Every once in a while I tell about one of my historical treasure hunts. Here’s another:
When the Constitution was being debated, Anti-Federalists warned that it contained insufficient safeguards against an overweening government. They asserted that some constitutional language could be twisted by unscrupulous advocates of “big government” to justify centralized federal power. The argument was not necessarily that the Constitution really authorized centralized federal power—just that its language was vulnerable to abuse by “sophistry” (a Greek term referring to superficially plausible but deceitful arguments).
One Anti-Federalist who expressed that concern wrote under the name of “Timoleon,” a fourth-century BCE Greek statesman and military hero. (The founding generation was well-educated in the Greco-Roman classics, which helps explains their political success.) The real identity of the Anti-Federalist “Timoleon” is so far unknown.
To illustrate his point about how big-government sophists could abuse the Constitution’s language, “Timoleon” wrote a fictional legal opinion, in which a future judge allowed Congress to adopt any laws it wished.
The “opinion” claimed that unlimited congressional power was merely an incident of congressional authority to “tax . . . for the general Welfare.” (”Timoleon” was a good prophet; “progressive” judges and law professors have done much the same, but have used the Commerce Clause as well as the General Welfare Clause.) An excerpt from the Timoleon “judicial opinion” appears below this post.
The opinion of Timoleon’s fictional judge contains the maxim qui dat finem dat media ad finem necessaria, which means “He who gives the end (i.e., goal) gives the means necessary to the end.” I was curious about where this maxim came from, since it does not appear in 17th or 18th century English or American law books. Eventually, I found it in the writings of Algernon Sidney, a late 17th century English republican much lionized by the American Founders.
But if it doesn’t appear in English law books, where did Sidney get it? He said it came from Hugo Grotius (1583-1645), the Dutch genius who largely created modern international law. And there is a passage vaguely reminiscent of the maxim in Grotius’s writings. But it really is too different to be the source.
Recently, however, I was reading a 1691 English translation of Samuel Pufendorf’s work on natural law and human duties (De Officio Hominis et Civis). Pufendorf, who lived from 1632 to 1694, was a German jurist whose book was another favorite of the American founding generation. Like most other learned Europeans of his time, Pufendorf wrote in Latin. In the English edition I came across this passage: “…He who commands the End, must be supposed to command likewise the Means necessary to the said End.” (Book II, chapter 6).
That looked suspiciously like qui dat finem dat media ad finem necessaria, so I looked for a Latin version of Pufendorf’s book. That’s not particularly easy to find these days. When I uncovered one, I rushed to the place, and found qui jubet finem, jubere etiam censeatur media ad finem necessaria—which you can render into modern English as “who orders an end should be deemed also to order the means necessary to the end.”
Close enough. Mystery solved. Sidney really had gotten the maxim from Pufendorf, not from Grotius. But Sidney’s memory had played a trick on him. This is understandable, since Grotius and Pufendorf were easy to mix up in hindsight: Both were civilian jurists who wrote in Latin on somewhat similar subjects. Timoleon could have gotten the maxim directly from Pufendorf or from Sidney—both were popular at the time—but he probably got it from Sidney since Timoleon’s variation is exactly the same is Sidney’s.
This is some of what Timoleon’s fictional judge says:
By this power the right of taxing is co-extensive with the general welfare, and the general welfare is as unlimitted [sic] as actions and things are that may disturb or benefit that general welfare. A right being given to tax for the general welfare, as necessarily includes a power of protecting, defending, and promoting it by all such laws and means as are fitted to that end; for, qui dat finem dat media ad finem necessaria, who gives the end gives the means necessary to obtain the end. The Constitution must be so construed as not to involve an absurdity, which would clearly follow from allowing the end and denying the means. A right of taxing for the general welfare being the highest and most important mode of providing for it, cannot be supposed to exclude inferior modes of effecting the same purpose, because the rule of law is, that, omne majus continct [sic--- should be continet] in se minus. ["Everything larger contains the lesser within itself."- RGN]
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See: www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.
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