Chapter I: A. Coles (9)

The credentials of NICHOLAS GILMAN, appointed a Senator by the Legislature of the State of New Hampshire, for the term of six years, commencing on the 4th day of March next, were read, and ordered to lie on file.

THURSDAY, February 14.

_Bank of the United States._

The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed on the 25th of February, 1791.

The question being to strike out the first section--

Mr. GILES.--Mr. President: It is with great reluctance that I find myself compelled to enter into the discussion of the subject now under the consideration of the Senate, but the observations which fell from the honorable gentleman from Georgia (Mr. CRAWFORD) were of such a character as to impose on me an irresistible obligation to present that view of the subject which has resulted from the best reflections I have been enabled to bestow on it. This obligation arises from the very high respect I entertain for the Legislature of the State I have the honor to represent, the great respect I feel for the gentleman who made the observations, as well as from the respect which is manifestly due to myself. In executing this unpleasant task, I labor under circumstances of peculiar embarrassment. This embarrassment arises from a conviction that the views of the subject now proposed to be exhibited will disappoint the expectations both of the opposers and the favorers of the bill, and that they will not be acceptable to either. I shall not, however, in this instance, depart from my invariable habit, when urged by duty to participate in debate before this honorable body, of disclosing in the most undisguised manner my real opinions upon the whole subject, free of any consideration of political difficulties or inconveniences which may consequently affect myself.

In the first place, I find myself called upon to oppose a law, on constitutional grounds, which has been in existence for nearly twenty years, and during that period, I am compelled to admit, has been acquiesced in by the several State governments, as well as by the General Government, and its republican administrations. It is peculiarly irksome to me to question the constitutionality of a law which has been thus and so long acquiesced in, because it tends to give the character of instability to the laws generally, and in my judgment, tends also to impair the sacred character of the laws, and of course, to lessen their efficacy. In a Government like ours, where the laudable boast of every citizen is that he lives under a government of laws, and not of men, no subject should be touched with more caution and delicacy than one which questions the validity of the laws, lessens the confidence of the citizens in them, or impairs the obligation of obedience to them. Yet, sir, the course of observations I propose to make may have some of these tendencies, which I should extremely regret, and this apprehension, of course, produces embarrassment. Connected with this idea is another circumstance of embarrassment. I cannot help observing the inordinate zeal manifested by the opposers of this bill, evidently resulting from a belief that its rejection will lessen the powers of the Federal Government. Although it may be properly directed in the present instance, yet I think I have seen, and fear I may hereafter see the same spirit directed against some of the powers and proceedings of the Government which I have deemed indispensable to its own preservation, and its beneficial efficacy towards the people. It may, perhaps, be thought by some not becoming in me to say that I have not been an inattentive observer of the progress of this Government for twenty years, and more particularly, since the Republican party came into power. Some of the scenes through which I have passed, have produced an impressive influence on my mind. Such is the nature of the Government that its administration will vibrate from one principle to another, and it will always require great wisdom to keep its oscillations from wandering too far. Whilst those who preceded us in power endeavored to legislate into the constitution an unnecessary constructive energy, leading to what has been called consolidation, it appears to me that we have taken too much the opposite course, leading to disunion and dissolution, by depriving it constructively of its legitimate, necessary, and proper powers. If this course should be unfortunately persevered in, it requires no spirit of prophecy to foresee that the Government will fall to pieces from the want of due energy in the administration of its legitimate powers, or that some extraordinary means must be resorted to for its resuscitation.

The honorable gentleman from Georgia, (Mr. CRAWFORD,) who reported this bill, as the chairman of the committee, to whom the subject was generally referred, excited not a little surprise in my mind by the prefatory remarks which fell from him in support of it. The gentleman prefaced his arguments by observing, "that it had latterly become the fashion to eulogize the Constitution of the United States; and that whenever he heard lavish encomiums applied to it, he could not help apprehending mischief." I acknowledge I could not comprehend the bearing of this remark upon the question under discussion. I, sir, have long been in the habit of venerating the constitution, and have often expressed my admiration at the wisdom of its provisions; and I really had hoped that I might have been indulged in these sentiments and prepossessions, and even the expression of them upon proper occasions, without exciting in the mind of any gentleman apprehensions of mischief; nor can I divine what species of mischief the gentleman apprehends from that cause. Mr. President, when we look over the whole world known to us; when we particularly cast our eyes over that part of it with which we have the most intimate relations; when we see the rapid strides which despotism is making over the whole human race; when we observe the various and powerful means now in use to rivet its immovable dominion upon mankind; when we reflect that the Constitution of the United States now affords the only practical experiment upon the republican principle, and the only and last hope for the preservation and extension of the liberties of man; is it wonderful or alarming, that we should feel and express some partiality and even veneration for an instrument of so peculiar a character? or should even endeavor to teach others to venerate, to cherish, to support it? An instrument, whose provisions at least exempt us from the general scene of despotism, and may eventually extend their blessings to the whole human race? Or if, in dwelling upon the wisdom and importance of its provisions, we might pass over some possible defects from scrutinizing them with an hypercritical eye, might not the omission be indulged without producing animadversion or censure? Sir, we all venerate the republican principle. I know the gentleman from Georgia (Mr. CRAWFORD) does; nor do I pretend that my devotion to it is greater than his; but, sir, I have given the greatest attention to the observations of the gentleman upon the constitution; and I can now say that my veneration for the instrument, and admiration at the wisdom of its provisions, are not at all impaired nor diminished, notwithstanding the gentleman's criticisms, &c. I will now, Mr. President, endeavor to exhibit the general character of the constitution; to point out the mode for its correct interpretation, and apply it to the subject now under consideration. In doing so, I propose to follow the course of observations made by the honorable chairman of the committee who reported the bill.

The gentleman proceeded to remark, that in taking a review of the constitution he found general as well as incidental powers enumerated therein. I did not see the precise application the gentleman intended to make of this remark, but I have been induced to review the constitution in reference to this subject, and it does appear to me, that the classification and definition of powers is as well arranged as human wisdom could devise. I know that nothing is perfect which is the work of man; that no language is capable of perfect definition. But, as far as definition can be drawn from language, I conceive the constitution exhibits as perfect an example as is in existence. In the next place, the gentleman remarked that there was a number of cases in which Congress had departed from the particular enumerated powers in the constitution and had resorted to implication or construction for the derivation of its powers. The remark is perfectly correct, and I am very ready to admit that there is no such thing as carrying into effect enumerated powers in any instrument whatever, without the intervention of certain derivative and implied powers. But if the gentleman had succeeded in showing that there had been aberrations by the Congress of the United States from the enumerated powers of the constitution, would he think it correct to use those aberrations as precedents for still further aberrations? Ought they not rather to be considered as mementoes on the part of Congress to induce them to tread with more care, and, if they find that their former errors could not be supported by a fair and candid construction of the constitution, to restrain the laws within its wholesome provisions? Certainly that is the use to which the history of errors presented by the honorable gentleman from Georgia ought to be applied. But, before I proceed to examine the subject with more accuracy, I cannot avoid to express my surprise at another observation which fell from the gentleman. The gentleman observed, that the argument drawn from the distinction between ends and means was "incomprehensible;" and he went so far as to call it "nonsensical jargon." It is not only comprehensible to me, sir, as I conceive, but, in my opinion, is the only way in which a just construction of the constitution is to be attained. This results from the peculiar nature and organization of the instrument. Permit me here to endeavor to illustrate my idea by a reference to the constitution itself? The constitution is an instrument which grew out of the situation of the United States at the time of, and preceding its adoption; and to show that the constitution recited the great objects of its formation, and then prescribed the means for carrying them into effect, I beg leave to refer to a part of the instrument itself. The preamble, like all other preambles, was designed to express the objects of the instrument or the ends to be effected by its provisions. "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity; do ordain and establish this constitution for the United States of America." What is the plain language of this preamble? The answer is obvious. That certain great _ends_ or _objects_ are here proposed to be effected. In what mode, or by what _means_ are they to be effected? The preamble tells you, sir, "by establishing this Constitution for the United States of America." That is the mode in which these great _ends_ are proposed to be effected, and the body of the instrument prescribes the _means_ which were deemed necessary and proper to the effectuation of these _ends_. The subject will be better understood by throwing the mind back to the period of time when this constitution originated, and reviewing the peculiar political situation of the United States then, and for some time antecedently thereto.

At the time, and antecedently to the establishment of the present constitution, the existing State Governments were in possession of all the powers of sovereignty, subject only to feeble and inefficient articles of confederation, without the means of executing their own will, and resting for its execution solely on requisitions upon the respective States, which might either comply or refuse to comply with such requisitions at their discretion. A non-compliance was almost invariably the result of State deliberations, and hence the feebleness of the old Confederation. The present constitution was adopted as the remedy for this great and alarming evil. Without it, disunion and ruin to the States would have been the inevitable consequence, because, upon actual experiment, the States were found utterly incompetent to the due administration of all the powers of sovereignty intrusted to their management. The reason of this incompetency was, that some of the most important powers of sovereignty inherently possessed a geographical influence beyond the geographical limits of the several States individually, and their jurisdiction could not transcend their geographical limits. Of this description of powers is the power to declare war, &c., to regulate commerce, &c., and all the other enumerated powers of the constitution. In consequence of the conflicting systems adopted by the several States in relation to some of these powers, which were then in practical operation; particularly in the conflicting regulations of commerce, the States were getting into the most serious collisions, &c. The formidable evils necessarily growing out of the state of things required a formidable and competent remedy. The great subject for the contemplation of every reflecting mind in America was, what that remedy should be? The wise framers of our admirable constitution, after great deliberation, conceived and executed the only practical expedient. It consisted in separating the powers of sovereignty; in establishing a General Government, and conferring on it all the powers of sovereignty whose geographical influence was found co-extensive with the geographical limits of the United States, and reserving to the State Governments respectively those powers which were of a mere local character, and which possessed no influence beyond the limits of the States respectively. And also to confer on the General Government "all the means necessary and proper" for executing its own laws in relation to these enumerated powers, without any dependence upon requisitions from the respective State Governments for this indispensable object. The idea was a grand one, and executed with an admirable simplicity, and the most consummate wisdom. Hence it appears that the great object of the framers of the constitution was to establish a General or Federal Government, and to confer on it all the powers of sovereignty, which in their nature and character possessed an influence co-extensive with the United States, and to reserve to the previously-existing State Governments all the powers of sovereignty of a more local character, and whose influence did not extend beyond the geographical limits of the States respectively, and therefore could be rendered completely subservient to State jurisdiction and management. These are the means prescribed in the constitution for effecting the ends expressed in the preamble. To the administrators of the General Government the framers of the constitution have said: We give to you all the powers of sovereignty of a general character; and to the administrators of the State Governments they have said: We reserve to you all the powers of sovereignty of a local character. I verily believe, that if those various Governments should be administered with the wisdom with which this separation of powers was made in the body of the constitution, the people of the United States will not be disappointed in the great and interesting objects proclaimed in its preamble. From this short history of the origin of the constitution, and the causes which produced it, it evidently appears, that the General or Federal Government is in its nature and character a Government of enumerated powers, taken from previously existing State Governments, enumerated and conferred on it, reserving all unenumerated powers to the State Governments, or to the people in their individual capacities. But if any doubts had existed upon this subject, two amendments to the constitution, growing out of some jealousies lest a contrary interpretation should be given to the constitution, have been adopted, which ought to put this question to rest forever. The 9th and 10th articles of amendments to the constitution are as follow:

"The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people." "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Now, sir, can language be more explicit than this, in declaring that this charter contains certain enumerated powers, and that all not enumerated are reserved to the States or to the people? There is one article reserving rights to the people, and afterwards another article reserving them to the States and to the people. While on this subject, I beg leave to read a clause in the constitution, which I find among the enumerated powers, and which has been construed by some, as intended to convey a general grant of powers among the enumerated powers: "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States." The words "and to provide for the common defence and general welfare," have by some been considered as conveying a general grant of power. Nothing is necessary to show that this is not a fair and correct construction of the constitution, but reading it with attention. These terms contain no grant of power whatever, but are used to express the ends or objects for which particular grants of power were given. Paying the debts and providing for the common defence and general welfare are great objects, intimately connected with the particular grants of power which are given for their effectuation; and without these particular grants of power, it would not have been possible for Congress to effect them. The framers of the constitution have simply selected some of the objects expressed in the preamble, and declared that to effect them, and to pay the debts of the United States, were the considerations which induced them to give to Congress the power "to lay and collect taxes," &c. Thus taxes are to be laid, &c. "to pay the debts, and to provide for the common defence and general welfare." Could they have chosen a more appropriate phraseology? The plain language to Congress is: "You shall have power to lay and collect taxes, to pay the debts," &c., and to provide for the common defence and general welfare, or, in other words, for the purpose of paying the debts, &c., and of providing for the common defence and general welfare. These words do not contain a general grant of powers, but express the objects of a particular grant of powers. The framers of the constitution could not have done an act so absurd as to make a general grant of powers, among an enumeration of specified powers.

I will now, Mr. President, proceed to examine those instances which the gentleman has presented of the supposed aberrations of the Congress of the United States from the enumerated powers, and I think it will not be difficult to show that there is not a single instance quoted, but which is deducible from a fair and correct interpretation of the express words of the constitution, giving them their common and appropriate meaning.

The first instance presented to our consideration by the honorable gentleman from Georgia (Mr. CRAWFORD) of the exercise of a power by Congress not enumerated in the constitution, was the erection of light-houses. The gentleman from Massachusetts, (Mr. LLOYD,) to whose dispassionate observations I listened with great pleasure, superadded the instance of the erection of custom-houses. On these, both of the gentlemen seemed to place great reliance, as cases in point with the one under consideration. Both these powers I conceive are given to Congress by the express words of the constitution; but if I should be mistaken in this idea, they are certainly comprehended as incidental and subservient to, or in other words, "necessary and proper" for carrying into effect some of the enumerated powers.

The express words of the constitution give to Congress the power "to lay and collect taxes, duties, imposts, and excises," &c.; "to regulate commerce with foreign nations among the several States, and with the Indian tribes;" "to exercise exclusive legislation in all cases whatever, &c., over all places purchased by consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." From these clauses of the constitution, taken in connection with each other, I think Congress possesses the power to erect light-houses and custom-houses by the express words of the constitution; for both of these descriptions of houses must necessarily be included within the term "needful buildings," or the only construction which is at all applicable to these cases is, that needful buildings is the general term, and light-houses and custom-houses are particular instances or examples under the general term; or, if I may be so allowed to express my ideas, needful buildings may be considered as the genus, of which light-houses and custom-houses are particular species. The reason with the framers of the constitution for using this general term is obvious. It was, because it was impossible for them to foresee all the particular species of needful buildings which might become necessary to the salutary operations of this Government in the course of its complicated and due administration; they therefore wisely left that subject to the discussion of Congress, restrained and limited, nevertheless, by the requisition of the consent of the Legislatures of the States respectively, in every case proposed for the exercise of this discretion. That this is a plain and correct interpretation of the constitution is evinced by the concurrent opinions of every Legislature of every State, which has heretofore ceded lands for any of these objects; and it is to be remarked, that Congress has never attempted to erect any of these buildings without the constitutional requisition of the consent of the States respectively. But if this term "needful buildings" had not been expressed in the constitution, I should not hesitate to admit with these gentlemen that the erection of light-houses and custom-houses might properly be deduced from the power to lay and collect taxes, duties, &c., which are particular grants of power enumerated in the constitution. Because custom-houses are appropriately necessary to the collection of duties, and have always been deemed indispensable for that object, as are light-houses to the due regulation of commerce.

These two powers are indispensably connected with, and subservient to, particular enumerated powers, and are therefore among the means which are necessary and proper for their effectuation; and as such are given to Congress by the express words of the constitution, which are: Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof." From this course of interpretation, the gentlemen, reasoning from a supposed analogy, have asked, if Congress can derive the right to erect light-houses and custom-houses from their necessary agency in effectuating the particular powers to which they are said to be appendant or appurtenant, why may it not in the same way derive the right of granting charters of incorporation for the same objects? Or, in other words, if Congress can constitutionally erect custom-houses for the purpose, or as the necessary means of collecting duties; why may it not establish a bank for the same object, &c.? The question is admitted to be a fair one; and if a clear distinction cannot be made in the two cases, it will be admitted either that Congress may constitutionally establish a bank, or that it has heretofore transcended its powers in erecting custom-houses, &c. A clear and most obvious distinction appears to me to exist in the cases suggested by the gentlemen to be analogous, arising from the striking difference in the nature and essential character of these powers. A custom-house is in its nature incidental and subservient to the collection of duties. It is one of the common, necessary, and proper means to effect that end. It is believed that in no commercial country in the world are duties collected without them. Besides, the erection of custom-houses does not involve in it the exercise of any other higher or consequential powers. The same remarks will apply to light-houses, as among the common, necessary, and proper means for the regulation of commerce, &c.

Is the incorporation of a bank of this character? It is not among the common, necessary, and proper means of effecting either of the foregoing enumerated powers, nor of any other enumerated in the constitution; still less is it incidental or subservient to any of the enumerated powers. It wants that connection, affiliation, and subserviency, to some enumerated power, which are clearly pointed out in relation to the two powers, to which it has been said to be analogous. Besides, does granting a charter of incorporation to a bank involve no other higher or consequential power than merely erecting a needful building for collecting duties, &c.? It certainly does. It involves the power to grant charters of incorporation generally; and in this respect, principally, its character is essentially different from both of the powers cited by the gentleman. The power to grant charters of incorporation is not an incidental, subordinate, subservient power; it is a distinct, original, substantive power. It is also susceptible of the clearest definition; and not being among the enumerated powers, it seems to me that Congress can have no fair claim to its exercise in any case. If Congress had been expressly authorized to grant charters of incorporation generally, then granting a charter of incorporation to a bank would have been an instance, or among the means, of carrying into effect that enumerated power, and would have been as much connected and affiliated with it as is the erection of custom-houses with the collection of duties; but the power to grant charters of incorporation generally not being expressly given in the constitution, no particular instance involving the exercise of that power can be inferred by a fair and candid interpretation of the instrument. I do not mean to exaggerate the consequences which might result from an assumption of the power to grant charters of incorporation, &c. It is sufficient for me to say that it is a power of primary importance; that it involves as many incidental powers in its exercise as any one of the enumerated powers; that it is equal, if not paramount, to any; and, therefore, in my judgment, cannot be assumed by fair construction as incidental and subservient to any; and, of course, not as among the necessary and proper means for carrying any into effect. In fact, in its nature it does not in the smallest degree partake of the derivative, incidental character. It is original, substantive, distinct in itself, and susceptible of the plainest definition. Hence, whilst I am willing to admit that a power, which is in its nature incidental and subservient to any enumerated power, and also among the necessary and proper means for carrying it into effect, may be exercised by Congress without the express words of the constitution, I should be very unwilling to admit that Congress should also exercise a power neither incidental nor subservient to any of the enumerated powers, nor among the necessary and proper means for carrying any into effect; still less should I be inclined to this admission, when the power thus proposed to be derived, incidentally or constructively, involves in it the exercise of almost unlimited powers. To illustrate my idea still further in this respect, I would observe, that the power to regulate descents, and to regulate the distribution of intestates, I conceive to be original, distinct, substantive powers; and, being among the powers which could in all respects be limited by the geographical boundaries of the individual States, and were therefore among the powers reserved to the management of the States, might as easily be assumed by Congress as incidental to some one of the enumerated powers, as the assumption of the power to grant charters of incorporation, which I conceive was, for the same reason, left to the management of the States. I believe no gentleman will contend that Congress can, under any candid construction, go so far in relation to those powers; nor do I see how it can in relation to the power of granting charters of incorporation.

FRIDAY, February 15.

_Bank of the United States._

The Senate resumed, as in Committee of the Whole, the bill to amend and continue in force an act, entitled "An act to incorporate the subscribers to the Bank of the United States," passed on the 25th day of February, 1791.

Mr. CLAY.--Mr. President: When the subject involved in the motion now under consideration was depending before the other branch of the Legislature, a disposition to acquiesce in their decision was evinced. For although the committee who reported this bill had been raised many weeks prior to the determination of that House on the proposition to recharter the bank, except the occasional reference to it of memorials and petitions, we scarcely ever heard of it. The rejection, it is true, of a measure brought before either branch of Congress, does not absolutely preclude the other from taking up the same proposition; but the economy of our time, and a just deference for the opinion of others, would seem to recommend a delicate and cautious exercise of this power. As this subject, at the memorable period when the charter was granted, called forth the best talents of the nation--as it has, on various occasions, undergone the most thorough investigation, and as we can hardly expect that it is susceptible of receiving any further elucidation, it was to have been hoped that we should have been spared a useless debate. This was the more desirable because there are, I conceive, much superior claims upon us for every hour of the small portion of the session yet remaining to us. Under the operation of these motives, I had resolved to give a silent vote, until I felt myself bound, by the defying manner of the arguments advanced in support of the renewal, to obey the paramount duties I owe my country and its constitution; to make one effort, however feeble, to avert the passage of what appears to me a most unjustifiable law. After my honorable friend from Virginia (Mr. GILES) had instructed and amused us with the very able and ingenious argument which he delivered on yesterday, I should have still forborne to trespass on the Senate, but for the extraordinary character of his speech. He discussed both sides of the question, with great ability and eloquence, and certainly demonstrated to the satisfaction of all who heard him, both that it was constitutional and unconstitutional, highly proper and improper to prolong the charter of the bank. The honorable gentleman appeared to me in the predicament in which the celebrated orator of Virginia, Patrick Henry, is said to have been once placed. Engaged in a most extensive and lucrative practice of the law, he mistook in one instance the side of the cause on which he was retained, and addressed the court and jury in a very splendid and convincing speech in behalf of his antagonist. His distracted client came up to him whilst he was progressing, and interrupting him, bitterly exclaimed, "you have undone me! you have ruined me!"--"Never mind, give yourself no concern," said the adroit advocate; and turning to the court and jury, continued his argument by observing, "May it please your honors, and you, gentlemen of the jury, I have been stating to you what I presume my adversary may urge on his side. I will now show you how fallacious his reasoning and groundless his pretensions are." The skilful orator proceeded, satisfactorily refuted every argument he had advanced, and gained his cause! A success with which I trust the exertion of my honorable friend will on this occasion be crowned.

It has been said by the honorable gentleman from Georgia (Mr. CRAWFORD) that this has been made a party question, although the law incorporating the bank was passed prior to the formation of parties, and when Congress was not biased by party prejudices. [Mr. CRAWFORD explained. He did not mean that it had been made a party question in the Senate. His allusion was elsewhere.] I do not think it altogether fair to refer to the discussions in the House of Representatives, as gentlemen belonging to that body have no opportunity of defending themselves here. It is true that this law was not the effect, but it is no less true that it was one of the causes of the political divisions of this country. And if, during the agitation of the present question, the renewal has, on one side, been opposed on party principles, let me ask if, on the other, it has not been advocated on similar principles? Where is the Macedonian phalanx, the opposition in Congress? I believe, sir, I shall not incur the charge of presumptuous prophecy, when I predict that we shall not pick up from its ranks one single straggler! And if, on this occasion, my worthy friend from Georgia has gone over into the camp of the enemy, is it kind in him to look back upon his former friends, and rebuke them for the fidelity with which they adhere to their old principles?

I shall not stop to examine how far a representative is bound by the instructions of his constituents. This is a question between the giver and receiver of the instructions. But I must be permitted to express my surprise at the pointed difference which has been made between the opinions and instructions of State Legislatures, and the opinions and details of the deputations with which we have been surrounded from Philadelphia. Whilst the resolutions of those Legislatures--known, legitimate, constitutional and deliberative bodies--have been thrown into the back ground, and their interference regarded as officious, these delegations from self-created societies, composed of whom nobody knows, have been received by the committee with the utmost complaisance. Their communications have been treasured up with the greatest diligence. Never did the Delphic priests collect with more holy care the frantic expressions of the agitated Pythia, or expound them with more solemnity to the astonished Grecians, than has the committee gathered the opinions and testimony of these deputies, and through the gentleman from Massachusetts, pompously detailed them to the Senate! Philadelphia has her immediate representatives, capable of expressing her wishes upon the floor of the other House. If it be improper for States to obtrude upon Congress their sentiments, it is much more highly so for the unauthorized deputies of fortuitous congregations.

The first singular feature that attracts attention in this bill is the new and unconstitutional veto which it establishes. The constitution has required only, that after bills have passed the House of Representatives and the Senate, they shall be presented to the President for his approval or rejection, and his determination is to be made known in ten days. But this bill provides, that when all the constitutional sanctions are obtained, and when according to the usual routine of legislation it ought to be considered as a law, it is to be submitted to a new branch of the Legislature, consisting of the President and twenty-four Directors of the Bank of the United States, holding their sessions in Philadelphia, and if they please to approve it, why then it is to become a law! And three months (the term allowed by our law of May last, to one of the great belligerents for revoking his edicts, after the other shall have repealed his) are granted them to decide whether an act of Congress shall be the law of the land or not! An act which is said to be indispensably necessary to our salvation, and without the passage of which, universal distress and bankruptcy are to pervade the country. Remember, sir, that the honorable gentleman from Georgia has contended that this charter is no contract. Does it, then, become the representatives of the nation to leave the nation at the mercy of a corporation? Ought the impending calamities to be left to the hazard of a contingent remedy?

This vagrant power to erect a bank, after having wandered throughout the whole constitution in quest of some congenial spot whereupon to fasten, has been at length located by the gentleman from Georgia on that provision, which authorizes Congress to lay and collect taxes, &c. In 1791, the power is referred to one part of the instrument; in 1811, to another. Sometimes it is alleged to be deducible from the power to regulate commerce. Hard pressed here, it disappears, and shows itself under the grant to coin money. The sagacious Secretary of the Treasury in 1791 pursued the wisest course--he has taken shelter behind general, high-sounding, and imposing terms. He has declared in the preamble to the act establishing the bank, that it will be very conducive to the successful conducting of the national finances; will tend to give facility to the obtaining of loans, and will be productive of considerable advantage to trade and industry in general. No allusion is made to the collection of taxes. What is the nature of this Government? It is emphatically federal, vested with an aggregate of specified powers for general purposes, conceded by existing sovereignties, who have themselves retained what is not so conceded. It is said that there are cases in which it must act on implied powers. This is not controverted, but the implication must be necessary, and obviously flow from the enumerated power with which it is allied. The power to charter companies is not specified in the grant, and I contend is of a nature not transferable by mere implication. It is one of the most exalted attributes of sovereignty. In the exercise of this gigantic power we have seen an East India Company created, which has carried dismay, desolation, and death throughout one of the largest portions of the habitable world. A company which is, in itself, a sovereignty--which has subverted empires and set up new dynasties--and has not only made war, but war against its legitimate sovereign! Under the influence of this power, we have seen arise a South Sea Company, and a Mississippi Company, that distracted and convulsed all Europe, and menaced a total overthrow of all credit and confidence, and universal bankruptcy. Is it to be imagined that a power so vast would have been left by the wisdom of the constitution to doubtful inference? It has been alleged that there are many instances, in the constitution, where powers, in their nature incidental, and which would have necessarily vested along with the principal power, are nevertheless expressly enumerated; and the power "to make rules and regulations for the government of the land and naval forces," which, it is said, is incidental to the power to raise armies and provide a navy, is given as an example. What does this prove? How extremely cautious the convention were to leave as little as possible to implication. In all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a common nature. The incidental power ought to be strictly subordinate and limited to the end proposed to be attained by the specified power. In other words, under the name of accomplishing one object which is specified, the power implied ought not to be made to embrace other objects which are not specified in the constitution. If then you could establish a bank to collect and distribute the revenue, it ought to be expressly restricted to the purpose of such collection and distribution. It is a mockery, worse than usurpation, to establish it for a lawful object, and then extend it to other objects which are not lawful. In deducing the power to create corporations, such as I have described it, from the power to collect taxes, the relation and condition of principal and incident are prostrated and destroyed. The accessory is exalted above the principal. As well might it be said that the great luminary of day is an accessory, a satellite to the humblest star that twinkles forth its feeble light in the firmament of heaven!

Suppose the constitution had been silent as to an individual department of this Government, could you, under the power to lay and collect taxes, establish a judiciary? I presume not; but if you could derive the power by mere implication, could you vest it with any other authority than to enforce the collection of the revenue? A bank is made for the ostensible purpose of aiding in the collection of the revenue, and while it is engaged in this, the most inferior and subordinate of all its functions, it is made to diffuse itself through society, and to influence all the great operations of credit, circulation, and commerce. Like the Virginia justice, you tell the man, whose turkey had been stolen, that your book of precedents furnishes no form for his case, but then you will grant him a precept to search for a cow, and when looking for that he may possibly find his turkey! You say to this corporation, we cannot authorize you to discount--to emit paper--to regulate commerce, &c. No! Our book has no precedents of that kind. But then we can authorize you to collect the revenue, and, while occupied with that, you may do whatever else you please!

What is a corporation such as the bill contemplates? It is a splendid association of favored individuals, taken from the mass of society, and invested with exemptions and surrounded by immunities and privileges. The honorable gentleman from Massachusetts (Mr. LLOYD) has said that the original law, establishing the bank, was justly liable to the objection of vesting in that institution an exclusive privilege, the faith of the Government being pledged that no other bank should be authorized during its existence. This objection he supposes is obviated by the bill under consideration; but all corporations enjoy exclusive privileges--that is, the corporators have privileges which no others possess; and if you create fifty corporations instead of one, you have only fifty privileged bodies instead of one.

I contend that the States have the exclusive power to regulate contracts, to declare the capacities and incapacities to contract, and to provide as to the extent of responsibility of debtors to their creditors. If Congress have the power to erect an artificial body and say it shall be endowed with the attributes of an individual--if you can bestow on this object of your own creation the ability to contract, may you not, in contravention of State rights, confer upon slaves, infants, and femes covert, the ability to contract? And if you have the power to say that an association of individuals shall be responsible for their debts only in a certain limited degree, what is to prevent an extension of a similar exemption to individuals? Where is the limitation upon this power to set up corporations? You establish one, in the heart of a State, the basis of whose capital is money. You may erect others whose capital shall consist of land, slaves, and personal estate, and thus the whole property within the jurisdiction of a State might be absorbed by these political bodies. The existing bank contends that it is beyond the power of a State to tax it, and if this pretension be well founded, it is in the power of Congress, by chartering companies, to dry up the whole of the sources of State revenue. Georgia has undertaken, it is true, to levy a tax on the branch within her jurisdiction, but this law, now under a course of litigation, is considered as invalid. The United States own a great deal of land in the State of Ohio; can this Government, for the purpose of creating an ability to purchase it, charter a company? Aliens are forbidden, I believe, in that State, to hold real estate--could you, in order to multiply purchasers, confer upon them the capacity to hold land, in derogation of the local law? I imagine this will hardly be insisted upon; and yet there exists a more obvious connection between the undoubted power, which is possessed by this Government, to sell its land, and the means of executing that power, by increasing the demand in the market, than there is between this bank and the collection of a tax. This Government has the power to levy taxes--to raise armies--provide a navy--make war--regulate commerce--coin money, &c. It would not be difficult to show as intimate a connection between a corporation, established for any purpose whatever, and some one or other of those great powers, as there is between the revenue and the bank of the United States.

Let us inquire into the actual participation of this bank in the collection of the revenue. Prior to the passage of the act of 1800, requiring the collectors of those ports of entry, at which the principal bank or any of its offices are situated, to deposit with them the custom-house bonds, it had not the smallest agency in the collection of the duties. During almost one moiety of the period to which the existence of this institution was limited, it was noways instrumental in the collection of that revenue, to which it is now become indispensable! The collection, previous to 1800, was made entirely by the collectors; and even at present, where there is one port of entry, at which this bank is employed, there are eight or ten at which the collection is made as it was before 1800. And, sir, what does this bank or its branches when resort is had to it? It does not adjust with the merchant the amount of the duty, nor take his bond; nor, if the bond is not paid, coerce the payment by distress or otherwise. In fact, it has no active agency whatever in the collection. Its operation is merely passive; that is, if the obligor, after his bond is placed in the bank, discharges it, all is very well. Such is the mighty aid afforded by this tax-gatherer, without which the Government cannot get along! Again, it is not pretended that the very limited assistance which this institution does in truth render, extends to any other than a single species of tax, that is, duties. In the collection of the excise, the direct and other internal taxes, no aid was derived from any bank. It is true, in the collection of those taxes, the farmer did not obtain the same indulgence which the merchant receives in paying duties. But what obliges Congress to give credit at all? Could it not demand prompt payment of the duties? And in fact does it not so demand in many instances? Whether credit is given or not, is a matter merely of discretion. If it be a facility to mercantile operations (as I presume it is) it ought to be granted. But I deny the right to ingraft upon it a bank, which you would not otherwise have the power to erect. You cannot create the necessity of a bank, and then plead that necessity for its establishment. In the administration of the finances, the bank acts simply as a payer and receiver. The Secretary of the Treasury has money in New York and wants it in Charleston; the bank will furnish him with a check, or bill, to make the remittance, which any merchant would do just as well.

I will now proceed to show by fact, actual experience, not theoretic reasoning, but by the records themselves of the Treasury, that the operations of that department may be as well conducted without as with this bank. The delusion has consisted in the use of certain high-sounding phrases, dexterously used on the occasion. "The collection of the revenue"--"The administration of the finance"--"The conducting the fiscal affairs of the Government," the usual language of the advocates of the bank, extort express assent, or awe into acquiescence, without inquiry or examination into its necessity. About the commencement of this year there appears, by the report of the Secretary of the Treasury of the 7th of January, to have been a little upwards of two millions four hundred thousand dollars in the Treasury of the United States; and more than one-third of this whole sum was in the vaults of local banks. In several instances, where an opportunity existed of selecting the bank, a preference has been given to the State bank, or at least a portion of the deposits has been made with it. In New York, for example, there was deposited with the Manhattan Bank $188,670, although a branch bank is in that city. In this District, $115,080 were deposited with the bank of Columbia, although here also is a branch bank, and yet the State banks are utterly unsafe to be trusted! If the money, after the bonds are collected, is thus placed with these banks, I presume there can be no difficulty in placing the bonds themselves there, if they must be deposited with some bank for collection, which I deny.

Again, one of the most important and complicated branches of the Treasury Department is the management of our landed system. The sales have some years amounted to upwards of half a million of dollars, are generally made upon credit, and yet no bank whatever is made use of to facilitate the collection. After it is made, the amount in some instances has been deposited with banks, and according to the Secretary's report, which I have before adverted to, the amount so deposited was in January upwards of three hundred thousand dollars, not one cent of which was in the vaults of the Bank of the United States, or in any of its branches, but in the Bank of Pennsylvania, its branch at Pittsburg, the Marietta Bank, and the Kentucky Bank. Upon the point of responsibility, I cannot subscribe to the opinion of the Secretary of the Treasury, if it is meant that the ability to pay the amount of any deposits which the Government may make under any exigency, is greater than that of the State banks; that the accountability of a ramified institution, whose affairs are managed by a single head, responsible for all its members, is more simple than that of a number of independent and unconnected establishments, I shall not deny; but, with regard to safety, I am strongly inclined to think it is on the side of the local banks. The corruption or misconduct of the parent, or any of its branches, may bankrupt or destroy the whole system, and the loss of the Government in that event will be of the deposits made with each; whereas in the failure of one State bank the loss will be confined to the deposit in the vaults of that bank. It is said to have been a part of Burr's plan to seize on the branch bank at New Orleans. At that period large sums, imported from La Vera Cruz, are alleged to have been deposited with it, and if the traitor had accomplished his design, the Bank of the United States, if not actually bankrupt, might have been constrained to stop payment.

It is urged by the gentleman from Massachusetts, (Mr. LLOYD,) that as this nation progresses in commerce, wealth, and population, new energies will be unfolded, new wants and exigencies will arise, and hence he infers that powers must be implied from the constitution. But, sir, the question is, shall we stretch the instrument to embrace cases not fairly within its scope, or shall we resort to that remedy, by amendment, which the constitution prescribes?