House of Representativespage 580
Mr. Burwell moved to strike out the first section of the bill.
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed the 25th day of February, in the year of our Lord 1791, subject to the provisions and conditions in this act to be made, be, and the same is hereby continued in force, for and during the further term of twenty years, from and after the 4th day of March 1811
Mr. Burwell. [William Armisted Burwell, (1780 - 1821) Virginia] I have made you this motion, sir, because it allows the greatest latitude of discussion upon the important points which are preliminary to the examination of the details. It tries the principle of the bill, and may save much tedious and useless labor. Should a majority decide in favor of the Bank of the United States, as an honest man, I will aid in forming a system best adapted to the state of the country, and most subservient to the purposes of such an institution. The gentleman from Connecticut [Mr. MOSELY] has done justice to my conduct, and the fairness with which the subject has been treated. I have been anxious to present the question fairly, not from any doubt or indecision as to the course I should pursue, but from its magnitude, and the sensibility it has excited. It will be recollected by the committee, when the gentleman from Philadelphia presented the memorial, upon which the Secretary of the Treasury founded his report, on that, as on all subsequent occasions, my opposition was manifested; and I will add, that the particular intention which my duty has compelled me to bestow on the bank, has confirmed most strongly former impressions.
The remarks I shall make, are intended to show that Congress possesses no power to incorporate a bank; to show its effect on the Government, and to satisfy the committee that the exercise of the power, even if possessed, is inexpedient. While, sir, I feel the most ardent desire to consult the convenience of the Government, and promote the prosperity of the community in general, I have not lost sight of the limits within which I am restrained by the Constitution of the United States, and considerations of sound policy. It is my most deliberate conviction that the Constitution of the country gives no authority to Congress to incorporate a bank, and endow the stockholders with chartered immunities, and, even if its dissolution should produce ruin to the merchants, and, what is of equal importance, embarrassment to the Government, they would not be paramount to the sacred obligation of supporting the Constitution, though I am persuaded the dreadful evils which have been predicted from the annihilation of the bank, will soon vanish, and that no material shock will be produced by that cause.
The construction which the Constitution has received by the various persons who have, at different times, administered it, has been rigid or liberal, according to their confidence in the General or State Governments. The unqualified extent given to its general powers, and the inclusion of incidental powers, as flowing from, and belonging to, particular enumerated grants, have constituted the essential points of difference among those who have divided upon the principles of the constitution: this has been the case, not only in the exercise of authority when the right was questionable, but in cases where the right was undeniable, tending, by its operation, to increase the weight of the General Government. In giving to the constitution that rigid construction which sound policy requires, a just regard to the harmony of the States, and the perpetuation of their Union dictates, I cannot find any part of it authorising the exercise of a power, which, from its nature, is obnoxious, its tendency alarming, and its influence in the hands of those who manage its concerns, irresistible.
The power to establish a bank, cannot be deduced from the general phrases "to provide for the common defence and general welfare," because they merely announce the object for which the General Government was instituted; the only means by which this object is to be attained, are specifically enumerated in the constitution, and if they are not ample, it is a defect which Congress are incompetent to supply. I think this inference the stronger, inasmuch as those means were granted to us by those who had acted under the confederation, and experienced its defects, and knew precisely to what extent power was requisite to provide for the common defence and general welfare. In relation to this particular subject, the proceedings of the convention itself, furnish the plainest evidence, by rejecting the proposition to vest in Congress the right to grant incorporations.
I readily admit the motive of deliberative bodies cannot always be known; various considerations might have operated; they might have supposed the power already vested; but it is incumbent on those who can place faith in an interpretation so repugnant to the cautious and guarded phraseology of the instrument, to demonstrate it. If the right to incorporate exists, it is a general grant of power, equally applicable to all the objects of incorporations, and cannot be assumed as a means to carry into effect any particular grant of authority. To my mind it is much more natural to suppose a power to create monopolies had been surrendered to quiet the fears of those who saw in the constitution the germ which would, sooner or later, palsy the vitals of the State authority.
If the general phrases are not explained in the manner just mentioned, and powers so extensive and important are derived from them, it would be ridiculous to consider the jurisdiction of Congress restricted, they would confer equal authority to establish monopolies in all the various branches of individual industry and commercial enterprise.
Sir, I will conclude this part of the subject by reminding you how essential it is, when we are giving an interpretation to the constitution to which the States are parties, to assume only what clearly belongs to us; moderation will inspire confidence, selfishness will excite disgust and suspicion.
The parts of the constitution which bear any analogy to this subject, are,
1st. 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, &c.
2d. To borrow money on the credit of the United States.
3d. To regulate commerce with foreign nations, and among the several States, and with Indian tribes. And,
4th. To make all laws which shall be necessary and proper to carry the foregoing powers, and all other powers vested by the constitution in the General Government, into effect.
It will not be denied, that, if the establishment of a bank comes within the meaning of the power to lay and collect taxes, to pay the debts of the United States, and to regulate commerce, or is necessary and proper to carry the foregoing powers into effect, it would be a fair subject for legislation by Congress. But can any one pretend, that a bank would be a mode, contemplated by the Constitution, to lay and collect taxes on the people, for the purpose of raising revenue ? Would it comport with that wise principle of uniformity, and those guarded restrictions against unequal burthens on the people, which constitute the most valuable safeguard to the citizen ?
To understand these terms, we must give them a meaning which has been affixed by their usual import. When we speak of the power to lay taxes, we understand by it, a demand of money from the community, regulated by fixed and equitable principles, indiscriminate as to persons, and the species of property taxed. To suppose that every law which imposed burthens, or brought money into the treasury, was constitutional, would destroy our equal system of Government, and substitute a capricious despotism. It would revive the exploded doctrine of free gifts, benevolences, and that shameful train of extortions practised by the old governments of Europe. Does it fall within the power to pay the debts of the United States ? This clause relates entirely to the application of the funds, after they have been accumulated; it is in conformity with that article which pledges the public faith for debts which had been contracted, as well as those which might be created in pursuance of the authority to borrow money upon the faith of the United States. If the power to incorporate a bank, grew out of the obligation to pay the debts of the United States, its charter should be so worded as to cease whenever they were extinguished; and it would be no longer for Congress to fix a definite period for its expiration. If the right of incorporation was ever meant to be given, it would most naturally follow from the regulation of commerce; yet no one has contended Congress could create insurance companies within the States.
Those who contend the bank is constitutional, consider it as necessary and proper in collecting the revenue. That it may be an useful instrument, I do not deny; it forms depositories convenient to the Government; but you should recollect, depositories, equally safe and convenient, can be procured without being purchased at the expense of exorbitant and invidious privileges, to a particular class in the community. I apprehend the constitution means something extremely different. When it empowers the General Government to collect taxes, it relates exclusively to the authority thus given to Congress, of employing compulsory process, in coercing the payment of taxes; it enables Congress to create, within the jurisdiction of the States, officers of the revenue, and through them, to exercise over the persons and property of the citizens, a concurrent jurisdiction, from which they otherwise would be precluded, and from which they had been precluded before the adoption of the constitution; it enables them to impose penalties and forfeitures, and to inflict punishment for resistance to their authority.
But, sir, admit for a moment the bank may be formed to collect the revenue; ought it not to be exclusively used for that object ? Whence the power to make it an instrument of commerce ? Why invest it with a capital, immense in amount, and sovereign in its control over the external and internal commerce of the country ?
Sir, I must again call your attention to the limited nature of our Government; we must administer it as we find it, and not as we think it ought to be. Under this view of the subject, so long as I understand the right to "lay taxes," to consist in drawing supplies from the people for public purposes, and not to tax one portion for the benefit of another, and "to collect them," the right to enforce payment; I cannot construe them to authorize the establishment of a bank.
Sir, a bank has been improperly considered a means of executing some power expressly given to Congress. The nature of incorporations is so clearly a distinct class of political power, that, before they can be converted into means incidental to an object, without the jurisdiction of the General Government, they must be shown to be absolutely necessary. Permit me to ask how has it been ascertained that a bank is necessary to the operations of the Government ? Has the experiment been tried ? Upon a question involving a breach of the constitution, it would be safer to be guided by experience than conjecture.
Sir, I am well aware that I can add nothing new upon the constitutional points. This subject was more thoroughly examined in 1791, and more ably elucidated than any other since the adoption of the Government. The celebrated speech of Mr. Madison, to which I ascribe my conviction, has been recently presented to us in the newspapers, and gentlemen must be familiar with it. I cannot give additional weight to the arguments, but I thought it proper to call the attention of the committee to that part of the subject, by the remarks I have made.
I said, sir, it must be shown that the bank is necessary to the operations of the Government; without its aid our fiscal concerns cannot be managed. So far from subscribing to the necessity of the bank, I believe the revenue would be equally safe in the State banks and could be distributed with inconsiderable difficulty; the revenue received in most of the States is nearly equal to the expenditure within them, and when a deficiency occurred in any one, it could be supplied by arrangements with the different banks, by transportation or inland bills of exchange, in the same manner that the public engagements are fulfilled abroad. I will venture to assert, the Secretary of the Treasury will find no difficulty in contracting with individuals and corporate institutions, upon the most ample security, to transfer the public revenue, upon terms equally advantageous to the United States. Among the several States commercial intercourse is great, and daily increasing; the constant traffic which the different portions of the country maintain with one another, will give facility to the operations of the Government; and obviate the obstacles which are anticipated. The very commerce which enables the treasury to remit, with ease, immense sums to every part of Europe, is the result of this interchange among the States, and insures equal facility at home: where, then, is the necessity for this bank ? The accommodation of the bank to the Government, in times of emergency, and the use of its resources to support public credit, have been urged as motives for its establishment: how far such considerations weaken constitutional objections, it is needless to state. If, sir, the bank becomes a source of supply to the Government, to an adequate extent, it ceases to be one to the merchants. It, therefore, cannot answer in both capacities. The same necessity which throws the Government upon the charity of the banks, renders it incapable of discharging the obligation, and while the funds of the institution are locked up in the Government, its commercial functions must cease.
The relief which sudden and temporary embarrassments require, can, at all times, be administered by the State banks, and, therefore, supersedes the necessity of aid from this bank. Whenever, by disasters, the ordinary sources of supply are exhausted, or the unavoidable objects of expenditure exceed the revenue, a more copious and permanent aliment will be found in the wealth and capital of the citizens than by loans from banks. Instead of diverting the active and productive capital from useful channels, the sluggish and inert mass will be drawn forth, in its aid, to support public credit, and cherish private enterprise. But, sir, is it prudent to rely upon an institution that may refuse you assistance ? What will be the influence of such an institution on the Government and the country at large ?
It cannot escape your recollection, that the establishment of the Bank of the United States was the origin of a system which assumed, as its basis, the enlargement of the national jurisdiction. Whether the principles of expediency to which it owes its birth be regarded, or the overweening influence it established over the moneyed institutions and merchants of the States, the charge, to say the least, is plausible. The close and intimate connexion between the Government and the bank; the dependence of the former for loans, and the latter for public deposited, have given the Executive branch its full share of influence and odium, shows incontestibly it was created to augment the power of the General Government, and the Executive in particular. Yes, sir, it was the commencement of those political animosities which have poisoned the sources of social intercourse; it was the origin of that doctrine of constructive power which abrogates the constitution, and nullifies the restrictions imposed upon Congress. So long as it exists, the body politic will experience the agitations and convulsive throes of well grounded jealousy in the States.
Sir, in the administration of this Government, two things alone are necessary to ensure its durability. You must, 1st, avoid every measure which will produce uneasiness among the States; or, 2d, that will extend the jurisdiction of the United States Government to subjects purely local. I do not mean that the rightful authority of Congress is to be abandoned for fear of giving offence; but whenever called on to take a step which will produce uneasiness, you should be perfectly satisfied the letter and spirit of the constitution bear you out. Do not gentlemen perceive the tendency of this measure to involve us with the States upon delicate points? Has not the United States Bank produced serious alarm ? Will not the alarm be increased by its continuance at this time ? Yes, sir, some of the States have already taxed this institution, others have waited under the expectation we shall render a collision unnecessary. Suppose the charter renewed, and the stockholders should be taxed in such a manner as to destroy, virtually, the privileges you have guaranteed to them ? Are you to leave them unprotected, or will you draw the sword in their behalf ?
While you have time, avoid a situation not less perilous than the most serious foreign war. Since the establishment of the bank, the States have created banks; their people have accumulated capital, and they will not tamely witness the perpetuation of an institution whose strength can, at any moment, overthrow whatever State bank they may mark for destruction. However paradoxical it may appear, I consider the General Government strengthened by narrowing its jurisdiction: it will produce disunion whenever they interfere with local concerns. The habits, local interests, and passions of this country vary, and no one is a competent judge of what will suit the feelings of the State out of which he lives.
But, sir, there are general principles in which our feelings and interests are identified. These are subjects upon which we may safely act, and trust to the co-operation of every man and State in the Union. Does the bank affect the people locally ? The answer is obvious: it not only undertakes to fix the amount of capital, but interferes with the rights of property most essentially. It may change the fundamental principles of State law as to the liability of property for debts, and the mode of recovering them.
Let me caution you against the renewal of the charter; it is pregnant with the most baneful consequences to the tranquility of the country. Is it not better to sacrifice this golden calf upon the altar of concord, restore confidence and harmony among individuals as well as States, and to reunite the lovers of the constitution.
In the report of the Secretary of the Treasury, the convenience of obtaining loans from the bank is mentioned as an inducement to establish a national bank. To me, the abuse of this convenience is more dreaded than any other evil which will follow from the measure. Where have you seen a national bank, connected with the government, which has not ultimately ruined the circulating medium of the nation ? It is a notorious fact, that money has depreciated seriously from the unlimited circulation of paper, and, if the Government should be compelled, by necessity, to use the funds of the bank, they must permit the increased circulation of its paper, although its money capital remains stationary. In this situation, the Government must tolerate an operation which will increase the evil of which we complain.
The example of England is a salutary monition to us, and we ought to profit from it. In that country, there was a time when the stability of the bank was a national phrase, "as good as the Bank of England." How is it now ? The funds of the bank have been borrowed by the Government ? its paper circulation increased, and Parliament has been compelled to make it a tender for the payment of all contracts. Who, sir, can estimate the complicated mischiefs of a depreciated paper currency, without specie for its redemption ? Should we be involved in war, or our property seized abroad, nothing can prevent universal bankruptcy; one wide spread ruin will pervade the continent. At this time the country is inundated with paper, bottomed upon the whole floating and real property of the community: should an alarm exist, can these funds be converted into money to redeem its credit ? Certainly not. Will it not be prudent to diminish the extent of this evil by putting down this bunk, which is the fountain from which the whole system flows ?
It is of little importance, as it regards the internal trade of a country, what constitutes the representation of property. Paper, iron, or any thing else which passes current, will answer every purpose of barter and trade: but, in its commerce abroad, it is indispensable that the circulating medium should be equally valuable, and readily acknowledged among all commercial nations; otherwise, all the operations of commerce, carried on with money, will be abandoned, or prosecuted under disadvantages equal to the difference in the value of the currency at home and abroad. In countries actively engaged in business, this branch of trade is not only great in amount, but by far the most profitable. How unwise, therefore, not only to substitute for the precious metals paper currency, whose value is confined to the United States, but to augment the quantity until it depreciates even among ourselves.
I cannot sufficiently express my apprehension at a state of things which exposes us to irreparable injury, whenever a foreign nation shall interrupt our commerce, or my regret at the daily ascendency of this fatal policy. In my opinion, sir, the true corrective will be applied, if the Government, instead of receiving the paper of a particular bank in payment for the revenue, shall require specie as the only tender. Such an operation would secure to the country its due proportion of the precious metals, would restrain within rational and useful limits, the circulation of paper, would insure stability to the moneyed institutions, save the people from the dreadful scene of bank swindling which is exhibited, and restore that equality of trade with foreign nations, which depends upon the fixed value of the circulating medium.
I am far from intimating that banks are useless, when established with a due regard to the actual wants of the country. Measured by that standard, they form the chief resource of industry, lubricate the wheels of commerce, and accelerate their motion but the Constitution has wisely entrusted this measurement to the States; they are the most competent judges. If the Bank of the United States tended to restrain the multiplication of banks, and the ruinous emission of paper, I acknowledge it would be a powerful argument in its favor it would go far to satisfy me of its expediency. But, instead of producing this effect, we have seen them, like mushrooms in a genial soil, spring up under its fostering protection.
The Bank of the United States has an interest in the multiplication of similar institutions, because they all tend to secure it from danger, and enable it to increase the discounts to the greatest amount. Before the United States Bank can be affected, all the other banks must be ruined, because the advantage of public deposites and the great extent of capital, will afford the means of averting the storm. What has been the fact upon this subject ? Have not the most shameful systems of bank swindling been practised ? The State of Massachusetts found it necessary either to suppress her banks or limit their discounts. They found, upon examining the vaults of the banks, the whole of them did not contain specie equal to the paper issued by a single one. Yes, sir, instead of finding a sound body, they found a corpse rotten and decayed; the specie had fled, and the public were left without the prospect of remuneration. Have you forgotten the Bank of Rhode Island ? This bank had issued notes to the amount of $800,000 upon a capital of $45. Will gentlemen tell me, the Bank of the United States has checked, or will keep down in future, similar impositions ? I am justified in considering this bank instrumental in depreciating the currency of the country, and banishing its substantial capital.
There is no branch of industry more materially injured by the artificial state of credit, and the depreciated currency of the country, than manufactures. The precarious condition of commerce has naturally turned the public attention to this subject; and we may hope the time is not distant, when the United States will furnish the articles of substantial utility for themselves. The war in Europe, by deranging the operations of the manufacturer, and the taxes with which his industry has been burthened, have conspired to give a vigorous impulse to them here. But, sir, we shall probably witness their destruction, by the rapid depreciation of paper, which arises from the price of labor, and impedes the accomplishment of this most desirable object. The exchange of labor between the inhabitants of America and the old world, has always been disadvantageous. We have not only paid full profits upon the capital and labor employed in the production of what is consumed, but we have paid the taxes which the prodigal Governments of Europe have laid upon them.
Upon this subject a strong appeal has been made to our feelings; it has been said the dissolution of the bank will produce the most serious pressure in the community, and will devote numbers to ruin. I am confident no man would be more gratified than myself, to afford relief to those who may suffer, if I was not precluded by constitutional difficulties. While I admit the sufferings of individuals will be great, I am equally convinced the picture is highly colored, and the facts exaggerated.
The time when the charter expires has been known to every person; the presumption against its renewal strong. How can you, therefore, believe the creditors of the bank have made no provision to meet the event ? It is scarcely possible to conceive that funds have not been provided to extricate themselves. When I say the presumption against the renewal of the charter has been strong, I do not allude so much to the sentiment in this House, as to the solemn declaration of the President of its unconstitutionality.
[Mr. Macon called Mr. Burwell to order, for using the name of the President in debate.]
Sir, the violation of order has been inadvertently committed; his name was not used to produce any effect here, because I really am unacquainted with his present opinions, except as I infer them from his speech in 1791. I cannot suppose he would use one set of arguments then, and act upon another now.
Under such circumstances, it would be criminal in this House to yield constitutional objections, and surrender important considerations of policy, to shelter those who have shut their eyes to the law. The Legislature cannot resist with too much firmness such an appeal; it is placing them at the mercy of a few, and sacrificing the general good to the clamors or follies of the improvident.
It has been said that $8,000,000 in specie will be required from circulation, to meet the demands of the bank, and that the amount cannot be procured in the United States. I venture to assert, upon the statement furnished by the bank agents, the sum will not exceed $2,500,000 over and above the specie in the vaults of the bank. After paying and settling with the community, the bank will owe to the stockholders $10,400,000. If they retain the specie now in the vaults, amounting to $5,000,000, the demand upon the community will be lessened to that extent; if it is paid out to meet the return of their notes in circulation, it passes into other banks and will return to them; so that in either case it will constitute a fund to pay the stockholders, and reduce their demand to $5,400,000; from this sum must be deducted $500,000, the amount of real estate belonging to the corporation, $2,750,000 loaned to the Government, and about $300,000 in suit; leaving a balance not exceeding $2,500,000. Will it be said that this sum cannot be raised in a country whose export of specie for the last year amounted to $8,000,000 ? Will it be said the system of banks has reduced us to this low ebb, and yet we are called upon to perpetuate the evil ? From this view of the subject, it appears that the creditors of the bank will be compelled to raise $7,500,000.
Can gentlemen seriously believe, that this sum will ruin the country ? If, sir, we judge from the number of banks springing into existence, in the different States, the conclusion is irresistible, that there is a redundancy of capital, more than ample to accommodate all the debtors of the bank. Scarcely a single legislature has separated, without granting charters. You have this morning, deposited in Committee of the Whole, the cemetery for the District, five banks, with an aggregate capital of three and an half millions. This thing must be downright cheatery, or there is a redundancy of capital. If it is fraudulent, the sooner the delusion is dissipated, the better.
I shall, for the present, admit these applications are evidences of capital, and contend they will operate effectually to relieve the community. But, sir, it will be found, from the statement of the bank agents, the directors have contracted debts, nearly, or quite equal to the amount due them, and that they will find difficulty in meeting the claims against them. These claims will naturally be transferred to those who are indebted, or deposited in State banks, where they will constitute funds, upon which accommodation can be extended. The moment you destroy the bank, the notes it has issued, to the amount of $5,000,000, will return; the deposites, amounting to nearly eight millions and a half, will come into the market; these, added to the private capital which can be spared, will supply the means of sustaining the shock.
I feel confident the removal of public deposites will go far to remedy the evil. The loan obtained from the bank, and payable the 1st of January, will add to the facility of satisfying the claims of the bank. Even the funds of the institution itself, will rapidly glide into channels of profit, and contribute to the object. Thus, sir, this omnipotent association, whose influence pervades the continent; whose nod dispenses protection, or ruin, like an angry cloud, will be disarmed by the conducting powers of the State banks; there will be no explosion. Its substance will be secreted, mixed with their juices and strengthen the general system.
In the public discussions upon this subject, we have been told, the quantity of specie has been reduced below the actual wants of trade; and that the portion of stock held by foreigners, will be carried abroad in money. Those who endeavor to alarm us in this way, are either ignorant themselves, or they calculate largely upon our credulity. It is, sir, a melancholy fact, that specie has been almost banished from circulation, by paper, and from the vaults of the banks by exportations abroad, in a commerce which does not replace it. It is equally true, that this bank has contributed, more than any other, to produce this deplorable result. But it is evident, the exportation must be limited in amount, or the import of specie commensurate, if we do not continue the present system, which threatens us with a currency exclusively paper.
As to the exportation of specie, by the foreign stockholders, nothing can be more absurd. Have not the motives which induced them to invest their property in the United States been strengthened ? Yes, sir, funds in every part of Europe are fluctuating and insecure; the grip of taxation has embraced them, and you must think worse of the judgment of these proprietors than I do, if you suppose they will quit a country whose institutions are safe, and whose property is advancing rapidly in value. But, laying aside considerations which, of themselves, are sufficient pledges, the rate of exchange renders the remittance of specie, particularly silver, altogether improbable. Would any man in his senses ship specie to England, when he can purchase bills of exchange, eight or ten per cent, below par ? Will he lose four per cent, insurance, freight, and commissions, when he can make eight or ten by remittances in bills of exchange ? These questions carry conviction to every man, unless he supposes money is worth more than this difference over the paper currency of the country. Although the exchange is in favor of Holland, four per cent, it would be cheaper to lose that amount, than pay fifteen or twenty per cent. insurance, &c. for the transportation of specie, subject to risk from British cruisers, and seizure from French rulers in port. No one will say that the Dutch have any motives to draw their funds from the United States.
After showing, I hope to your satisfaction, that specie, cannot be remitted in the actual state of things, I will suppose foreign stockholders should transfer their capital; how would that operation affect this country ? From what I have said, it appears that the one million held in Holland, and six millions in England, if withdrawn from the United States, would only be an exchange of funds with the American merchant, and would not affect the money in circulation. I confidently believe, the present embarrassments of merchants arise from the spoliations of the belligerents, and principally from the accumulation of funds in England, which they cannot withdraw but at a great loss. For some time past shipments have been almost confined to England; the prices have been goad, and the proceeds far above the demand for English merchandise; added to this, whenever shipments have been made elsewhere, the profitable purchases of bills have increased their funds in Great Britain.
The fact is clearly demonstrated from the state of exchange, which, for the first time, is greatly in our favor. If, then, the stockholders should remit their funds by bills of exchange, it would bring six millions into the market, and not only relieve the American merchant from the unfavorable state of exchange, but would at once furnish the means of meeting his engagements and relieving his embarrassments. It would be a loss of that much capital to the United States; but, we can bear the loss, as is evident from the rapidity with which new capital is supplied to form new banks. Should they give a preference to moneyed institutions here, the community would be equally relieved.
It may be asked, if foreign capital remains, shall we not be exposed to its influence ? I do not, sir, object to the use of foreign capital by individuals, but I never will consent to organize it under the patronage of the Government. In the hands of an individual its influence is comparatively insignificant. Combined in the form of a national bank, it becomes truly formidable to the best interests of the nation; besides, I well know that individuals, who can obtain money at an interest less than the profit it yields, cannot be prevented by law from borrowing. In this form, it may subserve the purposes of industry, but cannot control public opinion, or obstruct public measures. If, sir, the pressure upon the community should not be removed in the mode I have suggested, the bank will naturally proceed in the collection of its debts, in a manner best calculated to secure itself. I cannot imagine, measures will be adopted which will force the merchants, either to fail, or to re fuse payment. Such conduct on the part of the bank, would be wantonly cruel and unjust, and would probably terminate in the greatest losses. In the event of such a procedure, the merchants would compel the bank to resort to the ordinary course for the recovery of debts, and under such circumstances, I do not apprehend their credit would be affected with other banks.
The alarming scarcity of specie, produced by the facility which the bank has furnished, to procure it for exportation, and speculations in bills sold by the agents of the British for the use of their troops in Canada, and the West Indies, cannot be too strongly impressed on the mind of the committee, or too soon stopped by the Government. It is true, that a temporary inconvenience results from the latter mode of exportation, because it is soon brought back in return for provisions, supplied by the Middle States. It must be known, sir, to you, why the import of specie, which nurtured the East India trade, has ceased, since the revolution in Spanish America, which opened the direct trade to the English for supplies of British and East India manufactures, and the facility of shipping specie direct to Spain, without the intervention of bills of exchange obtained in this country, on Europe, the supply of American produce to the Spanish colonies, has never been more than sufficient to keep up the necessary quantity for our own use, and for the India trade, to an extent limited by our own wants; hence, the disadvantages of the paper system, which furnishes the means of prosecuting this trade after its utility is done away.
Gentlemen will tell me this evil will correct itself, and that the merchants will not persist in a branch of business, unprofitable for want of markets. I readily admit this position to be correct; but, before all those sanguine adventurers will be convinced, who are tempted by the accommodation of the bank, we shall be so far drained of our real capital, as to be incapable of sustaining public confidence, in the stability of our money institutions. There is one effect, from the extent to wich the banking system has been pushed in this country, which deserves serious attention. I think the capital of the banks should rather fall short, than exceed the demand of those engaged in trade; whenever there is an excess of capital, the competition will be among the banks to lend, and they will advance funds to those who are not entitled to credit. This fictitious credit, given to individuals without property, will expose the farmers and planters to the most serious injury, because, whenever they fail, their property will go entirely into the coffers of the bank, or the hands of their endorsers. In Baltimore, where the bank capital has always exceeded the demand, by solvent customers, and where, to give full employment to their funds, the banks have been induced to accommodate mere speculators; failures have happened to the amount of a million, without property to pay the creditors twenty cents in the dollar. This has been the effect of excessive bank capital.
[A gentleman from Maryland corrected Mr. Burwell, by stating that the failures had exceeded, in the aggregate, the sum he had mentioned, but in no single instance had the loss to creditors exceeded 600,000 dollars.]
I stand corrected. Only 600,000 dollars ! Why, sir, this moderate sum would ruin a whole country, if it had fallen upon the farmers.
If the apprehensions of the public should coerce you to renew the charter at this time, I shall consider it perpetual. The same means which secured it now, will not be forgotten, or neglected, hereafter. You may rest assured, the magic terror of bankruptcy will be revived, when there is occasion. Perhaps the growing wealth of the people, may hereafter raise them above the control of the bank, with ten millions capital, but if you should unfortunately adopt the favorite project of some, to establish a grand national bank, with a capital stock equal to 30,000,000 dollars; if, afterwards, you keep pace with the growth of the nation, you may indeed despair of all control over it in future. It will become so interwoven with the fiscal transactions of society, and so intimately blended with the existence of the Government, that their duration will be co-equal; the dangerous power of a bank, extended over the continent, with a capital which would necessarily embrace in its funds, all the individuals of wealth and influence, would produce the same effect with a national debt, to that amount; and when you recollect, that this machine will be controlled and managed by the executive branch of the Government, you cannot but feel the most serious apprehension of the consequences.
Sir, I do not discuss this question with party feelings; I look forward to the time when the bank and Government will feel in unison, and act in concert. The opposition of the bank is temporary, and will soon yield to its obvious interest. It is that period to which my fears are directed. Who can doubt that the present misunderstanding is the result of momentary causes ? Yes, sir, the quarrel is an unnatural one, explanations will take place, reconciliation will ensue, and then we may deplore their intimate friendship infinitely more than their hostility now.
Banks are commercial institutions; the first impulse of their nature is to make money, and support the power which can promote their profits; the individuals concerned in them will feel political passions, and may indulge them, but they will learn, from experience, the wisdom of suppressing their passions when they hazard the loss of profit and patronage. I have, therefore, felt no disposition to know any thing about the directors, or to hear the instances of political intolerance and individual favoritism. It would be silly to found our views of the tendency of such an institution upon its conduct during a particular period. I am against giving any set of men such exorbitant power over the persons and property of the community; I am opposed to a moneyed aristocracy which can hunt down whoever may be offensive to them, and not from hostility to the particular persons who now compose the bank.
Sir, the time may arrive when the Government may fall into the hands of men whose policy may, in my estimation, lead to the destruction of the Constitution, and the corruption of public virtue. Would you wish to see such men bolstered up by the influence of a national bank ? Would you be satisfied to see the good sense of the country hood-winked by money influence ? A corporation, possessed of such ample funds, could control presses or establish them to support the most iniquitous men, and advocate the most detestable principles. You should bear in mind that this influence cuts both ways; and it is better to leave public opinion unfettered, trusting to the sound sense and discretion of the People, free from the operation of all extraneous power.
What would the world say if you should demolish this bank to create another ? Is there a man in the community who would not condemn you, and justly reprobate a policy so short sighted and selfish ? Such conduct would give full scope to swindling and speculation; and scenes which stain with shame the history of this Republic, would be renewed.
Sir, the system of paper credit, against which I have entered my protest, and to which I attribute the artificial and insecure state of this country, deserves nothing from you. You need not violate the Constitution to preserve and extend it; without your fostering care, enough will remain to alarm those who prefer solid wealth to the mere appearance of it; although those who think the wealth of a nation can be augmented by printing a few reams of paper will be dissatisfied, they exult in the deception and premature prosperity which flows from public delusion, and will be overthrown the first moment your real condition may be tested by difficulties. I, sir, have been accustomed to think the wealth of a nation consisted in its productive labor, and its capital could be safely augmented only in the ratio of the difference between its consumption and productive labor. This is the true mode of acquiring capital; the process will be slow, but the advance will be permanent. It will depend upon principles of economy, industry, and steady exertions; it is incompatible with prodigality, speculation, and profligate acquisition of wealth. Virtue is the basis of one, delusion and imposture of the other; a people thus situated, steadily exerting its powers, will furnish ample means to procure circulating medium, and prudent habits will add to it with sufficient rapidity. I have always preferred being a happy to a splendid nation.
Sir, I have now closed my remarks; the particular situation assigned to me, by the House, in relation to this subject, has compelled me to state the extent of my objections to the bill. I have carefully refrained from expressions which could wound the feelings, or impeach the motives of those who differ from me in opinion. I have no disposition to say any thing about the transactions of the bank; they are all unknown to me, and I care nothing about them. My conscientious belief is, that the law was unconstitutional, and I sincerely trust we shall destroy what has so long defaced its original purity, close up the breach which has been made, and cement it by a vote upon principle. I confess the consolation I shall feel, in the success of my motion, will be greatly diminished if it obtains by the intervention of other motives.
When Mr. Burwell concluded, the Committee rose and reported progress; and the House adjourned.
Mr. Burwell's motion to strike out the first section being still under consideration.
Mr. Porter [Peter Buell Porter (1773 - 1844), New York (R); studied law, admitted to the bar]
Mr. CHAIRMAN: As this bank has excited so extraordinary an interest in every part of the United States, and particularly in the State which I have the honor to represent; as I am apprehensive, from what took place yesterday, that I shall be found, on this question, in opposition to a majority of my colleagues; and, (what will always be an imperative motive with me) as I think this bill aims a deadly blow at some of the best principles of the Constitution, I feel it my duty to state to the House the grounds on which I shall be constrained to vote for striking out the section now under consideration.
I acknowledge that I had not, until lately, paid any particular attention to the question of the constitutionality of this institution. I stand, therefore, in this respect, on safer ground than the respectable member from North Carolina, [Mr. Macon] for I have no reason to suspect myself of any long-rooted prejudices on the question. The Bank of the United States was established at a time when I was not in the habit of troubling myself with such questions. I had been accustomed to think of it as an institution, the constitutionality of which was conceded by common consent. But, sir, when the question was again stirred, I felt it my duty to give it a thorough investigation before I should sanction it by my vote. I have given it, if not a thorough, at least a candid and impartial examination; and the result has been a full conviction that we have no right to incorporate a bank upon the principles of the bill on the table; or, rather, upon the principles of the original charter, which this bill proposes to renew. The ground of my objection is, that it assumes the exercise of legislative powers which belong, exclusively, to the State Governments.
I shall not touch the question of the expediency of this bank, much less the expediency of banking generally. If I were competent, which I confess I am not, to the task, I should think it a very unprofitable one, to follow the gentleman through all the mazes of the banking system a system, sir, about the various and important operations, and effects of which, on civil society, aside from a few obvious truths which it furnishes, I have found that those gentlemen who have professed to understand them best, have differed most. As I propose to confine myself to the constitutional question solely, I hope I shall be allowed to take a little broader range on this point, than has been taken by the gentlemen who have preceded me.
I am aware how ungracious constitutional objections to the powers of this House are with those, (and there are many such) who believe that the powers of the Federal Government are, at best, too contracted, and who would be glad to see all the State rights merged and sunk into a consolidated government. Whatever may be my speculative opinions on this subject, I can never be influenced, by motives of expediency, to swerve from my allegiance to the Constitution. This sentiment is indelibly fixed on my mind, and I trust it is a common one to the members of this Committee, that, in adhering strictly to the obligation we have taken, to support the Constitution of the United States, we not only perform a sacred duty to ourselves, but we render a better service to the real and permanent interests of our country, than we could possibly render by a departure from that obligation, even though that departure were to avert so serious a calamity as a general bankruptcy; a calamity, which, in order to alarm the timid, has been held out as the inevitable consequence of a refusal to renew this charter.
I should be surprised at the general acquiescence which seems to have been yielded to the constitutionality of this institution, did I not believe that others had been as superficial in their examination of the subject as I had myself. When objections are made to the constitutionality of a law, the people, in the cursory views which they are accustomed to take of such objects, are apt to adopt, as the tests of its constitutionality, the powers of the State and Federal Governments, collectively; and if they find nothing in the law offensive to the principles of civil liberty, nothing uncongenial with the spirit of a republican government, they rest satisfied, and do not trouble themselves with nice distinctions between the powers peculiar to the one or the other of these governments. Such reasoning would, however, ill become the sagacity of this House.
One of the most serious dangers with which our Government is threatened, and it is a danger growing out of the very nature and structure of the Government itself, consists in its tendency to produce collisions between State and Federal authorities. The Federal Government, as was observed by my learned colleague, [Mr. Mitchill] is, imperium in imperio, a government within a government; and the misfortune is, that there exists no friendly third power to decide the controversies which may arise between these two great, independent, and in many respects, rival authorities. The public peace must be kept, if kept at all, by the conciliatory dispositions of the parties themselves. As then we have a common interest in the preservation of both these Governments as we are as well the subjects of the imperio as of the imperium, we ought to act with great circumspection and delicacy in the assumption of powers which do not clearly belong to us. It is better to forego the exercise of powers to which we are entitled, if the exercise of them is not very important, rather than hazard the assumption of doubtful ones, the fatal consequences of which my honorable friend from Virginia [Mr. Burwell] has so justly deprecated.
The great line of demarcation between the powers of the State and Federal Governments is well understood. The powers of the State Governments extend to the regulation of all their internal concerns, those of the Federal Government to the management of all our external relations external, as regards the individual States, as well as the States in their collective capacity. The general ideas upon which our republic is founded, are these: that small territories are better adapted to the successful administration of justice than large ones. In a Republic, where the people are the sovereigns and source of power, it is important that, in order to enable them to execute this power discreetly, they should possess correct information in relation to the character and conduct of their rulers, and in relation, also, to the character of the measures which they pursue, or ought to pursue; and this information is better attained in a small than in a large territory. The individual States, have, therefore, reserved to themselves the exclusive right of regulating all their internal, and, as I may say, municipal concerns, in relation both to person and property. But a single State maybe inadequate to its own protection against foreign violence; it may also be unable to enforce the observance of proper rules and regulations for carrying on its foreign trade and intercourse. The confederacy of the States is, therefore, formed for the purpose of attaining these two objects, namely, the regulation and protection of the trade and intercourse of the States with each other, and foreign nations, and their security against foreign invasion. It has some other objects in view of minor consequence, and immediately connected with these principal ones. The Constitution of the United States is the basis of the confederacy, and it is only necessary to read the Constitution to perceive that it is nothing more than a delegation of specific powers for these specific purposes, and that the general sovereignty of the States over their respective territories, is expressly retained by the States.
But, sir, independent of these specific powers and duties of the Federal Government, it has another and distinct set of powers and duties to perform and execute. The national domain, as it has been called, embracing the lands acquired by the revolutionary conflict, the lands since purchased of foreign nations, and the lands ceded by the several States to the General Government, belong to the United States, in their federate capacity; and no individual State, as such, has any claim to, or jurisdiction over them. As to these lands, the powers of the United States are sovereign, independent, and complete, and the Congress of the United States is the only legitimate authority for the exercise of this sovereignty. The powers of Congress, then, in relation to these territories, include the powers of both the Federal and State governments, in relation to the States.
I have adverted to this branch of the powers of the Federal Government as a means of dispelling the obscurity which has been thrown over the constitutional question, to which I shall soon come, by confounding the powers of Congress over the States, with their powers over the Territories. Arguments, to which I shall have occasion to advert, in the course of my observations, have been used to justify the exercise of particular powers within the limits of the States, from our acknowledged right to, and practical exercise of, similar powers within the Territories.
In discussing constitutional questions, then, we may lay down these axioms: That in relation to the Territories, the powers of Congress are supreme and exclusive; that in relation to the States, they are specifically defined and limited by the Constitution and that we have no right to exercise, within the limits of a State, any power as resulting from the general rights of sovereignty; because that sovereignty belongs to the States and to the People, and not to the Federal Government. To show that these two last positions are correct, I will read the tenth article in amendment of the constitution:
"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 the people."
As then, the incorporation of this bank involves the exercise of legislative powers within the jurisdiction of the States, in relation to the rights of property between the citizens of those States, and as no power to incorporate a bank eo nomine, is to be found in the Constitution, it would seem sufficient for us to rest the argument here, by a mere denial of the power, and to call on the advocates of the bank to show its constitutionality. An attempt to prove this constitutionality has been made not, however, sir, by arguments advanced by gentlemen on the other side of the House in their places, (for they have, so far, observed, and I understand that they will continue to observe, a profound silence on this question) but by arguments which have been gratuitously introduced, by the agent the bank. I allude to the pamphlet, which has, within a few days past been printed and distributed among the members, containing the celebrated argument of General Hamilton, "on the constitutionality of a national bank." As that pamphlet is de facto if not de jure, before the Committee, I will, if the Committee will indulge me, attempt to examine some of the principal arguments contained in it, and I will also notice some additional ones, advanced by my honorable friend and colleague on my left. [Mr. Fisk]
In the course of the observations which I have to submit, I shall, without doubt, repeat arguments and remarks made by the gentlemen who have preceded me, and others which are familiar to the members of the Committee. My excuse must rest in the difficulty of taking a connected view of the subject, without such repetitions. If I shall be so fortunate as to throw a single new ray of light on this important question, I shall feel amply remunerated for my trouble, and I shall think the time of the Committee not altogether misspent.
The first argument in this pamphlet is founded on the sovereignty of the powers of Congress. The Federal Government is said to be sovereign as to all the objects for which that Government was instituted. A sovereign power includes, by force of the term, a right to all the means applicable to the attainment of the ends for which that power is given; and therefore Congress may, in virtue of their sovereign power, create incorporations for attaining the ends or objects of these powers.
This argument is founded on what the logicians call petitio principii, or begging the question. The proposition that the Government is sovereign, is assumed, to prove that it possesses the attributes of sovereignty: or, in other words, the fact of sovereignty is assumed, to prove that sovereignty. If the position that the powers of this Government are sovereign, as to all the objects of them, be proved, I will concede the consequence, to wit: that we have a right to establish corporations to attain these objects. But I deny the fact of sovereignty. The acts of Congress, it is said, are declared by the Constitution to be the supreme law of the land: and the power which can make the supreme law of the land, is, necessarily a sovereign power. But deny that this is a correct definition, or exposition of sovereignty. It is not the high nature of an act, nor the authority of the act, that stamps the character of sovereignty on him who performs it. The sheriff of a county, who puts a man to death, under the sentence of the law, executes an act of as high import and authority as human power can execute: and yet the sheriff of a county is not, therefore, a sovereign. His authority is a mere delegated authority his act is a mere ministerial, mechanical act. The idea of sovereignty imports the exercise of discretion of judgment of will. It is of the very essence of sovereign power, that you may execute that power, or not execute it that you may execute it when you will, and how you will. A sovereign power, as to any object, includes a right to any means, and all the means applicable to the attainment of the object.
But, sir, do Congress possess sovereign powers, or, what is the same thing, discretionary means, as to the attainment of the objects of this Government ? No, sir. The Constitution is not a general authority to Congress to attain the objects for which the Government was established; but it is an enumeration of the particular powers, or means, by which, and by which only, certain objects are to be accomplished. If the powers of Congress were sovereign, they would of necessity comprehend all the means applicable to the attainment of their objects; but, inasmuch as they are specific and circumscribed, that very circumstance proves that they are not sovereign.
The People of the United States are the true sovereigns of this country. From them all power emanates, and on their will all the authority of this Government depends. The powers of the Federal Government are mere delegated chartered authorities; and in the exercise of them we are tied down to the letter of the Constitution. We have, to be sure, a certain latitude of discretion allowed us, within the letter and pale of the Constitution; and, so far, we may be said to possess a sort of limited, qualified sovereignty. But the Constitution is the standard by which to measure the quantum and extent of our sovereignty. And our sovereignty, which is the result of the powers given in the Constitution, is not the standard by which to measure the Constitution. The Constitution is the true bed of Procrustes and our sovereignty, however unwillingly we may yield it, must be the victim.
Another argument, which is rather an argument to the favor, than to the right of this bank, is, that it is an innocent institution; that, although its erection involves the exercise of legislative powers within the States, it does not abridge, nor affect the rights of the citizens, as secured to them by the laws of those States. A corporation, it is said, is a fiction of the law, a mere political transformation of a number of individuals from their natural, into an artificial character, for the purpose of enabling them to do business to better advantage, and on a more extended scale; but, that, when this political association, this legal entity, is once formed, it becomes subject to the laws of the State in which it happens to be placed.
I know, sir, that there is nothing formidable in the abstract idea of a corporation. It is a mere phantom of the imagination; invisible, intangible, and, of course, innocent. But, sir, when the legal effects of this incorporation are, to invest the individuals whom it associates, with privileges and immunities to which they were not before entitled, when this legal action is interposed to shield certain individuals from the liabilities to which they would be subject as ordinary citizens, it then becomes a matter of important and serious consequence. What are some of the legal effects of this incorporation ?
One of its most obvious and distinguished characteristics is, that it exempts the private property and persons of the stockholders from all liability for the payment of the debts of the company. By the laws of every State in the Union, every man is, I believe, liable for the payment of his debts, to the full amount of his private fortune; and, in case that fortune prove insufficient, his personal liberty is at the disposal of his creditor; at least, to a certain extent. Is not, then, the exemption from these liabilities an important immunity ? Is it not an exclusive privilege secured to the stockholders of this bank ? Assuredly it is. I know it has been said, that a number of individuals may, by a private association, secure to themselves all the advantages of an incorporated company; that, by forming a common fund or stock, upon which to do business, and issuing notes chargeable upon that fund, they may exonerate their persons and private property from all liability for the payment of the debts contracted in that business. I am no lawyer, sir; but if the law be what it is said to be, and what I believe it to be, summa ratio, then I pronounce this doctrine not to be law; for nothing can be more preposterous in principle than to say, that a man may, by his own act, avoid the force of an obligation, which the law has made universal and unqualified. If a man owes a debt, acknowledges he owes it, and has received a consideration for it; the law has prescribed the nature and extent of his liability to pay it; and it is not for him to say that it shall only be paid out of a certain fund, or particular part of his property, and no other. When men contract a debt jointly, the legal obligation to pay it extends as well to the persons and separate property of the individual partners, as to their joint property.
Another feature of this incorporation is, that it authorizes the stockholders to take usurious interest for their money. By the provisions of the law, the bank may issue notes and make discounts to double the amount of their capital stock; and, in addition to that, to the amount of any moneys which may happen to be deposited in their vaults for safe keeping; and this, too, independent of the debts created by these deposites. The bank then may, and in fact, in many instances, does, draw an interest on three or four times its capital. Every State in the Union has laws regulating the rate of interest, and, in most of the States, this rate is fixed at six per cent. a year. By these laws, it is made penal for a man to receive more than six per cent. interest for the use of any sum of money, which, by a loan, he puts at hazard, and the use of which he deprives himself of.
Now, sir, this bank is permitted, contrary to those laws, to draw an interest on twenty or thirty millions of dollars, when, in truth, the whole extent of its responsibility, the whole sum which it puts at hazard, and the use of which it foregoes, is only its original stock of ten millions. In answer to this, it will be said, that an individual may, by issuing notes to an amount greater than his property, legally receive an interest on a capital which he does not possess. But, it must be recollected, in case of the individual, that, although he may not, at the particular time, possess a property adequate to the payment of his debts, yet, that all the property which he may subsequently acquire, will be liable for the payment of those debts. And, what is more, sir, his personal liberty is always put in jeopardy. In this point of view, the liability and the hazard of the individual may fairly be said to be co-extensive with the whole amount of the capital on which he draws an interest; and which is often the case with the bank.
This bank incorporation possesses other qualities at war with the laws of the several States; one of which is, that it authorises stockholders, who may be foreigners, to hold real estate.
But, sir, I will not detain the committee any longer on this part of the argument, for this institution cannot be said to be innocent, as regards the rights of the States, when its effects on the rights of property are to exonerate the stockholders from some of the most important responsibilities which the laws of the several States have provided for the payment of debts; and when it authorizes the taking of usurious interest. I lay it down, then, as a position which cannot be controverted, that the granting of this charter is not only an interference with the municipal regulations of the several States, in relation to the rights of property, but that it is an infraction of the rights of individuals as secured by those regulations.
But, it is contended, that a right to incorporate a Bank of the United States is delegated to Congress by the Constitution: and five or six different provisions of the Constitution are referred to as giving this right. It is said, that it is implied in the power to lay and collect taxes, in the power to borrow money, in the power to regulate trade and intercourse between the several States, in the power to provide for the general welfare, and in the power to make all needful rules and regulations respecting the territorial and other property of the United States. The very circumstance of referring this right to many different heads of authority, is, in itself, conclusive evidence, that it has no very direct relation to any of them: for it can scarcely be imagined, that the single act of incorporating a bank, can be, at the same time, anything like a direct execution of so many and such distinct and independent powers. But I will examine these provisions separately.
Before I proceed, however, I will premise, that all the arguments in support of the right to incorporate a bank, as deducible from the provisions of the Constitution itself, are built up by the aid of the clause of the Constitution, which has been sometimes called "the sweeping clause." I allude to the clause which declares that Congress shall have the right to pass all laws necessary and proper for the carrying into execution the delegated powers. All the powers in the Constitution are given for certain ends or objects. But each power is not a general authority to attain a particular object, and comprehending, of course, all the means or powers aplicable to its accomplishment; but, in most instances, it is a specific mean for effecting some particular end, and all other means or powers, (for means and powers are the same thing,) conducive to the same end, are expressly excluded, by the restrictive clauses of the constitution.
The mode of reasoning adopted by General Hamilton, and the other advocates of implied powers, is this: They first search for the end or object for which a particular power is given; and this object will be an immediate or ultimate one, as may best suit the purpose of the argument. Having ascertained the end or object, they abandon the power, or, rather, they confound the power and the object of it together, and make the attainment of the object, and the execution of the power given to accomplish it, convertible terms. Whatever, they say, attains the object for which any power is given, is an execution of that power. But the Constitution gives to Congress a right to make all laws necessary and proper for carrying into execution the delegated powers: and, therefore, as the execution of a power, and the attainment of its object, are synonymous terms, the Constitution gives to Congress a right to make all laws necessary and proper for attaining the ends or objects for which the various powers in the Constitution are given.
I beg leave to read a passage from this pamphlet:
"The relation between the measure and the end; between the nature of the mean employed towards the execution of a power, and the object; must be the criterion of constitutionality."
Here, then, is the axiom Now for the application of it. The Constitution gives to Congress the power to levy taxes, and also the power to borrow money. But the establishment of a bank is neither levying taxes nor borrowing money; nor is the law incorporating the bank a law to levy taxes, or a law to borrow money. But the immediate end or object, for which these two powers were given, was, to enable the Government to raise a revenue; and a bank may promote this object. Then, sir, by a dexterous application of the argument which I have stated, the fallacy of which consists in the sudden and unobserved transitions which are made from the power to the object, and from the object back again to the power, they prove that the establishment of a bank is in execution of the powers to lay taxes and to borrow money. I will now, sir, proceed to examine the particular provisions of the Constitution which have been relied on, and to place the subject in some different aspects.
In the first place, then, it is contended that the right to incorporate a Bank of the United States, is included in the power to lay and collect taxes. And how is the argument by which this position is maintained ? Why, sir, it is said that the law, by creating bank paper, and making that paper receivable in payment for taxes, increases the circulating medium in which taxes are paid, and, of course, must facilitate the payment of them: that whatever facilitates the payment of taxes, facilitates also the collection of them; and whatever aids or facilitates the collection of taxes, is a means for their collection. And, therefore, the incorporation of a bank is in execution of the power to lay and collect taxes.
No man, sir, ought to complain of the weakness of a government, whose powers may be reasoned up by logic like this. Amidst the infinite variety of relations, and connexions, and dependencies, and analogies, by which all human transactions are allied to each other, he must be a weak politician who cannot, by hooking together a chain of implication like this, justify any and every measure of political policy or economy, as a means of executing some of the powers with which this Government is intrusted. Take this latitude of implication or construction, and you want no other power but the power to lay and collect taxes. It may be tortured into a justification of every measure which ambition itself could desire. No tyrant ever made a law without assigning the public good as the motive of it. No man on this floor, however wicked his designs, would venture to propose a measure, (indeed few could be proposed) in favor of which he could not adduce some plausible argument, to shew that it would tend to promote the general prosperity of the country. And in showing this, he would show its constitutionality; for it is demonstrable, that whatever would promote the general prosperity of the country, would, and for that very reason, facilitate, in some greater or less degree, the payment of taxes; and might, therefore, be justified as a means for the collection of taxes.
But, sir, the Constitution, as I have said before, and I must repeat it again for this is the radical source of all the error on this subject the Constitution of the United States is not, as such reasoning supposes it to be, a mere general designation of the ends or objects for which the Federal Government was established; and leaving to Congress a discretion as to the means or powers by which those ends shall be brought about. But the Constitution is a specification of the powers or means themselves by which certain objects are to be accomplished. The powers of the Constitution, carried into execution according to the strict terms and import of them, are the appropriate means, and the only means within the reach of this Government, for the attainment of its ends. It is true, as the Constitution declares, and it would be equally true if the Constitution did not declare it, that Congress have a right to pass all laws necessary and proper for executing the delegated powers; but this gives no latitude of discretion in the selection of means or powers.
A power given to Congress in its legislative capacity, without the right to pass laws to execute it, would be nugatory; would be no power at all: it would be a solecism in language to call it a power. A power to lay and collect taxes carries with it a right to make laws for that purpose; but they must be laws to lay and collect taxes, and not laws to incorporate banks. If you undertake to justify a law under a particular power, you must show the incidentally and applicability of the law to the power itself, and not merely its relation to any supposed end which is to be accomplished by its exercise. You must show that the plain, direct, ostensible, primary object and tendency of your law is to execute the power, and not that it will tend to facilitate the execution of it. It is not less absurd than it is dangerous, first, to assume some great, distinct, and independent power, unknown to the Constitution, and violating the rights of the States; and, then, to attempt to justify it by a reference to some remote, indirect, collateral tendency, which the exercise of it may have towards facilitating the execution of some known and acknowledged power.
This word facilitate, has become a very fashionable word in the construction of powers; but, sir, it is a dangerous one; it means more than we are aware of. To do a thing, and to facilitate the doing of it, are distinct operations; they are distinct means; they are distinct powers. The Constitution has expressly given to Congress the power to do certain things; and it has, as explicitly, withheld from them the power to do every other thing. The power to lay and collect taxes is one thing; and the power to establish banks, involving in its exercise the regulation of the internal domestic economy of the States, is another and totally distinct thing; and the one is therefore not included in the other.
Again, sir, it is contended that the right to incorporate a bank is implied in the power to regulate trade and intercourse between the several States. It is said to be so, inasmuch as it creates a paper currency, which furnishes a convenient and common circulating medium of trade between the several States. Money, sir, has nothing more to do with trade, than that it furnishes a medium or representative of the value of the articles employed in trade. The only office of bank bills is to represent money. Now, if it be a regulation of trade, to create the representative of the representative of the articles or subjects of trade, a fortiori, will it be a regulation of trade to create the articles or subjects themselves. By this reasoning, then, you may justify the right of Congress to establish manufacturing and agricultural companies within the several States; because the direct object and effect of these would be, to increase manufactures and agricultural products, which are the known and common subjects of trade. You might, with more propriety say, that, under the power to regulate trade between the States, we have a right to incorporate canal companies; because canals would tend directly to open, facilitate, and encourage trade and intercourse between the several States; and, in my humble opinion, sir, canals would furnish a much more salutary, direct, and efficacious means for enabling the great body of the people to pay their taxes, than is furnished by banks.
But, sir, these various powers have never been claimed by the Federal Government, and, much as I am known to favor that particular species of internal improvement, I would never vote to incorporate a company for the purpose of opening a canal through any State, without first obtaining the consent of that State, whose territorial rights would be affected by it. There can be no question, but canal companies, and agricultural companies, and manufacturing companies, and banking companies may all tend, more or less, to facilitate the operations of trade; but they have nothing to do with the political regulations of trade: and such only come within the scope of the powers of Congress.
But, it is again said, that the right to grant this charter, is included in the power to borrow money. The right is attempted to be deduced by a train of reasoning similar to that employed in relation to the provisions which I have already noticed. By forming a string of implications, by which you prove that a power to act in certain cases, and in relation to certain subjects, implies the power to create those cases and subjects to act upon. The Government, it is said, may want, and must have money in any great national crisis. A national bank, with an extensive capital, will furnish ample means for loans; will facilitate the exercise of the power to borrow; and, therefore, the right to establish such a bank, is implied in the power to borrow.
No one, but a logician, sir, would imagine that a power to lend, and a power to borrow, had any relation to each other, much less could he conjecture, that a power to borrow, and a power to create the ability to lend, mean the same thing. A plain unsophisticated man, on reading the Constitution, would say, that the power to borrow, necessarily and by force of the term, pre-supposed the existence of the ability, and the disposition to lend; and that it could not be exercised unless such ability and disposition should actually exist. But the favorite doctrine is, that all powers are given for particular ends, and include all the means applicable to their attainment. Here the end is to borrow money; to borrow honestly if we can, but, TO BORROW. The ability to lend is a necessary means or ingredient toward perfecting the execution of the power to borrow. But, sir, let me ask, whether the disposition to lend be not as necessary a mean towards accomplishing a loan as the ability ? It unquestionably is. And, of course, by the doctrine that the end justifies the means, you may coerce the will to lend; and this, too, equally, in cases where the ability is created by Congress, and where it is derived from any other quarter. A loan obtained by bringing into fair operation all the implications of this power, would be borrowing in an off-hand style. Such a loan, if effected by Bonaparte, we should call robbery. But in this mild Republic, it would be nothing more than the fair exercise of an implied constitutional power.
I have pursued this argument thus far, merely for the purpose of showing the absurdities into which this doctrine of implication will lead us. But, suppose, sir, that the argument of the gentlemen on the other side of the question be correct, as far only as they have carried it, to wit: that the power to borrow implies a right to furnish the ability to lend. What, I would ask, is the probable fact, as to the facilities which this bank will afford the Government in borrowing ?
It will be conceded that we shall have no occasion for borrowing, except in case of a war; and if we have a war, the probability is, that that war will be with Great Britain. I say this, not as a party man, sir, but because the interests of that nation, from her situation, and her rival pursuits, will be much more likely to come in collision with ours, than those of any other power. Now, it is a fact, in evidence before the committee, that more than one-half of the stock of this bank belongs to British subjects; and although, as foreigners, they can have no direct agency in the affairs of the bank, yet we well know, that, through the instrumentality of their friends and agents, of whom there are, unfortunately, too many in this country, they may completely control its operations. Now, I would ask, whether it is probable, that British subjects would be willing to lend us money to carry on war against their sovereign ? Would they not, on the contrary, exert the immense influence which they are said to possess over the moneyed interests of this country, for the purpose of depressing the credit of the country ? for the purpose of crippling the operations of the State banks ? and for the purpose of drying up the sources from which the Government might otherwise calculate to derive supplies ? But, sir, this has little to do with the question of constitutionality, to which I will again return.
Another ground upon which the constitutionality of this institution has been attempted to be supported, is, that it is necessary to the regular and successful administration of the finances. There is no question, but this bank, and its branches, afford convenient places for the deposite and safe keeping of the public revenue. It is not to be controverted that they also furnish a safe, convenient, expeditious, and cheap means for the transmission of moneys from one part of the United States to another, as they may be wanted by the Government. And if these facilities were not to be attained in any other way, I should say it would afford an argument in favor of a bank; not a bank infringing and violating the rights of the States; but, a bank upon principles consistent with those rights.
But, sir, is there not, in every State in which there is a branch of the United States' Bank, also one or more State banks, of equal respectability, and of equal security; at least to the extent of any sum for which they are willing to undertake ? These State banks may be used as depositories for the public moneys, and they will be equally safe and convenient. And, if you will give to these State banks the advantages of these deposites, as you have hitherto given them to the United States' Bank, they will furnish means for the transmission of moneys from place to place, equally safe, convenient, cheap, and expeditious. This object will be attained by connexions which will be formed between the banks of the different States. Such connexions have already, in many instances, been formed. But, they have not been carried to the extent they otherwise would have been, on account of the United States' Bank and its branches; between which, there is so intimate and so necessary a connexion.
But, in answer to this, it is said that, if the Bank of the United States would be constitutional without the existence of the State banks, it is equally so with. That a power which is once constitutional is equally so at all times, and under all circumstances. That a right which must depend for its existence on the will of the State Legislatures, over whom we have no control, is incomplete, and, indeed, as to us, is no right at all. This argument is founded on the supposition, that the Federal Government is a complete Government, containing in itself all the principles and powers necessary for its own operations; which supposition is wholly false. The Federal Government does not profess to be complete in itself. It is expressly predicated on the existence of the State Governments; and most of the facilities for its exercise are derived from the State Governments. It cannot perform even its own peculiar powers and functions, without the aid and co-operation of the State authorities.
How, let me ask you, sir, is your Government constituted ? Your Senate is appointed directly by the State Legislatures. Your President and House of Representatives, indirectly, by the same authority. Suppose they should neglect or refuse to make these appointments, can you compel them to do it ? No, sir. Can you punish them for not doing it ? Not in the least. They may appoint, or not, as they think proper; and if they should neglect, or refuse to do it, your boasted complete Government would die a natural death, by its own imbecility.
It is not fair, then, to say that a power is constitutional, because the Government would be incomplete without it. It is not fair to say, that what would be constitutional, without the existence of the State Governments, and their appendages, is equally so with. This would prove that you have a right to appoint your own President, Senate, and House of Representatives. It would go to usurp all the powers of the State Governments: for the Government could not be said to be complete, without possessing the powers of both Governments combined. Indeed, this Federal Government cannot be said to be complete, as to a single power, without all the auxiliary powers of the State Governments: for there is not a single act which it can perform without their assistance, directly or indirectly.
The very bank law now under consideration, is an illustration of this: for how are the provisions of this law to be enforced; how are the debts which it authorizes to be contracted, to be collected, but through the medium of the State courts ? The doctrine of perfect rights, then, if it prove any thing, proves too much. If it proves that, in order to manage your revenues, you may establish banks within the States, it equally proves, that, in order to carry the provisions of your bank laws into execution, you may establish courts and offices within the States for that purpose. I think, then, sir, I may fairly conclude, that, so long as the State Governments furnish you with all the facilities which you can reasonably require, for conducting your revenues by means of their State banks; so long, it will be unnecessary; so long, it will be improper; and, therefore, so long, it will be unconstitutional, to invade the jurisdiction of the States, to establish national banks.
Again: The constitutionality of the bank has been attempted to be maintained by a reference to the phrase in the Constitution, in relation to the power of Congress to provide for the general welfare. I will read the clause in which this phrase is contained :
"The 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."
This clause has been erroneously construed by some, to contain a successive delegation of three or four distinct powers, to wit: a power to lay taxes; a power to pay the debts; a power to provide for the common defence and general welfare. If, then, it is said, Congress have power to provide for the general welfare, they may choose the means, which are here not made specific, but left discretionary, for the attainment of that object; and if, in their opinion, a national bank will conduce to that object, they have a right to establish a national bank. But, sir, this is a total misconception of the meaning of this clause of the Constitution. Instead of three or four distinct grants of power, this clause contains but one grant of power, namely, the power to raise money by taxes, &c. and all the subsequent parts of the clause are a mere limitation of this power to raise money; or a specification of the purposes for which money may be collected.
That this is not a general authority to Congress to provide for the common defence and general welfare, is instantly discovered by a comparison of this clause with the subsequent part of this section, which consists of a list, or enumeration of the specific means or powers, by which Congress may provide for the common defence and general welfare. And it would be unnecessary and absurd in itself, as well as repugnant to the whole spirit and character of this Constitution, to give, first, a general power, and then to delegate specific powers, all comprehended in the general one. Although I do not think there is any ambiguity in this clause, as it now stands, yet, its meaning might, perhaps, be rendered more perspicuous and definite, by altering the phraseology so as to read in this way:
"Congress shall have power to lay and collect taxes, duties, imposts and excise, for the purpose of paying the debt, and providing for the common defence and general welfare of the United States; but, (going on again, sir, with a further qualification of the same power to raise money) all duties, imposts and excise, shall be uniform throughout the United States."
This, then, is merely a right to raise revenue; and, so far as regards the objects for which revenue may be raised, the powers of Congress are discretionary; provided those objects come within the description of providing for the common defence and general welfare. But, so far as regards the means by which these revenues, when collected, shall be applied to their destined objects, we must look to the powers of Congress, as defined and limited in the subsequent parts of this section. In other words, this clause gives plenary powers to raise money; but it gives no powers, I should say political powers, in relation to its application and expenditure. The powers of Congress over the money, when collected, in reference to its expenditure, would be the same which an individual possesses over his private property powers resulting from the nature of property, and as regulated by the laws of the State in which it might happen to be situated.
I will illustrate my idea by a case. Suppose the Constitution had given to Congress the power to raise a million of dollars, to provide for a national university. Would it thence follow, that we might go into the State of North Carolina, and take your property property secured to you by the laws of this State to make this establishment upon ? Could we take the public property of that State for this purpose ? To both of these questions, every man, who understands any thing of the Constitution, will promptly answer, no. This power, then, to raise money, for the purpose of establishing a national university, is only a power to raise money; and, for the means of applying it, we must search for our power in other parts of the Constitution. On doing this, we should find that we must erect the university either in the District of Columbia, or in one of the territories over which we have exclusive jurisdiction, or in case we should choose to erect it within the limits of a particular State, we must first, not only purchase the land, but obtain a cession of the jurisdiction from the State Government. The phrase of providing for the general welfare, then, is a mere qualification of the power to levy taxes, and can give no authority in relation to banks.
There is one more, and I believe but one more, provision in the Constitution, which is relied on as authorizing the establishment of this bank. It is this:
"Congress shall have a right to dispose of and make all needful rules and regulations respecting the territory, or other property belonging to the United States."
It is said that, in virtue of this provision, Congress have established the territorial Governments, which are corporations of the highest and most extensive nature, exercising political powers over the person, as well as the property of citizens of the United States; and that no complaint has been made, that Congress has exceeded its authority in this particular. Why may we not, then, it is asked, establish corporations to regulate and manage the personal property of the United States, which is coupled in the Constitution with the territorial property ? The fallacy of this argument consists in not marking the distinction which exists in these two species of property, and the consequent powers of the Government over them. The property which the United States possess in the territorial lands, is not a mere right of soil, a mere usufruct; but it also includes the right of jurisdiction and sovereignty. It is in virtue of this right of jurisdiction, of those sovereign plenary and exclusive powers over the territories, which I noticed in a former part of my observations, that these corporations or territorial Governments have been established. On the other hand, our revenues are not only personal property, but a qualified property. They are collected for certain objects, and are subject in transitu to the local jurisdictions. This argument, then, which is founded on an analogy that does not exist, must fall with the analogy that supports it.
But, Mr. Chairman, my honorable friend [Mr. Fisk] has advanced a new argument in support of the constitutionality of this bank; an argument, not deduced from the provisions of the Constitution itself, but founded on prescription. He tells us that this bank was originally incorporated by a Congress fully competent and qualified to decide on its constitutionality; that its existence is almost coeval with the Government; that it has been countenanced by all succeeding administrations; that laws have been passed to enforce the provisions of the original charter; and, therefore, the constitutional question must be considered as settled, adjudicated, and at rest.
Whatever may be the opinion of the gentlemen of the long robe, I cannot, for myself, yield to this doctrine of prescriptive constitutional rights. It may answer in England, where they have no constitution; or where, rather, as they choose to explain it, immemorial usage, or prescription, are evidence of what their constitution is. It may do in Connecticut (it is not my design to derogate from the respectability of that State, nor of its institutions) it may be good doctrine in Connecticut, where ancient custom and steady habits are their constitution. But, sir, such doctrine should never be tolerated in this House, where every member has a printed constitution on his table before him a Constitution drawn up with the greatest care and deliberation; with the utmost attention to perspicuity and precision. A Constitution, the injunctions of which, as we, in our best judgments shall understand them, and not as they shall be interpreted to us by others, we are solemnly bound, by our oaths, to obey.
It is true, that this bank was originally established by a Congress competent to judge of its constitutionality. It is equally true, that a respectable minority of that Congress opposed the passage of the law, on the ground of its unconstitutionally; and, if I have been rightly informed, it is also true, that the then President, General Washington, in giving his sanction to that law, did it with more doubt and hesitation than almost any other act of his administration. It is true, that subsequent Congresses, of different political complexions, have passed laws enforcing the provisions of the original charter; and that no attempts have been made to repeal it. But, it is equally true, that all this might be done with the most perfect propriety and consistency, although they totally disbelieved in its constitutionality.
I need not state to this House, that this is not a law in the ordinary course of legislation; a law prescribing a common rule of conduct for the government or the citizens of the United States at large; liable to be repealed at any time; and the obligations of which would cease with its repeal. This, sir, is not the nature of the law; but it is a law in the nature of a contract between the Government and certain individuals, and the existence of it was extended to twenty years. The moment this contract was made, and its operations commenced, private rights were vested; and it would have been a breach of national faith to have repealed it.
The original Congress had the same right that we have to judge of the constitutionality of a law; and having, under that right, passed this law, or made this contract, we are bound to carry it, as a contract, into execution. As a contract, every successive Congress, of whatever materials composed, is one party to it; and it is well known that a party cannot violate the obligations of his own contract; but, on the contrary, is bound to carry them into effect. It was competent in the State Governments to have opposed the execution of this law, on the ground of its unconstitutionally; but, perhaps, under all circumstances, they acted a wise and discreet part, in not attempting it. The national faith was pledged in the passage of this law. The national credit, which it was, at that time, and which, indeed, it is at all times, of the first importance to support, was at stake on the faithful execution of this contract: and it was better to suffer for twenty years, under an unconstitutional law, rather than to attempt so violent a remedy a remedy which would have crippled the credit of the nation in its infancy.
But, sir, because these were proper considerations with our predecessors and the States, to suffer the continuance of this law, does it follow that now, when that law has expired by its own limitation; when the obligations of that contract are complied with and discharged; when the national faith is emancipated, that they are motives for us to make a new unconstitutional contract ? No, sir. The question now is a question de novo. It is a question of conscience in the interpretation of the letter and spirit of the Constitution, unembarrassed by any collateral considerations; and as such, I shall feel bound to vote upon it. It is the province of the executive and judicial departments to explain and direct the practical operation of each particular law; and I must submit to the decisions. But the commentaries of courts are not to furnish the principles upon which I am afterwards to legislate. It is to this book, (the Constitution) so justly dear to us all, and not to the books of reports, that we must look, as a guide, to direct us in the path of our oath and our duty.
I believe, sir, that I have gone through, lamely I know, but I hope intelligibly, with the examination of all the principal arguments that have been advanced in support of the constitutionality of this law. Having already occupied so much time, I will detain the committee but a few moments longer.
If the views which I have taken of the subject are correct, these positions may be considered established. First, that we have no right to incorporate a bank, unless that right be delegated by the Constitution: for such is the declaration of the Constitution itself. Secondly, that if this right be given by the Constitution, it is included in some of the provisions upon which I have been commenting.
The only question, then, as relates to the Constitution, is, whether we shall, by the passage of this bill, recognise the doctrine of implied or constructive powers. Before we do this, I must entreat every member of the committee to examine well the consequences of such a recognition. This is not a question about the utility or inutility of a bank; but it is a great question of constitutional principle. It is, whether we shall consider this Government as the servant and instrument of the people for managing and protecting their rights, and subject, at all times, to their control; or, whether we shall make it a giant, capable of crushing its masters ? A moment's careful attention to this subject will show us that the doctrine of implied or constructive powers, as contended for in this case, is nothing more nor less than the doctrine of general expediency; and that, once established, it will warrant Congress in the adoption of any measure not expressly prohibited by the Constitution.
The great ends or purposes of our Government are the liberty, the security, and the happiness of the people. The raising and management of revenue, the establishment and support of armies, the institution of courts of justice, and the regulation of trade and intercourse between the States and foreign nations, are some of the great means or instruments by which these results are finally produced. There is a natural and intimate connexion and coincidence between all these great measures or powers of government; they are expressly calculated to aid and assist each other in their operations, and, in fact, form different parts only of one great political machine. Every possible measure of civil policy is expedient exactly in proportion to its fitness or tendency to promote the combined operation of these great causes or instruments of human happiness and security. But, sir, by the doctrine of implied powers, the constitutionality of every measure is also made to depend on its tendency or fitness to promote the final objects for which these various powers are given; and thus resolves itself into a question of expediency.
From the view we have taken of the arguments in support of the right to incorporate this bank, we perceive that its constitutionality is not made to depend on the peculiar applicability of the measure to any particular power in the constitution: for it is equally applicable to half a dozen different powers; but its constitutionality is made to depend on its general tendency to promote the ultimate objects for which these different powers were given. In other words, it is made to depend on its expediency. We speak of implied powers as innocent things as matters of course. But the idea of express constitutional powers, and implied constitutional powers, gives us the exact definitions of limited and arbitrary Governments. The final object of both these Governments is the same the happiness of the people. The only difference between them is, that in the one case the powers or means by which this end is attained, or intended to be attained, are limited and defined; in the other, they rest on the discretion or will of the despot they are all, with him, questions of expediency.
There is another point of view in which, this subject may be placed; and in which, it seems to me impossible for the strongest advocates of implied powers to reconcile the passage of this bill. It will not be denied, that the Constitution contemplates the existence of two distinct sets of powers the one in the State Governments, and the other in the Federal Government. That there are certain powers which maybe said to belong peculiarly and exclusively to the State Governments; and certain other powers which may be said to belong peculiarly and exclusively to the Federal Government. Now, sir, if there be any power which can be said to belong peculiarly and exclusively to the State Governments, it is, in my humble apprehension, the very power of erecting the corporations for the purpose of carrying on moneyed or other operations; connected immediately, necessarily and inseparably with the internal political economy of the State. It is the power of regulating the rights and relations of property between citizen and citizen of the same State: it is the power of erecting a banking company, in order to facilitate and direct the daily and ordinary operations of trade and industry among the citizens of the same State. Although, then, I say, the power of incorporating a bank might, at first, seem to be implied in some of the powers of the Federal constitution, yet, when we see that, in its exercise, it goes to obliterate and destroy the great characteristic feature of distributive power in this Republic; when we see that in its execution, it obtrudes and ramifies itself into all the transactions of domestic economy, which are the peculiar subjects of local or State regulation, we ought, on that account, to reject it.
But, sir, I will conclude by again cautioning my republican friends, and my worthy colleague in particular, to beware how they familiarise themselves with this doctrine of constructive power. It is a creed, at war with the vital principles of political liberty. The pride and the boast of the American Governments is, that they are the governments of the laws and not of men that they are the regular and necessary operations and results of principles and powers, established in the moments of cool and deliberate reflection, by the combined wisdom of the nation; and that they are not the effects of the momentary passion, pride, interest, whim or caprice, of a few individuals collected on this floor.
Little did the framers of this Constitution, when they were so nicely adjusting and balancing its various provisions when they were so carefully erecting guards and barriers against the encroachments of power and ambition little, I say, sir, did they imagine, that there lay concealed under the provisions of this Constitution, a secret and sleeping power, which could, in a moment, prostrate all their labors with the dust. Still less, sir, did the people when they adopted this Constitution, with even more caution and scruple than that with which it was formed, conjecture that they were singing the death warrant of all their State rights. But, once adopt the doctrine that you may travel out of the letter of this Constitution, and assume powers, merely on the ground that they will tend to facilitate the execution of powers which are here given; and you compass, at a single sweep, all the rights of the States; and form the basis of a consolidated government.
Let the principle of constructive or implied powers be once established, in the extent to which it must be carried, in order to pass this bill, and you will have planted in the bosom of this constitution a viper, which, one day or other, will sting the liberties of this country to the heart.
When Mr. Porter had concluded his speech, the question was taken on striking out the first section, and carried 59 to 46.
The Committee rose, and reported to the House, who adjourned without taking a question on the report.