ialists set forth in their petition the immense benefits that consequences. [H. OF R. republican system of the United States into an absolute, or at best a mixed monarchy." Mr. Madison, in his report commenting on this resolution, observes: "The first question here to be considered is, whether a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter. "The General Assembly having declared their opinion merely by regretting, in general terms, that forced constructions for enlarging the federal powers have taken place, it does not appear to the committee necessary to go into a specification of every instance to which the resolution may allude. The alien and sedition acts, being particularly named in a succeeding resolution, are of course to be understood as included in the allusion. Omitting others which have less occupied public attention, or been less extensively regarded as unconstitutional, the resolution may be presumed to refer particularly to the bank law, which, from the circumstances of its passage, as well as the latitude of construction on which it is founded, strikes the attention with singular force; and the carriage tax, distinguished also by circumstances in its history, having a similar tendency.' * "1. The general phrases here meant must be those of providing for the common defence and general welfare.' "In the Articles of Confederation,' the phrases are used as follows, in article 8: All charges of war, and all other expenses that shall be incurred for the common defence and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.' "In the existing constitution, they make the following part of sec. 8: 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 similarity in the use of these phrases in the two great federal charters, might well be considered as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said that, in the former, they were ever understood to be either a general grant of power, or to authorize the requisition or application of money by the old Congress to the common defence and general welfare, except in cases afterwards enumerated, which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present constitution, it can never be supposed that, when copied into this constitution, a different meaning ought to be attached to them. As this clause of the constitution has en, and is still much relied on by the advocates of a nited States bank, I will take the liberty of introducing uch authority in opposition to their views, as will, I trust, "That, notwithstanding this remarkable security against ave weight, both with this House and the nation. The misconstruction, a design has been indicated to expound ourth resolution passed by the General Assembly of Vir- these phrases in the constitution so as to destroy the effect Ania, in December, 1798, reads as follows: of the particular enumeration of powers by which it ex"That the General Assembly doth also express its deep plains and limits them, must have fallen under the obser gret, that a spirit has in sundry instances been manifested vation of those who have attended to the course of public the Federal Government, to enlarge its powers by for- transactions. Not to multiply proofs on this subject, it ed constructions of the constitutional charter which detines will suffice to refer to the debates of the federal legislature, em; and that indications have appeared of a design to ex-in which arguments have on different occasions, been Hound certain general phrases (which, having been copied drawn, with apparent effect, from these phrases, in their om the very limited grant of powers in the former articles indefinite meaning."-Elliot's Debates, vol. 4, pp. 577—8. confederation, were the less liable to be misconstrued) Again, the same distinguished personage, in a letter to as to destroy the meaning and effect of the particular Mr. Stevenson, dated November 27, 1830, in which he umeration which necessarily explains and limits the gen-examines the origin and progress of the clause under conral phrases; and so as to consolidate the States, by de-sideration, remarks: grees, into one sovereignty; the obvious tendency and in "A special provision could not have been necessary witable result of which would be to transform the present for the debts of the new Congress; for a power to pro vide money, and a power to perform certain acts, of which money is the ordinary and appropriate means, must, of course, carry with them a power to pay the expense of performing the acts. Nor was any special provis on for debts proposed, till the case of the revolutionary debts was brought into view; and it is a fair presumption, from the course of the varied propositions which have been noticed, that, but for the old debts, and their association with the terms common defence and general welfare,' the clause would have remained, as reported in the first draft of the constitution, expressing generally a power in Congress to lay and collect taxes, duties, im- | posts, and excises,' without any addition of the phrase to provide for the common defence and general welfare.' With this addition, indeed, the language of the clause being in conformity with that of the clause in the articles of confederation, it would be qualified, as in those articles, by the specification of powers subjoined to it. But there is sufficient reason to suppose that the terms in question would not have been introduced, but for the introduction of the old debts, with which they happened to stand in a familiar, though inoperative relation. Thus introduced, however, they pass undisturbed through the subsequent stages of the constitution. If it be asked why the terms common defence and general welfare,' if not meant to convey the comprehensive power, which, taken literally, they express, were not qualified and explained by some reference to the particular power subjoined, the answer is at hand, that although it might easily have been done, and experience shows it might be well if it had been done, yet the omission is accounted for by an inattention to the phraseology, occasioned, doubtless, by the identity with the harmless character attached to it in the instrument from which it was borrowed. "But may it not be asked, with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to embrace not only all the powers particularly expressed, but the indefinite power which has been claimed under them, the intention was not so declared; why, on that supposition, so much critical labor was employed in enumerating the particular powers, and in defining and limiting their extent? "Mr. Wilson, justly distinguished for his intellectual powers, being deeply impressed with the importance of a bank at such a crisis, published a small pamphlet, entitled Considerations on the Bank of North America,' in which he endeavored to derive the power from the nature of the Union in which the colonies were declared and became independent States; and also from the tenor of the articles of confederation' themselves. But what is particularly worthy of notice is, that, with all his anxious search in those articles for such a power, he never glanced at the terms common defence and general welfare,' as a source of it."-Elliot's Debates, vol. 4, pp. 616-'7. And here, sir, I think I may safely rest this part of the subject. The second paragraph of the 8th section of the constitution, which vests in Congress the power "to borrow money on the credit of the United States," has also been appealed to by the friends of a national bank. But as nothing like an argument has ever been adduced in support of this position, as it rests upon mere conjecture, without the shadow of authority to support it, and as a bill to charter a bank is not a bill to borrow money, I will not trouble the com [OCT. 13, 1837. mittee with any further remarks on this point, but proceed to examine the third paragraph of the 8th section of the constitution, which gives Congress the power "to regulate commerce with foreign nations, among the several States, and with the Indian tribes." This clause has been appealed to by the advocates of internal improvements, as authorizing Congress to construct roads and canals, &c.; it has also been appealed to by the friends of the tariff system, as vesting in Congress an implied power to protect our domestic manufactures; and, lastly, it has been ap pealed to as authorizing Congress to establish a United States bank. Now, sir, in my humble opinion, the power to regulate commerce does not include the power to make internal improvements of the character just noticed-to protect manufactures by imposing a tariff-nor to establish a national bank. Neither the clause immediately under con sideration, nor any other found in the constitution, authorize Congress, in my judgment, to do either of those three things Sir, is it meant to be affirmed that the power to "rege late commerce," includes the power to regulate the curren cy of the several States? If so, then is Congress authe rized, under the power to " regulate commerce," to regu late the issues of all the State banks; for these constitui the principal currency of the country. On the other han if it be meant that Congress have not the power, undi this clause of the constitution, to regulate the currency how can it be said that Congress are thereby authorized charter a bank for the purpose of regulating comment when the only object of a national bank, as we are tal is to regulate and equalize the exchanges and currency the country? Again: If the power "to regulate co merce" includes the power to incorporate a bank, may it not also include the power to grant charters of i corporation for other purposes? Why not authorize Co gress to incorporate companies for objects of internal provements for manufactures-or, what would appear be rather more congenial, for ordinary commercial purpose If Congress can, by this clause of the constitution, sut rize one set of men, under an act of incorporation, to d in bank paper, they possess equally the power to authori another set to deal in silks and satins, calicoes and gis hams. Nor can this position be controverted. T stockholders and agents of a bank are as much traffick and dealers in paper money, which is a species of com cial commodity, as merchants are in broadcloths and simeres. If an act of incorporation, therefore, can claimed in the one case, as a proper and necessary to "regulate commerce," it unquestionably can in other. But the clause in question confers no such po The power to "regulate commerce," and the power grant charters of incorporation, are separate and distin The former is conferred by the constitution, the latter not. Sir, what was the nature of the power which 1 framers of the constitution intended to confer on Corg by this clause? Evidently, to authorize Congress to p scribe or establish certain rules by which commerce sho be governed. But will it be pretended that the authors the constitution meant that this power, which they vest in Congress alone, should be transferred by Congress an incorporated company? That a chartered compa should possess the exclusive power of regulating the ce mercial interests of the nation-of prescribing rules for Government-of determining the principles on should be conducted, and thus place one of the great terests of the country beyond legislative and constituti control? No one, I presume, will say, in direct tern that such was the intention of the framers of the consta tion; and yet such is the inevitable result to which doctrine of construction here combated leads. If s rules of construction prevail, it will be impossible to def the limits of the power of the Federal Government un the clause" Congress shall have power to regulate co which merce," &c. I will conclude my remarks on this clause, by reading from Mr. Jefferson's official opinion on the constitutionality of a United States bank, the following extract: "To erect a bank, and to regulate commerce, are very different acts. He who erects a bank creates a subject of commerce in its bills; so does he who makes a bushel of wheat, or digs a dollar out of the nines. Yet neither of these persons regulate commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling. Besides, if this were in exercise of the power of regulating commerce, it would void, as extending as much to the internal commerce of every State, as to its external. For the power given to Congress by the constitution does not extend to the interaal regulation of the commerce of a State, (that is to say, f the commerce between citizen and citizen,) which reBains exclusively with its own Legislature; but to its exernal commerce only, that is to say, its commerce with other State, or with foreign nations, or with Indian ribes. Accordingly, the bill does not propose the measure sa 'regulation of trade,' but as 'productive of considerade advantage to trade.'" Some have attempted to locate the power to incorporate national bank-Mr. McDuffie, for example, in his reort of 1830, as chairman of the Committee of Ways and leans-on the fifth article of the eighth section of the confitution, which gives Congress the power" to coin money, gulate the value thereof, and of foreign coin, and fix the andard of weights and measures." "The power to coin money, and fix the value thereof,' expressly and exclusively vested in Congres. This grant is evidently intended to invest Congress with the power regulating the circulating medium. Coin' was regardat the period of framing the constitution, as synonypus with 'currency,' as it was then generally believed at bank notes could only be maintained in circulation by ing the true representative of the precious metals. The brd 'coin,' therefore, must be regarded as a particular rm, standing as the representative of a general idea." Now, sir, if "coin and currency are synonymous," nifying the same thing; if coin be currency and currency in, Congress is vested with the power to coin money, gulate the value thereof, and of foreign currency." Acading to this reading, Congress is authorized, not only regulate the currency of this country, which consists incipally of bank notes, but also the currency of other tions, whatever symbols of industry they may select as adiums of exchange. The chairman of the Committee Ways and Means appears to have been as much at fault his knowledge of the currency, properly considered, as the character and powers of the constitution; otherwise would not have confounded bank notes with coin-the xtended representative with the thing represented. I say pretended representative, because the amount of paper oney afloat, exceeds at least five times the amount of jecie wherewith to redeem it. It is not, therefore, strictly eaking, a representative of coin or real money. It has tome rather an instrument of speculation, than a measte or representative of value. The currency of a coun, in order to be sound, as every political economist hows, ought to be equal to the precious metals, or to onsist of the metals themselves. But the paper currency f this country is, and was, even during the existence of e late United States Bank, but the mere supposititious epresentative of property. That paper money can never come a proper standard of value, is evident from the fact hat it is constantly liable to fluctuation, depreciation, expansion, and contraction. And would it be doing justice to the framers of the constitution to their sagacity and integrity--so to construe that instrument, or any part thereof, as to authorize Congress to make paper credit, of [H. OF R. whatever kind or description, a standard of value? The only standard or measure of value known to the constitution is gold and silver; a standard, by the way, which has been recognised and adopted from the earliest ages, by all civilized nations throughout the world. If Congress are authorized to incorporate a company, which shall possess the independent and sovereign right to coin or inanufacture money, and regulate the value thereof, why may they not also invest such corporations with power to control the commerce of the country in all such exchangeable articles or commodities that may properly come under the standard of weights and measures? Why not go still farther-for if Congress can delegate to a corporation this prime attribute of sovereignty, the establishment of a standard of value-why not, I say, extend it to every other specified power of the constitution? For I repeat it, if Congress have the power, under this or any other clause of the constitution, to delegate to a corporation of its own creating any one of the enumerated powers, they may, with equal propriety, delegate to it every other power. Let Congress recognise this construction, and what would be the consequence? Sir, we should no longer be a nation of freemen, living under a free constitution; but the slaves of soulless corporations. An independent and irresponsible power would be established in the land; the restraints and limitations imposed upon Congress by the constitution would be overthrown; and the foundations of your Government not only rocked, but riven. Sir, let us examine a little further the extraordinary argument urged by Mr. McDuffie in support of his most extraordinary position. "Coin," says he, "was regarded, at the period of framing the constitution, as synonymous with currency, as it was then generally believed that bank notes could only be maintained in circulation by being the true representatives of the precious metals." What, sir! coin and currency--coin and paper money--coin and bank notes regarded as one and the same thing, as synonymous, at the time of framing the constitution! What!" generally believed at that period," that paper money was "the true representative of the precious metals!" Sir, does not the who e history of that period contradict these reckless and unfounded assertions? I appeal to the historical recollections of every gentleman on this floor, if it does not. Is it not notorious that the framers of the constitution were emphatically hard-money men? Is it not notorious that gold and silver are the only currency recognised by the constitution? Is it not known to all, that Congress have no power, under the constitution, to authorize any individual, company, or corporation, to issue federal paper money? Every part of the constitution which relates to the subject of money is clear, explicit, and unequivocal. The intention of the framers of the constitution, on this subject, is not only made manifest by the letter of the constitu tion itself, but also by a law passed immediately after the meeting of the first Congress under the constitution, which defines the kind of money to be received by the federal Treasury. This law provides, "that the fees and duties payable to the Government, shall be received in gold and silver only." This statute, be it remembered, was passed within one month after Congress had assembled. And, again, the law in reference to that part of the revenue accruing from the sale of the public lands, passed in 1800, declares that specie and evidences of the public debt, shall alone be received in payment of such lands. These two acts relating to the subject of the federal revenue, passed immediately after the adoption of the constitution, ought and must be regarded as unerring interpreters of that instrument, so far as the point immediately under consideration is concerned. If the members of the first Congress regarded paper money and "coin" as synonymous, why did they enact that gold and silver coin only should be received in payment of the federal revenue? If they even H. OF R.] Sub-Treasury Bill. considered paper money, or bank notes, as synonymous with coin, as contended by Mr. McDuffie, they appeared, at all events, to discriminate between paper coin and gold and silver coin, by making the latter only receivable in payment of the public dues. So that "gold and silver coin," and not paper coin, appear to be the only currency known to the constitution; or to the laws of Congress which define the kind of currency to be received in payment of the federal revenues. I would now call the attention of the committee, for a few moments, to the last paragraph of the 8th section of the constitution: "To make all laws which shall be necessary and proper to carry into effect the foregoing powcrs." It will not be pretended, I apprehend, that this clause vests in Congress any new substantive power; or that it in any wise supersedes or invalidates any one of the enumerated powers. This position would be too extravagant-too monstrous, for even modern sophists to take. It will, I trust, be conceded, that the powers com. prehended in this clause are subordinate and incidental in their nature, merely conferring on Congress the right to exercise such means as shall be strictly necessary and proper to execute the express powers; or, without which, the powers expressly granted cannot be carried into effect. This point yielded, as yielded it must be, the question arises, whether a national bank be a necessary and proper means to carry into effect any of the specified powers? In order to show that it is necessary, essential, indispensable, it must be made to appear that the enumerated powers cannot be carried into effect independent of a national bank. Experience has demonstrated that they can, one and all. And, in the second place, in order to prove that a national bank is a proper means, it must be shown that the power to create it is an incidental and not a substantive power; which, I apprehend, cannot be done. No, sir, it cannot be shown that the power to grant charters of incorporation, is merely an incidental or subsidiary power. Among all the powers enumerated in the constitution, I defy gentlemen to designate a solitary one that is capable of being wielded with more potent effect; not for good, but for evil. If Congress possess the power to grant a charter of incorporation, in their national cap city, in one case, they do in another. If they possess it at all, they possess it without limit, and can extend it, whenever they think proper, to any and every object whatever; whether it be in derogation of State and individual rights, to a Mississippi land monopoly, to a monopoly of the trade of the Indies, or to the cod and whale fisheries. Sir, what is the distinguish ing characteristics of incorporations ? They are essential ly aristocratic in their nature; being invested with exclusive privileges-privileges withheld from the rest of society. They are allowed to purchase and hold real estate; which the United States themscives cannot do without obtaining the consent of the States. They are allowed to hold property in mortmain, and are capable of being so organized or [Oct. 13, 1837, tion, of whatever description? Is it probable that wise I am The inci one ob "In all cases where incidental powers are acted upo the principal and incidental ought to be congenial with each other, and partake of a common nature. constituted as to change the course of descent in the severat dental power ought to be strictly subordinate, and limited States; I mean where their corporate character is concern- to the end proposed to be attained by the specified power. ed. Nor is this all: so sacred are their rights held, and In other words, under the name of accomplishing so carefully guarded are they by the legislature and judici-ject which is specified, the power implied ought not to be ary, that they cannot be reached by law without permission made to embrace other objects, which are not specified in on their parts ; nay, more, they are even placed beyond the constitution. If, then, you could establish a bank to the control of future legislatures-at least, such is the opin-collect and distribute the revenue, it ought to be expressly ion of some. And yet we are told that a power to incor porate a power of such great and fearful magnitude, and capable of producing so much mischief-is, after all, a mere incident of a power! Think you, sir, that if the members of the convention who framed the constitution had considered a national bank either a proper or necessary means to carry into effect any of the enumerated powers of the constitution, that they would have rejected a direct proposition to establish a bank, or refused to invest Congress with power to grant charters of incorpora restricted to the purpose of such collection and distribution. "I contend that the States have the exclusive power to regulate contracts, to declare the capacities and incapacities to contract, and to provide as to the extent of responsibility of debtors to their creditors. If Congress have the power to erect an artificial body, and say it shall be endowed with the attributes of an individual-if you can bestow on this object of your own creation the ability to contract, may you not, in contravention of State rights, confer upon slaves, infants, and fêmes coverte, the ability to con tract? And if you have the power to say that an association of individuals shall be responsible for their debts only in a certain limited degree, what is to prevent an extension of a similar exemption to individuals? Where is the limitation upon this power to set up corporations? You establish one in the heart of a State, the basis of whose capital is money. You may erect others, whose capital shall consist of land, slaves, and personal estates, and thus the whole property within the jurisdiction of a State might be absorbed by these political bodies, The existing bank contends, that it is beyond the power of a State to tax it; and if this pretension be well founded, it is in the power of Congress, by chartering companies, to dry up all the sources of State revenue." Yes, sir, the honorable Senator was right, when he said that the incidental power ought to be strictly subordinate, and limited to the end proposed to be attained by the speciled power. He was right in saying, that in all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a common nature. And he would have been equally right, had he added, that no means can be. proper that are not compatible with the spirit of the constitution and the genius of our Government. But I will no longer detain the committee on this branch of the subject, having already shown, as I believe, beyond all cavil, that the clause which has been last examined does not conier on Congress power to incorporate a moneyed institution of any description. [H. or R. It is contended by another, but similar class of moralists, that the constitution ought to be so construed, as to expand with the growth of the country, and conform to its diversified and mutable relations. Against this doctrine, also, I enter my protest. It is too ductile to be either safe or sound; too liable to be drawn out to dangerous lengths, and bent to mischievous purposes. Sir, what is the nature of the obligation under which we act? What is required of us before entering upon our duties as representatives? It is required, by the constitution, that "the Senators and Representatives, and the members of the several State Legislatures, and all Executive and Judicial officers, both of the United States, and of the several States, shall be bound by oath or affirmation to support this constitution." Sir, the requisition is emphatic and positive-couched in language not to be misunderstood. Our duty is palpable; we cannot err ignorantly. We are bound, by all the obligations which an oath imposes, to "support this constitution." We are not required to "support" the forced constructions that may be given by a pliant court, or by a careless or venal legislature. We are not called upon to "support" a constitution corrupted by congressional interpolations, or distorted and sophisticated by the legal mummeries of the bar or the bench. Nor are we obligated to support a constitution that may be construed to change with times and circumstances; that may grow with the growth, and decay with the decline of the country: but we are bound by our solemn oaths or affirmations to "support this constitution" in its purity and integrity, unsophisticaI will now proceed to examine arguments-not of a con- ed and uncontaminated. Sir, there are two classes of men stitutional character, nor strictly applicable-but neverthe-in this world who rely upon precedent, and who seem to less frequently appealed to by the advocates of a national believe in its infallibility, with a great deal of spirit and bank. I allude to that class of arguments which rest on perseverance. The one, the morally lax, who have no precedent alone for support. The friends and champions objection to transgress, provided they can find a pretext in of a United States bank, when no longer able to find le- precedent; the other, the mentally indolent, who find less gitimate support, when forced to abandon every constitu- labor in adopting the opinions of others, than in analyzing tional position, scek refuge in the misty regions of prece- and investigating for themselves; while the rigidly honest dent. The acts of former legislatures, and the opinions and intellectually industrious, spurn all mental tyranny, of the Supreme Court, and not the constitution, are ap- refusing, in all cases, to yield their assent, but as the repealed to for authority: and lo! King Precedent is anointed sult of their conviction. Sir, let me not he misunderstood with the unction of infallibility; becomes the keeper of when I say that precedent is dangerous and pernicious; I their consciences, and the object of their idolatry; his be- mean that it is so when regarded as an obligatory rule in hests the laws, his standard the mistletoe, which these po- matters of legislation, and in the common affairs of life. litical Druids venerate. But to vary the figure-what is In courts of justice, in the dispensation of civil and criminal there in the character or nature of precedent so sanative law, it may, to a certain extent, be advantageously referred and holy that can heal all moral maladies, and justify all to as a guide. For so diversified and complicated are the political transgressions? Or, wherefore is it, that prece- subjects of litigation, that it is impossible for the legislator dent should fetter, the intellect, destroy moral agency, and to anticipate and provide for every case that may occur. It bear sway where reason and conscience should alone pre- becomes the duty, therefore, of the judge, the organ of the side? Sir, would it not be well for those who have sworn law, not only to proclaim the written law of the land, but to support the constitution, to pause and reflect before they also to decide in cases where no statutory provision has subscribe to a doctrine so fraught with mischief, and so in- been made, as reason and justice may dictate. Nor, as a imical to reason? general rule, ought decisions thus made to be lightly regarded by succeeding judges, especially in cases where the points in litigation are analogous. But, sir, while I willingly admit that precedent may be properly referred to as authority in the administration of the law, I utterly deny that it is necessarily obligatory upon legislative bodies. It matters not, therefore, whether a precedent in favor of a United States bank be found in the acts of former legislafures, or in the decisions of the Supreme Court, it is, in either case, incompetent to control the acts of this body. Congress, I trust, will never be willing to acknowledge the binding force of precedent, in the decision of constitutional questions. But, sir, admitting, for the sake of argument, precedent to be good authority, what does it prove in this case? I apprehend that it would rather make against than in favor of a bank. We find, in 1811, when a renewal of the charter granted in 1791 was applied for, that its constitutionality was discussed, and that the application was rejected. And further, when the bank petitioned Congress for time to wind up its affairs, the petition was referred to It is alleged, by some of the servile brain-bound slaves of precedent, that Congress would be justified in chartering a bank, (at the present time,) whether authorized by the constitution or not, because similar institutions have hitherto existed. They contend that, inasmuch as those Institutions were established by Congress, submitted to by the people, acquicsced in by the States, and sanctioned by the Supreme Court, they were recognised by all the acts which imply the sanction of organic law. Sir, I cannot, for one, yield assent to doctrines so false, so loose, so licentious. I deny that the great body of the American people, the democracy, are, or ever were, in favor of a chartered money monopoly, whether State or national. The insinuation is a rank and insolent libel on their patriotism, their intelligence, and their integrity. No, sir, the frank and honest-hearted democrats of this country utterly reject and abhor the doctrine, that time or precedent can sanctify iniquity, or justify any infraction of the social compact. VOL. XIV.-100 |