Samuel Young to James Kent, c25 November 1814

[Samuel Young] to James Kent, [c25 November 1814]

To the Honorable JAMES KENT, Esq. Chancellor of the State of New-York.

SIR,

PURSUANT to an intimation in my last, I now solicit your attention to the act entitled "An act to authorize the raising of troops for the defence of this state," and your objections to the same. To the passage of this bill you have interposed five objections; several of which appear to me to contain very extraordinary principles. I will not say, sir, that your objections to this bill are preposterous and absurd, that your premises are false and your conclusions erroneous; but, with all possible civility. I will prove them so.

You object 1st. Because the constitution of the United States has granted to Congress the power to raise and support armies, to collect taxes, &c. in order to provide for the common defence and general welfare—that after such a transfer of power and of the best resources of the state, the raising so large an army as 12,000 men at the expense of the people of this state, is an undue, disproportionate, and most burdensome contribution for the common defence. Your first objection further states that the troops so raised are to be placed for two years under the command and at the disposal of the government of the United States, without any restriction as to place or object, and who may accordingly employ them where they please, and upon such projects of conquest as may suit the policy of the government, &c. Presuming, sir, that you are well acquainted with the constitution of the United States, and that you had read the bill to which you objected, I shall not pay so poor a compliment to your understanding as to suppose that you ever entertained the belief for a moment that the bill contain the provisions which you have ascribed to it. The 8th section of the constitution of the United States declares that Congress shall have power to provide for calling forth the militia "to execute the laws of the union, suppress insurrections, and repel invasions." No man ever pretended that Congress have the power of "calling forth" the militia for any other purpose. And the political party to which you belong, and whose creed, with you is orthodox, have almost to a man advocated the doctrine, that when the militia are called out to "repel invasions," they are not bound to cross the line into the territory of the enemy. Now, sir, the eleventh section of the act to which you object, declares that the troops to be raised by the act, shall be subject to the orders of the commander in chief of the armies of the United States, to the some extent as the militia of this state, when called into the service of the United States under the constitution and laws of the United States and of this state; and shall serve in lieu of an equal number of militia, which may at any time be ordered into service by the government of the United States. They are placed precisely on the same footing, and are to serve in lieu of an equal number of militia. It follows that they may be employed by the government "to execute the laws of the union, suppress insurrections, and repel invasions," and for no other purpose whatever. The round assertion, therefore, that "the troops so raised are to be placed for two years under the command and at the disposal of the government of the United States, without any restriction as to place or object"—was a most unfortunate abberration of your pen! Had such an assertion proceeded from a man in the humble walks of life, the censorious world would have ascribed it to an absence of veracity, or to the rash intemperance of political zeal.

Confined as these troops are by the bill to mere militia service, all your learning and eloquence on the subject of the power of Congress, to raise and support armies, collect taxes, &c. appear to me to be vox et preterea nihil, or elegant language without any application. But the hardship which you alledge is imposed by the law on the people of this state, merits consideration.

Since the commencement of the war, the general government, in order to "repel invasions," have found it necessary to call out and keep in service more or less of the militia of this state. By the last general requisition 13,500 were ordered to be detached as the quota of this state. Nearly double this number are now in the service of the general government at New-York, Sacket's Harbor and Plattsburgh. But sir, who are the militia who are thus compelled to defend the whole state from "invasions?" They are those able bodied men between 18 and 45 years of age, who are not exonerated from duty by any of the multiplied exemptions, which have, from time to time, been provided by law. Deducting the people called Quakers, ministers of the gospel schoolmasters, professors, preceptors and students in colleges and academies, individuals belonging to fire companies, all who have served a given time in uniform companies, those who have held and those who now hold commissions in the militia, all civil officers who are exempt, all who are not able bodied men, and all who are above 45 years of age, &c. &c.—and it will be found that not more than one fourth of the free white male inhabitants of this state above the age of 18 years are bound to do militia duty. It will also be found that those who are compelled to serve in the ranks are among the poorer classes of the community, and do not collectively own one tenth of the aggregate amount of property in the state. Such being the fact, it requires little logic to convince every equitable understanding, that to continue the burden of defending the whole from "invasions," on men whose proportion in point of numbers is not more than a fourth, and in property less than a tenth of the state, would impose upon them "an undue, disproportionate, and most burdensome contribution for the common defence." What then will be the operation of the law to which you object? Its whole object and design is to relieve these men from such a "most burdensome contribution," and to compel the whole property of the state, by a just and equal ratio, to procure 12,000 substitutes, to "serve in lieu of an equal number of militia." Numerous instances have occurred, in which men in moderate circumstances, drafted and called on to go into the service, whose families were not in a situation to be left, or whose absence would have been extremely prejudicial to their private affairs, were obliged to pay 60 or 80 dollars for a substitute to serve three months in their stead. Such instances have been very frequent in all parts of the state. For a poor man thus to be compelled to go, or to procure a substitute at such an expense, while his rich neighbor is wholly exempt—is "an undue, disproportionate, and most burdensome contribution for the common defence." If the law to which you object goes into operation, the poorer classes of community will be relieved from such sacrifices, at least for two years, except when the militia are called out en masse.

You object, secondly, "Becauee the mode of raising the men by compulsory assessments and drafts will be unjust, unequal and grievously oppressive in its operation. The poorest counties in the state (you say) must raise as many soldiers in proportion to their population as the most wealthy." Let us examine these positions. The 13,500 detached militia now on service were raised by "compulsory drafts." They were raised, too, exclusively from a class of citizens, whose proportion in numbers, as I have before stated, is not more than a fourth, and in property less than a tenth of the state. And is it believed by you, sir, that the mode of raising the men adopted by the bill, which lays all the property in the state under contribution for the purpose, will be as "unjust, unequal, and grievously oppressive in its operations?" I wish you had named some of the counties which you deem "the poorest;" I have no doubt but that I could have shown to demonstration, that the law will not operate unjustly and unequally upon them. But I shall take it for granted that by the poorest counties you mean those that are the most uncultivated and unsettled. Suppose then a new county, twenty miles square, which should be so partially settled as to contain but 200 males liable to be classed by the law. Suppose, also, that every 20 in the state are obliged to produce a man. It will follow that these 200, all of whom, if you please, are mere squatters, and extremely poor, are bound to procure ten men. In order to show the fallacy of your position, I have combined in my hypothesis more poverty than exists in any county in the state. But to proceed. These 200 are bound to procure ten men. This at first view appears to be unequal and unjust. There is, however, another provision in the law, which I presume, for the moment, escaped your sagacity. It is, that non-resident property shall bear an equal proportion of the burden of raising the men.—In the county of twenty miles square, there are 400 square miles, each of which contains 640 acres—in the whole 256,000 acres. At the moderate estimate of one dollar per acre, the aggregate value is $256,000, which aggregate value is to bear its equal proportion with the property of the 200 individuals in raising the ten men. The contribution of each of the 200 individuals would, of course, be very trifling; and although such a case as the above may not occur, yet the principle applies to every county in the state, in proportion as it is more or less poor or rich, unsettled or populous. If there is any inequality in the operation of the law, it bears too heavily upon the rich and populous counties. Take, for example, the city and county of New-York, which contains one tenth of the whole population of the state, and whose quota of the 12,000 will be one thousand two hundred men. But when it is considered that the city of New-York contains a great proportion of the disposable property of the state, and that, like all other cities, it contains a class of population who have no regular, settled and permanent occupations, and who may therefore be the more readily employed in the service of their country, it will be found that the burden throughout the state, is apportioned as equally as possible.

You object, thirdly, "Because the bill does not allow of any exemption from detachments, to persons who may have heretofore borne military rank, or are still officers in the militia, nor to aliens of any denomination or description, nor to the professors & pupils in our seats of learning, nor to any of the existing civil officers of the government of this state however exalted in station or venerable in character." The ninth section of the act to which you object, provides that all persons, exempt by the laws of the United States from militia service shall be exempt from the liability to ballot and detachment directed by the seventh section of the act. The Legislature of this state do not possess the power of repealing on act of Congress; they could do no more towards perfect equality than to abolish all state exemptions. The bill, therefore, of necessity, recognizes and allows all the exemptions which are provided by the laws of Congress. The law of Congress, among others, expressly exempts aliens from militia service. To what then, sir, am I to attribute your assertion, that the bill does not exempt from detachment "aliens of any denomination or description?" unless, indeed, it is to be accounted for on the principle, that it is the characteristic of a great mind and glowing imagination to indulge in hyperbole and poetic licence! But although aliens are exempt by the bill from detachment, yet the other descriptions of individuals enumerated by you, are not. According to the provisions of the law, after the classes are organized, and called on to produce a man; if they refuse—and if no member of the class will procure a man at the expense of the whole; then, as a last resort, the detachment or balloting takes place.—When those august personages, therefore, "who may have heretofore borne military rank, or who are still officers in the militia, the professors and pupils in our seats of learning, and the existing civil officers of the government of this state, however exalted in station or venerable in character," are classed; if the class to which either of them should belong, refuses to procure a man, he may nevertheless avoid the risk of being drafted or detached, by hiring a man at the expense of the class. And even should he suffer himself to be detached, he is not then compelled to serve, provided he will procure a substitute. Where then is the hardship which warrants your melancholy reflection, that "the painful consequences of such indiscriminate requisition may be felt, but cannot be described!" You add, "It follows that the ordinary duties of government, and even the administration of justice may be suspended." If, sir, all the officers of state, and the chancellor and judges, should happen to be under forty-five years of age; if they should all happen to be able bodied men; if they should all happen to be placed in classes which should refuse, & every member should neglect to procure a man; if they should all in consequence thereof, happen to be drafted or detached; and if every one of them should happen to love his money too well to hire a substitute; then, indeed would your gloomy prediction be verified! Then, indeed, "the ordinary duties, of government, and even the administration of justice, would be suspended!"

But, sir, it is a fact with which you are acquainted, that all our principal civil and judicial officers receive liberal salaries or emoluments form the people of this state. Why then should they be exempt from contribution, any more than those humble but useful members of community, whose daily labor furnishes their own means of subsistence?

A man high in office is not compelled to serve in defence of his country unless he is to miserly to pay his proportion "agreeable to his estate, circumstances and abilities." He who should thus refuse to contribute towards the common defence, although he might be "exalted in station," would not be "venerable in character." He has more at stake in the contest than the poor man; for if the country is conquered he will not only lose his liberties, but also the emoluments of his office, and perhaps his property. Appealing then directly to that benevolent principle, which it is your official duty to dispense, I would earnestly enquire what equityhas he on his side, who complains of an equal, "indiscriminate requisition," and prays to be totally exempt? Equity, sir, is unable to relieve him; and, thanks to the Legislature, and to your associates in the Council of Revision, the law is unwilling.

I now proceed to the consideration of your 4th objection. And as you have repeated and applied this objection alone, to the bill entitled "An act to authorise the raising of a corps of sea-fencibles," I will attempt to obviate at once, all that you have urged in its support. You object, "Because the bill provides that the Governor shall appoint by brevet all the officers of this army, and who are authorised to act, and to hold their rank until the Council of Appointment shall have made the appointments." In support of this objection, among other things, you alledge that "this is a direct violation of the 23d article of the constitution of this state which declares "that all officers, other than those who by the constitution are directed to be otherwise appointed, shall be pointed by the council." You also alledge that if the Governor may appoint officers by brevet, he may also appoint brevet judges and sheriffs, and make brevet removals. You say that the word brevet is a French term,—that it means only an informal, honorary or titular appointment,—that according to the French academy there are brevet dukes, brevet abbeys, brevet apprentices, and brevet courtesans, as well as brevet generals and colonels: and you might have added, that, according to Roman history, one of the Cæsars appointed his horse a brevet emperor. But whether the power of brevetting may have been abused in France or other parts of the world, is not, I humbly conceive, the question; but simply, whether under our constitution and form of government, it can be lawfully exercised by the commander in chief of this state. If the abuse of power in any age or country affords a conclusive argument against its future exercise; then your official functions ought to be suspended or abolished, because Sir Constance Phipps, an Irish chancellor, prostituted his official powers to the purposes of oppression and Iniquity. This, however, is a doctrine which you would not seriously advocate.

It will readily be perceived that if the Governor can constitutionally make these "informal, honorary or titular appointments" of military officers, which shall hold good till the regular, annual session of the Councill of Appointment; it is a much more expeditious and economical mode of proceeding than to call a special meeting of the Council for the purpose: besides by this mode, time and opportunity are afforded to test by experience the merits of the officers; and if any are found unqualified for their stations, others may be appointed by the Council, for they are not in the least bound by the selection of the Governor.

I maintain that the power of brevetting military officers is necessarily appurtenant to the office of commander in chief. But here let me stop for a moment, and humbly ask you, from whence does the court of chancery derive the formidable power of depriving a citizen of his liberty, by committing him to prison for an alledged contempt? Is that power delegated to the chancellor by the constitution? No: The constitution is as silent on the subject, as it is on the subject of brevet appointments. Is this power given to the court of chancery by any law of this state? No: And yet you have frequently decided officially that not only the chancery, but all others down to a justice's court, possess that power. Your decisions are founded on that correct and salutary principle that without possessing that power courts could not properly discharge their functions; and that every grant of official power givens the means necessary to carry it into complete effect.

To apply this principle, then, to the office of commander in chief. Suppose an attack by the enemy on the city of New-York, during which all, or a principal part of the militia officers should be killed or disabled, could not the commander in chief appoint others by brevet on the field of battle? or must that confusion and disorder, consequent on a loss of officers, be experienced, until he could convene the Council from the four great districts of this state? The total destruction of the army would probably be the consequence of such scrupulosity. But perhaps you may tell me that in such an alarming emergency the practice of brevetting might be tolerated. I answer, that the constitution provides for no emergency; and if the power of brevetting is negatived at all, by the article you quote, it is excluded altogether. The framers of our state constitution undoubtedly knew the fact, that General Washington frequently brevetted officers, sometimes on the field of battle; and that the power of making brevet appointments was ex vi termini attached to the office of commander in chief. I have not now the constitutions of the several states before me; but I believe none of them authorises a governor alone, to make appointments of officers, and yet many of them, if not all, are in the habit of making brevet appointments. By the second section of the constitution of the United States, it is provided that "the President by and with the advice and consent of the Senate, shall appoint ambassadors, &c., and all other officers of the U.S. whose appointments are not herein otherwise provided for." It is true, the same section provides that "Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone," &c. The constitution of the United States is as silent on the subject of brevet appointments as the constitution of this state; nor is the President authorised to appoint any but "inferior officers," without "the advice and consent of the Senate," any more than the Governor of this state, by our state constitution, is authorised to make appointments without the concurrence in a Council of Appointment. It will follow that your construction of our state constitution is erroneous, or the President has proceeded unconstitutionally in making brevet appointments; for he has brevetted, not "inferior officers" only, but officers of every grade, up to a major-general. He had made these appointments in pursuance of laws of Congress, which laws are unconstitutional also, provided the one is so, to which you object. These laws, I believe, passed the two houses of Congress without opposition, their unconstitutionality not being discovered even by the luminaries of New-England. One of the laws to which I allude, is entitled "An act fixing the military peace establishment of the United States," approved 16th March, 1802—and the other is entitled "An act making further provision for the army of the United States, and for other purposes," approved July 6th, 1812. The fourth section of the last mentioned act declares, "That the President is hereby authorised to confer brevet rank on such officers of the army as shall distinguish themselves by gallant actions or meritorious conduct, or who shall have served ten years in anyone grade." I have not examined antecedent acts of Congress, but presume that President Washington and President Adams were both authorised by law to make brevet appointments. No chief magistrate of this state has ever deemed it unconstitutional to make brevet appointments. It was practiced by Governor Jay, or whom you doubtless entertain a constitutional respect.

In addition to the host of authorities which I have enumerated, and against which not a dictum anterior to your 4th objection is to be found; I will now proceed to shew you that the late learned Chief Justice Kent repeatedly expressed himself against your objection, by a uniform train of official acts for many years. Since your appointment as a judge of the Supreme Court, the militia law of this state has been frequently, I think five times, revised and reenacted, with a clause authorising the Governor to make brevet appointments, and had always received your sanction as a member of the Council of Revision. But, perhaps anticipating that your former opinions and practice might be urged against you with effect, you alledge that "The constitution knows nothing of appointments by brevet, and if such an idea has heretofore crept into any of our voluminous and complex militia laws, it is believed it never extended further than to the case of an existing militia officer to meet the occurrence of some vacancy in a superior grade; and if it did, the precedent is not binding." This is a most compendious method of obviating authorities. I would however ask, by whom it is believed that "it never extended further than to the case of an existing militia officer?" With the laws of the state before you, it is hardly possible that you could have entertained such a belief: for without going further back, the militia law passed March 29th, 1809, and to which you assented in Council of Revision, contains a section which totally negatives such belief. This section provides that when forty-five or more persons exempt from military duty, will associate together and form a company for the defence of the country, &c. the commander in chief may "organize such association, and commission officers by brevet therefor." Thus you see that in defiance of your assertion, the "idea" of brevet appointments has "extended further than to the case of an existing militia officer."

But is seems that the idea of brevet appointments has "crept into our voluminous and complex militia laws." Neither the section above quoted, nor any other section on the subject, in any other law which I have seen, appears to me to be either voluminous or complex. But admitting, for the sake of argument, they were so. Does the complexity of a law furnish a proper excuse to a member of the Council of Revision, for permitting a whole section repeatedly to escape his vigilance, which section (to use your language) "is a direct violation of the 23d article of the constitution of this state?" That constitution has imposed on the Council of Revision, very high and important duties. No bill can become a law until examined and approved by them: unless when objected to by the Council, it passes by two thirds of both houses. In the ordinary course of legislation every bill receives three readings before its final passage in either house: and surely the Council of Revision would not discharge their important trust without giving to every section of a bill at least one reading. Is the supposition then to be tolerated for a moment, that even with one reading, a section, which should contain "a direct violation of the constitution," would repeatedly escape the observation of any member of the Council? It would seem to me that such a supposition would convey an imputation of gross stupidity or inattention. And yet, sir, your 4th objection involves the late learned Chief Justice Kent in this dilemma. Out of delicacy and respect to you, I will urge this point no further; but will close my remarks on your 4th objection by merely adding, that it would have appeared as well in history, had your legal acumen elicited this hidden scintillation of constitutional light at an earlier period of your official career.

Your last objection now remains to be considered. You object, "Because, by the bill, if a person has property situate in two or more counties, (you must mean towns) the property in the county (town) in which he does not reside is made liable to assessment, though such owner is also charged with his proportion of the assessment of the class in which he belongs and resides, "agreeable to his estate, circumstances and abilities." By this means you say he becomes doubly taxed. The act gives the assessors a discretionary power. They are directed to have "due regard to the estate, circumstances and abilities of each person, so that equal justice may be done," &c. Now, sir, it appears to me that the assessors are a description of men who are not so perfectly void of intellect as not to perceive, that if an individual is taxed twice, or "doubly taxed," for the same property, "equal justice" will not be done. They will, therefore, I apprehend, tax the individual for the property only in the town in which they reside, knowing that other assessors in other towns will pursue the same course. Indeed, sir, an assessor being a town officer, has no jurisdiction beyond the limits of his town; nor can he in any instance tax property lying or being out of these limits: It follows that no property will be "doubly taxed."— You also add that "the new lands for which he becomes thus amerced are at the same time wholly unproductive of revenue, and as little liable to be affected by any incursions of the enemy as they are by the wild beasts which now inhabit them."—The adoption of the principle of exempting property "unproductive of revenue" from taxation, would occasion a great revolution in the fiscal plans of both the old and new world. The wisest politicians, or at least those who have been heretofore deemed the wisest, have recommended the imposition of taxes on pleasure carriages, gold watches, &c. and indeed all articles of luxury, which instead of being productive of revenue to the owners, are sources of continual expense. But the reason why individuals invest their money in new lands, is because such property is very productive, in consequence of its continual rise in value; and if new lands increase annually to value but seven per centum, I can see no reason why they should be exonerated from taxation any more than money at interest. Indeed, should the miser hoard his money in a strong box, where it would be wholly "unproductive of revenue," I do not believe he ought to be exempt from taxation.

The latter part of your reason, that new lands are not "liable to be affected by any incursions of the enemy," appears to me to be equally unsound. If indestructible property ought to be exempt from taxation, then all lands whatever should be excluded: for although the enemy may destroy buildings and pilfer personal property, yet he can neither burn nor steal a farm. Had the legislature adopted the rule, that property most "liable to be affected by the incursions of the enemy," should sustain the greatest part of the burthen of defence, the contribution would fall heavily on those individuals who own bullocks, negroes, flour, pigs, poultry and tobacco; for on these articles, the enemy uniformly seizes with peculiar appetite and avidity.

It is now time that I should draw to a close. The commentary already is much longer than the text; but my prolixity is not without excuse. In contending with the chancellor of the state, it would have been rashness in me to have attempted to carry his works by storm. It appeared to me the most prudent course, to proceed by slow and regular approaches, and to fortify my position at every remove. And though I have had the temerity occasionally to make a sortie, yet I trust on the whole, I am not entirely unsuccessful.

JURIS CONSULTUS.

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