬
plies the apprehension of abuse. It was possible, then, in
the view of the framers of the Constitution, for the Leg¬
islature to do, what now seems to be generally regarded
a3 impossible by the Judiciary—to transcend the high
powers delegated to them; and in order to prevent it
effectually, these principles are announced, and these pro¬
hibitions inserted. Without a declaration of rights, there
might, in the view of the framers, be a transgression. It
is clear as light, therefore, that they embodied the Declara¬
tion, not because they considered it necessary as a reser¬
vation but by way only of greater precaution against
abuse. It was incorporated, therefore, not as a necessary
limitation per se, but merely to prevent the abuse of an
implied limitation in the grant itself.
In every point of view, therefore, the theory of the
Chief Justice is utterly untenable. It has no support in
reason or principle, and is contradicted upon authorities
which are perfectly overwhelming. And yet, from this
false and alarming doctrine, maintained by nobody in
this country, and utterly at war with all Revolutionary
sentiment, and every idea of practical or rational liberty,
does the Chief Justice most illogically deduce the still
more monstrous and alarming rule, that, in the interpre¬
tation of the Constitution, its chapter of reservations, upon
which he supposes the liberties of the citizens almost ex¬
clusively to repose, is to be construed strictly as against
the citizen, who stands upon them for his security, and
largely and liberally in favor of the Government.
One would suppose that in a government like ours,
professing to be a free one, and to have been created for
the benefit of the governed, the very opposite construction
would follow, by an inevitable logic, from the proposition
that the general grant would have made slaves of all of
us, and that the exceptions are the only refuge for free-
21
dorn. It seems, however, that she is practically to find no
refuge anywhere. If we look to the grant, and appeal to
the spirit in which it was made, we are frowned out of
Court, with the stern assurance that it has made us slaves,
and that we must look to the reservations for our security.
If we fly for refuge to the sanctuary thus pointed out to
us, we are followed there, and dragged from the very
horns of its altar, as fugitives from the power of our own
Government—revolted subjects in arms against our sov¬
ereign. Quacnnque via data—turn which way we will—the
construction is to he against us. We are in the condi¬
tion so pathetically described by our British ancestors:
" the barbarians drive us to the sea, and the sea drives us
back again upon the barbarians."
With the demolition of the theory, of course, perishes
the rule of construction which is founded upon it. There
is so much, however, in that rule to challenge animadver¬
sion—so much that is revolting to the Republican mind,
that I do not feel at liberty to pass it over in silence.
That rule of construction is, in terms, that "as against
him who stands upon the exceptions, the construction is
to be strict, while it is liberal in favor of the Government."
This monstrous sentiment is, perhaps, a fair result of
the erroneous and heretical theory, by which it is ushered
in. If it be, indeed, true, that all governménts are, prima
facie, absolute, and all limitations on their powers are but
abridgments of their natural and inherent prerogatives
—concessions extorted by, and reluctantly yielded to the
people, and held by the latter, not upon any original title,
in themselves, but as of the mere bounty of the sover¬
eign—then it may be asserted, perhaps, that the man who
claims immunity under them in our Courts, is standing
upon a hard bargain, coerced from his lawful master, and
is entitled to no more than the letter of his contract. If a
British Judge were so to hold, in view of the theory of his
Government, as deduced from its actual history, and with¬
out reference to the modern notions in regard to the
true sources of power, and the legitimate purposes of all
government, the argument would be, at least, a plausible
22
one. I doubt, however, whether there is a Judge in Eng¬
land, who, in a contest betweeu a subject and the Crown,
would have the courage to follow the lead of the Chief
Justice of Pennsylvania—to reject the great modern prin¬
ciple of construction in favorem libeiiatis, and to decide that
Magna Charta, or the Bill of Rights, was to be construed
strictly as against the subject, and liberally in favor of the
Crown. If the people of Pennsylvania are indifferent to
the enuncktion of such principles, it is not so with the
gallant Commons of England. They know the value of
a principle by the blood which it has cost them, and all
the power of the Crown could not protect the Judge who
uttered it, from the just condemnation of the people
whom he had betrayed. "We are, perhaps, indifferent, be¬
cause we have come to our inheritance of liberty full-
grown, and do not, therefore, either realize its original
cost, or the dangers by which it is menaced.
It has already been remarked, that one of the reasons
suggested for the omission of Declarations of Rights in
several of the State Constitutions, was the tendency of an
enumeration to weaken the reserved rights, by giving
color to usurpation, on the ground of omission. If the
reasonableness of this apprehension could ever have been
questioned—as it might well have been by men who had
just come out of the Revolution—it is now amply justified
by the example of a Pennsylvania Judge, who has not
been ashamed to hold us to the letter of the reservations,
even while he denies that we have any rights, except
those which may have been thus protected. But let us
examine his rule by the test of principle.
It is admitted that the Constitution emanates from the
people, and is their work. It will not be denied, I sup¬
pose, that it is but a power of attorney. It reserves,
however, sundry things from the delegation, and announ¬
ces those things as "a declaration of rights." The things
reserved, are mainly the natural rights of the citizen,
which all governments are instituted to secure, and no
more of which were intended to be parted with, than
were essential to the general weal. The Declaration of
23
Rights is, therefore, the "Holy of Holies" of the Constitu¬
tion. It is expressly and emphatically made the sacred
depository of "great, general and essential principles,"
and of course the great palladium of individual and pub¬
lic liberty, which was to stand through all time, intan¬
gible and inviolable by the rude hands of power. With
these reserved rights, even the delegates of the people
themselves were not to be trusted. They could be an¬
nounced, however, only in general maxims or principles,
which would be understood, and they were so expressly
announced, in connexion with sundry special prohibitions.
The people had a right, moreover, to demand, that if any
power was claimed to interfere with any of their natural
rights, or which militated against any of these principles,
the grant of it should be shown. The burthen was not
on them, but on the aggressor. And now it is gravely as¬
serted by a Pennsylvania Judge, that in a contest between
the citizen and the Government—between the maker and his
own instrument—the construction is to be, not according
to common law rules—not according to the undoubted
meaning of the parties—not upon the great, obvious and
general purposes and objects of the instrument itself,
which is only another name for its spirit, tenor and intent
—but strict as against the constituent, where the power
was given, and the reservation made, for his benefit only,
and large and liberal in favor of the attorney! What
would be thought, I ask again, of such a doctrine even in
England, where a Bill of Rights is, in point of fact, an
abridgment of the prerogative, or a concession wrested
from a feudal sovereign? Would the common law and
common sense rule be discarded there, or would the con¬
struction be, as it always is, in favor of liberty? Would
a British Judge have the courage to announce, or could
he announce safely, such a doctrine, at the present enlight¬
ened era? I venture to say that he could not hold his
place for six months against the tempest which it would
occasion. And yet it is upon such a principle, flowing, as
it does, from an erroneous view of our Republican insti¬
tutions, that the power claimed in this case has been sus-
24
tained by an American Judge ! It is on such a principle,
that be bas abdicated bis bigb constitutional trust, and
surrendered us and our property, to tbe tender mercies of
a mere ephemeral Legislature, which be declares to be
practically omnipotent.
Nor is it true that tbe law has ever been so declared
elsewhere. It cannot be shown, we think, that such a
doctrine has found expression in England at any time,
although it may have been practically administered in
many cases, while the Judges were dependent upon the
Crown. From the era of the great Revolution, the ten¬
dencies, presumptions and maxims of interpretation have
all been on the side of liberty. Nor has any American
Judge, so far as we are advised, ever before given utter¬
ance to such a sentiment.
It cannot be shown, in the first place, that the State Gov¬
ernments may do whatever is not distinctly and clearly
prohibited in their Constitutions. It is already demonstra¬
ted, upon authority which is not to be questioned, that
there is a limitation in the very nature of our govern*
ments, which stands clear and independent of all express
reservations whatever. Fo more can it be shown that
there is one rule of construction for the Federal Consti¬
tution, and another for our own. The distinction is repu¬
diated by authority equally high, in the cases of Gibbons
vs. Ogden, 9 Wheat, and Ogden vs. Saunders, 12 Wheat. 332 ;
and denied by tbe ablest of the Commentators. Story's
Com. vol. 1, sees. 413-14.
For Í3 there any authority whatever, for the still more
extraordinary distinction, which assigns one rule of con¬
struction for a granty and another for a reservation in the
same instrument, by enlarging the former and restraining
the latter, and thus denying to the citizen the advantage
of his own securities. If any distinction were admissible,
the very converse of that proposition would be the true
one. Where a provision is remedial in its nature, it is en¬
titled to a liberal construction, and such was the doctrine
of Chief Justice Jay, in the case of Chisholm's Executors vs.
Georgia.
25
It is not necessary, however, to invoke even the reason¬
able and natural presumption in favor of liberty. A Con¬
stitution of government, like all other instruments, is to he
construed according to the intention of the parties, and that
intention is to be gathered from the whole instrument—
from the context—the subject-matter—the effects and
consequences—and the reason and spirit of the law—as well
as from the words. 1 Story's Com. sec. 400. " The rules
of interpretation," according to Judge Gibson, "de¬
mand a strictly verbal construction of nothing but a penal
statute." A Constitution of government is no subject for
either metaphysical subtleties, or verbal criticism, (Story,
sec. 455,) or technical or artificial rules. (Federalist, Ho. 83.)
If there be any difference in the case of a Constitution, we
have the authority of the same Judge for saying, that the
latter "is to be construed more liberally than even a reme¬
dial statute, because a Convention, legislating for masses
of men, can do little more than mark an outline of fun¬
damental principles." Hobbs vs. Fogg, 6 Watts, 558.
"When it is said that the Constitution of the United
States should be construed strictly, whenever it touches
the rights of property, or of personal security or liberty,
the rule is equally applicable to the State Constitutions
in the like cases. The principle upon which this rests,
is, that the people ought not to be presumed to yield up
their rights of property or liberty, beyond what is the
clear sense of the language and objects of the Constitu¬
tion. The strict or the more extended sense—both being
within the letter—may be fairly held to be within their in¬
tention, as either shall best promote or secure their rights,
property or liberty. The words are not, indeed, to be
stretched beyond their fair sense, but within that range,
the rule of interpretation must be taken, which best fol¬
lows out the apparent intention." Kawle, ch. 1, p. 81.
And this is the mode which is universally adopted in
construing the State Constitutions. 1 Story's Com. Bee.
413. "The safest rule is to look to the nature and ob¬
jects of the particular powers, duties and rights, and to
give to the words of each just such operation and force,
26
consistent with their legitimate meaning, as may fairly
secure and attain the ends proposed.'* Prigg vs. Pennsyl¬
vania, 16 Pet. 610. "A Constitution is to he construed
as a law established by the people for their own purposes.
The powers conferred, and the restrictions imposed, are
for the common benefit of the governed, and not for the
profit or dignity of the rulers." 1 Story's Com. sec. 409.
"Keeping within the common and natural sense, the
exposition is to have a fair and just latitude, so as on
the one hand, to avoid obvious mischief ' and on the other
to promote the public good." 12 Wheat. 332. "Where
the provision is for the benefit of the grantor, no one can
doubt the propriety of giving to the words a benign and
liberal interpretation." Story, sec. 420. "A Constitu¬
tion of government founded by the people, for themselves
and their posterity, and for the perpetuation of the bless¬
ings of liberty, necessarily requires that every interpreta¬
tion of its powers should have constant reference to those
objects." Ibid, 422. "Ko construction of a given power
is to be allowed, which plainly defeats or impairs any
one of the avowed objects." Ibid, 425. These are thq
rules which have been settled and approved by the
highest authority. There is none to give even a color to
the pretense, that there is one law for the Government,
and another for the people.
Starting from these premises, however, and assuming
that the General Assembly may exercise all powers which
are properly legislative, and are not expressly taken away,
either by the Federal Constitution or our own, the Chief
Justice remarks : " But we are urged to go further, and to
declare that a law, though not prohibited, is void, if it violates
the spirit of our institutions, or impairs any of those rights
which it is the object of a free Government to protect. But
we cannot do this. It would be assuming a right to
change the Constitution," &c.
This, however, is not, a fair statement of the argument.
The Supreme Court had not been asked to declare that
a law, though not prohibited, is void under the circum¬
stances suggested. All it was asked, was to say that, if it
27
violated the spirit of our institutions, or impaired any of
the rights which this Government was intended to secure,
then it was prohibited, and, therefore, void. And for this
purpose, they were asked to look at the whole instrument—
to examine its general scope and purposes—to take its
own solemn declaration on that point, as the key and index
to its interpretation—to test the validity of the legisla¬
tion involved, by a reference to those objects, and to give
a construction to the whole, as they would to any other
important instrument, which should effectuate the intent of
the parties, if at all consistent loith its language. They were
asked to say, in effect, whether one of the main objects of
this Government, as declared in that instrument, was not
the security of property, and whether the legislation referred
to was consistent with that object. Was there anything
unreasonable in this ?
The answer is, however, that this cannot be done,
because it would be assuming a right to change the Consti¬
tution; that this instrument has furnished a list of the
things which the Legislature may not do ; that the Court
cannot add to that list any more than it can take away;
that all powers are subject to abuse; that there is no
shadow of reason for supposing that the mere abuse of
power was intended to be corrected by the Judiciary; that
nothing is more easy than to imagine the most reckless
and tyrannical abuse of legislative power ; that the same
may be imagined of the Judges with equal facility, and
to give them the right of controlling its exercise, on that
ground, would be to gain nothing by the change, because
Judges are as fallible and corruptible as Legislators, and
less directly amenable to the people, who would at once
avenge themselves of their Representatives by "scourging
them into retirement;" that the words of the Constitution
are the only test of the validity of a statute; and that all
arguments based on general principles outside of that instru¬
ment, are to be addressed only to the people.
, This answer involves some curious inferences, which
did not, perhaps, enter into the contemplation of the Chief
Justice, when he was thus marshaling his government
28
forces, in hi3 zeal for reasoning down the rights and priv¬
ileges of the people. He was not aware, perhaps, how
much he was proving by his argument.
It is an abnegation, in the first place, of the rule by
which every law or contract is construed according to the
intent and meaning of the parties, and with it, of the
whole right of interpretation, either of Acts of Assembly
or of private agreements, in all doubtful, and, of course, in
all controverted cases. If to interpret a contract according to
its obvious meaning, and without regard to the letter—and
the Constitution itself is but a compact—is to change it,
and to make a new one, then the Supreme Court of this
State, as well as every subordinate jurisdiction, has been
from its organization, and is yet, in the performance of
its most ordinary and almost exclusive duties, in the daily
and habitual violation, not merely of our own Constitution,
but of the Constitution of the IJnited States !
It is a denial, in the second place, of the right of the
v Supreme Court to pass upon the constitutionality of any
legislative act, because its only clear jurisdiction in such
cases arises out of abuses of power under the Constitution.
The Chief Justice awards to the Legislature an absolute
plenitude of power, with certain exceptions only, which
are expressly set down in the Constitution. Those ex¬
ceptions are, however, declared to be for the purpose of
ilpreventing the transgression of the high powers therein
delegated;" and the right of the Court to interfere in the
excepted cases, depends, therefore, only on the case of an
abuse, with which, according to the Chief Justice, they
have no right to interfere at all 1 It is still more curious,
however, that while he recognizes the plenitude of the
legislative power, and denies the right of interference,
except where the act done is forbidden, in so many words,
he does claim the right of nullifying a law by giving it a
bad name and calling it a decree, because it trenches, in
his opinion, upon his own functions as a Judge ; although,
if it did, there is nothing to be found in the Constitution
which expressly forbids it ! I see no difference between
the cases, except that in the one it is the quarrel of an
29
official dignitary, while in the other it Í3 only the quarrel
of thq people.
But, thirdlyy it involves an utter oblivion of the Consti¬
tution, history, purposes and dignity of the Judiciary, and
a declaration of utter unworthiness in all cases, in assum¬
ing that they are not any more worthy of trust than the
Legislature, and even less so, because they are more irre¬
sponsible, and less amenable to the people. The Chief
Justice forgets that the Judiciary was intended as a coun¬
terpoise to the Legislature, and was made permanent and
independent for the very purpose of lifting it above all
temporary influences, and enabling it, by its learning, its
high character, its gravity, its integrity, and its entire
independence, to hold the tyranny of majorities in check,
until the popular mind could have leisure to react. This
very independence is now, however, converted into an
argument for the abandonment of a duty. The remedy
suggested to us now is, to leave iniquity triumphant by
merely "unfrocking" its authors, after the mischief is
consummated, instead of undoing the act; and this, because
the Judiciary is no better, and much less responsible, than
the Legislature ! If it is,, in point of fact, no better, the.
theory, at least, is otherwise. If it is ready to confess that
it is no better, then its uses for purposes of constitutional
supervision are at an end, and there is no further reason
why it should continue to pass upon the validity of a legis--
lative act at all. We must content ourselves with the re¬
flection that the Legislature is responsible—that the people
will sit in judgment upon their doings—and that they will
avenge the wrong, not by redressing the injured, but by
" scourging the delinquents into a retirement," where they
can sin no more. The curious may, perhaps, inquire, why
it is that the judicial tribunal which has already decided-^
and that, too, in the absence of any express prohibition-^-,
that the Legislature shall not skulk from its just respon-.
sibilities, by a delegation of even a law-approving power
to its constituents, (Corn. vs. Parker, 6 Barr, 507,) should
claim thé privilege of doing the same thing itself, by-
the transfer of its own higher and more delicate func-
30
tions to the same body; but we shall, at least, enjoy the
luxury of a new Constitutional Court, of apt material for
nice investigations, whose decisions will echo the senti¬
ments of the dominant party, and eventually set up a
new Constitution.
And, fourthly, it is a denial that there are any general
principles inside of the Constitution, because it refers to
the words as the only test, and treats all arguments derived
from other sources, as flowing only from general principles
outside of that instrument.
But, the whole answer of the Chief Justice shows that
he has misread the Declaration of Rights, and misappre¬
hended its general purpose and tenor, as much as he has
mistaken the theory and structure of our Government.
He treats it, exclusively, as a chapter of prohibitions. He
tell3 us, again and again, that it is not sufficient that a
principle is violated—for that is too vague, and would
turn the Judges into law-makers; or that a power has
been abused—for that, again, is not a question for the
Judiciary; but that there must be a clear and distinct pro¬
hibition. If he will turn, however, to the Declaration of
Rights, he will find that it purports, on its very face, to
be a repository, not of prohibitions at all, but of principles
exclusively—of what it denominates "the great, general
and essential principles of liberty and free government."
Nor does it treat them either as mysteries in themselves,
or as deriving their obligation from the Declaration. It
assumes that the Government is intended to be a free
one. It assumes that the "essential principles" of such
a Government are understood. It does not propose the
absurdity of enacting what, being "essential," must have
been implied, at all events, from that very fact, but merely
to declare those principles, with a view to their explicit
recognition and perpetual establishment; and it announ¬
ces them, in general terms, as maxims of government, or
land-marks by which its authorities were to be guided. If
it goes further, and passes into the details of special pro¬
hibitions, it is only in cases where the general principle
might not be supposed to reach, as in the provision for
31
compensation upon the exercise of the right of eminent
domain; and it closes with the declaration, that "to pre¬
vent the transgression of the high powers" which had been
previously delegated, it excepts all these things out of the
general powers of government.
If the Chief Justice had read this Declaration as he
ought, he would have found in it the answer to all his
objections. Instead of regarding the general principles of
liberty and free government as too vague and indefinite
for safe adjudication, he would have discovered that it
was intended only as a declaration of principles, and that it
declared the inviolability of property as one of them,
without reference to the manner in which it might be
attacked, and whether "taken" according to the rude
notion of a bodily seizure, or by the more cunning but
not less effective artifice of a mere incumbrance; and he
would have looked at the provision in relation to the
taking of private property for public use, as only intended
as a qualification of the inherent and essential right of
eminent domain, by enacting a recompense. Instead of
dismissing the case for the want of an express prohibition,
he would have found it in that Declaration, as distinctly
uttered as the sublimest teachings in the Oracles of Truth.
Instead of declining the jurisdiction to correct the abuses
of legislation, and disregarding the previous opinions of
his own Court, he would have recognized, in the assertion
of the purpose of "preventing the transgression of the
high powers" conferred, the command which it conveyed to
himself, to test the validity of the Act of the Legislature
by the application of these principles. He would have
looked only into the purposes of the Government, and
the rights it was intended to protect ; he would have in¬
quired whether the legislation in question did, in effect,
without any necessity on the part of the State, interfere
with the right of "possessing and protecting property,"
either by impairing the enjoyment or overthrowing the
title; and finding that it did, he would have felt con¬
strained to declare that it was at war with one of the
"great, general and essential principles of free govern-
32
ment," as declared in that instrument. And this is not
all. If he had read the Declaration as he ought, he would
have avoided the blunder of entering upon a serious
argument to show that there was nothing in our Consti¬
tution to indicate that this Government was intended to
be free, or, to speak with more precision, that its Legisla¬
ture was to be circumscribed by the limitations which
attach to the Legislature of a free State.
But he is not willing to test the validity of a legislative
act by these rules. He does not feel at liberty to look
into the spirit of the Constitution, by taking a broad, lib¬
eral, generous, statesman-like and republican view of its
whole scope, purpose and design. That may be apparent
enough, but it is not a safe guide. The general intent
may be frustrated, and must fail, unless the language be
express and precise. Though the letter kill, there is no
life-giving principle which can restore. If it were the
case of a contract, made between A and B, for the purchase
of a barrel of mackerel, the law would imply that they
were intended to be sound, because that is the spirit of the
agreement. If it were*a question upon an agreement
between the same parties, for the value only of a day's
labor, the Judge would feel authorized even to disregard
the words, if they conflicted with the manifest intent. He
is not asked, hovyever, to do anything of that sort here.
It is not pretended that the construction claimed, is at va¬
riance with the language of the instrument. It is objected,
only, that the expression of the intent is too general.
Even the common-sense principle, which would govern
in the case of the mackerel, is not to be invoked for the
protection of a State, or the security of its citizens. The
makers of the Constitution can reserve no natural right
from the grasp of the Government, which they have
erected for their own security, by the enunciation of a prin¬
ciple. It is but a lifeless generality, without virtue, as it is
without vitality; valuable, perhaps, for ornament, but
utterly worthless for use. They are entitled to their
mackerel, it is true. They may be rotten, but that is
their misfortune. They have the letter of their contract,
and are not authorized to ask anything more.
33
But, monstrous, anti-republican, and utterly untenable,
as tbis doctrine of tbe Cliief Justice is shown to be, be
does not hesitate to announce it as "resulting so plainly
from tbe reason of tbe thing, as scarcely to need the aid
of authority ! ! " To satisfy those, however, whom his
previous assumptions may have failed to convince, he
condescends to refer to several of the opinions cited on tbe
other side, and after disposing of them in the most sum¬
mary way, as mere " expressions favoring the opposite
view," and "incidentally falling" from distinguished
Judges—proceeds to declare that tbe weight of authority,
on his own side, is utterly overwhelming; and that he is
not aware that any State Court has ever held a law to be
invalid, except where it was clearly forbidden.
It is in connection, however, with the last part of the
answer already referred to, viz : that the ^üords of the
Constitution furnish the only test of the validity of a
statute, and, that all arguments based on general princi¬
ples outside of that instrument, must be addressed to the
people, that the Chief Justice turns his attention to the
decisions, with the remark, that these propositions result
so plainly from the reason of the thing, as scarcely to need
the aid of authority.
I do not feel called upon to dispute the latter of these two
propositions, because, in the present instance, it is clear
as light, that the general principle invoked for our pro¬
tection, is inside of the Constitution. No more am I
required to deny the proposition that no Court—State
or national—has ever held a law to be invalid, unless it
was clearly forbidden. When the Chief Justice of Penn¬
sylvania undertakes, however, to disparage the opinions
of eminent Judges, which seem to have been cited against
him on the argument, by characterizing them as mere
"expressions," "incidentally falling" from them, and as
entitled to no weight; and ventures, in the rash confi¬
dence of wild and unenlightened theory and imperfect
research, to question the existeuce of a single case—
either State or national—at variance with his views, I feel
that I cannot resist the temptation to answer the defiance
3
34
which his oracular, and magisterial, and depreciating tone,
so strongly conveys. I refer him, then, in the first place,
to the case of Wilkinson vs. Leland, already cited. If the
authority of the highest tribunal in the United States,
when it reckoned amongst its Judges such names as those
of Marshall and Story, will not content him, as being too
high, I then invite his attention to the cases of Taylor vs.
Porter, (4 Hill, 140,) and Varich vs. Smith, (5 Paige, 159,)
in New York; to the ca?e of Bowman vs. Middlelon, (1 Bay,
252,) in South Carolina ; to the case of
in Georgia : and if all these are not satisfac¬
tory, I then appeal to the case of the Commonwealth vs.
Parker, 6 Barr, 507, in the Supreme Court of Pennsyl¬
vania, of which the ink was scarcely then dry.
Yo more am I required to controvert the proposition,
that the words of the Constitution furnish the only test
of the validity of a statute, or that it can be declared void
only where it violates the Constitution, clearly, plainly and
palpably; because there is, in the present case, no absence
of words, clear enough and strong enough, under any
sound rule of construction, to answer all our purposes.
If it is intended, however, by this language, to indicate—and
such is undoubtedly his meaning—that the act must be
prohibited in so many words, and that it cannot be clearly
prohibited by the enunciation of a general principle,
or in any other way, and is not clearly prohibited,
although it may be in direct conflict with that principle
—then he states what is not law—what is not support¬
ed by any one of the authorities to which he so trium¬
phantly refers as overwhelming—and what, I venture to
say, no industry of his can find a case to authorize. But
that is not all. If he intends to be so understood, he
states what is most flatly contradicted by decisions in
our own State. The case of Parker vs. The Commonwealth,
already referred to, is one of them ; but it is not alone. The
case of Greenough vs. Greenough, 1 Jones, 459, overruling
that of Braddee and Brownfield, is another. The case of
Com. vs. Mann, 5 W. & S. 403, in regard to the taxing of
Judges' salaries, is a third; and, without multiplying
35
words, the case of Norman vs. Heist, 5 W. & S. 171, is a
fourth. Will the Chief Justice point out to us the express
words in the Constitution, by which the Acts declared
invalid in these cases, were prohibited ? Is there any¬
thing in its specific prohibitions, against the taking of
private property for private use? The Constitution de¬
clares that it shall not be taken for public use, without
compensation. Is not the implication irresistible, upon
his own rules—that general words are strengthened by
exceptions, and weakened by enumeration—that there
must be express words to prohibit—and that the construc¬
tion is to be strict as against the citizen—that it may be
so taken ? Will he show what there was but the general
principle, inside or outside, which he so vehemently dis¬
cards, that could have protected the lawful heir, in the
case of Norman vs. Heist ? The truth is, that it is only in
cases where express words are wanting, that any ques¬
tion is likely to arise. The Legislature will not gener¬
ally usurp a power, where they are met by a flat interdict;
and that is precisely the use which has been assigned
to Bills of Bights, by those who regard them as otherwise
unnecessary. 2 Bent's Com. 8. It is in cases, however,
where they come in conflict with a general principle,
without suspecting it, as men unaccustomed to reasoning
are apt to do, when they are dealing with an abstraction,
that the intervention of the Courts is most required. "It
is those insidious encroachments which do not strike the
eye at once," in the language of Judge Bell, in the case
of the Commonwealth vs. Parker, "that are precisely the
most to be dreaded."
And, now, having shown the utter heresy of the doc¬
trine upon which the Chief Justice has rested his deci¬
sion, I might have stopped at this point. I propose,
however, to follow him still further, for the purpose of
showing how hollow and fallacious, sophistical and con¬
tradictory, is the whole line of argument by which he en¬
deavors to justify his conclusions.
His next remarks have reference to the objection, that
the Acts in question create a contract for the people of
■36
the city or county; and to this his answer is,"that he
does not say that a contract between two individuals or
corporations, can be made by the Legislature, because that
would not be legislation, and would be, moreover,
morally impossible. lie distinguishes, however, the Acts
in question, as merely an authority given to the respective
corporations, to make one between themselves, if they see
proper; and asserts, that the authority to make contracts
on behalf of the people, belongs to all public corporations,
because it is necessary to their existence, and may be ex¬
ercised without their unanimous consent, and that the
contracts which affect a man as an individual, must be
made by himself ; but those which affect him only as a
member of the community, and in the same way as his
fellows, must be made by the authorities which the law
has set over him.
The answer to this is,
1st. That the authority given in these cases, is not to
the corporations, but to the mere appointees of the Leg¬
islature, who may, or may not, chance to be a corporate
organ for ordinary or special purposes. It is of no conse¬
quence, in the view of the Court, by what instrument
the power is to be exercised; nor is the assent of the cor¬
porators—the parties to be affected—of any importance
whatever. Public or municipal corporations are the mere
creatures of the Legislature—trustees only of the pub¬
lic—standing upon no contract, and subject to such mod¬
ifications as the Legislature may choose to impose,
within their appropriate sphere, and without regard to the
wishes or consent of the individuals who compose them.
Dartmouth College vs. Woodward, 4 Wheat. 518. People vs.
Morris, 13 "Wend. 337. In the case of a private corpora¬
tion, it will not be pretended that any such power could
be exercised, aside from the objects of the corporation,
without the assent of its members. It is idle, therefore,
to talk about a mere authority, under these Acts, to the
corporation itself, to make the contracts referred to. If
they may be authorized in this way, they may, and might
as well, for all practical purposes, be commandedi An ab-
37
solute power, thus given, is equivalent to a mandate,
when executed. The case does not stand upon the foot¬
ing of consent, either express or implied. There is no
such thing in regard to public corporations. It all resolves
itself into a mere naked question of power. It could not be
done, as already suggested, so as to bind the members, in
the case of a private corporation. If it can be done here,
it is only by virtue of the power which the Legislature
may exercise over a public corporation, and because they
can compel it without the assent of any of the corporators-
2d. It is not denied that the authority to make contracts
for the public, belongs to all public corporations, and that
it may be exercised without their unanimous consent, or
without any consent at all. That, however, would author¬
ize no contract beyond the special purposes of the corpo¬
ration, and it is to such only as are necessary to their
existence, that they are claimed by the Chief Justice to
extend. These, however, are not contracts of that sort.
They are not necessary to the existence of the corporation,
and do not, therefore, fall within the Judge's illustration.
If they were, no legislation would seem to be necessary.
3d. But the last portion of the answer admits it to be a
question of mere power. If the contracts which affect an
individual, only as a member of the community, must be
made by those who are set over him by the law, then, by
the Judge's admission, it is morally impossible to make a
case of contract out of it at all. If it is the contract of
anybody, it is that of the Legislature ; and it comes back,
of course, to the question, whether the Legislature can
order the contribution, and compel the corporator to obey ;
which amounts to nothing more or less than a tax, im¬
posed by themselves, for that purpose. And it makes no
difference, moreover, what the Act may be. The only
condition essential to its validity is, that it shall affect
him only as a member of the community, and in the same
way as his fellows. The Legislature may oppress and
destroy the particular community, provided they will dis¬
tribute their thunderbolts with an undiscriminating hand.
The magnitude of the crime is to constitute its apology,
38
and companionship in misfortune, to be the consolation
of the afflicted.
It is admitted by the Chief Justice, that the right of
acquiring, possessing and protecting property, cannot be
taken away, and that our Constitution makes property as
sacred as life. It is insisted, however, in reply to the
argument drawn from this source, that no man's right to
his property can be so absolute as to exempt it from its
fair share of the public burthens, lawfully and constitu¬
tionally imposed ; and that it cannot be assumed that they
are either unlawful or unconstitutional.
This proposition is doubtless true, as stated, unless the
case of the salaries of the Judges, which have been
recently holden to be free from that liability, is to be con¬
sidered as an exception. It is not pretended that the
property of any man is exempt from a fair share of the
public burthens ; and if the compelling of the County of
Allegheny to make rail roads through the counties of
Fayette and Somerset, without any contribution, either
from those counties, or from the State at large, is no
more than a fair share, where she pays everything, and
they nothing, it is admitted that the people thus taxed
have no right to complain. The Judge, however, over¬
looks his own qualification of fairness, and casts it aside
as soon as it is uttered; putting the whole case upon an
argument from which the admitted considerations of fair¬
ness and equality are quietly discarded. The Court was
not asked to assume that these impositions were either
unlawful or unconstitutional, but to infer the unconstitu¬
tionality, from the very fact that they did want the ingre¬
dient of fairness.
The next remark of the Chief Justice is, that this is
not a taking of property, because it is merely subjecting
it, in a future contingency, to the liability of being taxed
higher than it is at present—that to make it so, it must be
a direct seizure and absolute dispossession, and that it
would be disregarding its popular as well as legal sense,
to say that it is taken, when it is merely depreciated in
value, or incumbered, or incidentally injured; and, least of
all, is it a taking when it is taxed, because, in such cases,
39
the Constitution requires compensation, which would be
absurd in the case of a tax—as it would be merely levy¬
ing it for the purpose of paying it back.
And why, it may be asked, would compensation be
absurd in the case thus put? The answer is, because all
taxation is expected to be fair and equals and general pur¬
poses to be accomplished by a general tax, and local pur¬
poses by a local one. If, however, a general public purpose
is to be accomplished by a local imposition, then the
absurdity would cease, and compensation out of the com¬
mon treasury become essential to restore the equilibrium.
And, therefore, it is provided, in the clause regulating the
right of eminent domain, that where the property of an
individual is taken, or more of one man's property than
another's, for a public purpose, the sufferer shall receive
compensation. And, in this view, it makes no difference
whether you seize the whole property of a local community,
for a general purpose, or that of an individual. It is, in the
former case, only taking the property of an aggregation
of individuals.
But is it true that such a taxing as this is no talcing, and
that property is not taken when it is ouly incumbered and
depreciated in value ? It is admitted that a mere conse¬
quential injury is no technical taking, under the authorities ;
but where has it ever been held that an incumbrance,
fastened by the Act of the Legislature upon it, and de¬
preciating it materially in value, is no taking? Suppose
the incumbrance should result in a sale, or so diminish the
value as to defeat a prior incumbrance; or, suppose it
should extend to the whole value; is it anything better
than a quibble—a mere piece of hollow and treacherous
sophistry—to say that the property is not then taken f Is
not the liability—contingent, though it be—if it should so
resulta taking, when it is enforced? Is this argument
anything more than to say, that it is only a 'power to take,
which may be exerted on a contingency, and that it is not a
taking, because of the contingency, or the mere possibility
that the owner may escape? It is not, however, a mere
case of suretyship, or contingent liability. It is an abso¬
lute debt, and the only contingency is, whether the estate
40
of the free-holder shall be called upon to pay it. It Í3
enough that it may be taken ; and if the spirit of the con¬
stitutional provision will not protect it in such a case, it
is a mere cheat and a juggle, which "palters wfitli us, in a
double sense, and keeps the word of promise to the ear,
but breaks it to the hope."
rSTor is it any more true, that it would be disregarding
the popular and legal sense of the word, to say that prop¬
erty is taken when it is merely depreciated in value, or in¬
cumbered, or taxed. To say that the levying of a sum of
money is a taking, even though done under color of the
taxing power, is doing no violence to language. To seize
the proceeds is, in substance and legal effect, equivalent
to a seizure of the corpus from which they issue. The law
itself treats a devise of the rents as a devise of the land;
and, even if it were otherwise, it has always been sup¬
posed that they were equally property, and equally within
the protection of the Constitution. If taxation is not a
taking, it is not the popular sense of the word which
declares it not to be so. It is the constitutional meaning,
only, that is referred to ; and that is made to vary from the
popular one, only on the admitted ground of the absurdity
of compensation in that ease, which absurdity itself de¬
pends entirely on the generality and entire equality of the
burthen.
The Chief Justice does not, however, vouchsafe a pro¬
tecting regard to the mere revenue of property. Its
annual proceeds may be seized with impunity, but it is no
taking. The owner may be stripped of the whole value
by an incumbrance, but that is no worse. It is sufficient
that he is allowed the consideration of a nominal pro¬
prietor, although he may be but the steward of the public
for its management. The Constitution affords no remedy
but for "a direct seizure and absolute dispossession."
"Why, even Shylock reasoned better, when the decree of
confiscation was pronounced against him :
" Kay, take my life and all, pardon not that.
You take my house, when you do take the prop
That doth sustain my house; you take my life,
"When you do take the means whereby I live."
41
The law is not, however, as stated by the Chief Justice.
There is no case in Pennsylvania where it has been so
held in regard to an incumbrance, and the case from 4th
Hill, 147, which has been already cited, shows that the
opposite doctrine is settled in Hew York.
Hor does the word " deprived," in the eleventh section
of the ninth article, fare any better at the hands of the
Chief Justice, than the unfortunate word "taken." It is
no more, in his estimate, than a piece of vain tautology.
"It cannot be said," he remarks, "that a citizen is deprived
of his property when he is left in the undisturbed posses¬
sion of it." Taxation is, of course, supposed to involve no
disturbance. The mere possession, then, is all that, in his
view, is intended to be protected, and it is of no conse¬
quence what may be the incumbrance, provided the
owner is allowed the ordinary privileges of a tenant at
the will of the Legislature, or its delegates. But if these
words are not sufficient for the protection of the citizen,
are there any others in the vocabulary of human rights,
that could answer the purpose, in the estimation of a Judge
who demands for a Bill of Rights all the technicality and
precision of a criminal law ?
It is admitted, however, by the Chief Justice, that
private property cannot be taken for private use. This, he
says, wonld be palpably unconstitutional, and so it has
been, undoubtedly, decided.
But why is it unconstitutional ? Is there anything in
that instrument to forbid it ? In the case of Harvey vs.
Thomas, 10 Watts, 63, the late Chief Justice Gibson says
there is not ; and when he afterward ruled the point oth¬
erwise, he put it mainly on the footing of the natural
right. The present Chief Justice says there is ; that it is
not within the general grant of legislative power ; that it
would be a gross usurpation of judicial authority ; and that
it would violate the very words of the eleventh section of
the ninth article, which declares that " no citizen shall be
deprived of life, liberty or property, except by the judg¬
ment of his peers or the law of the land."
All this is curious enough. lie tells us, in the first
42
place, that the general grant of legislative power would
have made slaves of all of us, but for the express reserva¬
tions ; and now he informs us, that the power of making
a law for such a purpose, without reference to those reser¬
vations, does not pass, because it would not be no exercise
of the law-making power at all ! " It would," he says,
"be a usurpation of the judicial authority—a rescript, and
not a law ; and they could no more make it, than they could
condemn an innocent man to death without trial."
But how does he make it a judicial power ? It may be
admitted, if necessary, that the efiect of some recent deci¬
sions of a majority of the same Court, may possibly have
been to transfer the property of one man to another. It has
not been understood, however, that the right of so appro¬
priating it, has ever been openly claimed as & judicial power.
Has the exertion of such a power anything to do with the
interpretation or administration of the law? Does the
calling a statute by the name of a rescript, make any dif¬
ference ? Is it the less a rule of civil conduct, prescribed
by the supreme power? "Would it be anything the less
a law, because it is so denominated ? Were bills of at¬
tainder and confiscation—now happily forbidden—no
laws? Has the Judiciary any such power? How, then,
are its rights invaded ?
But this is not all. The section of the Constitution,
referred to as prohibitory of such legislation, has nothing
to do with it whatever. When it provides that no citizen
shall be " deprived " of his property, &c. except by the
judgment of his peers, or the law of the land, it does not
abridge the powers of the Legislature, except so far as to
prevent them from taking it in any other way, than
through the agency of a jury, or by due process of law.
Brown vs. Hummel, 6 Barr, 91. To interpret it literally,
would be no restraint on the law-making power at all,
because it would only require the form of a law, to nullify
the provision, and accomplish the most outrageous in¬
justice.
But the memory of the Chief Justice is a short one.
He has just declared that the word "deprived" in the
43
same section, does not extend to the impairing in value,
incumbering, or anything short of an absolute disposses¬
sion. How, then, it may be asked, is it to afford protection
here, if the Legislature should choose merely to charge the
property of one man with a rent or annuity for the benefit
of another ?
We have a case, then, admitted by the Chief Justice,
wherein there is, in point of fact, no constitutional pro¬
hibition, and where, by the strongest implication from
the provision in regard to public uses only, the power to
take—and that, too, even without compensation—might be
inferred ; and it is submitted, whether the admission of
this case, which does, in very fact, rest only on the great
general principles of the Declaration of Eights, is not
fatal to the rule of the Chief Justice, and equally fatal to
all his conclusions ?
But the Chief Justice, in the next place, forgetting,
apparently, that he has put this case upon the footing of a
contract, now abandons that ground entirely, and takes
refuge in the taxing power; and this is, indeed, the true
question upon which it must eventually turn.
It is affirmed by him, that this power is given to the
Legislature without restriction, and to be used, therefore,
at their discretion, without remedy for the abuse ; and that
it was not limited, because the exigencies of the Gov¬
ernment cannot be limited. Allow me to say that it it is
not given at all- " It is," in the language of Lord Chat¬
ham, "no part of the governing or legislative power."
" Taxes are," he says, " the voluntary grant of the people
alone." The power of taxation is an incident of sovereignty
only; and one of the grounds on which the Colonies
resisted it, was, that the principles of taxation were es¬
sentially different from those of legislation. 1 Story's
Com. sec. 196. The Chief Justice seems to have over¬
looked the very material fact, that the Constitution of
Pennsylvania contains no such grant at all ; and that the
power is merely an implied one, resting on the law of ne¬
cessity, and limitable, therefore, by that law, as well as to
its objects, as to its amount. The reason assigned for its
44
supposed illimitability is, however, sufficient for my
purpose, viz: that it is unlimited, because the exigencies
of the Government are unlimited.
It is the exigencies of the Government only, therefore,
that are to furnish the rule for its exercise; and, judged
by that standard, what is to become of the laws in question ?
Is there anything in the exigencies of the Government to
require or justify a partial imposition, such as these, for
the general benefit?
The Chief Justice is compelled, however, to admit that
the whole of a public burthen cannot be thrown on a
single individual, under pretense of taxing him ; nor can one
county be taxed for the benefit of another, nor one portion
of the State to pay the debts of the whole State. And
why ? Is there anything in the Constitution to prohibit
it? The Chief Justice says "no;" but that these things
are excepted from the powers of the Legislature, because
they did not pass to them by the general grant of legislative
power; and that they did not pass, because an Act of As¬
sembly, commanding or authorizing them to be done,
would not be a law, but an attempt to pronounce a judicial
sentence, order or decree. It is the theory, he admits, of
a Republican Government, that taxes shall be laid
equally, in proportion to the nature of property, and when
collected, shall be applied only to purposes in which the
tax-payers shall have an equal interest.
If Lord Chatham and the men of the Revolution were
not mistaken, there is a still better reason for the opinion,
that such a power did not pass to the Legislature, and
that is, that the general grant had nothing to do with the
power of taxation at all. The Chief Justice might have
stopped here, however, upon his admitted limitations of
this illimitable power, and ruled the whole question the
other way, and he would have had the merit of being
consistent, at all events. If one county, or one part of
the State, cannot be taxed for the benefit of another, then
these laws are unconstitutional, and the fact that a part
of the benefit was to the county or part specially taxed,
would make no difference.
45
But why would not an Act of Assembly, of the char¬
acter suggested, be properly a law? Because it would be
a judicial decree. The answer to the same objection, in the
Bhode Island case, was, that it purported to be a law. But
the same objection would apply to every tax law, however
general. Wherein would it want any of the features of a
law? Would there be anything in its want of universality
to change ita character? Would it be no law, because it
operated only on a particular community? If so, then
all local legislation, as in the case of road laws, is no
law-making at all ; then the Acts establishing and enlarging
the powers of municipal corporations, are no laws; then
the Acts authorizing the people of Allegheny county to
be taxed to make a road in Somerset county, are no laws.
Would it be no law, because it would be unequal and
unjust, and was, therefore, a bad law? Would it be a
law, if it were equal and universal? If it would, then it
is no law, only because it violates the principles of justice, and
is palpably ut war with the whole admitted theory of our
institutions, and not because it is a mere abuse of power;
for that, he says, cannot be corrected.
But wherein would it resemble a judicial order, sen¬
tence or decree ? Is it a question as to the interpretation of
a law ? Would it interfere, in any way, with the functions
of the Judiciary? Would it involve the exercise of any
power that belongs to them ? Is it their business to impose
taxes? And, if so, how is this claim of power to be
reconciled with the prudish and fastidious refusal to inter¬
fere in the present case, on the ground that the Legisla¬
ture has almost the omnipotence of the British Parliament,
and is the especial and exclusive judge of the manner and
extent to which that power is to be exercised ? It would
have been a more sensible solution, to have said it was not
a tax, because of its inequality—which is a necessary result
of its not being a law—if he had not already declared that
mere inequality is not examinable.
But the Chief Justice adopts the opinion of the Ken¬
tucky Judge, in Slack vs. Maysville and Lexington JR. 21. Co.
that atax law must be considered valid by the Courts, unless
46
it be for a purpose in which the community taxed has
"patyably" no interest—where it is apparent that a tax
thus imposed is for the benefit of others, and where it
would be so pronounced uai the ßrst blush." And this,
according to his reasoning, must rest on the ground that
it is then no law at all, and, of course, admits a juris¬
diction in cases of abuse of power, which he has before
repeatedly and solemnly denied !
The assertion is, however, at variance with the previous
paragraph of his own opinion. He there admits that the
whole of a public burthen cannot be thrown on a single
individual, and that one portion of the State cannot be
taxed to pay the debt of the whole ; and now, he says,
that a tax law must be considered valid, unless it be for a
purpose in which the community taxed has palpably no
interest, which is certainly not the case where a part Í9
taxed for the benefit of the whole ; and this inconsistency
is excused only on the ground that an unjust law is no
law at all, and that to pass an unjust law, is to encroach
on the province of the Judiciary !
If the case referred to, however, be one where the com¬
munity taxed may have some possible interest, and where
the burthen is not imposed exclusively for the benefit of
others, and it would be so pronounced "at first blush,"
then the present are precisely cases of that sort. Ho man
in his right mind could say that these taxes are not laid
for the benefit of others, as well as of the community
taxed; and if this be untrue, then the object itself is not
a public one, and the tax would be, by the Judge's own
showing, unconstitutional.
But this admission involves a surrender of the whole
question. It amounts, in effect, to a declaration that the
Courts may declare a law unconstitutional, which is not
positively forbidden, and that they may correct an abuse of
power. If the thing may be done, where it is apparent,
" at first blush," that a burthen is imposed for the benefit
of others, then the right of the Court to interfere depends
only on the extent or enormity of the usurpation, and the
manner in which it happens to strike the mind of the
47
particular Judge; or, to speak more correctly, the very
question of usurpation depends upon the comparative
clearness of the evidence; which is, under the most favor¬
able construction, an affirmance of the right to pronounce
a tax law unconstitutional, provided it fall within the
general and admitted rule, that the repugnancy must be a
clear one. And this is in conformity with the doctrine of
Pittsburgh vs. Scott, 1 Barr, 314.
It is further admitted by the Chief Justice, that the
Legislature has no constitutional right to create a public
debt, or to lay a tax for a private purpose. And why ?
Because, as he affirms, no such authority passed by the
general grant of legislative power—because it would not
be legislation—and because taxation is a mode of raising
revenue for public purposes. " When it is prostituted," he
says, "to objects in no way connected with the public
interests or welfare, it ceases to be taxation, and becomes
plunder. Transferring money from the owners, into the
possession of those who have no title to it, though it be
done under the name and form of a tax, is unconstitu¬
tional, for all the reasons which forbid the Legislature to
usurp any other power not granted to them."
We do not dispute the doctrine. There is something
to be said, however, in regard to the reasons by which it
is enforced.
Why, then, may we ask, would not this be legislation ?
It would be an abuse of the taxing power, clearly, but it
would be none the less legislation on that account, any
more than taxation would be the less taxation, because
its illegitimacy might entitle it to the character of "plun¬
der." The idea of the Judge, upon which he furnishes a
ready solution for repeated admissions and contradictions,
is, that the abuse or usurpation of a legislative power, is
no legislation at all. If he is right, then it is a solecism to
say that any legislative enactment is in contravention of
the Constitution. If it does not harmonize with that in¬
strument, it is no exercise of the law-making power ; or, in
other words, it is—not a bad law—but, no law at all. He
is constrained to admit, that many things would be
48
clearly unconstitutional, which are not clearly and posi¬
tively forbidden ; and he accounts for them all, by declar¬
ing that they are not laws, and that the power to make
them did not, therefore, pass by a grant which made the
Legislature omnipotent! But this assumption, that a
law is not a law, besides being inconsistent with his idea
of legislative omnipotence, would be an infinitely more
dangerous power in the Judiciary, than even the one
which he so studiously repudiates. All that he would be
required to say of a law, in order to nullify it, would be to
give it a bad name, and call it "plunder."
But what does he mean, when he declares that the
transfer of one man's money into the possession of anoth¬
er, who has no title to it, although under the name and
form of a tax, would be unconstitutional, for all the rea¬
sons which forbid the Legislature to usurp any other pow¬
er not granted to them ? lie has already told us that the
general grant carried every thing. How, then, can there be
a usurpation, except it be merely of the things reserved ?
And where is the exception or reservation which applies
here ? He has before assured us, that there is no limit¬
ation of the taxing power, and so says his brother Wood¬
ward.
But how does he make it out that taxation is a mode of
raising revenue for public purposes only? There is no
authority for any such distinction in the Constitution.
Unless there be something outside—something in the na¬
ture of the thing—to qualify or restrain, it makes no dif¬
ference what the purpose is. A levy and assessment upon
the property of the people, is a tax, whether the purpose
be public or private, legal or illegal. "When the Kings of
England undertook to dispense with Parliaments, and to
make arbitrary exactions from their subjects, for their
own private purposes, was it ever denied that these were
taxes ? If the inquiry, however, be as to legal taxation,
that is another question; and, in regard to that, we will
not differ, because the Chief Justice here discards his own
rule, by looking outside, and taking a common-sense view
of the Constitution.
49
But why is it, that, to make a tax legal, the purpose
must he a public one? The Constitution, as already re¬
marked, says nothing about it; and it is, perhaps, for this
reason, that the power is claimed to be unlimited and dis¬
cretionary. There is a limitation, then, which is not in the
Constitution. The instincts of the Chief Justice tell him
so ; and where is .this limitation to be found ? Why, in
the very nature and origin of the power itself. It is an
implied power, resting, like the right of eminent domain,
on the law of public necessity, and limited and determi¬
nable in its exercise by that law. If the Judge is right in
his premises, it may be used for any purpose. By his own
admission, however, it cannot. lie decides, therefore, in
effect, that there is something in the theory and genius of
our institutions—in the objects and purposes of our Gov¬
ernment—and in the nature of the power itself—which
renders an express prohibition unnecessary.
But, although it is admitted by the Chief Justice, that
the Legislature cannot either lay or authorize a tax for a
mere private purpose, and that Bail Boad Companies are
themselves but private corporations, it is asserted that they
have a public use, and that it is not the quality of the cor¬
poration, but its use or purpose, which is to determine
the obligation of the community to be taxed for its assist¬
ance.
It is not denied that rail roads may have a public use,
and that it is on this ground only that the exercise of the
right of eminent domain, or, rather, its delegation for
their benefit, can be sustained—if it can be sustained on
just principles at all. If it were an open question, it
might puzzle the Chief Justice himself to meet some of
the objections which might be urged against it.. He is
entitled, however, to all the advantage which a. favorable
settlement of this point can give him.
It may be admitted, then, without damage to the prin¬
cipal question, that any given community may be taxed
in aid of the construction of a road, exclusively withiu its
own limits, and that the whole may be taxed in aid of a
work of the like description,, whether it be, in its extent,
4
50
either partial or general. The difference, however, be¬
tween the case put, and those under discussion, is pal¬
pable. In the former, they are subjected to a burthen,
which is temporary and relievable, upon a chauge of pub¬
lic opinion, or a change of masters. The mere power- of
annual taxation is as nothing in a free Government, where
it is controllable by the principle of equality in the
distribution. In the latter case, however, they are bur-
thened with a permanent debt, for the purchase of a private
stock, and compelled, as a necessary consequence of the
doctrine, to mortgage their possessions for the acquisition
of a private property, in regard to which, they do, and
must stand, in the relation of private proprietors only,
and by which rights are acquired that cannot be taken
away, and must, in their operation, eventually turn their
Charter into a contract, oust the powers of the Legislature,
and defeat its own legitimate purposes, by converting it,
pro tanto, into a private corporation. For the burthens
thus imposed, there is, moreover, no relief, for the very
reason that they are partial, and that the sufferers are thus
cut off' from the sympathy of their masters, whose tyranny,
according to the Chief Justice, is only to be corrected
by giving to the helpless and defenseless victim—the
epoiled and trembling vassal—the privilege of "scourg¬
ing " his armed and multitudinous, unsuffering and un-
sympathizing oppressors, "into retirement"—if he can!
The power exerted in this way, is infinitely more porten¬
tous than that of mere taxation, in its ordinary forms,
eveu in the wildest example of its exercise which the
world has ever witnessed. It is a perpetual mortgage of
the property of the citizen—a deep and incurable ulcer—
a consuming cancer, eating into the vitals of the commu¬
nity. The distinction was not overlooked by the elo¬
quent and philosophic Burke. " To mortgage the public
revenue," he remarks in his pamphlet on the French
devolution, "implies the sovereign dominion, in the ful¬
lest sense, over the public purse. It goes far beyond the
trust even of a temporary and occasional taxation."
The most pertinent answer, however, to the allegation
51
that the use is a publie one, is the letter of the Chief Jus¬
tice himself, to the Commissioners of Somerset county,
in which he denounces these subscriptions expressly as
" a system of creating public debts, for private purposes."
It is alleged, however, by the Chief Justice, as a duty
<of the State, to aid, encourage and stimulate commerce;
and it is asked whether, inasmuch as the State may dele¬
gate to a private corporation the right of making a road,
and aid it by a subscription, which involves an exertion
of the taxing power, as well as by the right of eminent
domain, it may not, with more justice and greater pro¬
priety, and with as clear a constitutional right, allow a
portion of the people to tax themselves to promote, in a
similar manner, a work in which they have a special
interest ? And this question, he thinks, cannot be an¬
swered in the negative,
If or is it essential to our purpose that it should be.
We affirm it, as a matter of course. It is not, indeed, very
obvious how the Legislature is to prevent a man from
taxing himself\ if he thinks proper, or why he should
require their permission. But that is, unfortunately, not
the question which was before him. It is not a question
whether the people may be allowed to tax themselves for a
public work, in which they may have a special interest;
but whether they may be taxed against their will, by the
agents or appointees of the Legislature, for a public work
in which the Legislature itself, or its agents, may suppose
them to have a special interest. He says he cannot con¬
ceive of a reason for doubting that what the State may do
in aid of a work of general utility, may be done by a
county or city for a similar work, which is especially
useful to such county or city, provided the State permits
it to be done by their local authorities—thereby putting
it again upon the ground of assent, which is not now the
question, and which has been already shown to be utterly
indefensible, as the present argument proves it to have
been abandoned.
Perhaps, however, I can furnish him with the reason
52
which he has failed to discover. The State may, un¬
doubtedly, aid a work within its own boundaries. To go
beyond, for purposes of international commerce, would be
to invade, either the sovereignty of its sisters, or the pre¬
rogatives of the Federal Government. If the county or
city were co-extensive with-the State, the reason might
be wanting. But for a county or city, whicb is but a
small part, to do what the State may, would be to invest
it with extra-territorial powers and capacities, of a much
higher order, comparatively, than any which belong to
the State itself ; and it might be replied, with equal force,
that, if a mere local corporation may be authorized to
extend its operation beyond its own boundaries, there is
no reason for doubting that the State might be authorized
to do the same thing. The State is acting upon a matter
within its jurisdiction. It is doing what the Judge says
is a duty. The corporation, on the other hand, would be
acting, not merely beyond its jurisdiction, but entirely
beyond its sphere, and outside of the line of its appro¬
priate duties. The permitting it to be done, moreover, is,
where the agent is named by the Legislature, equivalent
to a command, when done. Nor does the reference to the
local authorities make any difference. They are not the
local authorities for any such purpose. They are, pro hac
vice, the agents of the Legislature—deriving their powers,
not from the people, or from their assent, but from the
Legislature alone. And, therefore, the proposition is,
that what the State may do, it may compel a county or
city to do, if it should suppose the work to be especially
useful to them, although it is admitted to be for the bene¬
fit of the whole.
It has been repeatedly remarked by the Chief Justice,
that such and such things are not an exercise of the law¬
making power. If this language be admissible in any
case, it may be said, with equal propriety in regard to
the legislation complained of here—neither is this. It is,
in point of fact, nothing but the grant of a special privi¬
lege—a mere incorporeal right, involving nothing of the
53
nature or definition of a law at all—a privilege, in one
view of the Chief Justice, given to A to tax B, and in the
other to B, to allow himself to he taxed by A.
It might have been expected, in all fairness, that the
Chief Justice would have taken his stand upon some one
principle. Feeling, however, that his footing is not a
firm one, he rests on one limb until it begins to tremble
under him, and then shifts over to the other. Now, it is
merely a permission to the people to make a contract, and
to tax themselves. When this ground fails, he throws
himself on the compulsory obligation, and the exertion of
the taxing power ; and thus it is that we are to be ground
to death between two contradictory propositions, which
are made to supplement and fortify each other, as the
occasion happens to demand. We are doomed, apparently,
to perish in some way; and if he cannot drive us to
suicide by putting the knife in our own hands, he seems
determined, at all events, that the sword of the Legisla¬
ture shall be invoked to consummate the sacrifice.
It is asserted, in the next place, by the Chief Justice,
that the powers of a municipal corporation may be en¬
larged by the Legislature—not so " as to enable the cor¬
porate authorities to embark the city in a private business,
or to make the people pay for a thing in which they have no
interest—but that, within these limits, there is nothing to
prevent an indefinite extension of them."
The limitation here admitted, is at war with the opinion
of his associate, Woodward. Assuming it to be correct,
the answer is, that a subscription to a rail road is neces¬
sarily a private business, whether made by a corporation
or an individual, and without reference to the possible
public uses of the road itself, for the obvious reason that
it involves the acquisition of a private property, which is
beyond the power of the Legislature, and converts the
corporation into a common carrier, with all the hazards
and responsibilities of that relation. The authority^for
this answer is to be found in the concurring opinion of the
same Judge Woodward ! A further answer, however, is,
that, under the rule just stated, they may be compelled to
54
pay the whole, on the hypothesis that they have any interest
at all, although that interest may be, confessedly, a trivial
one.
But what is the power of the Legislature over municipal
corporations ? A charter, of that description, is already
shown to be no contract. If it were, it could not be
changed at all, without the assent of the corporation.
Although, however, it is no more than a mere delegation
of governmental powers, it is affirmed by the Chief Jus¬
tice, that these powers may be enlarged, with no other
limitation than as already stated. If this be so, then the
Legislature may abdicate its trust entirely, and turn over
all the affairs of Government to these corporations—may
make them, indeed, in all respects, equal with itself—nay,
greater; because it may authorize them to do what it
could not do itself; and this, too, not on the footing of
assent, but in virtue of its own sovereign, transcendental
and unquestionable power, and in contravention of their
expressed will.
But what is a 'private business, and where is the case in
which the corporation has no interest, in the opinion of
the Chief Justice? If the object be to promote the
interests of commerce, he asserts that it is a public one ; and
the establishment of a steam boat or a stage line, would,
on the same principle, be as legitimate as a rail road.
Kay, if it were even a question of the establishment of
"a tavern, store, mill, or blacksmith shop," which are
cited by him as mere cases of "private enterprise," in which
the right of eminent domain cannot, for that reason, be
conferred, the result would be the same, because these
are alike aids to commerce or trade, as well as other
departments of industry, which the Government is equally
bound to encourage! Kor can any ingenuity of the
Chief Justice avail to extricate him from the exceedingly
awkward dilemma, and the no less absurd consequences
and contradictions, into which his own principles inevita¬
bly carry him. He may stand sullenly upon his opinion,
and refuse to confess and repair the error, but he cannot
defend it.
55
But still further. If the obligation of Government to
encourage trade or commerce, upon which he puts the
right of taxing a given community in aid of it, is not .
sufficient to entitle the "tavern, store, mill, or black¬
smith. shop " to be saddled upon that community, with¬
out the element of a special interest, it is not necessary
even to locate it within the jurisdiction which is taxed
for its support. It is sufficient that the Legislature, and
its agents, have decided. As those who bestow the
power, and those selected by them for its exercise, are
to be the sole judges of the interest, wherever it is once
given and exercised, there is, of course, an end of the
question; because that is a decision upon the point of
public and special interest. "Wherever they act, they have
decided.
It is, however, not merely admitted, but insisted, by
the Chief Justice, that if it be the interest which is to
decide, the location is unimportant. And he is right
there, upon his principles ; not for the reasons which he
assigns, but for the better and more conclusive reason,
which has been just suggested—if his own Court had not
already decided otherwise, in the case of M'Dermond and
Kennedy, Brightly's R. 332.
Disregarding, however, a solemn adjudication of the
same Court, which did decide this question, and no other,
viz : the question of interest, simply as affected by location,
and not the abstract right of subscription, the Chief Jus¬
tice proceeds to illustrate this extravagant and revolting
proposition, by suggesting that, if the City of Philadel¬
phia cannot have an interest in a road which stops in
the Northern Liberties, then Dock ward cannot have
an interest in one which terminates in Delaware ward, and
all the subdivisions of the city may be exempted on the
same score. Let us examine this argument.
If it were a question of taxing a mere ward of a city,
or one corporation to make a road or improvement in
another, the case would furnish a reasonable analogy, and
the party thus taxed might very properly rebel. The Chief
Justice, however, forgets that the wards in question are
56
botli parts of the same city. lie cannot deny that what
she may do for the ichole, she may do for a part, at the
expense of the whole, although she may not do it at the
exclusive expense of another part. If it were not so, no
corporation could pave a single street, or even all its
streets, in any other way, than by one simultaneous
act, which would be almost physically impossible. It is
not true, therefore, that Dock ward might, in the case put,
be exempted on the same score, any more than it is true
that any one part of the State could be exempted, because
a State work did not pass through it. It is only on the
footing of the general interest, that a tax could be laid at
all ; and if a road made through one county only, was not
for the general interest, it could not be made at the gen¬
eral expense. The Judge cannot, apparently, see that
the whole is necessarily composed of parts, which are
comprehended within it. "With him, it is pars pro toio,
and a part only includes the whole. If it be true, how¬
ever, as affirmed by him, that a city has the same interest
in a road outside, as if it were within, then the argument
necessarily renders the power illimitable, and shows that
there is nothing, within the range of human imagination,
in which she may not have an interest.
The illimitability of the power is, however, a necessary
inference from the remark, that "it is enough to know
that the city may have a public interest in the enterprise
projected, and that there is not a payable and clear absence
of all possible interest, perceptible by every mind, at first
blush." There is no imaginable project, though it were
a rail road to San Francisco, and a line of steamers thence
to China, in which, under this view, the city might not be
claimed to have a possible interest. And it is enough, ac¬
cording to his judgment, that the point "has been settled
by her own officers and by the Legislature;" the effect of all
which is, to convict the Judge of an absurdity, in admit¬
ting that a community cannot be taxed for that in which
is has no interest, because it decides that the occurrence
of any such case is impossible.
It would, moreover, he suggests, be a novel jurisdiction,
57
to listen to an appeal from tlie Councils on a point of
local policy, or to declare a law unconstitutional, because
the corporate authorities mistook the true interest of their
constituents.
I beg leave to say to the Chief Justice, that it is, as he
well knows, no new jurisdiction, to hold the authorities of
a corporation to the purposes of its charter, when their
notions of policy prompt them to do that which is not
within the scope of its institution, although they might
seek ^to defend themselves under the color of a legisla¬
tive license. Nor is it a fair statement of the question to
say that the Court was asked to declare a law unconstitu¬
tional, because these authorities had mistaken the interest
of their constituents. They are, pro hac vice, as already
remarked, only the agents of the Legislature, and may,
or may not be, the proper authorities of the corporation.
For these purposes, certainly, they are not so, if they do
not legitimately fall within the scope of a municipal ad¬
ministration. The question is, whether they exceeded
their just powers, in passing beyond their appropriate ju¬
risdiction, on the hypothesis that they might do whatever
either they or the Legislature might adjudge to be for the
interest of the community ; and not, whether they made a
mistake in the exercise of a discretion vested in them by
the law, in a case clearly within their jurisdiction. And
if this is an answer to the appeal, there is no abuse of
power, which the officers of a corporation, either public
or~private, may not perpetrate with impunity.
But the Chief Justice insists that we must take it for
granted, that the Councils and Mayor have fairly represent¬
ed the majority of their constituents; admitting, however,
that their acts may operate with great hardship on the
minority, but asserting that, in this country, it is private
affairs only, and not public ones, that are exempt from
the domination of majorities; and confessing " that the
power of piling up these enormous burthens on the people
ought not, perhaps, to exist in any department of the
Government, and that, if our fathers had foreseen the
fatal degeneracy of their sons, it can scarcely be doubted
that some restrictions on it would have been imposed."
58
And why must it be taken for granted that the authori¬
ties referred to have fairly represented the majority ? The
people themselves have not been allowed to pass upon
these questions, and the presumption that they would
have approved, is repelled by the significant fact that
the privilege of passing upon them, was, in every in¬
stance, cunningly denied to them. Is any approval, then,
to be inferred from the circumstance, that the officers
selected are men of their own choice? That inference
would be a fair one, so far as regarded the exercise of any
power belonging to the office at the period of the election.
For anything beyond, however, and out of the line of
their proper administrative functions—for any new, unu¬
sual, and extraordinary power, bestowed by the Legisla¬
ture, upon the individual, what plausible reason can he
urged for inferring the assent of those who could not
have anticipated it, did not confer it, were not consulted,
and not even allowed the privilege of dissent ? In some
cases, the power has been bestowed on County Commis¬
sioners; in others, upon Grand Juries, who are not even
chosen by the people, but are selected and drawn from a
wheel by the Sheriff and Commissioners. Is there any
presumption of assent in these cases? They do not differ,
however, in principle, from the former. These men are all
but the agents or appointees of the Legislature for this
purpose, and it is equally idle and uncandid to assume the
assent of a majority of the people, as an apology for this
species of oppression. If it cannot be defended on better
ground, the defense ought to have been abandoned.
It is not disputed, of course, that in this country, it is
private affairs only, and not public ones, which are exempt
from the domination of majorities. It seems to be for¬
gotten, however, that it is upon this exemption that the
rights and liberties of the individual citizen mainly de¬
pend. The idea of a majority rule, is a purely political one.
The chances of oppression are, it is true, diminished in pro¬
portion as we approach the ideal line of unanimity ; but, short
of that, there is no special magic—no more inherent virtue,
in the awards of a majority, than in the government of the
59
monos, or the oligoi, or the aristoi. The secret of our free¬
dom does not consist, as is supposed by Justice Wood¬
ward, in the exercise of the powers of legislation, through
our own Representatives. He is but an ill-read statesman
who would look for our securities there. All experience
proves that there is no tyranny more grinding than that
which may be exercised by a triumphant majority, and
that it is only in the restraints to which it is subjected,
that freedom can ever find repose. It is passing strange,
therefore, that, in view of so important a fact—that it is
private affairs only—the very affairs which Government
was designed to protect, and without which, it would be
but an expensive, and worse than useless machine—that
are exempt from the domination of majorities—the Chief
Justice of Pennsylvania should have sought to circum¬
scribe the narrow circle of exemptions, and consented to
sacrifice the end to the means ! It was the brave Madam
Roland, I believe, who exclaimed, as she was led to the
scaffold, "Oh, Liberty! Liberty! how many crimes are
perpetrated in thy name ! " IIow much more reason have
the victims of the governmental principle of a majority, so
applied, to repeat the language of a great statesman and
lawyer of the Revolutionary era—himself a signer of
the immortal Charter of our Independence, and a member
of the Convention which framed both the Federal Con¬
stitution and our own—who, in view of the like abuses of
construction, was forced to exclaim :
"IIow often has the end been sacrificed to the means?
Government was instituted for the happiness of society.
How often has the happiness of society been offered as a
victim, to the idol of government ! But this is not
agreeable to the true order of things. It is not consistent
with the orthodox political creed. Let Government—let
even the Constitution, be as they ought to be—the hand¬
maids ; let them not be—for they ought not to be—the
mistresses of the State." 1 Wilson's Works, 804.
The confession, that this monstrous power ought not,
perhaps, to exist in any department of our Government, is
a precious one, which ought, in reason, to have borne more
60
satisfactory fruit, than a mere expression of condolence
and commiseration. The suggestion, however, that, if
our fathers had foreseen the fatal degeneracy of their sons,
it is scarcely to be doubted that some restrictions on it
would have been imposed, is a reflection upon their wis¬
dom, which the successful result of their labors has not
heretofore deserved—and, which seems to come with no
very peculiar grace, from the" very first of our Judges,
who have verified their want of forecast or sagacity. It
is doubtless true, that, if they could have foreseen the pos¬
sibility of such a degeneracy of Republican sentiment—
such an entire oblivion of the memorials of their own strug¬
gles, as to have led their descendants into the notion that
they had lost their liberties by the Revolution, and that
there was nothing left now to us, but the very letter of
the reservations made by them for our security—that the
Government was everything, and the people nothing—
and that in every conflict between them, the former was
to be favored in the construction, and the latter sacrificed
—they would have pretermitted the Declaration of Rights,
as an instrument of mischief, instead of a safeguard of
liberty. To have amended it, in such a manner, as to
meet every possible case of usurpation, by a positive in¬
terdict, or to satisfy the requirements of the Chief Jus¬
tice of Pennsylvania, would have been utterly impossible.
They might have spun it out to the dimensions of the
whole body of the Civil and Canon Laws—code, digest,
institutes, pandects, glosses, rescripts, decretals, and all.
It would have been in vain. They would have exhausted
their own ingenuity, before they could have exhausted
the superior inventions and resources of tyranny. Their
work, however, has stood for nearly a century, without
the discovery of this capital defect, which the last year
only has developed. The securities which they have
thrown around our rights, in the shape of general princi¬
ples, have been found adequate to every exigency for which
they have been invoked; and after this long experience, it
would seem to be at least more reasonable, if there is a
breach now made through these defenses, to set it down
61
to the account of the negligence of the sentinels, than to
the weakness of the intrenchments ; as it would be, cer¬
tainly, more modest to doubt our own wisdom, than to
question theirs.
Ilaving thus disposed of the opinion of the Chief Jus¬
tice, I come now to that of his brother Woodward, which
I propose to examine, mainly for the purpose of showing,
as already remarked, that upon the admissions of the for¬
mer, the latter would have ruled the question the other
way; while upon the premises of the latter, the Chief
Justice would have paid him the same compliment.
While the obligatory force of these Acts of Assembly, is
put, by the Chief Justice, on the hypothesis that they
convey a mere permission to the local communities, to
make a contract for themselves, and upon the footing of a
supposed assent on the part of a majority of the people,
who are to be affected, his associate, who now commands
our attention, with a directness, candor and courage,
which do him, perhaps, more credit than the force or
ingenuity of his argument, marches up at once to the en¬
counter of the true issue, which he is called upon to meet,
and admits that the case involves 110 other question than
one of mere naked power—and that, the power of taxa¬
tion only.
Iiis argument is briefly this:
That the Acts in question do involve, in their conse¬
quences, a taking of property :
That there are but two modes in which it can be law¬
fully taken—one, by virtue of the right of eminent domain,
and the other, by the exercise of the taxing power : That
it is not taken, in the present case, by force of the
former, because that has respect to the property of indi¬
viduals, of all descriptions, except money, and is regulated
by the public exigencies ; That it is taken by virtue of
the latter only, which regards the whole community, or
whole classes, takes nothing but money, except so far as
other property may be sold to pay it, and is regulated by
some standard prescribed by law :
62
That taxation ia a legislative power, not named in the
Constitution, but existing ex necessitate, and not taken
away by the Declaration of Rights :
That it cannot, of course, be delegated, but may be exer¬
cised. through agencies, which is not delegation, but rather
exercise, and, in providing for the re-payment of borrowed
moneys, is rather of the nature of an executive power:
That the purpose of these Acts is, clearly, not a muni¬
cipal one. There is 110 congruity whatever, between their
objects and the legitimate purposes of municipal corpo¬
rations, which are designed to regulate only the internal
affairs of the places in which they are located, and whose
jurisdiction is properly exercised only within their ter¬
ritorial limits, and over subjects which pertain to their
domestic economy and well being :
That the power of taxation is, however, unlimited, both
as to extent and purpose—that municipal corporations are,
moreover, not defined by law—that the power of the
Legislature to enlarge their functions and extend their
privileges is unlimited under the Constitution, and inde¬
finable by the Judiciary—that these Acts are not to be
set aside, because they do not harmonize with the judicial
notions of a municipal purpose—and that upon grounds
so low as the equivocal and undefined purposes of munici¬
pal corporations, the like has never been done :
That, moreover, the Declaration of Rights is not to be
set up against a tax law : That there is nothing there to
restrain the power of taxation, and nothing alarming in thi9
circumstance : That our only security is in the principle
of popular representation—that it is this which makes us
free, and a reliance on this, which has left this enormous
power without stint: That it has been always used for
beneficial purposes, and it is not clear that it may not, in
the present instances, however incongruous, be productive
of good : And that it is altogether certain, that it cannot
be long abused, because " so long as the people rule them¬
selves, it is impossible to anticipate that they will employ
any of the powers of Government for their own oppres¬
sion."
63
My purpose is not to review the opinion of Justice
"Woodward. It presents some salient points, however,
which are so obnoxious to, and so provocative of criti¬
cism, that it is almost impossible to resist the temptation
to bring them under the operation of the dissecting knife.
His suggestion, for instance, that the right of eminent
domain has no respect to money, because the compensa¬
tion must be in money, is the result of a grave blunder in
political science. He looks for the definition of that right
in the Constitution. It does not seem to have occurred
to him, that it is an essential attribute of all sovereignty,
and is only qualified by the provision as to compensation;
that it is inherent, inalienable, indefinable, and, of course,
illimitable, like the power of taxation, except by the legi¬
timate exigencies of the Government; that if these exigen¬
cies require money, it is no where provided that it may not
be taken, as well as anything else ; and that, if taken, it
may be as well recompensed in kind, although no more
than money for money.
His distinction, however, between this right and that
of taxation, that the former affects individuals, and the lat¬
ter the whole community, or whole classes, is a confession
that the Acts in question are not legitimate taxation, be¬
cause they do not affect the whole community, or even
an entire class, unless he intends, by individuals, some¬
thing less than the inhabitants of a particular district, and
by the whole community, only a part of the society or
governing power, by which the laws are made. The dis¬
tinction, rightly understood, is admitted to be a sound
one; and it is precisely upon this, that the exercise of the
power claimed here—if legitimate at all—is to be set
down to the account only of the right of eminent domain,
and to be employed, therefore, if employed at all, upon
the condition of compensation to the victims.
The admission, moreover, that a power like this is not
subject to delegation, while it is claimed, at the same time,
to be exercisable by agencies, is auother curious feature
of the argument. If the learned Judge had vouchsafed
to explain the difference between an agency and a dele»
64
gâtion, we might, perhaps, have understood him. If he
had put the case of the performance of a mere ministerial
function, every well-read lawyer would at once have re¬
cognized a case of lawful delegation, without even suspect¬
ing a distinction between such a devolution of power,
and any other case of agency. He could not, however,
put it very consistently on that footing. It was too
clearly a discretionary power to (ax, and not a mere power
of assessment or collection. It was a quasi-legislative power,
at all events. As a legislative power, however, it could
not, of course, be delegated, and it is accordingly con¬
verted into an executive power.
The strangest part of the argument, however, is that
which refers to the power of the Legislature over munici¬
pal corporations.
It is admitted, that the purpose of these Acts is clearly
not a municipal one ; but it is claimed, that, inasmuch as
municipal purposes are not defined by law, and the
power of taxation, and the authority to extend their privi¬
leges, are alike unlimited by the Constitution, their pur¬
poses may be changed, and that made a municipal one,
which was not so before.
It has been no very unusual thing to hear extravagant
claims set up in favor of legislative power, from the era
of Justice Blackstone down to that of Chief Justice Black ;
but there is nothing, we think, in the opinion of any prero¬
gative lawyer who has yet spoken, which will compare with
this idea of Justice Woodward. The great English Com¬
mentator, in expatiating on the omnipotence of the British
Parliament, reins up at the impossible. The Judge, whose
opinion we are now examining, stops short at no such ob¬
stacle. lie spurs his fiery courser up to the line of the
moral impossible, and clears it at a bound. In his view, the
Legislature can alter, not merely the name, but the very
nature of things. They can disturb and overturn all moral
relations, change the uses of language, make that muni¬
cipal which is admitted to be essentially not municipal,
and turn a public corporation into a private one, without
changing its character! Why, even Omnipotence itself
65
could not accomplish such a feat a3 this, any more than
it could convert a man into a brute, without his ceasing
to be a man.
To say that municipal corporations are not defined by
law, is to hold language which could scarcely have been
expected from so respectable a lawyer as Judge "Wood¬
ward. If the lexicographers will not answer the purpose,
it is not for me, certainly, to inform him that the meaning
of the phrase is so well ascertained in the law books, as
to have become the basis of a most important distinction
as to the right of interference by the Legislature with the
Constitution of corporate bodies. He has not ventured
even a doubt himself, as to their objects. lie does not
hesitate to define their appropriate jurisdiction and purpo¬
ses, and to declare that the Acts complained of are entirely
foreign to them. lie is estopped, therefore, from assert¬
ing that these purposes are either equivocal or undefinable.
When he affirms, however, that these Acts are not to be
set aside, because they do not harmonize with the judicial
notion of a municipal purpose, and that, " upon grounds
so low," no Act of Assembly has ever been declared un¬
constitutional, he not only forgets that it is precisely upon
the distinction between a public or municipal corpora¬
tion and a private one, that the whole power of the Leg¬
islature depends—that the Charter of the former is not a
contract, but a mere delegation of governmental powers,
to which there is but one party, and which, for that reason,
may be conferred, enlarged, abridged or withdrawn, at
the pleasure of the Legislature ; but he forgets, also, that
whenever the question arises as to the right to inter¬
meddle, without the assent of the whole body, it must be
decided by himself\ as a Judge, upon the footing of those
very " equivocal and undefined purposes," which are now
supposed by him to be too low. for judicial consideration.
When he admits that the purposes of these Acts are not
municipal, he surrenders the whole question, and decides,
in effect, that they are not constitutional ; and no ingenuity
can save him from this consequence.
The next, and last feature of the argument, upon which
5
66
I shall observe, is the remark, that the Declaration of
Rights is not to be set up against a tax law ; and this Í3,
perhaps, a fair result of the notion, that while the right
of eminent domain is regulated by the public exigencies,
the exercise of the taxing power is regulated by some-
. thing else—by some standard, prescribed by law; or, in other
words, by no measure at all. If it be true that this
enormous power may be wielded, at the pleasure of the
Legislature, without regard to the public exigencies, and
to the oppression of any given portion of the people,
then it Í3 unquestionable that there is nothing in the
Declaration of Rights, or anywhere else, that can be set up
successfully against a tax law. To say that it may be, how¬
ever, is more than the Chief Justice himself has ventured
to maintain—more, perhaps, than could reasonably have
been expected from an American Judge—and more, cer¬
tainly, than can be safely or consistently admitted by any
people pretending to be free.
We are assured, however, that there is nothing alarm¬
ing in all this—that it is a reliance on the principle of
popular representation—which makes us free, and is our
best security, at last—that has left this enormous power
without stint; and that there is no danger of its abuse,
for the reason, that the people are not likely to employ
any of the powers of Government for their own oppression.
It is difficult to decide, upon the reading of this passage,
whether it is most distinguished by its forgetfulness of
the reasons which led to the adoption of our Constitution,
with its nice distribution of power, and the complicated
system of checks and balances, by which it is dis¬
tinguished, or by the total oblivion of the teachings of all
history, which it betrays. If the Judge is right, all limi¬
tations, and, therefore, all Constitutions, which are, in
effect, but limitations of the power of majorities, are
worse than useless. When he asserts that it is the prin¬
ciple of popular representation which makes us free, he
discloses a faith in the integrity of the Representative,
and the moderation and forbearance of majorities, which
partakes more of the charity which is blind to our in-
67
firmities, than of the knowledge which edifies and saves ;
%id with it, a feeling of security, which was not shared
with him by the founders of our Republic. When he
alleges that the most formidable of all the powers of Gov¬
ernment has been left unguarded, on the assurance that
it was impossible for the agents of the people to abuse
their trust, he impeaches the wisdom of every restraint to
which they have been subjected. And, to crown all,
when he informs us, that so long as the people rule them¬
selves, it is impossible to anticipate that they will employ
any of the powers of Government for their own oppres¬
sion, he employs. a topic of consolation, which is only
intelligible, so long as taxation is equal and universal,
and is entirely unmeaning, upon the theory of partial im¬
positions, and illimitable power, to which he has just
given his express and emphatic sanction.
The argument of the Chief Justice, admits that the
taxing power is not unlimited—that the Legislature has no
constitutional right to lay or authorize a tax for a mere
private purpose—that the whole of a public burthen can¬
not be thrown on a single individual, or one county
taxed to pay the debt of another, or one portion of the
State, to pay the debts of the whole—that a tax law would
be invalid for a purpose in which the community taxed
have palpably no interest, or where it is apparent that a
burthen is imposed for the benefit of others—that loca¬
tion does not determine the question of interest—and
that the charter of a municipal corporation cannot be so
enlarged, as to enable the corporate authorities to embark
it in a private business, or to make the people pay for a
thing in which they have no interest.
Judge Woodward repudiates all these exceptions, re¬
jects all qualifications, even to that of equality of burthen,
and expressly declares that the power of taxation is abso¬
lutely illimitable, and that there is nothing in the Decla¬
ration of Lights which can be set up against a tax law;
and therefore it is, that he sustains the legislation in ques¬
tion, without regard to anv of these considerations. On
7 O «/
68
the hypothesis of the Chief Justice, however, he must
have decided otherwise. lie does not undertake to say
—because he does not regard it as material—whether
these Acts involve any inequality of burthen ; but he
does say, that they convert the municipality into a mem¬
ber of a merely private corporation, by making it a com¬
mon carrier, with all the hazards and responsibilities of
that relation, that the purpose is one which is incon-
grous and inappropriate, and that rail roads, to connect
distant points of country, to develop physical resources,
and to promote commerce, come not within, or near to
that class of objects, which we have been taught to con¬
sider as municipal purposes. He thus declares, in effect,
if not in terms, that the business is a private one—as it un¬
questionably is—and that it does not concern the munici¬
pality—which is only a translation of the term interest into
plainer English. lie thinks, it is true, that mere legisla¬
tion may change the nature of all this, so as to render a
private and extra-territorial business a municipal one, and,
therefore, he sustains it upon grounds which the Chief Jus-
tice admits to be untenable—-while, upon the admissions of
the latter, he must most unreservedly have condemned it.
And so, too, e converso, upon the admissions of Judge
Woodward, that the business is a private oue, and one
which does not properly concern a municipal corporation
as such, must the Chief Justice, with his acknowledged
limitations of the legislative power of taxation in such
case, have pronounced the legislation in question to be
unconstitutional. And such, also, would doubtless have
been the result of his argument, if lie had treated the
question in its rigor, like his brother Woodward, upon
the footing of a mere exercise of the taxing power, instead
of softening it down into a mere act of gracious condescen¬
sion on the part of the law-giver, in vouchsafing to the
community the lofty privilege of taxing themselves—by
construction.
Setting out, therefore, from opposite poles, the Judges
in question have drifted into the same channel, and made
shipwreck of our institutions and fortunesj upon the same
69
fatal and inhospitable shore. If it had been their for¬
tunes—and our3—to start together from tbe premises of
either, they must inevitably have parted company on the
voyage, and one of them, at least, have joined hands witb
bis two dissenting brethren, in upholding the pillars of
the Constitution, and maintaining the sacred guarantees
of property. They bave agreed, however, in deciding
tbat it is without security, and that one of the declared
purposes of our Government bas failed, through an over¬
sight on the part of its founders ! They have concurred
in the death-dealing judgment, that the framers of our
Constitution have not spoken out their purposes, and that
they themselves are helpless.
Since the foregoing remarks were penned, the opinion
of Justice Knox has also come to us, through the reports. It
is very summary and somewhat epigrammatic; stating its
conclusions without the risk or labor of reasoning them out,
and forming what might very well serve as a compen¬
dious manual of legislative despotism. It would be unfair
to overlook it. A few remarks, however, will dispose
of it.
The tests are, he says, whether the Act is in the nature
of a legislative power—and if so, whether the Constitu¬
tion expressly or by necessary implication forbids it. If not
legislative, it is forbidden, he thinks, by necessary impli¬
cation ; and it is by the same rule that he deduces, from
the organization of a Judiciary, the conclusion that it is
supreme and exclusive.
Taking the creation of a municipal corporation to be
an exercise of legislative power, he agrees with his
brother "Woodward that there can be no limits to its
extension. Admitting, however, that laws may be thus
passed, which will, in the minds of many, be contrary to
natural justice, and subversive of the just rights of the
people—he sees no remedy but in further restrictions of
the power of the majority.
Deploring the danger of annulling an Act, without a
fixed rule, and a written one, he tells us that we are with¬
out remedy, because he can find no prohibition in the
70
letter. The clause which prohibits the taking of private
property for public use, has been shown, he thinks, by
it; and his brethren, not to erabracehe agrees with them
that all this is taxation, and that there is no restraint but
in the accountability of the representative to his constitu¬
ent. To show this, he refers to 4 Wheat. 428; and the
case of Kirby vs. Shaw, in 7 Harris, 258, is then invoked
to prove, in addition, that all the power of the people
passed by the general grant, except what is specifically
reserved, and that as they were not sharp enough to make
a bargain for equality in the Declaration of Kights, they
have no title to such indulgence, unless the Legislature
think proper to accord it to them.
For these reasons, he thinks that these Acts are constitii
tional, and that the Bubscriptions may be enforced by
taxes assessed on the taxable citizens of the corporation.
The expediency of the subscriptions themselves is a ques¬
tion which belongs, as he says, to the people—to be de¬
termined either by themselves, or by their selected agents.
And now a word as to all this :
The first remark which it suggests, arises out of the
frequent recurrence of the terms "necesssary implication"
—a form of speech which seems to have found its way
into the vocabulary of the literal interpreters, from the
obvious necessity of devising some means of escape from
the monstrous results into which a too rigid adherence to
the letter was constantly leading them. -Its meaning, how¬
ever, has never been very well defined, although its uses
seem to be manifold. Thus, we are told in one breath, that
a power which is not legislative, is forbidden by " necessary
implication," and not because it is "not nominated in the
bond ;" and in the next, that the Judiciary is supreme
and exclusive, by the same rule, just because it is an or¬
ganized Judiciary. The former of these uses finds its
explanation in the modern notion of inherent legislative
omnipotence. The reason of the latter is not so appa¬
rent. To say that a grant of one thing excludes another
and a different one only by "necessary implication," is
intelligible only on the hypothesis that a grant of legisla¬
tive power is something different from a grant of anything
71
else, and is to be governed by none of tbe usual rules.
To infer, however, that a thing is supreme and exclu¬
sive by necessary implication, or any other rule, merely
because it exists, is something in the way of logic which
is not so easily explained. It is akin, however, to the
idea of Judge Woodward, to which he implicitly sub¬
scribes, that if the Legislature can make a municipal cor¬
poration, it may extend it so far as to make anything else out
of it, which is within the compass of human invention.
There is no objection, however, to this rule of construc¬
tion, except that it should have found favor with a Judge
who professes to be satisfied with nothing short of a fixed
rule, and a written one, and will not consent, upon any
consideration, to look beyond the letter. If it is good for
one purpose, however, it ought to be good for another.
If it may be legitimately and successfully invoked to pro¬
tect the Judiciary from encroachment, one would suppose
that it would cost no very great sacrifice to extend it to the
rights and property of the citizen. The Declaration of Lights
proclaims that one of the great objects of this Govern¬
ment is the security of property, and that no man's prop¬
erty shall be taken from him without compensation. Is
there not a tolerably fair implication from all this, that it
shall not be taken under the pretense of protecting it, or
under color of an authority which is itself only implied ?.
The indefinite power of extension, to which Judge
Knox subscribes, in accordance with the views of his
brother Woodward, has been already examined in the
review of the opinion of the latter Judge. Nor is there
any more originality in the idea, that the only remedy for
a law which may be contrary to natural justice, and sub¬
versive of the just rights of the people, is in further re¬
strictions of the power of the majority—which may turn
out to be impossible, if they have an interest in refusing
them.
The difficulty of Judge Knox is admitted to be, as with
his brethren, the absence of the letter. Ile agrees with
them, that the taking of more of one man's property than
another's, for the use of Government, is not the case pro-
72
vided for by tbe clause which prohibits the taking of
private property for public use, without compensation;
and says he agrees with both that these are tax laws, and
that there is no restraint upon the power, but in the ac¬
countability of the Representative to his constituent.
He is raistaken. There is a difference between his breth¬
ren on this point. The Chief Justice admits that there
is a limitation in the very nature of the power, which
Justice Woodward altogether denies. It is impossible
for him, therefore, to agree with both. He follows the
latter only, and even he has surrendered his position in a
later case, [Sehenlcy vs. Allegheny City, 1 Casey, 128,)
wherein he concedes that there may be cases wherein the
abuse of such a power may be corrected; that where the
exercise of the taxing power becomes wanton and unjust,
or is so grossly perverted as to lose its character as a legis¬
lative functiou, the Judiciary will feel themselves entitled
to interfere on constitutional grounds; and that taxation
is fair and legitimate only when it imposes the burthens
exactly where the benefits are conferred.
The case referred to, from 4 Wheat, 428, is nothing to
the purpose. The observation quoted from Ch. J. Mar¬
shall, that the exercise of the power of taxation is only
to be limited by the exigencies of the Government, has
nothing to do with the question of equality in the assess¬
ment. The Republican spirit, and strong practical good
sense of that eminent Judge, would have revolted at the
idea of inequality in a Government like ours. The case of
Kir by vs. ¿Shaw, from 7 Harris, 288, is admitted to be
somewhat more to the purpose. It is, however, at war
with the settled doctrine of the Supreme Court of the
United States, as shown in the case already cited, as well as
with the admitted limitations of the Chief Justice, and his
brother Woodward, and is so repugnant withal to common
reason, and every idea of Republican freedom, that if it
had been ruled a score of times, it is no more to be con¬
sidered a just and binding exposition of our Constitution,
than the decision of the seven Judges of Charles I. in the
case of the ship-money, was of the Constitution of Eng-
73
land. It was tlie royal prerogative which conquered
then. But it .conquered no peace, and settled no prin¬
ciple. It is the prerogative of the Legislature which is the
fashion now. This, however, is but the transfer of an
undistinguishing and unresisting loyalty, from one tyrant
to another—from a hereditary monarch to an elective
one, whose temptations to abuse his power will be pre¬
cisely in the i il verse ratio of the briefness of his authority.
It will not, however, outlive the day. It will perish with
the Judges who invented it, and, if I mistake not, long
before them.
The idea that the taxing power is subject to no restraint
whatever, because there is 110 express exception or limit¬
ation in the Declaration of Rights—an idea which was
common to Judge Knox and his brother Woodward,
until repudiated by the latter in the case of Schenley vs.
The City of Allegheny, is one which is not undeserving of
an additional remark. lie is concerned that the letter is
not there. And why should it be? Tfce power itself is
not in the Constitution. It is an implied one, merely. It
islimitable in its nature, and by the very necessity out of
which it arises. It is, moreover, of substantially the same
character as the right of eminent domain, because, like
that, it takes private property for public use. The latter
differs from it, only in taking more of one man's property
than another's. When taxation becomes unequal, it passes,
by an easy transition, into the other power. When the
Legislature does so deal, however, as to take more of one
man's property than another's, the Declaration of Rights
steps in, and expressly forbids injustice, by prescribing
compensation, to secure equality. What was the occasiop,
therefore, for anything more ? Surely no instrument of
Government, of human invention, could have secured
equality by stronger guards than these. If, after all, it
has failed in this particular, then the provision in regard
to compensation was practically useless, and the Legisla¬
ture may take all Pittsburgh, as it has in fact done, for
the uses of the State at large, under the color of taxation,
and without any compensation whatever.
6
74
The expediency of these subscriptions, he says, is a
question for the people. It is not so, however. The
choice has not, in any case, been left with them. If they
are sustainable as tax laws, conferring indefinite powers on
public corporations—as it is claimed they may do—the assent
of the people was of no importance; and if the validity of
these subscriptions depends on their assent, then even a
majority could not so change the corporate functions as to
bind their dissenting and protesting fellows.
It is not to be too hastily inferred, however, that the
views thus stated have suffered no change, or are to pre¬
vail hereafter. The effect of a particular decision is not
always obvious at first sight, and there is nothing in the
position of a Judge to exempt him from error, or to re¬
move him beyond the pale of humanity, by denying to
him the humble privilege of confessing and repairing it.
I have already had occasion to suggest, that since the
first portion of these remarks was penned, the doctrine
that the exercise of the taxing power was not subject to
review, had been abandoned by Judge Woodward, in the
case of Schenley vs. The City of Allegheny. I am now ena¬
bled to proclaim another convert to the more rational and
conservative principle, in the person of Judge Knox him¬
self—the last doubtful member of the Supreme Court.
In the case of the Bill, recently filed in that Court, to
enjoin the Pennsylvania Rail Road Company from the pur¬
chase of the main line of the Public Works, Judge Knox,
in agreeing with his colleagues, that no part of the tax¬
ing power could be surrendered by the Legislature, is re¬
ported to have said :
"There are no words in the Constitution which expressly declare
that the Legislature shall not relinquish the power to impose taxes
upon persons or property, nor is such prohibition to be necessarily
implied from any of the restrictions imposed upon legislative action;
but unless the power to part with the right to tax, passed to the
General Assembly by the grant of legislation, it does not exist, al¬
though not forbidden. It is difficult, if not entirely impossible, to
define with precision, in what the legislative or law-making power
consists, but it is very clear that it is not an absolute power to do
whatever the General Assembly may determine to do.
75
''The power to impose taxes is entirely legislative in its charac¬
ter, and the General Assembly is possessed of this power to the full¬
est extent; for it was conferred by the people, without limitation
and without restriction, to be used, however, as the exigencies of
the Government required, and not to be bartered away, to answer
present purposes, at the expense of the future. The power to im¬
pose taxes does not include the power to grant immunity from tax¬
ation, any more than the power to provide punishment for the com¬
mission of ciime, implies the power to grant exemption from all
punishment. To deduce the right to eontract the power away,
from the right to exereise it., is to claim the right to destroy, because
the right to preserve is conceded."
Here then, while it is distinetly asserted that the power
of taxation is a legislative power, passing, to the fullest
extent, Î3y the general grant—which, according to the Chief
Justice, would have made slaves of all of us—it is admit¬
ted that the power to stipulate against its exercise in a
given case, did not pass, and does not -exist, although it is
not forbidden, either expressly or by necessary implication.
The idea, therefore, of legislative omnipotence, and the
rule of the Sharpless ease, compounded of the theories
that it may do whatever is not so forbidden, and that the
taxing power is so absolute and uncontrollable, that the
manner of its exercise is not subject to revision, even in.
a case of manifest abuse, are alike distinetly and expli¬
citly abandoned. While it is still insisted that this power
was conferred without limitation or restriction—though
never, in point of fact, conferred at all—it is, at last, unan¬
imously confessed, that there is a qualification upon the
use. The limitation here is, that " it is to be used as the
exigencies of the Government require, and not to be bar¬
tered away;" and the reason given is, that "this would be
to iufer a right to destroy, because the right to preserve is
conceded/' It is not altogether clear, that non-exercise,
although it may involve a breach of trust, is necessarily
destruction, or that a mere agreement for worc-exercise is any¬
more than an abuse, because it exhausts a source of legisla¬
tive supply, if it does not enaet injustice by exempting
one at the expense of another. The idea, however, that
this would be destruction, is equally predicable of the
76
right to take the whole property of the citizen, mo- fialu„
"by way of mortgage, under the pretense of taxing him, for
the purpose of building rail roads. If it be bad logic, as
it is, to infer a right to destroy, from the existence of a
right to preserve, what becomes of the power claimed here—
and that by implication merely—to destroy- the property
of the citizen—where the very object of Government is
declared to be its protection, and the power is, therefore,
implied only for the purpose oí preserving it! Is the exist¬
ence of the taxing power more important than that of
property itself? Surely no further argument is necessary.
Judge Knox himself has demolished the case we are re¬
viewing, at a blow.
I take occasion, therefore, to congratulate the people-
and the profession, on this early return to sound princi¬
ples, and rational rules of interpretation. The departure-
has been—thank Heaven—a brief one. It has inspired
great alarm, and has been productive of much mischief.
I never doubted that it would be brief, because I felt
assured that the new doctrine would so hamper and em¬
barrass the Judges, at every turn, and lead to such unex¬
pected and startling results, a3 would inevitably drive
them back to that " one impregnable position " referred
to by Chief Justice Black, in his letter to the Commis¬
sioners of Somerset county. They are now there, as I
humbly believe, and I take my leave of them accordingly.
In so doing, may I not be allowed to say to the victims of
this iron rule :
"Redit Astrœa redox; redeaiit jam Saturnia régnaî"
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