Sir, before quitting this idea of constitutional objection, permit me to make one or two brief remarks in regard to it. It is impossible for the ingenuity of man to devise any written system of government, which, after a lapse of time, extension of empire, or change of circumstances, shall be able to carry its own provisions into operation—hence, sir, the indispensable necessity of implied or resulting powers, and hence the provision in the constitution that the Government should exercise such additional powers as were necessary to carry those that had been delegated into effect. Sir, if this country goes on increasing and extending, in the ratio it has done, it is not impossible that hereafter, to provide for all the new cases that may rise under this new state of things, the defined powers may prove only a text, and the implied or resulting powers may furnish the sermon to it.
Permit me, sir, to put one question on this head, in addition to those so ably, and to my view, unanswerably put yesterday by the honorable gentleman from Georgia, (Mr. Crawford.) Whence, sir, do you get the right, whence do you derive the powers to erect custom-houses in the maritime districts of the United States? To attach to them ten, fifteen, or twenty custom-house officers; and clothe these men with authority to invade the domicile, to break into the dwelling-house of perhaps an innocent citizen? Whence do you get it, sir, except as an implied power resulting from the authority given in the constitution "to lay and collect taxes, duties, imposts, and excises?" If, under this authority, you can erect these custom-houses and create this municipal, fiscal, inquisitorial gens d'armerie, with liberty to violate the rights of the citizen, to break into his castle at midnight, without even a form of warrant, on a plausible appearance of probability, or probable cause of suspicion of his secreting smuggled goods, which the event may prove to be unfounded—and it will be recollected that a majority of Congress voted for the grant of this power in its most offensive form, when two years since they voted for the act enforcing the embargo—I say, sir, if under this general power to collect duties, you can erect the establishment and give the offensive power just mentioned, can you not, with the concurrence even of the citizens, adopt another more mild and useful mode, and create an establishment for the collection and safe-keeping of the revenue, and place it under the direction of ten or twelve directors, and christen it an office of discount and deposit, or of collection and payment, as you like best? And can you not, when you have thus created it, give to the directors a power, which perhaps they would have without your grant, to receive and keep the cash of those who choose to place it with them and to loan them money at the legal rate of interest, and in some places, as at New York, at nearly fifteen per cent. above the legal rate of interest? If you can do this, then you have your bank established, sir—and, most assuredly, if you can do one of these things you can do the other.
Sir, the constitutional objection to this bank, on the ground that Congress had not the power to grant an act of incorporation, has ever appeared to me the most unsound and untenable. Still gentlemen of intelligence and integrity, who have thought long and deeply on the subject, think differently from me: and I feel bound to respect their opinions, however opposed they may be to my own. Yet, sir, I will venture to predict, without feeling any anxiety for the fate of the prophecy, that should this bank be suffered to run down, such will be the state of things before this time twelve months, that there are other gentlemen, who at present have constitutional objections, but who have not thought so long and deeply upon them, who will, before that time, receive such a flood of intelligence, as on this head perfectly to dispel their doubts, and quiet their consciences.
Sir, I shall now proceed as briefly as may be in my power to state the situation of this bank on the expiration of its charter, and the effects on the community consequent on it. There is now due to the bank from individuals fifteen millions of dollars. These fifteen millions of dollars must be collected—the power of the bank to grant discounts will have ceased, and the duty of the directors must require them to make the collection. Sir, how is this to be done? Whence can the money be obtained? I shall demonstrate to you presently, that already, from an apprehension of a non-renewal of the charter of the bank, business is nearly at a stand—that navigation, real estate, and merchandise are unsalable; and that a man worth one hundred thousand dollars, at the recently rated value of property, and owing ten thousand dollars, must still be utterly unable to meet his engagements. Suppose, sir, this property consists in houses or shipping; suppose his warehouse is full of goods, and he has a large sum placed at his credit in England? If, sir, he can neither sell his ships nor his goods—if he cannot sell his real estate nor scarcely give away his exchange, which hitherto, to men who had money in England, has been a never-failing source of supply in case of need; I say under these circumstances, sir, whatever may be his property, he cannot meet his engagements. Sir, can men thus situated, solvent as they ought to be ten times over, find relief from the State banks? Certainly not, sir. These banks have already gone to the extreme length of their ability; they have always discounted to an amount in proportion to their capital exceeding that of the Bank of the United States, which is incontrovertibly proved by the dividends they have declared, which have at most universally equalled and frequently exceeded those of the Bank of the United States, notwithstanding the advantage enjoyed by the latter from the deposit of public moneys. Sir, so far from having it in their power, in the case of the dissolution of the Bank of the United States, to assist the debtors to that bank in meeting their engagements to it—I affirm the fact, on which I have myself a perfect reliance, that, take the State banks from Boston to Washington, and after paying their debts to the Bank of the United States, they have not, nor do I believe they have had, for six months back, specie enough to pay the debts due to their depositors, and the amount of their bills in circulation. And here I beg it to be observed, that bank bills and bank deposits, or credits, are precisely the same thing—with this difference, that the latter, from the residence in the neighborhood of the banks, and the vigilance of the proprietors, would be the first called for. How idle is it then to expect to obtain relief from banks which have already extended themselves beyond the bounds of prudence, and have not even at present the ability to meet their existing engagements? It might nearly as well be expected, that a man who was already a bankrupt should prop and support his failing neighbor.
Sir, much has been recently said of the amount of specie in the United States. Theoretical men have made many and vague conjectures about it, for after all it must rest upon conjecture; some have estimated it at ten millions of dollars—some twelve, some twenty, and some newspaper scribblers at forty millions of dollars. Sir, I do not believe that for the last ten years the United States have at any time been more bare of specie than at the present moment. A few years since, specie flowed in upon us in abundance. This resulted principally from an operation of a very singular and peculiar nature. The Spanish Government, as it was then understood, agreed to pay to France a very large sum of money—many millions of dollars, the precise number I am unable to state, from her possessions in South America. France contracted with a celebrated English banking house, as was said at the time, with either the concurrence or connivance of the English Government, that this money should be obtained through the United States. These bankers, by their agent, contracted with certain American houses, principally I believe in Baltimore, for the importation of this specie from La Vera Cruz into the United States, from whence it was not transmitted in coin to Europe, but invested in adventures in the shipments of produce, the proceeds of which ultimately go into the hands of these bankers in London, or of their friends on the continent, from whom it was finally realized by the French Government, either by drafts from Paris, or remittances to that city. This operation had a trebly favorable effect on the United States—it made fortunes for some of the merchants, it furnished the means of shipments to Europe, and it also provided the funds for adventures to the East Indies and to China. But this contract has now been finished some years; and since that time there has been a constant drain of specie from the country. Where it is in future to be procured from, I know not. Not from South America. Specie is, I believe, protected from exportation there, except to Spain. From Spain we cannot get it—to a great part of what was Spain we have now scarcely any trade. From France it cannot be obtained, for if we can get it there even by license, we are obliged to bring back her produce or manufactures. From England it cannot be imported—it is now made highly penal to attempt to send it out of the kingdom. With South America we have but little trade—hitherto we furnished them with smuggled or licensed European and India goods; but now the markets are flooded with these goods by importations direct from England, and which have been attended with great loss to the shippers. For these reasons, it is difficult to find a vessel sailing from the United States to the Spanish ports in South America. These are among the reasons why the amount of specie now in the country is small, and has for some time past been gradually lessening. Sir, without indulging in vague conjectures, what are the best data we have to form an estimate of the amount of specie in the country? The Bank of the United States has five millions of dollars in its vaults. In Boston there are three State banks—in New York I believe four, Philadelphia four, and Baltimore eight—call these nineteen twenty, and allow on an average one hundred and fifty thousand dollars specie, which probably is as much as they generally possess, and this will make three millions of dollars; this amount, united to the sum in the vaults of the Bank of the United States, gives eight millions of dollars—to which, if you allow two millions of dollars for a loose circulation of specie, you get an aggregate of ten millions of dollars. We are sometimes told of the large sums of money hoarded in our country by individuals—probably there may be some among the German farmers in Pennsylvania—perhaps more in that State than in any other, or all the others in the Union; but still of no great amount—the reputation of a little money possessed in this way easily swells into a large sum. At any rate, let the amount be what it may, in time of distress and mistrust, it would afford no addition to your circulating medium; for it is precisely in times like these, that men who hoard money will lock it up most securely.
Sir, the circulation of our country is at present emphatically a paper circulation—very little specie passes in exchange between individuals—it is a circulation bottomed on bank paper and bank credits, amounting perhaps to fifty millions of dollars. And on what, sir, does this circulation rest? It rests upon the ten millions of dollars, if that be the amount of specie in the country, and upon public confidence.
The Bank of the United States has fifteen millions of dollars to collect—call it ten, sir—nobody will dispute this—no one will pretend that this bank is not solvent—the remnant of its surplus dividends, and the interest it will have earned, will be sufficient to cover its losses at New Orleans, at Washington, and perhaps elsewhere. In what are these ten millions of dollars to be collected? In bank bills, the credit of which is at least doubtful? No, sir, in specie; and when this is entirely withdrawn from the State banks, and the banks are unable to pay the money for their bills, who does not see that this confidence is instantly destroyed—that the bubble bursts—that floods of paper bills will be poured in upon them, which they will be unable to meet, and which will for a time be as worthless as oak leaves—that the banks themselves must, at least temporarily, become bankrupts, and that a prostration of credit, and all those habits of punctuality which for twenty years, we have been striving so successfully to establish, will inevitably ensue, and, with them, also, there must be suspended the commerce, the industry and manufactures of the country; and a scene of embarrassment and derangement be produced, which has been unexampled in our history.
I will now make a very few remarks on the effects which the dissolution of the bank will have on the revenue and fiscal concerns of the country. Can it be supposed, sir, that the source to which will be imputed the distress that will have flowed from this event, will be the first to be thought of to be guarded against a participation of the evils that will result from it, in preference to the claims of the most intimate friends and connections? No, sir, the bonds due to the United States will be collected only at the tail of an execution. But I mean not to press this consideration. Admit, for a moment, that they will all be equally well collected—that they will be paid as usual, although it is palpable that for a considerable time the merchants will be unable to find the means to pay them: yet, admit, sir, that the money is collected in the State banks, how is it to be transmitted? It must come to the centre of the seat of Government; very little of the public money is expended in the Northern section of the Union. Will it come from the Eastward, in bills of the State banks? Penobscot bank bills sometimes will not pass in Boston; Boston bills pass with difficulty in New York or Philadelphia; and the bills of New York State banks probably would not be readily current in Washington. You must, then, sir, if Boston gives you a revenue of two millions of dollars, transmit the greater part of it to the seat of Government, or wherever it may be wanted in specie. Can this be done? We have not two millions of dollars of specie in our town, and, I may almost venture to say, never had. Suppose you make this transmission once, can you do it a second time? No, sir, the thing is utterly impracticable. You must adopt some other mode. Exchange between the different cities will not reach the case; frequently it cannot be purchased even for an insignificant amount.
Sir, will your money, when collected, be safe in the State banks? Of this I am extremely doubtful. Solicitations will undoubtedly be made for it from all quarters. They have already been made. In one instance, I am told, sir, the agent of a bank, even during the few past weeks, has been here for the purpose—that suddenly the agent was gone, and in a few days it was discovered that, owing to the failure of one of the debtors to the bank which he represented, (a great broker,) the stock had fallen in one day near 20 per cent. What was this the evidence of, but that those who were most interested in this bank, the stockholders who were on the spot, and best acquainted with its solidity, were willing to wash their hands of their concern in it, at almost any rate of sacrifice? Sir, I only state this, as it was here reported. I have no personal knowledge on the subject. But will you trust your funds with an institution thus precarious, and whose solidity is distrusted even by its best friends?
The credentials of Nicholas Gilman, appointed a Senator by the Legislature of the State of New Hampshire, for the term of six years, commencing on the 4th day of March next, were read, and ordered to lie on file.
Bank of the United States.
The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed on the 25th of February, 1791.
The question being to strike out the first section—
Mr. Giles.—Mr. President: It is with great reluctance that I find myself compelled to enter into the discussion of the subject now under the consideration of the Senate, but the observations which fell from the honorable gentleman from Georgia (Mr. Crawford) were of such a character as to impose on me an irresistible obligation to present that view of the subject which has resulted from the best reflections I have been enabled to bestow on it. This obligation arises from the very high respect I entertain for the Legislature of the State I have the honor to represent, the great respect I feel for the gentleman who made the observations, as well as from the respect which is manifestly due to myself. In executing this unpleasant task, I labor under circumstances of peculiar embarrassment. This embarrassment arises from a conviction that the views of the subject now proposed to be exhibited will disappoint the expectations both of the opposers and the favorers of the bill, and that they will not be acceptable to either. I shall not, however, in this instance, depart from my invariable habit, when urged by duty to participate in debate before this honorable body, of disclosing in the most undisguised manner my real opinions upon the whole subject, free of any consideration of political difficulties or inconveniences which may consequently affect myself.
In the first place, I find myself called upon to oppose a law, on constitutional grounds, which has been in existence for nearly twenty years, and during that period, I am compelled to admit, has been acquiesced in by the several State governments, as well as by the General Government, and its republican administrations. It is peculiarly irksome to me to question the constitutionality of a law which has been thus and so long acquiesced in, because it tends to give the character of instability to the laws generally, and in my judgment, tends also to impair the sacred character of the laws, and of course, to lessen their efficacy. In a Government like ours, where the laudable boast of every citizen is that he lives under a government of laws, and not of men, no subject should be touched with more caution and delicacy than one which questions the validity of the laws, lessens the confidence of the citizens in them, or impairs the obligation of obedience to them. Yet, sir, the course of observations I propose to make may have some of these tendencies, which I should extremely regret, and this apprehension, of course, produces embarrassment. Connected with this idea is another circumstance of embarrassment. I cannot help observing the inordinate zeal manifested by the opposers of this bill, evidently resulting from a belief that its rejection will lessen the powers of the Federal Government. Although it may be properly directed in the present instance, yet I think I have seen, and fear I may hereafter see the same spirit directed against some of the powers and proceedings of the Government which I have deemed indispensable to its own preservation, and its beneficial efficacy towards the people. It may, perhaps, be thought by some not becoming in me to say that I have not been an inattentive observer of the progress of this Government for twenty years, and more particularly, since the Republican party came into power. Some of the scenes through which I have passed, have produced an impressive influence on my mind. Such is the nature of the Government that its administration will vibrate from one principle to another, and it will always require great wisdom to keep its oscillations from wandering too far. Whilst those who preceded us in power endeavored to legislate into the constitution an unnecessary constructive energy, leading to what has been called consolidation, it appears to me that we have taken too much the opposite course, leading to disunion and dissolution, by depriving it constructively of its legitimate, necessary, and proper powers. If this course should be unfortunately persevered in, it requires no spirit of prophecy to foresee that the Government will fall to pieces from the want of due energy in the administration of its legitimate powers, or that some extraordinary means must be resorted to for its resuscitation.
The honorable gentleman from Georgia, (Mr. Crawford,) who reported this bill, as the chairman of the committee, to whom the subject was generally referred, excited not a little surprise in my mind by the prefatory remarks which fell from him in support of it. The gentleman prefaced his arguments by observing, "that it had latterly become the fashion to eulogize the Constitution of the United States; and that whenever he heard lavish encomiums applied to it, he could not help apprehending mischief." I acknowledge I could not comprehend the bearing of this remark upon the question under discussion. I, sir, have long been in the habit of venerating the constitution, and have often expressed my admiration at the wisdom of its provisions; and I really had hoped that I might have been indulged in these sentiments and prepossessions, and even the expression of them upon proper occasions, without exciting in the mind of any gentleman apprehensions of mischief; nor can I divine what species of mischief the gentleman apprehends from that cause. Mr. President, when we look over the whole world known to us; when we particularly cast our eyes over that part of it with which we have the most intimate relations; when we see the rapid strides which despotism is making over the whole human race; when we observe the various and powerful means now in use to rivet its immovable dominion upon mankind; when we reflect that the Constitution of the United States now affords the only practical experiment upon the republican principle, and the only and last hope for the preservation and extension of the liberties of man; is it wonderful or alarming, that we should feel and express some partiality and even veneration for an instrument of so peculiar a character? or should even endeavor to teach others to venerate, to cherish, to support it? An instrument, whose provisions at least exempt us from the general scene of despotism, and may eventually extend their blessings to the whole human race? Or if, in dwelling upon the wisdom and importance of its provisions, we might pass over some possible defects from scrutinizing them with an hypercritical eye, might not the omission be indulged without producing animadversion or censure? Sir, we all venerate the republican principle. I know the gentleman from Georgia (Mr. Crawford) does; nor do I pretend that my devotion to it is greater than his; but, sir, I have given the greatest attention to the observations of the gentleman upon the constitution; and I can now say that my veneration for the instrument, and admiration at the wisdom of its provisions, are not at all impaired nor diminished, notwithstanding the gentleman's criticisms, &c. I will now, Mr. President, endeavor to exhibit the general character of the constitution; to point out the mode for its correct interpretation, and apply it to the subject now under consideration. In doing so, I propose to follow the course of observations made by the honorable chairman of the committee who reported the bill.
The gentleman proceeded to remark, that in taking a review of the constitution he found general as well as incidental powers enumerated therein. I did not see the precise application the gentleman intended to make of this remark, but I have been induced to review the constitution in reference to this subject, and it does appear to me, that the classification and definition of powers is as well arranged as human wisdom could devise. I know that nothing is perfect which is the work of man; that no language is capable of perfect definition. But, as far as definition can be drawn from language, I conceive the constitution exhibits as perfect an example as is in existence. In the next place, the gentleman remarked that there was a number of cases in which Congress had departed from the particular enumerated powers in the constitution and had resorted to implication or construction for the derivation of its powers. The remark is perfectly correct, and I am very ready to admit that there is no such thing as carrying into effect enumerated powers in any instrument whatever, without the intervention of certain derivative and implied powers. But if the gentleman had succeeded in showing that there had been aberrations by the Congress of the United States from the enumerated powers of the constitution, would he think it correct to use those aberrations as precedents for still further aberrations? Ought they not rather to be considered as mementoes on the part of Congress to induce them to tread with more care, and, if they find that their former errors could not be supported by a fair and candid construction of the constitution, to restrain the laws within its wholesome provisions? Certainly that is the use to which the history of errors presented by the honorable gentleman from Georgia ought to be applied. But, before I proceed to examine the subject with more accuracy, I cannot avoid to express my surprise at another observation which fell from the gentleman. The gentleman observed, that the argument drawn from the distinction between ends and means was "incomprehensible;" and he went so far as to call it "nonsensical jargon." It is not only comprehensible to me, sir, as I conceive, but, in my opinion, is the only way in which a just construction of the constitution is to be attained. This results from the peculiar nature and organization of the instrument. Permit me here to endeavor to illustrate my idea by a reference to the constitution itself? The constitution is an instrument which grew out of the situation of the United States at the time of, and preceding its adoption; and to show that the constitution recited the great objects of its formation, and then prescribed the means for carrying them into effect, I beg leave to refer to a part of the instrument itself. The preamble, like all other preambles, was designed to express the objects of the instrument or the ends to be effected by its provisions. "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity; do ordain and establish this constitution for the United States of America." What is the plain language of this preamble? The answer is obvious. That certain great ends or objects are here proposed to be effected. In what mode, or by what means are they to be effected? The preamble tells you, sir, "by establishing this Constitution for the United States of America." That is the mode in which these great ends are proposed to be effected, and the body of the instrument prescribes the means which were deemed necessary and proper to the effectuation of these ends. The subject will be better understood by throwing the mind back to the period of time when this constitution originated, and reviewing the peculiar political situation of the United States then, and for some time antecedently thereto.
At the time, and antecedently to the establishment of the present constitution, the existing State Governments were in possession of all the powers of sovereignty, subject only to feeble and inefficient articles of confederation, without the means of executing their own will, and resting for its execution solely on requisitions upon the respective States, which might either comply or refuse to comply with such requisitions at their discretion. A non-compliance was almost invariably the result of State deliberations, and hence the feebleness of the old Confederation. The present constitution was adopted as the remedy for this great and alarming evil. Without it, disunion and ruin to the States would have been the inevitable consequence, because, upon actual experiment, the States were found utterly incompetent to the due administration of all the powers of sovereignty intrusted to their management. The reason of this incompetency was, that some of the most important powers of sovereignty inherently possessed a geographical influence beyond the geographical limits of the several States individually, and their jurisdiction could not transcend their geographical limits. Of this description of powers is the power to declare war, &c., to regulate commerce, &c., and all the other enumerated powers of the constitution. In consequence of the conflicting systems adopted by the several States in relation to some of these powers, which were then in practical operation; particularly in the conflicting regulations of commerce, the States were getting into the most serious collisions, &c. The formidable evils necessarily growing out of the state of things required a formidable and competent remedy. The great subject for the contemplation of every reflecting mind in America was, what that remedy should be? The wise framers of our admirable constitution, after great deliberation, conceived and executed the only practical expedient. It consisted in separating the powers of sovereignty; in establishing a General Government, and conferring on it all the powers of sovereignty whose geographical influence was found co-extensive with the geographical limits of the United States, and reserving to the State Governments respectively those powers which were of a mere local character, and which possessed no influence beyond the limits of the States respectively. And also to confer on the General Government "all the means necessary and proper" for executing its own laws in relation to these enumerated powers, without any dependence upon requisitions from the respective State Governments for this indispensable object. The idea was a grand one, and executed with an admirable simplicity, and the most consummate wisdom. Hence it appears that the great object of the framers of the constitution was to establish a General or Federal Government, and to confer on it all the powers of sovereignty, which in their nature and character possessed an influence co-extensive with the United States, and to reserve to the previously-existing State Governments all the powers of sovereignty of a more local character, and whose influence did not extend beyond the geographical limits of the States respectively, and therefore could be rendered completely subservient to State jurisdiction and management. These are the means prescribed in the constitution for effecting the ends expressed in the preamble. To the administrators of the General Government the framers of the constitution have said: We give to you all the powers of sovereignty of a general character; and to the administrators of the State Governments they have said: We reserve to you all the powers of sovereignty of a local character. I verily believe, that if those various Governments should be administered with the wisdom with which this separation of powers was made in the body of the constitution, the people of the United States will not be disappointed in the great and interesting objects proclaimed in its preamble. From this short history of the origin of the constitution, and the causes which produced it, it evidently appears, that the General or Federal Government is in its nature and character a Government of enumerated powers, taken from previously existing State Governments, enumerated and conferred on it, reserving all unenumerated powers to the State Governments, or to the people in their individual capacities. But if any doubts had existed upon this subject, two amendments to the constitution, growing out of some jealousies lest a contrary interpretation should be given to the constitution, have been adopted, which ought to put this question to rest forever. The 9th and 10th articles of amendments to the constitution are as follow:
"The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people." "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Now, sir, can language be more explicit than this, in declaring that this charter contains certain enumerated powers, and that all not enumerated are reserved to the States or to the people? There is one article reserving rights to the people, and afterwards another article reserving them to the States and to the people. While on this subject, I beg leave to read a clause in the constitution, which I find among the enumerated powers, and which has been construed by some, as intended to convey a general grant of powers among the enumerated powers: "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States." The words "and to provide for the common defence and general welfare," have by some been considered as conveying a general grant of power. Nothing is necessary to show that this is not a fair and correct construction of the constitution, but reading it with attention. These terms contain no grant of power whatever, but are used to express the ends or objects for which particular grants of power were given. Paying the debts and providing for the common defence and general welfare are great objects, intimately connected with the particular grants of power which are given for their effectuation; and without these particular grants of power, it would not have been possible for Congress to effect them. The framers of the constitution have simply selected some of the objects expressed in the preamble, and declared that to effect them, and to pay the debts of the United States, were the considerations which induced them to give to Congress the power "to lay and collect taxes," &c. Thus taxes are to be laid, &c. "to pay the debts, and to provide for the common defence and general welfare." Could they have chosen a more appropriate phraseology? The plain language to Congress is: "You shall have power to lay and collect taxes, to pay the debts," &c., and to provide for the common defence and general welfare, or, in other words, for the purpose of paying the debts, &c., and of providing for the common defence and general welfare. These words do not contain a general grant of powers, but express the objects of a particular grant of powers. The framers of the constitution could not have done an act so absurd as to make a general grant of powers, among an enumeration of specified powers.
I will now, Mr. President, proceed to examine those instances which the gentleman has presented of the supposed aberrations of the Congress of the United States from the enumerated powers, and I think it will not be difficult to show that there is not a single instance quoted, but which is deducible from a fair and correct interpretation of the express words of the constitution, giving them their common and appropriate meaning.
The first instance presented to our consideration by the honorable gentleman from Georgia (Mr. Crawford) of the exercise of a power by Congress not enumerated in the constitution, was the erection of light-houses. The gentleman from Massachusetts, (Mr. Lloyd,) to whose dispassionate observations I listened with great pleasure, superadded the instance of the erection of custom-houses. On these, both of the gentlemen seemed to place great reliance, as cases in point with the one under consideration. Both these powers I conceive are given to Congress by the express words of the constitution; but if I should be mistaken in this idea, they are certainly comprehended as incidental and subservient to, or in other words, "necessary and proper" for carrying into effect some of the enumerated powers.
The express words of the constitution give to Congress the power "to lay and collect taxes, duties, imposts, and excises," &c.; "to regulate commerce with foreign nations among the several States, and with the Indian tribes;" "to exercise exclusive legislation in all cases whatever, &c., over all places purchased by consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." From these clauses of the constitution, taken in connection with each other, I think Congress possesses the power to erect light-houses and custom-houses by the express words of the constitution; for both of these descriptions of houses must necessarily be included within the term "needful buildings," or the only construction which is at all applicable to these cases is, that needful buildings is the general term, and light-houses and custom-houses are particular instances or examples under the general term; or, if I may be so allowed to express my ideas, needful buildings may be considered as the genus, of which light-houses and custom-houses are particular species. The reason with the framers of the constitution for using this general term is obvious. It was, because it was impossible for them to foresee all the particular species of needful buildings which might become necessary to the salutary operations of this Government in the course of its complicated and due administration; they therefore wisely left that subject to the discussion of Congress, restrained and limited, nevertheless, by the requisition of the consent of the Legislatures of the States respectively, in every case proposed for the exercise of this discretion. That this is a plain and correct interpretation of the constitution is evinced by the concurrent opinions of every Legislature of every State, which has heretofore ceded lands for any of these objects; and it is to be remarked, that Congress has never attempted to erect any of these buildings without the constitutional requisition of the consent of the States respectively. But if this term "needful buildings" had not been expressed in the constitution, I should not hesitate to admit with these gentlemen that the erection of light-houses and custom-houses might properly be deduced from the power to lay and collect taxes, duties, &c., which are particular grants of power enumerated in the constitution. Because custom-houses are appropriately necessary to the collection of duties, and have always been deemed indispensable for that object, as are light-houses to the due regulation of commerce.
These two powers are indispensably connected with, and subservient to, particular enumerated powers, and are therefore among the means which are necessary and proper for their effectuation; and as such are given to Congress by the express words of the constitution, which are: Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof." From this course of interpretation, the gentlemen, reasoning from a supposed analogy, have asked, if Congress can derive the right to erect light-houses and custom-houses from their necessary agency in effectuating the particular powers to which they are said to be appendant or appurtenant, why may it not in the same way derive the right of granting charters of incorporation for the same objects? Or, in other words, if Congress can constitutionally erect custom-houses for the purpose, or as the necessary means of collecting duties; why may it not establish a bank for the same object, &c.? The question is admitted to be a fair one; and if a clear distinction cannot be made in the two cases, it will be admitted either that Congress may constitutionally establish a bank, or that it has heretofore transcended its powers in erecting custom-houses, &c. A clear and most obvious distinction appears to me to exist in the cases suggested by the gentlemen to be analogous, arising from the striking difference in the nature and essential character of these powers. A custom-house is in its nature incidental and subservient to the collection of duties. It is one of the common, necessary, and proper means to effect that end. It is believed that in no commercial country in the world are duties collected without them. Besides, the erection of custom-houses does not involve in it the exercise of any other higher or consequential powers. The same remarks will apply to light-houses, as among the common, necessary, and proper means for the regulation of commerce, &c.
Is the incorporation of a bank of this character? It is not among the common, necessary, and proper means of effecting either of the foregoing enumerated powers, nor of any other enumerated in the constitution; still less is it incidental or subservient to any of the enumerated powers. It wants that connection, affiliation, and subserviency, to some enumerated power, which are clearly pointed out in relation to the two powers, to which it has been said to be analogous. Besides, does granting a charter of incorporation to a bank involve no other higher or consequential power than merely erecting a needful building for collecting duties, &c.? It certainly does. It involves the power to grant charters of incorporation generally; and in this respect, principally, its character is essentially different from both of the powers cited by the gentleman. The power to grant charters of incorporation is not an incidental, subordinate, subservient power; it is a distinct, original, substantive power. It is also susceptible of the clearest definition; and not being among the enumerated powers, it seems to me that Congress can have no fair claim to its exercise in any case. If Congress had been expressly authorized to grant charters of incorporation generally, then granting a charter of incorporation to a bank would have been an instance, or among the means, of carrying into effect that enumerated power, and would have been as much connected and affiliated with it as is the erection of custom-houses with the collection of duties; but the power to grant charters of incorporation generally not being expressly given in the constitution, no particular instance involving the exercise of that power can be inferred by a fair and candid interpretation of the instrument. I do not mean to exaggerate the consequences which might result from an assumption of the power to grant charters of incorporation, &c. It is sufficient for me to say that it is a power of primary importance; that it involves as many incidental powers in its exercise as any one of the enumerated powers; that it is equal, if not paramount, to any; and, therefore, in my judgment, cannot be assumed by fair construction as incidental and subservient to any; and, of course, not as among the necessary and proper means for carrying any into effect. In fact, in its nature it does not in the smallest degree partake of the derivative, incidental character. It is original, substantive, distinct in itself, and susceptible of the plainest definition. Hence, whilst I am willing to admit that a power, which is in its nature incidental and subservient to any enumerated power, and also among the necessary and proper means for carrying it into effect, may be exercised by Congress without the express words of the constitution, I should be very unwilling to admit that Congress should also exercise a power neither incidental nor subservient to any of the enumerated powers, nor among the necessary and proper means for carrying any into effect; still less should I be inclined to this admission, when the power thus proposed to be derived, incidentally or constructively, involves in it the exercise of almost unlimited powers. To illustrate my idea still further in this respect, I would observe, that the power to regulate descents, and to regulate the distribution of intestates, I conceive to be original, distinct, substantive powers; and, being among the powers which could in all respects be limited by the geographical boundaries of the individual States, and were therefore among the powers reserved to the management of the States, might as easily be assumed by Congress as incidental to some one of the enumerated powers, as the assumption of the power to grant charters of incorporation, which I conceive was, for the same reason, left to the management of the States. I believe no gentleman will contend that Congress can, under any candid construction, go so far in relation to those powers; nor do I see how it can in relation to the power of granting charters of incorporation.
Bank of the United States.
The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed on the 25th day of February, 1791.
Mr. Clay.—Mr. President: When the subject involved in the motion now under consideration was depending before the other branch of the Legislature, a disposition to acquiesce in their decision was evinced. For although the committee who reported this bill had been raised many weeks prior to the determination of that House on the proposition to recharter the bank, except the occasional reference to it of memorials and petitions, we scarcely ever heard of it. The rejection, it is true, of a measure brought before either branch of Congress, does not absolutely preclude the other from taking up the same proposition; but the economy of our time, and a just deference for the opinion of others, would seem to recommend a delicate and cautious exercise of this power. As this subject, at the memorable period when the charter was granted, called forth the best talents of the nation—as it has, on various occasions, undergone the most thorough investigation, and as we can hardly expect that it is susceptible of receiving any further elucidation, it was to have been hoped that we should have been spared a useless debate. This was the more desirable because there are, I conceive, much superior claims upon us for every hour of the small portion of the session yet remaining to us. Under the operation of these motives, I had resolved to give a silent vote, until I felt myself bound, by the defying manner of the arguments advanced in support of the renewal, to obey the paramount duties I owe my country and its constitution; to make one effort, however feeble, to avert the passage of what appears to me a most unjustifiable law. After my honorable friend from Virginia (Mr. Giles) had instructed and amused us with the very able and ingenious argument which he delivered on yesterday, I should have still forborne to trespass on the Senate, but for the extraordinary character of his speech. He discussed both sides of the question, with great ability and eloquence, and certainly demonstrated to the satisfaction of all who heard him, both that it was constitutional and unconstitutional, highly proper and improper to prolong the charter of the bank. The honorable gentleman appeared to me in the predicament in which the celebrated orator of Virginia, Patrick Henry, is said to have been once placed. Engaged in a most extensive and lucrative practice of the law, he mistook in one instance the side of the cause on which he was retained, and addressed the court and jury in a very splendid and convincing speech in behalf of his antagonist. His distracted client came up to him whilst he was progressing, and interrupting him, bitterly exclaimed, "you have undone me! you have ruined me!"—"Never mind, give yourself no concern," said the adroit advocate; and turning to the court and jury, continued his argument by observing, "May it please your honors, and you, gentlemen of the jury, I have been stating to you what I presume my adversary may urge on his side. I will now show you how fallacious his reasoning and groundless his pretensions are." The skilful orator proceeded, satisfactorily refuted every argument he had advanced, and gained his cause! A success with which I trust the exertion of my honorable friend will on this occasion be crowned.
It has been said by the honorable gentleman from Georgia (Mr. Crawford) that this has been made a party question, although the law incorporating the bank was passed prior to the formation of parties, and when Congress was not biased by party prejudices. [Mr. Crawford explained. He did not mean that it had been made a party question in the Senate. His allusion was elsewhere.] I do not think it altogether fair to refer to the discussions in the House of Representatives, as gentlemen belonging to that body have no opportunity of defending themselves here. It is true that this law was not the effect, but it is no less true that it was one of the causes of the political divisions of this country. And if, during the agitation of the present question, the renewal has, on one side, been opposed on party principles, let me ask if, on the other, it has not been advocated on similar principles? Where is the Macedonian phalanx, the opposition in Congress? I believe, sir, I shall not incur the charge of presumptuous prophecy, when I predict that we shall not pick up from its ranks one single straggler! And if, on this occasion, my worthy friend from Georgia has gone over into the camp of the enemy, is it kind in him to look back upon his former friends, and rebuke them for the fidelity with which they adhere to their old principles?
I shall not stop to examine how far a representative is bound by the instructions of his constituents. This is a question between the giver and receiver of the instructions. But I must be permitted to express my surprise at the pointed difference which has been made between the opinions and instructions of State Legislatures, and the opinions and details of the deputations with which we have been surrounded from Philadelphia. Whilst the resolutions of those Legislatures—known, legitimate, constitutional and deliberative bodies—have been thrown into the back ground, and their interference regarded as officious, these delegations from self-created societies, composed of whom nobody knows, have been received by the committee with the utmost complaisance. Their communications have been treasured up with the greatest diligence. Never did the Delphic priests collect with more holy care the frantic expressions of the agitated Pythia, or expound them with more solemnity to the astonished Grecians, than has the committee gathered the opinions and testimony of these deputies, and through the gentleman from Massachusetts, pompously detailed them to the Senate! Philadelphia has her immediate representatives, capable of expressing her wishes upon the floor of the other House. If it be improper for States to obtrude upon Congress their sentiments, it is much more highly so for the unauthorized deputies of fortuitous congregations.
The first singular feature that attracts attention in this bill is the new and unconstitutional veto which it establishes. The constitution has required only, that after bills have passed the House of Representatives and the Senate, they shall be presented to the President for his approval or rejection, and his determination is to be made known in ten days. But this bill provides, that when all the constitutional sanctions are obtained, and when according to the usual routine of legislation it ought to be considered as a law, it is to be submitted to a new branch of the Legislature, consisting of the President and twenty-four Directors of the Bank of the United States, holding their sessions in Philadelphia, and if they please to approve it, why then it is to become a law! And three months (the term allowed by our law of May last, to one of the great belligerents for revoking his edicts, after the other shall have repealed his) are granted them to decide whether an act of Congress shall be the law of the land or not! An act which is said to be indispensably necessary to our salvation, and without the passage of which, universal distress and bankruptcy are to pervade the country. Remember, sir, that the honorable gentleman from Georgia has contended that this charter is no contract. Does it, then, become the representatives of the nation to leave the nation at the mercy of a corporation? Ought the impending calamities to be left to the hazard of a contingent remedy?
This vagrant power to erect a bank, after having wandered throughout the whole constitution in quest of some congenial spot whereupon to fasten, has been at length located by the gentleman from Georgia on that provision, which authorizes Congress to lay and collect taxes, &c. In 1791, the power is referred to one part of the instrument; in 1811, to another. Sometimes it is alleged to be deducible from the power to regulate commerce. Hard pressed here, it disappears, and shows itself under the grant to coin money. The sagacious Secretary of the Treasury in 1791 pursued the wisest course—he has taken shelter behind general, high-sounding, and imposing terms. He has declared in the preamble to the act establishing the bank, that it will be very conducive to the successful conducting of the national finances; will tend to give facility to the obtaining of loans, and will be productive of considerable advantage to trade and industry in general. No allusion is made to the collection of taxes. What is the nature of this Government? It is emphatically federal, vested with an aggregate of specified powers for general purposes, conceded by existing sovereignties, who have themselves retained what is not so conceded. It is said that there are cases in which it must act on implied powers. This is not controverted, but the implication must be necessary, and obviously flow from the enumerated power with which it is allied. The power to charter companies is not specified in the grant, and I contend is of a nature not transferable by mere implication. It is one of the most exalted attributes of sovereignty. In the exercise of this gigantic power we have seen an East India Company created, which has carried dismay, desolation, and death throughout one of the largest portions of the habitable world. A company which is, in itself, a sovereignty—which has subverted empires and set up new dynasties—and has not only made war, but war against its legitimate sovereign! Under the influence of this power, we have seen arise a South Sea Company, and a Mississippi Company, that distracted and convulsed all Europe, and menaced a total overthrow of all credit and confidence, and universal bankruptcy. Is it to be imagined that a power so vast would have been left by the wisdom of the constitution to doubtful inference? It has been alleged that there are many instances, in the constitution, where powers, in their nature incidental, and which would have necessarily vested along with the principal power, are nevertheless expressly enumerated; and the power "to make rules and regulations for the government of the land and naval forces," which, it is said, is incidental to the power to raise armies and provide a navy, is given as an example. What does this prove? How extremely cautious the convention were to leave as little as possible to implication. In all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a common nature. The incidental power ought to be strictly subordinate and limited to the end proposed to be attained by the specified power. In other words, under the name of accomplishing one object which is specified, the power implied ought not to be made to embrace other objects which are not specified in the constitution. If then you could establish a bank to collect and distribute the revenue, it ought to be expressly restricted to the purpose of such collection and distribution. It is a mockery, worse than usurpation, to establish it for a lawful object, and then extend it to other objects which are not lawful. In deducing the power to create corporations, such as I have described it, from the power to collect taxes, the relation and condition of principal and incident are prostrated and destroyed. The accessory is exalted above the principal. As well might it be said that the great luminary of day is an accessory, a satellite to the humblest star that twinkles forth its feeble light in the firmament of heaven!
Suppose the constitution had been silent as to an individual department of this Government, could you, under the power to lay and collect taxes, establish a judiciary? I presume not; but if you could derive the power by mere implication, could you vest it with any other authority than to enforce the collection of the revenue? A bank is made for the ostensible purpose of aiding in the collection of the revenue, and while it is engaged in this, the most inferior and subordinate of all its functions, it is made to diffuse itself through society, and to influence all the great operations of credit, circulation, and commerce. Like the Virginia justice, you tell the man, whose turkey had been stolen, that your book of precedents furnishes no form for his case, but then you will grant him a precept to search for a cow, and when looking for that he may possibly find his turkey! You say to this corporation, we cannot authorize you to discount—to emit paper—to regulate commerce, &c. No! Our book has no precedents of that kind. But then we can authorize you to collect the revenue, and, while occupied with that, you may do whatever else you please!
What is a corporation such as the bill contemplates? It is a splendid association of favored individuals, taken from the mass of society, and invested with exemptions and surrounded by immunities and privileges. The honorable gentleman from Massachusetts (Mr. Lloyd) has said that the original law, establishing the bank, was justly liable to the objection of vesting in that institution an exclusive privilege, the faith of the Government being pledged that no other bank should be authorized during its existence. This objection he supposes is obviated by the bill under consideration; but all corporations enjoy exclusive privileges—that is, the corporators have privileges which no others possess; and if you create fifty corporations instead of one, you have only fifty privileged bodies instead of one.
I contend that the States have the exclusive power to regulate contracts, to declare the capacities and incapacities to contract, and to provide as to the extent of responsibility of debtors to their creditors. If Congress have the power to erect an artificial body and say it shall be endowed with the attributes of an individual—if you can bestow on this object of your own creation the ability to contract, may you not, in contravention of State rights, confer upon slaves, infants, and femes covert, the ability to contract? And if you have the power to say that an association of individuals shall be responsible for their debts only in a certain limited degree, what is to prevent an extension of a similar exemption to individuals? Where is the limitation upon this power to set up corporations? You establish one, in the heart of a State, the basis of whose capital is money. You may erect others whose capital shall consist of land, slaves, and personal estate, and thus the whole property within the jurisdiction of a State might be absorbed by these political bodies. The existing bank contends that it is beyond the power of a State to tax it, and if this pretension be well founded, it is in the power of Congress, by chartering companies, to dry up the whole of the sources of State revenue. Georgia has undertaken, it is true, to levy a tax on the branch within her jurisdiction, but this law, now under a course of litigation, is considered as invalid. The United States own a great deal of land in the State of Ohio; can this Government, for the purpose of creating an ability to purchase it, charter a company? Aliens are forbidden, I believe, in that State, to hold real estate—could you, in order to multiply purchasers, confer upon them the capacity to hold land, in derogation of the local law? I imagine this will hardly be insisted upon; and yet there exists a more obvious connection between the undoubted power, which is possessed by this Government, to sell its land, and the means of executing that power, by increasing the demand in the market, than there is between this bank and the collection of a tax. This Government has the power to levy taxes—to raise armies—provide a navy—make war—regulate commerce—coin money, &c. It would not be difficult to show as intimate a connection between a corporation, established for any purpose whatever, and some one or other of those great powers, as there is between the revenue and the bank of the United States.
Let us inquire into the actual participation of this bank in the collection of the revenue. Prior to the passage of the act of 1800, requiring the collectors of those ports of entry, at which the principal bank or any of its offices are situated, to deposit with them the custom-house bonds, it had not the smallest agency in the collection of the duties. During almost one moiety of the period to which the existence of this institution was limited, it was noways instrumental in the collection of that revenue, to which it is now become indispensable! The collection, previous to 1800, was made entirely by the collectors; and even at present, where there is one port of entry, at which this bank is employed, there are eight or ten at which the collection is made as it was before 1800. And, sir, what does this bank or its branches when resort is had to it? It does not adjust with the merchant the amount of the duty, nor take his bond; nor, if the bond is not paid, coerce the payment by distress or otherwise. In fact, it has no active agency whatever in the collection. Its operation is merely passive; that is, if the obligor, after his bond is placed in the bank, discharges it, all is very well. Such is the mighty aid afforded by this tax-gatherer, without which the Government cannot get along! Again, it is not pretended that the very limited assistance which this institution does in truth render, extends to any other than a single species of tax, that is, duties. In the collection of the excise, the direct and other internal taxes, no aid was derived from any bank. It is true, in the collection of those taxes, the farmer did not obtain the same indulgence which the merchant receives in paying duties. But what obliges Congress to give credit at all? Could it not demand prompt payment of the duties? And in fact does it not so demand in many instances? Whether credit is given or not, is a matter merely of discretion. If it be a facility to mercantile operations (as I presume it is) it ought to be granted. But I deny the right to ingraft upon it a bank, which you would not otherwise have the power to erect. You cannot create the necessity of a bank, and then plead that necessity for its establishment. In the administration of the finances, the bank acts simply as a payer and receiver. The Secretary of the Treasury has money in New York and wants it in Charleston; the bank will furnish him with a check, or bill, to make the remittance, which any merchant would do just as well.
I will now proceed to show by fact, actual experience, not theoretic reasoning, but by the records themselves of the Treasury, that the operations of that department may be as well conducted without as with this bank. The delusion has consisted in the use of certain high-sounding phrases, dexterously used on the occasion. "The collection of the revenue"—"The administration of the finance"—"The conducting the fiscal affairs of the Government," the usual language of the advocates of the bank, extort express assent, or awe into acquiescence, without inquiry or examination into its necessity. About the commencement of this year there appears, by the report of the Secretary of the Treasury of the 7th of January, to have been a little upwards of two millions four hundred thousand dollars in the Treasury of the United States; and more than one-third of this whole sum was in the vaults of local banks. In several instances, where an opportunity existed of selecting the bank, a preference has been given to the State bank, or at least a portion of the deposits has been made with it. In New York, for example, there was deposited with the Manhattan Bank $188,670, although a branch bank is in that city. In this District, $115,080 were deposited with the bank of Columbia, although here also is a branch bank, and yet the State banks are utterly unsafe to be trusted! If the money, after the bonds are collected, is thus placed with these banks, I presume there can be no difficulty in placing the bonds themselves there, if they must be deposited with some bank for collection, which I deny.
Again, one of the most important and complicated branches of the Treasury Department is the management of our landed system. The sales have some years amounted to upwards of half a million of dollars, are generally made upon credit, and yet no bank whatever is made use of to facilitate the collection. After it is made, the amount in some instances has been deposited with banks, and according to the Secretary's report, which I have before adverted to, the amount so deposited was in January upwards of three hundred thousand dollars, not one cent of which was in the vaults of the Bank of the United States, or in any of its branches, but in the Bank of Pennsylvania, its branch at Pittsburg, the Marietta Bank, and the Kentucky Bank. Upon the point of responsibility, I cannot subscribe to the opinion of the Secretary of the Treasury, if it is meant that the ability to pay the amount of any deposits which the Government may make under any exigency, is greater than that of the State banks; that the accountability of a ramified institution, whose affairs are managed by a single head, responsible for all its members, is more simple than that of a number of independent and unconnected establishments, I shall not deny; but, with regard to safety, I am strongly inclined to think it is on the side of the local banks. The corruption or misconduct of the parent, or any of its branches, may bankrupt or destroy the whole system, and the loss of the Government in that event will be of the deposits made with each; whereas in the failure of one State bank the loss will be confined to the deposit in the vaults of that bank. It is said to have been a part of Burr's plan to seize on the branch bank at New Orleans. At that period large sums, imported from La Vera Cruz, are alleged to have been deposited with it, and if the traitor had accomplished his design, the Bank of the United States, if not actually bankrupt, might have been constrained to stop payment.
It is urged by the gentleman from Massachusetts, (Mr. Lloyd,) that as this nation progresses in commerce, wealth, and population, new energies will be unfolded, new wants and exigencies will arise, and hence he infers that powers must be implied from the constitution. But, sir, the question is, shall we stretch the instrument to embrace cases not fairly within its scope, or shall we resort to that remedy, by amendment, which the constitution prescribes?
Gentlemen contend that the construction which they give to the constitution has been acquiesced in by all parties, and under all administrations; and they rely particularly on an act which passed in 1804, for extending a branch to New Orleans, and another act, of 1807, for punishing those who should forge or utter forged paper of the bank. With regard to the first law, passed no doubt upon the recommendation of the Treasury Department, I would remark, that it was the extension of a branch to a Territory, over which Congress possesses power of legislation almost uncontrolled, and where, without any constitutional impediment, charters of incorporation may be granted. As to the other act, it was passed no less for the benefit of the community than the bank—to protect the ignorant and unwary from counterfeit paper, purporting to have been emitted by the bank. When gentlemen are claiming the advantage supposed to be deducible from acquiescence, let me inquire what they would have had those to have done who believed the establishment of the bank an encroachment upon State rights? Were they to have resisted, and how? By force? Upon the change of parties, in 1800, it must be well recollected that the greatest calamities were predicted as consequences of that event. Intentions were ascribed to the new occupants of power of violating the public faith and prostrating national credit. Under such circumstances, that they should act with great circumspection was quite natural. They saw in full operation a bank, chartered by a Congress who had as much right to judge of their constitutional powers as their successors. Had they revoked the law which gave it existence, the institution would, in all probability, have continued to transact business notwithstanding. The Judiciary would have been appealed to; and, from the known opinions and predilections of the judges then composing it, they would have pronounced the act of incorporation, as in the nature of a contract, beyond the repealing power of any succeeding Legislature. And, sir, what a scene of confusion would such a state of things have presented—an act of Congress, which was law in the statute book, and a nullity on the judicial records! Was it not wisest to wait the natural dissolution of the corporation, rather than accelerate that event by a repealing law involving so many delicate considerations?
When gentlemen attempt to carry this measure, upon the ground of acquiescence or precedent, do they forget that we are not in Westminster Hall? In courts of justice, the utility of uniformity of decision exacts of the judge a conformity to the adjudication of his predecessor. In the interpretation and administration of the law, this practice is wise and proper; and without it, every thing depending upon the caprice of the judge, we should have no security for our dearest rights. It is far otherwise when applied to the source of legislation. Here no rule exists but the constitution; and to legislate upon the ground merely that our predecessors thought themselves authorized, under similar circumstances, to legislate, is to sanctify error and perpetuate usurpation. But if we are to be subjected to the trammels of precedents, I claim, on the other hand, the benefit of the restrictions under which the intelligent judge cautiously receives them. It is an established rule, that to give to a previous adjudication any effect, the mind of the judge who pronounced must have been awakened to the subject, and it must have been a deliberate opinion formed after full argument. In technical language, it must not have been sub silentio. Now, the acts of 1804 and 1807, relied upon as pledges for the re-chartering this company, passed not only without any discussions whatever, of the constitutional power of Congress to establish a bank, but I venture to say, without a single member having had his attention drawn to this question. I had the honor of a seat in the Senate when the latter law passed; probably voted for it; and I declare, with the utmost sincerity, that I never once thought of that point; and I appeal confidently to every honorable member who was then present to say if that was not his situation.
This doctrine of precedents, applied to the Legislature, appears to me to be fraught with the most mischievous consequences. The great advantage of our system of government over all others is, that we have a written constitution defining its limits and prescribing its authorities; and that, however for a time faction may convulse the nation, and passion and party prejudice sway its functionaries, the season of reflection will recur, when calmly retracing their deeds, and all aberrations from fundamental principle will be corrected. But once substitute practice for principle, the expositions of the constitution for the text of the constitution, and in vain shall we look for the instrument in the instrument itself. It will be as diffused and intangible as the pretended constitution of England; and it must be sought for in the statute book, in the fugitive journals of Congress, and in reports of the Secretary of the Treasury. What would be our condition if we were to take the interpretations given to that sacred book, which is or ought to be the criterion of our faith, for the book itself? We should find the Holy Bible buried beneath the interpretations, glosses, and comments of councils, synods, and learned divines, which have produced swarms of intolerant and furious sects, partaking less of the mildness and meekness of their origin than of a vindictive spirit of hostility towards each other. They ought to afford us a solemn warning to make that constitution, which we have sworn to support, our invariable guide.
I conceive, then, sir, that we are not empowered by the constitution nor bound by any practice under it, to renew the charter of this bank and I might here rest the argument. But, as there are strong objections to the renewal upon the score of expediency, and as the distresses which will attend the dissolution of the bank have been greatly exaggerated, I will ask your indulgence for a few moments longer. That some temporary inconvenience will arise, I shall not deny; but most groundlessly have the recent failures in New York been attributed to the discontinuance of this bank. As well might you ascribe to that cause the failures of Amsterdam and Hamburg, of London and Liverpool. The embarrassments of commerce, the sequestration in France, the Danish captures—in fine, the belligerent edicts, are the obvious sources of these failures. Their immediate cause is the return of bills upon London, drawn upon the faith of unproductive or unprofitable shipments. Yes, sir, the protests of the notaries of London, not those of New York, have occasioned these bankruptcies.
The power of a nation is said to consist in the sword and the purse. Perhaps, at last, all power is resolvable into that of the purse, for with it you may command almost every thing else. The specie circulation of the United States is estimated by some calculators at ten millions of dollars; and if it be no more, one moiety is in the vaults of this bank. May not the time arrive when the concentration of such a vast portion of the circulating medium of the country in the hands of any corporation will be dangerous to our liberties? By whom is this immense power wielded? By a body who, in derogation of the great principle of all our institutions, responsibility to the people, is amenable only to a few stockholders, and they chiefly foreigners. Suppose an attempt to subvert this Government, would not the traitor first aim, by force or corruption, to acquire the treasure of this company? Look at it in another aspect. Seven-tenths of its capital are in the hands of foreigners, and these foreigners chiefly English subjects. We are possibly upon the eve of a rupture with that nation. Should such an event occur, do you apprehend that the English Premier would experience any difficulty in obtaining the entire control of this institution? Republics, above all other nations, ought most studiously to guard against foreign influence. All history proves that the internal dissensions excited by foreign intrigue have produced the downfall of almost every free Government that has hitherto existed; and yet gentlemen contend that we are benefited by the possession of this foreign capital. If we could have its use, without its attending abuse, I should be gratified also. But it is in vain to expect the one without the other. Wealth is power, and under whatsoever form it exists, its proprietor, whether he lives on this or the other side of the Atlantic, will have a proportionate influence. It is argued, that our possession of this English capital gives us a certain influence over the British Government. If this reasoning be sound, we had better revoke the interdiction as to aliens holding land, and invite foreigners to engross the whole property, real and personal, of the country. We had better at once exchange the condition of independent proprietors for that of stewards. We should then be able to govern foreign nations, according to the arguments of gentlemen on the other side. But let us put aside this theory, and appeal to the decisions of experience. Go to the other side of the Atlantic, and see what has been achieved for us there by Englishmen holding seven-tenths of the capital of this bank. Has it released from galling and ignominious bondage one solitary American seaman, bleeding under British oppression? Did it prevent the unmanly attack upon the Chesapeake? Did it arrest the promulgation, or has it abrogated the Orders in Council—those orders which have given birth to a new era in commerce? In spite of all its boasted effects, are not the two nations brought to the very brink of war? Are we quite sure that, on this side of the water, it has had no effect favorable to British interests. It has often been stated, and, although I do not know that it is susceptible of strict proof, I believe it to be a fact, that this bank exercised its influence in support of Jay's treaty; and may it not have contributed to blunt the public sentiment, or paralyze the efforts of this nation against British aggression?