« PreviousContinue »
Oct. 13, 1837.)
[H. OF R.
merce," &c. I will conclude my remarks on this clause, whatever kind or description, a standard of value? The by reading from Mr. Jefferson's official opinion on the only standard or measure of value known to the constituconstitutionality of a United States bank, the following tion is gold and silver ; a standard, by the way, which has extract:
been recognised and adopled from the carliest ages, by all “To erect a bank, and to regulate commerce, are very civilized nations throughout the world. If Congress are audifferent acts. He who erects a bank creates a subject of thorized to incorporate a company, which shall possess the incommerce in its bills; so does he who makes a bushel of dependent and sovereign right to coin or inanufacture money, wheat, or digs a dollar out of the mines. Yet neither of and regulate the value thereof, why may they not also inthese persons regulate commerce thereby. To make a vest such corporations with power to control the commerce thing wbich may be bought and sold, is not to prescribe of the country in all such exchangeable articles or comregulations for buying and selling. Besides, if this were modities that may properly come under the standard of an exercise of the power of regulating commerce, it would weights and measures ? Why not go still farther-for if be void, as extending as much to the internal commerce Congress can delegate to a corporation this prime attribute • of every State, as to its external. For the power given to of sovereignty, the establishment of a standard of value-Congress by the constitution does not extend to the inter- why not, I say, extend it to every other specified power nal regulation of the commerce of a State, (that is to say, of ihe constitution ? For I repeat it, if Congress have the of the commerce between citizen and citizen,) which re power, under this or any other clause of the constitution, mains exclusively with its own Legislature; but to its ex to delegate to a corporation of its own creating any one of ternal commerce only, that is to say, its commerce with the enuinerated powers, they may, with equal propriety, another State, or with foreign nations, or with Indian delegate to it every other power. Let Congress recognise tribes. Accordingly, the bill does not propose the measure this construction, and what would be the consequence ? as a regulation of trade,' but as productive of considera- Sir, we should no longer be a nation of freemen, living ble advantage to trade.''
under a free constitution ; but the slaves of soulless corpoSome have attempted to locate the power to incorporate rations. An independent and irresponsible power would 8 national hank—Mr. McDuffie, for example, in his re be established in the land ; the restraints and limitations port of 1830, as chairman of the Committee of Ways and imposed upon Congress by the constitution would be Means-on the fifth article of the eighth section of the con overthrown; and the foundations of your Government not stitution, which gives Congress the power “ to coin money, only rocked, but riven. regulate the value thereof, and of foreign coin, and fix the Sir, let us examine a little further the extraordinary standard of weights and measures."
argument urged by Mr. McDuffie in support of his most “ The power to 'coin money, and fix the value thereof,' extraordinary position. “Coin," says he, “was regarded, is expressly and exclusively vested in Congres. This grant at the period of framing the constitution, as synonymous was evidently intended to invest Congress with the power with currency, as it was then generally believed that bank of regulating the circulating medium. Coin' was regard notes could only be maintained in circulation by being the ed, at the period of framing the constitution, as synony, true representatives of the precious metals.” What, sir ! mous with currency,' as it was then generally believed coin and currency--coin and paper money--coin and bank that bank notes could only be maintained in circulation by notes regarded as one and the same thing, as synonymous, being the true representative of the precious metals. The at the time of framing the constitution! What! " generword.coin,' therefore, must be regarded as a particular ally believed at that period,” that paper money was "the term, standing as the representative of a general idea.” true representative of the precious metals !” Sir, does not
Now, sir, if “coin and currency are synonymous," the who e history of that period contradict these reckless signifying the same thing; if coin be currency and currency and unfounded assertions ? I appeal to the historical recolcoin, Congress is vesteil with the power “ to coin money, lections of every gentleman on this floor, if it does not. Is regulate the value thereof, and of foreign currency.
Ac-it not notorious that the framers of the constitution wero cording to this reading, Congress is authorized, not only emphatically hard-money men? Is it not notorious that to regulate the currency of this country, which consists gold and silver are the only currency recognised by the principally of bank notes, but also the currency of other constitution? Is it not known to all, that Congress have nations, whatever symbols of industry they may select as no power, under the constitution, to authorize any indimediums of exchange. The chairman of the Committee vidgal, company, or corporation, to issue federal paper of Ways and Means appears to have been as much at fault money? Every part of the constitution which relaies 10 in his knowledge of the currency, properly considered, as the subject of money is clear, explicit, and unequivocal. of the character and powers of the constitution ; otherwise The intention of the framers of the constitution, on this subhe would not have confounded bank notes with coin-the ject, is not only made manifest by the letter of the constiiu. pretended representative with the thing represented. I say tion itself, but also by a law passed immediately after the the pretended representative, because the amount of paper meeting of the first Congress under the constitution, which money afloat, exceeds at least five times the amount of defines the kind of money to be received by the federal specie wherewith to redeem it. It is not, therefore, strictly Treasury. This law provides, “ that the fees and duties speaking, a representative of coin or real money. It has payable to the Government, shall be received in gold and become rather an instrument of speculation, than a meas silver only." This statute, be it remembered, was passed ure or representative of value. The currency of a coun within one month after Congress had assembled. And, . try, in order to be sound, as every political economist again, the law in reference to that part of the revenue acknows, ought to be equal to the precious metals, or to cruing froin the sale of the public lands, passed in 1800, consist of the metals themselves. But the paper currency declares that specie and evidences of the public debi, shall of this country is, and was, even during the existence of alone be received in payment of such lands. These two the late United Stales Bank, but the mere supposititious acts relating to the subject of the federal revenue, passed representative of property. That paper money can never immediately after the adoption of the constitution, ought become a proper standard of value, is evident from the fact and must be regarded as unerring interpreters of that inthat it is constantly liable to fuctuation, depreciation, ex strument, so far as the point immediately under considerapansion, and contraction. And would it be doing justice tion is concerned. If the members of the first Congress to the framers of the constitution in their sagacity and regarded paper money and "coin" as synonymous, why integrity--so to construe that instrument, or any part did they enact that gold and silver coin only should be rethereof, as to authorize Congress to make paper credit, of 'ceived in payment of the federal revenue ? If they even
considered paper money, or bank notes, as synonymous tion, of whatever description? Is it probable that wise with coin, as contended by Mr. McDuffie, they appeared, and patriotic men would have acted so inconsistently-s0 at all events, to discriminate between paper coin und gold absurdly? “It is known,” says Mr. Jefferson, " that the and silver coin, by making the latter only receivable in very power now proposed as a means, was rejected as an payment of the public dues. So that “gold and silver end, by the convention which framed the constitution." coin,” and not paper coin, appear to be the only currency “ A proposition," he adds, “ was made to them to auknown to the constitution; or to the laws of Congress thorize Congress to open canals, and an amendatory one to which define the kind of currency to be received in pay- empower them to incorporate. But the whole was rejectment of the federal revenues.
ed ; and one of the reasons of rejection urged in debate I would now call the attention of the committee, for a was, that they then would have power to erect a bank." few moments, to the last paragraph of the 8th section of Here, then, sir, is authority not to be questioned, not to be the constitution : "To make all laws wbich shall be ne controverted, that the power to erect a bank, “ proposed as cessary and proper to carry into effect the foregoing pow a means, was rejected as an end," by the very authors of ers." It will not be pretended, I apprehend, that this the constitution itself The fact, therefore, that the clause vests in Congress any new substantive power; framers of the constitution deliberately and designedly or that it in anywisc supersedes or invalidates any one of withheld from Congress the power to incorporate a bank, the enumerated powers. This position would be too ex utterly excludes the idea that such power was intended to travagant—too monstrous, for even modern sophists to be granted, either expressly or incidentally, specifically or take. It will, I trust, be conceded, that the powers com impliedly. To contend that a power, intentionally withprehended in this clause are subordinate and incidental in held from Congress by the framers of the constitution, can their nature, merely conferring on Congress the right to he rightfully exercised by Congress, is to outrage common exercise such means as shall be strictly necessary and prop sense, and all approved rules of coustruction. Let the er to execute the express powers; or, without which, the principle be once established, that neither the express letter powers expressly granted cannot be carried into effect.
of an instrument, nor the evident intention of its author or This point yielded, as sielded it must be, the question authors, is to be taken as evidence of its meaning, and all arises, whether a national bank be a necessary and proper written constitutions, contracts, laws, and charters, become means to carry into effect any of the specified powers ? In a dead letter. I would entreat gentlemen to consider well order to show that it is necessary, essential, indispensable, before they give further countenance to such doctrines. I it must be maile to appear that the enumerated powers can would respectfully remind them, that, by disregarding the not be carried into effect independent of a national bank. express provisions of the constitution, and the evident inExperience has demonstrated that they can, one and all. tention of its framers, and resorting to construction and And, in the second place, in order to prove that a national implication alone for authority, they will eventually raise bank is a proper means, it must be shown that the power up a monument of folly, which, if not as impious, will to create it is an incidental and not a substantive power; create as much confusion as that which towered on which, I apprehend, cannot be done. No, sir, it cannot Shinar's plain. Let it not be supposed, however, that I be shown that the power to grant charters of incorporation, would deny the existence of all implied powers. I am is merely an incidental or subsidiary power. Among all aware, sir, that the convention, in framing the constitution, the powers enumerated in the constitution, I defy gentle marked out and enumerated the principal ends of Governmen to designate a solitary one that is capable of being ment, without particularizing all ibe means by which these wielded with more potent effect; not for good, but for evil. ends were to be secured. A discretionary power, to a cerIf Congress possess the power to grant a charter of incor- tain extent, must necessarily be left with Congress. The poration, in their national cap city, in one case, they do constitution, for example, has vested in Congress the powin another. If they possess it at all, they possess it with er to raise and support armies. But at what time armies out limit, and can extend it, whenever they think proper, are to be raised, to what extent, and for what cause this to any and every object whatever; whether it be in deroga- power is to be exercised, it has necessarily left to be detertion of State and individual rights, to a Mississippi land mined by the national legislature. Many other cases monopoly, to a monopoly of the trade of the Indies, or to might be cited, where the means necessary to carry into the cod and whale fisheries. Sir, what is the distinguish - effect the enumerated powers are left to the selection of ing characteristics of incorporations ? They are essential Congress. But the mean, or incidental power, ought, in ly aristocratic in their nature; being invested with exclu- all cases, to bear a due relationship to the specified power. sive privileges—privileges withheld from the rest of society. It was well remarked by a distinguished Senator (Mr. They are allowed to purchase and hold real estate ; which CLAY) in debate, that: the United States themsclves cannot do without obtaining “ In all cases where incidental powers are acted upon, the consent of the States. They are allowed to hold pro- | the principal and incidental ought to be 'congenial with perty in mortmain, and are capable of being so organized or each other, and partake of a common nature. The inci. constituted as to change the course of descent in the several
dental power ought to be strictly subordinale, 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 beld, and In other words, under the name of accomplishing one obso carefully, guardeil 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 perniission 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. restricted to the purpose of such collection and distribution. porate-a power of such great and fearful magnitude, and “I contend that the Siales have the exclusive power to capable of producing so much mischief-is, after all, a
regulate contracts, to declare the capacities and incapacities mere incident of a power! Think you, sir, that if the to contract, and to provide as to the extent of responsibility members of the convention who framed the constitution of debtors to their creditors. If Congress have the power had considered a national bank either a proper or necessary to erect an artificial body, and say it shall be endowed with means to carry into effect any of the enumerated puw the attributes of an individual—if you can bestow on this ers of the constitution, that they would have rejected a direct proposition to establish a bank, or refused to in
object of your own creation the ability to contract, may vest Congress with power to grant charters of incorpora- ' slaves, infants, and fêmes coverte, the ability to con
you not, in contravention of State rights, confer upon
tract? And if you have the power to say that an as It is contended by another, but similar class of moralists, sociation of individuals shall be responsible for their debts that the constitution ought to be so construed, as to expanit only in a certain limited degree, what is to prevent an ex with the growth of the country, and conform to its diversitension of a similar exemption to individuals ? Where is fied and mutable relations. Against this doctrine, also, I the limitation upon this power to set up corporations ? enter my protest. It is too ductile to be either safe or You establish one in the heart of a State, the basis of sound; too liable to be drawn out to dangerous lengths, whose capital is money. You may erect others, whose and bent to mischievous purposes. Sir, what is the nature capital shall consist of land, slaves, and personal estates, of the obligation under which we act? What is required and thus the whole property within the jurisdiction of a of us before entering upon our duties as representatives? State might be absorbed by these political bodies. The It is required, by the constitution, that “the Senators and existing bank contends, that it is beyond the power of a Representatives, and the members of the several State State to tax it; and if this pretension be well founded, it is Legislatures, and all Executive and Judicial officers, both in the power of Congress, by chartering companies, to dry of the United States, and of the several States, shall be up all the sources of State revenue."
bound by oath or affirmation to support this constitution." Yes, sir, the honorable Senator was right, when he said Sir, the requisition is emphatic and positive-couched in that the incidental power onght to be strictly subordinate, language not to be misunderstood. Our duty is palpable ; and limited to the end proposed to be attained by the speci- we cannot err ignorantly. We are bound, by all the oblified power. He was right in saying, that in all cases gations which an oath imposes, to " support this constituwhere incidental powers are acted upon, the principal and tion." We are not required to support” the forced conincidental ought to be congenial with each other, and par- structions that may be given by a pliant court, or by a take of a common nature. And he would have been careless or venal legislature. We are not called upon to equally right, had he added, that no means can be proper “ support” a constitution corrupted by congressional interthat are not compatible with the spirit of the constitution polations, or distorted and sophisticated by the legal mumand the genius of our Government. But I will no longer meries of the bar or the bench. Nor are we obligated to detain the committee on this branch of the subject, having support a constitution that may be construed to change with already shown, as I believe, beyond all cavil, that the times and circumstances; that may grow with the growth, clause which has been last examined does not conier on and decay with the deciine of the country: but we are Congress power to incorporate a moneyed institution of bound by our solemn oaths or affirmations to “ support any description.
this constitution" in its purity and integrity, unsophisticaI will now proceed to examine arguments—not of a con ed and oncontaminated. Sir, there are two classes of men stitutional character, nor strictly applicable--but neverthe- in this wo wh 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 Slates bank, when no longer able to find le- precedent; the other, the mentally indulent, 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, fpurn all mental iyranny, 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 ine nut be 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 wlien regarded as an obligatory rule in hests the laws, his standard the mistletoe, wbich 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 cxtent, 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 dictale.
Nor, as a imical to reason ?
general rule, ought decisions thus made to be lightly reIt is alleged, by some of the servile brain-bound slaves garded by succeeding judges, especially in cases where the of precedent, that Congress would be justified in charter-points in litigation are analogous. But, sir, while I wiling a bank, (at the present time,) whether authorized by lingly admit that precedent may be properly referred to as the constitution or not, because similar institutions have authority in the administration of the law, I utterly deny hitherto existed. They contend that, inasmuch as those that it is necessarily obligatory upon legislative bodies.it institutions were established by Congress, submitted to by matters not, therefore, whether a precedent in favor of a the people, acquiesced in by the States, and sanctioned - United States bank be found in the acts of former legislaby the Supreme Court, they were recognised by all the tures, or in the decisions of the Supreme Court, it is, in acts which imply the sanction of organic law. Sir, I can either case, incompetent to control the acts of this body. not, for one, yield assent to doctrines so false, so loose, so Congress, I trust, will never be willing to acknowledge the licentious I deny that the great body of the American binding force of precedent, in the decision of constitutional people, the democracy, are, or ever were, in favor of a questions. But, sir, admitting, for the sake of argument, chartered money monopoly, whether State or national. precedent to be good authority, what does it prove in this The insinuation is a rank and insolent libel on their patri- case? I apprehend that it would rather make against than otism, their intelligence, and their integrity. No, sir, the in favor of a bank. We find, in 1811, when a renewal of frank and honest-hearted democrats of this country utterly the charter granted in 1791 was applied for, that its constireject and abhor the doctrine, that time or precedent can tutionality was discussed, and that the application was resanctify iniquity, or justify any infraction of the social | jected. And further, when the bank petitioned Congress compact.
for time to wind up its affairs, the petition was referred to Vol. XIV.-100
H. OF R.]
(Oct. 13, 1837.
a committee who reported against the application, urging dinate departments. I answer, by the people through the that it was unconstitutional, and the report was concurred ballot boxes. For let it be borne in mind, that this Gov. in. In 1813, when the subject of a bank was again be ernment is emphatically a Government of the people: it fore Congress, and while under discussion in the House of emanates from the people, its powers are granted by the Representatives, a distinguished gentleman from Massa | people, and are to be exercised for their benefit; and, so chusetts, (Mr. WEBSTER,] then a member of the House, at least as the representative department is concerned, declared in his place, while opposing the bank, that the in pursuance of their instructions, whenever they may renewal of the bank charter had been refused, because it think proper to exercise the right. All the departments of was-unconstitutional; and Congress again decided against Government, the Executive, the Legislative, and the Jua bank. In 1832, the bill to renew the charter granted in diciary, were established by the people to transact their 1816 was vetoed by the late President, and subsequently business, agreeably to the powers bestowed. Consequentrejected by Congress, both alleging that it was unconstitu- ly, when contradictory opinions are entertained by the sev. tional. So that the precedents, so far as the action of Con- eral departments, with regard to the extent of their constigress is concerned, are equal. If reference be had to the
tutional powers, the people are the only tribunal to which States, we shall find that a large majority of them bave the matter in dispute can be properly referred ; and their been opposed, on constitutional ground, to a United States decision, proclaimed through the ballot box, must be final bank. Whatever authority, therefore, may attach to pre- and conclusive. I am aware, sir, that this doctrine will cedent, makes against a bank. But the Supreme Court not be very popular in certain quarters; but I conceive it, has decided that Congress have power to incorporate a bank; nevertheless, to be in accordance with the genius and spirit and these decisions are appealed to with as much apparent of our institutions, and maintainable upon strict deusocratic triumph, by the advocates of a national bank, as if the de- principles. crees of that court were binding on Congress, and settled It being admitted, then, that the several departments are the constituti nal question forever. Sir, what are we to co-ordinate, and their opinions, therefore, not binding upunderstand from this? Is it meant to be insinuated that
on each other, it remains to be considered what weight is the three departments of Government are not co-ordinate, due to the decisions of the judiciary in favor of the constiand that the judiciary is clothed with the exclusive attri- tutionality of a United States bank. Sir, whatever imporbutes of supremacy ? that neither the Executive nor the
tance I might be willing to attach to the opinions of such Legislative departments are allowed to judge of their own an enlightened tribunal on doubtful and intricate subjects, powers, when acting within their appropriate spheres, and
I am unwilling to concede to them a controlling influence in the discharge of their official duties? Is it intended in the decision of a question like the one under discussion, that the understandings, the oaths, and the consciences of when I am furnished with a written constitution for my the other two departments, are to be silenced and overawed guide, and in which every delegated power is distinctly and by the despotic fiat of the bench? This heretical, servile, accurately delineated, boih to the natural and the mental and detestable doctrine is industriously propogated, I am eye. aware ; not boldly and openly, but clandestinely and in-Sir, I have examined this instrument intently, anxiously, sidiously, by hints, innuendoes, and mysterious givings out. and, I trust, honestly ; but nowhere do I find in it a power God forbid, patriotism forbid, that it should ever he acknowl.
to grant charters of incorporation. Sir, I affirm, and hold edged by the Executive or Legislative departments, or re that I am able to maintain, in defiance of all the arts of ceived by the American people. For one, I reject it with sophistry and mystification, that the convention which disdain. I deny, and dely mortal man to prove, that the framed the constitution did neither grant any express powdecision of the Supreme Court can scule a constitutional
er authorizing Congress to charter a national bank, nor inquestion in any other than in a judicial sense. It cannot tend that any power whatever, whether incidental or othaffect legislation cannot control the decisions of Congress, erwise, should be exercised for such purpose. And further, or of the Executive-cannot control the sovereign and ab that the convention positively rejected a direct proposition solute power of the people, nor of their representatives.
to empower Congress to incorporate a national bank, and It is just as much the province of Congress, or of the Ex- repeatedly rejected written propositions to grant charters of ecutive, to decide upon the constitutionality of any matter incorporation. But let us first examine for a moment the that may properly come before them for their action, as it ground assumed by the judiciary, in arguing the constituis for the judiciary when it comes before them for decision. tionality of a national bank. By reference to a decision Congress is no more bound by the opinions of the Supreme had in the case of McCulloch against the State of Maryjudges than are the judges by the opinions of Congress. land, it will be found that the principles upon which the The constitution vests “ the judicial power in a Supreme judiciary rely, are substantially the same which prevailed Court, and in such inferior courts as Cougress may from in 1791, and ushered into being the first United States time to time ordain and establish.” In all instances, there- Bank. The main point of the argument of General Hamfore, where suits are prosecuted in the courts of the United ilton, as well as that of the Supreme Court, in support of States, of which the courts have jurisdiction, and decided the constitutionality of a bank, turns upon the alleged neby the Supreme Court, all such decisions are final. That cessity of the measure. The judges, as I understand them, being the court of the last resort, the parties cannot appeal, acknowledge the absence of all express constitutional aubut in all cases are bound to abide by such decision. But, thority, admit that the power can only be derived by imas has been before remarked, no decision of the Supreme plication, and only exercised on the ground of a just neCourt can be obligatory upon either of the other co-ordi- cessity. That is, a bank is constitutional, if it be necessary nate departments. When either is called to the discharge to carry into execution any of the express powers; but, if of its appropriate duties, that branch, and not the Supreme not necessary to that end, or if that end can be altained Court, is the judge, under the constitution, of its own acts. by other appropriate means, then it is not constitutional, Nor are the decisions of the Executive or Legislative de- the power to incorporate not being expressly granted to partments binding upon the judges of the Supreme Court, Congress. Upon this hypothesis Congress have no conwhen acting within their appropriate spheres. So long as stitutional power to charter a national bank, if such bank each of the several departments acts as a check upon the be not absolutely and indispensably necessary to the execuother, there is less danger of the abuse of power—whether tion of a specified power. "Query: would even the necesspringing from ignorance or unlawful ambition. But it sity of the measure justify its adoption, without an arendmay be asked, how constitutional questions are to be settled ment to the constitution ? But, sir, it yet remains to be in the event of a non-concurrence of opinion in the co-or shown that a national bank is an essential means of execu
Oct. 13, 1837.]
(H. OF R.
ting any of the enumerated powers; and, until this be done, and necessarily operate upon the American judiciary, are the opinions of the judiciary avail nothing. Whatever unpropitious to liberty ; the nature of their office, the tenmay be the general principle affirmed by them, their argu ure by which it is held, and the fact of their non-accountments neither make for nor against the constitutionality of ability to the people, must, on the known principles of hua national bank. It is affirmed by the Supreme Court, in man nature, have a tendency to render thein covetous of the case already alluded to, that “the government which power, arbitrary, and despotic. Nor is this all. Indochas a right to do an act, and has imposed on it the duty of trinated from their youth in the principles and prejudices performing that act, must be allowed to select the means." of English jurists; educated in English books; ever conSir, I am constrained to doubt the validity of this doctrine sulting English authorities ; constantly familiar with mowhen carried to its full extent. Suppose we put it to the narchical Joctrines; in a word, all the laws of mental astest. It is not only the right but the duty of Congress to sociation, under which their intellects are reared and fash“regulate commerce." Does it follow that they have the ioned, are inimical to that broad-based and high-toned freeright to make use of what means they please in order to dom which the American people delight to cherish. Nor accomplish that end? If so, they may incorporate a com will the truth of this position be doubled or denied by those pany for that purpose, alleging that an act of incorporation who are familiar with the history of the past; who have is a necessary mean for the attainment of the end proposed. studied the springs of human action ; reflected upon the In other words, that the regulation of commerce could not nature of human power; and observed its constant prone. be so well effected in any other way. And why not? ness to enlarge or overleap its boundaries. But why appeal There is no constitutional difficulty in the way that may to hypotheses, when I can so readily summon facts to my not be surmounted with the ladder of construction. And aid ? The history of the Supreme Court is rife with testiif Congress should only happen to think that a chartered mony directly to the point. By a careful examination and company would be the best mean to “regulate commerce," analysis of its decisions, it will be found that they have, in what would there be to prevent such incorporation ? Ac- most instances, leaned to the side of federal puwer; overcording to the position assumed by the Supreme Court, you looked the rights of the citizen and of the States; and evincan first raise this power from an incident, and then con ceu a strong and uniform bias for a consolidated Governsider it a principal-confer on it the power of legislative pro- ment. The alien and sedition laws-notoriously unconsticreation, and authorize the mother institution to propagate tutional, and so pronounced by Mr. Jefferson and the her bastard progeny in every State and Territory in the American people--received the sanction of that court. The Union. And why not, I say? You have all the authori- sedition, or “gag law,” made it an offence, punishable by ty in favor of it which precedent can furnish, in the char- | indictment, to publish any thing which even had a tendenter of the late bank of the United States Bank. That in- cy to bring into disrepute the officers of the Government; stitution had the power conferred upon it by Congress of and many worthy and patriotic citizens were, in pursumultiplying its progeny at pleasure. It had ihe power, by ance of that nefarious law, incarcerated for daring to comvirtue of its character, to establish branch banks, without plain of the opressions of their rulers. And this law, unthe consent of the States, whenever and wheresoever it constitutional as it was, and subversive of the rights of the pleased. It had the legislative power delegated to it by citizens and of the principles of our Government as it was, Congress, in defiance of the checks and restraints which received the judicial sanction of the Supreme Court. Sir, the American constitutions interpose, of creating, at its op. I will hazard the declaration, and without the fear of contion, other banks and other directors; and this power re- tradiction, that, if all the principles which have received ceived the sanction of the judiciary. If Congress possessed the sanction of the judiciary were now in full force and the constitutional power to incorporate a moneyêj institu- operation, the American people, berest of all the blessings tion, such as the late United States Bank, it may also pos- of a free constitution, would, at this moment, be writhing sess the power to charter a company, and endow it with under the unmitigated oppressions of a heartless, ruthless the faculty of legislative fecundity, to regulate the com- despotism. And yet, sir, strange as it may appear, there merce of the country. Only let Congress adopt the prin are those among us, notwithstanding their knowledge of ciple that they have the power to select what means they this truth, and notwithstanding all the judicial libels upon please, in order to carry into execution a specific power, the constitution, which are plain to their eyes and to their and all the limitations, all the restraints which the grant of understandings, who still cleave to that tribunal with all the delegated powers impose, are broken down and subverted zeal and enthusiasm of infatuation regard it as the excluforever. Sir, I must be permitted to say that I consider sive depository of wisdom, of freedom, of patriotism-and this doctrine not only false, but dangerous to liberty. The its decrees as infallible, fixed, and immutable, as the fiat exercise of a discretionary power, in the selection of means, of fate. must necessarily be limited to such means as are strictly But, sir, I will bring the decisions of the judiciary to a proper ; and no means that are incompatible with the prin decisive test, viz: the intentions of the framers of the conciples upon which our Government is founded, can be suitution with regard to such institution. And here, then, proper, bowever convenient they may be. A chartered I wish it to be borne in mind, that the judiciary have unimonopoly is not, cannot be a proper mean to carry into ef- formly admitted that the power to incorporate a national fect any of the ends of a Government based on the princi- bank was not among the enumerated powers of the conples of political equality. Would you consider the exer stitution, and that it could only be derived by implication. cise of exclusive political privileges as an appropriate means In admitting that the power in question was an implied to promote the principle of equal political rights ? The and not an express power, they necessarily assume that idea is absurd on the very face of it.
the framers of the constitution intended to vest in Congress Mr. Chairman, I would not wantonly assail the reputa- a power which they omitted to specify; for surely it could tion of the judiciary. I trust that I am capable of fairly not be pretended by an intelligent body of men, such as and honestly appreciating the character of that enlightened compose our judiciary, that Congress possessed the constiand honorable tribunal. But however highly I may es tutional power to do an act which the constitution nowhere teem them for purity of purpose and integrity of character, expressly authorizes, and which the framers of that instruI cannot, with the evidence before me, regard them as un ment evidently intended to interdict. This doctrine of erring in judgment; and I trust that the day is far distant construction, therefore, rests entirely upon the known or when they will be recognised by Congress, or the American supposed intentions of the convention which framed the people, as a body of infallibles. Sir, I believe that I am constitution. It is incumbent, therefore, on those who justified in saying that the circunstances which surround ' allege, in the absence of all direct authority, that Congress