Mr. SMITH observed, that he considered it his duty to offer the reasons

which should influence him in giving his vote on this occasion. He had

wished amendments to the bill, as some parts of it, he confessed, did

not perfectly please him; but his wishes having been overruled, the

question now is, whether the bill shall pass? Though he came southward

of the Potomac, the principle of the bill met his approbation. It would

be a deplorable thing if this Government should enact a law subversive

of the constitution, or that so enlightened a body as the Senate of the

United States should, by so great a majority as were in favor of this

bill, pass a law so hostile to the liberties of this country, as the

opposition to this measure have suggested the bank system to be; and it

would be very extraordinary if an officer of this Government who has

produced a performance explanatory of the constitution, of such

celebrity as to be resorted to as an authority, should be so

inconsistent with himself as to propose a law entirely subversive of the

principles laid down in his able defence of the constitution.

He then adverted to the objection drawn from that article of the

constitution, that no preference shall be given to one port over

another. He showed that the clause was inserted for a particular

purpose, and could not be cited as a rule not to be deviated from, as a

preference was and must necessarily be given to one port over another.

He produced numerous instances in point. In consequence of various

clauses in the revenue laws, general regulations sometimes operate

partially, and commercial arrangements, apparently unequal, produce the

good of the community at large.

In reference to construing the constitution, he observed, that the

present moment, when the powers of the Government were assailed from

various quarters, he conceived the most improper to contract these

powers.

The right to construe the constitution he argued from the principles

advanced by Mr. MADISON, in the debate on the power of removability, and

read sundry observations from _Lloyd's Register_, made by that

gentleman, corroborative of this sentiment. Those arguments, he

conceived, applied very aptly to the present subject.

Matters of a fiscal nature necessarily devolve on the General

Government, and he urged that every power resulting from the

acknowledged right of Congress to control the finances of this country

must be as necessarily implied as in the case of the power of

removability.

He then alluded to the expediency of a National Bank. The Secretary gave

notice, in his first report, that this plan was in contemplation.

Nothing was ever read with greater avidity; and though it is now more

than a year since this intimation was given, yet no objections have been

offered against it either by the States or by individuals--even the

State of North Carolina has not mentioned it. [Here Mr. BLOODWORTH (if

the reporter did not misunderstand) informed Mr. SMITH that the report

had not been seen by the Legislature of North Carolina.] Mr. SMITH said

he was sorry for it--and then proceeded to notice some partial

quotations, made by Mr. JACKSON, from _Dr. Smith's Wealth of Nations_,

against bank systems. He said, he could have wished the gentleman had

been more copious in his quotations from that author; if he had, he

would have found that that author has fully demonstrated their utility.

He noticed the divisions of opinions on the subject of a National Bank

in the city of Philadelphia. He supposed ideas of personal advantages

induced these opposing sentiments. He, however, thought this subject

should be taken up altogether on general principles; and even if its

immediate influence should not extend to the extremes of the Union, if

the establishment promises a general preponderating advantage, local

considerations must be considered in a secondary point of view. The

principal inquiry is, will the institution facilitate the management of

the finances? This, he thought, had been made apparent. This is the

opinion of the Secretary of the Treasury, after due and mature

consideration of the subject; and he certainly enjoys the best means of

forming an opinion; he is at the head of the Fiscal Department, and

deservedly enjoys the public confidence. Very little has been offered to

disprove his sentiments on this part of the question, and the

inexpediency of the measure should be clearly proved before the plan is

rejected; for an officer who deservedly enjoys the public confidence is

entitled to the support of the Legislature in those plans which are

expedient and constitutional.

Mr. S. mentioned instances in which Congress exercised power by

implication, and observed, that this was necessary to the execution of

the duties which devolve on the Government by the constitution. The

power to establish a National Bank must reside in Congress, for no

individual State can exercise any such power. The right of no particular

State is therefore infringed by the institution. It had repeatedly been

said, that Philadelphia would derive peculiar advantages from the Bank

of the United States, but, he said, if the present plan should fail, it

was a question whether the stockholders of the Bank of North America

would not derive greater advantages from the necessity which, in that

case, Government would be under of resorting to them for loans. The

institution, as before observed, is founded on general principles, and

will undoubtedly, in its operations, prove of general utility.

Mr. STONE said, if, upon questions like the present, he had given pain

to members he regarded, they might be assured the pain was reciprocal.

Let us cherish mutual toleration. We might conceive that each pursued

the system which he advocated from the purest motives. We differ in our

ideas of Government, and our sense of the sacredness of the written

compact. We varied widely in our opinions of the direction of this

Government. The great lesson of experiment would show who is right; but

we are influenced in our habits of thinking by our local situations,

and, perhaps, the distinct interests of the States we represent. He

observed, that upon the present occasion, the opinions respecting the

constitution seem to be divided by a geographical line, dividing the

continent. Hence it might be inferred, that other considerations mixed

with the question; and it had been insinuated that it was warped by the

future seat of Government. But other causes may be assigned for the

diversity of sentiment--the people to the eastward began earliest in

favor of liberty. They pursued freedom into anarchy--starting at the

precipice of confusion, they are now vibrating far the other way. He

said, that all our taxes are paid by the consumers of manufactures;

those taxes are all bounties upon home manufactures. The people to the

eastward are the manufacturers of this country; it was no wonder that

they should endeavor to strengthen the hands of a Government by which

they are so peculiarly benefited.

It is a fact that the greatest part of the Continental debt has

travelled eastward of the Potomac. This law is to raise the value of the

Continental paper. Here, then, is the strong impulse of immediate

interest in favor of the Bank. He took notice of the distinction made by

the plan of the bill, between Continental and State paper. The State

paper, on account of partial payments of interest, still remained in the

respective States. But this could not, by the present system, be

subscribed; so that the Southern States were deprived of the advantage

that might have been given to the only paper they have. But if gentlemen

charge us with defending the seat of Government, let them remember that

this betrays consciousness of an attack. If they believe that this

scheme tends to break the faith of the Union pledged to the Potomac, it

is no wonder they suppose we oppose it upon that ground. He would not

have mentioned this subject, had it not been hinted at. But let the

whole of it come forth; let gentlemen consult their own bosoms; let the

public decide the truth of his observations. He hoped he should not be

suspected of any bias. That so uniform had been his conduct upon all

questions, turning upon principles similar to the present, that every

member in the House, he believed, had conjectured rightly of the side he

would take, before he had uttered a word upon the subject, When

implication first raised its head in this House, he started from it as a

serpent which was to sting and poison the constitution. He felt in

unison with his country. The fears, the opinions, the jealousies of

individuals and of States, had been explained by a gentleman from

Virginia, (Mr. MADISON.) He should only remark, that all those who

opposed the Government dreaded this doctrine; those who advocated it,

declared that it could not be resorted to; and all combined in opinion

that it ought not to be tolerated. Never did any country more completely

unite in any sentiment than America in this, "that Congress ought not to

exercise, by implication, powers not granted by the constitution." And

is it not strange? For the admission of this doctrine destroys the

principle of our Government at a blow; it at once breaks down every

barrier which the Federal constitution had raised against unlimited

legislation. He said, that necessity was the most plausible pretext for

breaking the spirit of the social compact, but the people of this

country have anticipated that pretext. They have said to the Ministers

of this country, "we have given you what we think competent powers, but

if experience proves them inadequate, we will enlarge them; but, in the

mean time, dare not usurp those which we have reserved."

It is agreed on all hands, that the power to incorporate the subscribers

to a banking company, is not expressly granted, and although gentlemen

have agreed that it is implied--that it is an incident, that it is a

means for effectuating powers expressly granted, yet they are not agreed

as to the particular power to which this is an incident. They admit,

that the sweeping clause in the constitution confers no additional

power. But if he understood the gentlemen, several of them were of

opinion that all governments, instituted for certain ends, draw to them

the means of execution as of common right. This doctrine would make ours

but a short constitution. [Here he read the preamble and then said:]

Here is your constitution! Here is your bill of rights! Do these

gentlemen require any thing more respecting the powers of Congress, than

a description of the ends of government? And if, of right, they can

carry these into effect, will they regard the means, though they be

expressly pointed out? But I would ask if there is any power under

heaven which could not be exercised within the extensive limits of this

preamble?

The Convention might have stopped here; and there was no need, according

to the doctrine of the gentleman, to point out any of the means for the

ends mentioned in the preamble. That portion of the constitution which

by all America has been thought so important, according to their logic,

would become a dead letter; but the preamble, in fair construction, is a

solemn compact, that the powers granted shall be made use of to the ends

thereby specified.

He then reprobated, in pointed terms, the latitude of the principles

premised. He said the end of all government is the public good; and if

the means were left to legislation, all written compacts were nugatory.

He observed, that the sober discretion of the Legislature, which, in the

opinions of gentlemen, ought to be paramount, was the very thing

intended to be curbed and restrained by our constitution.

He then declared, that our form of government not only pointed out the

ends of government, but specified the means of execution. He said, we

may make war--this would draw to it the power of raising an army and

navy, laying taxes, establishing a judiciary, &c. But the spirit of the

constitution, in this respect, had been well explained by Mr. MADISON,

and he should not recapitulate.

He said, a gentleman from South Carolina (Mr. SMITH) had remarked that

all our laws proceeded upon the principle of expediency--that we were

the judges of that expediency--as soon as we gave it as our opinion that

a thing was expedient, it became constitutional. What then remains of

your constitution, except its mode of organization? We may look into it

to refresh our memories respecting the times, places, and manner of

composing the Government; that, as to the powers of Congress, were he of

that gentleman's opinion, he would never look into it again. Gentlemen

see the difficulties of their theories, and are obliged to confess that

these incidental powers are not easily defined. They rest in the sober

discretion of the Legislature.

One gentleman (Mr. AMES) has said, no implication ought to be made

against the law of nature, against rights acquired, or against power

pre-occupied by the States; that it is easier to restrain than to give

competent powers of execution. Now these notions are hostile to the main

principle of our Government, which is only a grant of particular

portions of power, implying a negative to all others. It has been shown

that the ends of government will include every thing. If gentlemen are

allowed to range in their sober discretion for the means, it is plain

that they have no limits. By the cabalistic word _incident_, your

constitution is turned upside down, and instead of being a grant of

particular powers, guarded by an implied negative to all others, it is

made to imply all powers. But, strange to tell, America forgot to guard

it by express negative provisions. Is there any difference in effect

between lodging general powers in a government, and permitting the

exercise of them by subtle constructions? He said there was a

difference. In the one case the people fairly gave up their liberty, and

stood prepared; in the other, they were unexpectedly tricked out of

their constitution.

The preceding remarks showed how dangerous is the doctrine of

implication, and upon what small data ingenuity can raise the most

dangerous superstructure. He should now take a view of these precedents,

in the former and present Congress, which are relied on to justify the

present measure.

1st. The Bank of North America. Here he stated the distressful and

critical situation of America at the period of its establishment; he

remarked, that it was at the time of the declension of the Continental

money. He showed that there were no powers in the Confederation to which

(even according to the reasoning of the other side) this power could be

incidental, but what required the vote of nine States; that the

ordinance passed by a vote of seven States, which showed that necessity

alone gave birth to that measure. He showed the dissimilarity of the

situations of the former and this Congress, and the difference in their

powers, and, consequently, in the dangers to be apprehended from the

encroachment of either.

2d. The redemption of our prisoners at Algiers. This comes within the

power to regulate trade. If, said he, we are not capable of redeeming,

by the best means in our power, our citizens, our trade may be entirely

ruined; and hence, the law which would be made for their redemption

would be necessary and proper. But, by the constitution, the Executive

may make treaties; these may be general, or for a particular object, and

the Legislature may effectuate them by grants of money.

3d. We have bought certificates, and not destroyed them. This, they say,

is implied from the power of paying the debts.

He asked if, before the purchase, the certificates were debts due from

the United States? And demanded, if, by the purchase, they were divested

of that quality? In my judgment, when a debt is fairly cancelled, it is

as much like a payment as need be.

4th. We had no right, except by implication, to give a salary to the

Vice President. He had voted against the salary, and had been for a _per

diem_ allowance, because he thought the Vice President was viewed by the

constitution only as the President of the Senate. But this example fails

most palpably, as Congress, in the compensations, are not confined by

the constitution either to a particular sum or mode of payment.

5th. Congress have made corporations, and exercised complete legislation

in the Western Territory. He said, to answer this case, nothing more was

necessary than to read the clause in the constitution which gives to

Congress expressly the power to make all the rules and regulations for

them.

It seemed to him as if gentlemen were inverting the order of things, by

making powers where there were none, and attempting to prove express

grants to the implications.

6th. Our regulations respecting freighters and owners, and between

captains and seamen. He had not those regulations correctly in his

memory, but he believed them proper and necessary regulations of

commerce.

7th. It has been said we have exclusive jurisdiction in places belonging

to Congress, and within the ten miles square. We could erect a bank in

any of those places; its influence would extend over the continent; the

principle upon which we founded this power could not be confined to a

particular time or a spot of land. Gentlemen ridicule the idea that the

exercise of a pervading influence and a general principle should be

limited by any particular number of years, or be confined within a fort.

He said, the power of exclusive legislation in those places was

expressly granted, and, under its influence, the Congress might exercise

complete and exclusive legislation within those limits; that the power

was confined to the places. But if the general powers of this

constitution are to be governed by the same rules of construction, and

we are to have no regard to place, it follows that Congress can exercise

exclusive legislation over this continent. He was astonished at this

doctrine. It would be equally reasonable to say, that France, because

within the limits of her own dominions, and over her own property, she

exercised exclusive legislation, that hence she had a right to legislate

for the world.

8th. The power of removal of officers by the President alone. He said,

it was known he had opposed that doctrine. He left it to be defended by

those who had voted for it. But he hoped Mr. Smith, of South Carolina,

and some other gentlemen, who had opposed it, would review the arguments

they had used upon that occasion.

He observed, after taking a view of these precedents on the danger of

laying down improper principles in legislation, how eagerly men grasped

at the slightest pretexts for exercise of power. He shuddered to think

what a broad and commanding position this Bank will form for further

encroachments.

A gentleman from Massachusetts (Mr. SEDGWICK) has said, that whenever a

power is granted, all the known and usual means of execution are always

implied. The idea had been properly examined by Mr. GILES, but he would

ask, if incorporating the subscribers to a bank was the known and usual

means of borrowing money, especially when the subscribers were not

obliged to loan; or of collecting taxes, when no taxes were levied on

the bank.

But gentlemen tell us, that if we tie up the constitution too tightly,

it will break; if we hamper it, we cannot stir; if we do not admit the

doctrine, we cannot legislate at all. And with a kind of triumph, they

say that implication is recognized by the constitution itself in the

clause wherein we have power to make all laws, to carry, &c. He said, he

was ready to meet the gentlemen upon this ground. This clause was

intended to defeat those loose and proud principles of legislation which

had been contended for. It was meant to reduce legislation to some rule.

In fine, it confined the Legislature to those means that were necessary

and proper.

He said, it would not be pretended that it was necessary and proper for

the collection of taxes. Indeed, one gentleman (Mr. AMES) had attempted

to show that the payments in specie could not be made, if by chance a

great quantity of debt suddenly accumulated in a particular place. But

it might be remembered, that this necessity, if it arrived, was created

by the Legislature, and that would be strange reasoning which broke a

good constitution to mend a bad law. No taxes are to be collected by

this bill.

It would not be necessary and proper as a means of borrowing money,

because, first, we do not want to borrow money, and, if we did, this

law, though it may be the probable, is not the necessary mean; for if it

was the interest of the stockholders, they might, and he believed would,

refuse to loan. He said, that the institution might be defended upon

more plausible grounds, if the Bank had been taxed; or if a condition to

loan money to the public had been part of the plan. Upon what ground,

then, do gentlemen stand? They can only say, that they have implied a

great and substantive power in Congress, which gives to Government, or

to individuals, the influence of fifteen millions of dollars,

irrevocably, for twenty years, with a power of making by-laws, &c.,

because there is a probability that this institution may be convenient

and agreeable in the operations of Government. He asked, upon parallel

principles, what might Congress not do? He said, that the gentleman from

Virginia, (Mr. MADISON,) pursuing the doctrine into all the forms in

which it might appear, had struck upon several cases which were very

pointed--an incorporation of manufacturers with exclusive privileges;

merchants with the same; a national religion. This a gentleman (Mr.

AMES) has said was unfair and extravagant reasoning; and yet, in five

minutes, the gentleman's own reasoning led him to ask, with warmth, if

Congress could not join stocks with a company to trade to Nootka? And he

condescended to doubt, if the privileges given to such a company might

not be exclusive. He saw clearly, himself, that his theory led to the

latter conclusion; for if expediency, if convenience, if facility, if

fears of war, if preparations for events which might never happen, can

justify an incorporation upon the present plan, the same suggestions,

the same logic, will legalize incorporations with exclusive privileges.

The deductions of the gentleman from Virginia are sound and right, and

cannot be fairly controverted. Congress may then do any thing. Nay, if

the principles now advocated are right, it is the duty of the

Legislature of the Union to make all laws; not only those that are

necessary and proper to carry the powers of the Government into effect,

but all laws which are convenient, expedient, and beneficial to the

United States. Then where is your constitution! Are we not now sitting,

in our sober discretion, a General Government, without the semblance of

restraint? Yes, said he, we have still a constitution, but where is it

to be found? Is it written? No. Is it among the archives? No. Where is

it? It is found in the sober discretion of the Legislature--it is

registered in the brains of the majority!

He proceeded. I say there is no necessity, there is no occasion, for

this Bank. The States will institute banks which will answer every

purpose. But a distrust of the States is shown in every movement of

Congress--will not this implant distrust also in the States? Will you

gain by this contest? This scheme may give, and I am convinced will

give, partial advantages to the States. In the fair administration of

our Government, no partial advantages can be given; but, by this bill, a

few stockholders may institute banks in particular States, to their

aggrandizement and the oppression of others. This Bank will swallow up

the State banks; it will raise in this country a moneyed interest at the

devotion of Government; it may bribe both States and individuals. He

said, gentlemen asked who would be offended or hurt by this plan? Have

we heard any complaints against it? Have the newspapers reprobated it?

These questions had no influence on his mind. He said it was one of

those sly and subtle movements which marched silently to its object; the

vices of it were at first not palpable or obvious; but when the people

saw a distinction of banks created--when they viewed with astonishment

the train of wealth which followed individuals, whose sudden exaltation

surprised even the possessors--they would inquire how all this came

about? They will then examine into the powers by which these phenomena

have arisen, and they will find--they will reprobate the falsehood of

the theories of the present day.

He said, that gentlemen had told us of the sudden irruptions of enemies.

When those necessities arrive, it is time enough to make use of them to

break your constitution. But, gentlemen say, upon emergencies the Bank

will loan money. We differ in opinion. I think when we want it most, the

Bank will be most unable and unwilling to lend. If we are in

prosperity, we can borrow money almost any where; but in adversity,

stockholders will avoid us with as much caution as any other

capitalists.

But a gentleman (Mr. AMES) tells us not to be alarmed, the Bank will not

eat up liberty--he said he was not afraid. He was not under any

apprehensions that all the little influence that Congress possessed

would destroy the great spirit of American liberty. The body of the

people would laugh at and ridicule any attempt to enslave them; but a

conduct which had that tendency might arouse alarming passions. He said,

there existed at this moment ill-blood in the United States, which to

quiet he would readily agree to enter into a foreign war. America with

us, we might defy the world. There was but one people he was afraid of

offending. This was America. He was not afraid of foreign enemies, but

the resentment of our own country is always a subject of serious

apprehension. He observed, that there were other parts of this important

and diffusive subject which he might have touched, but he had fatigued

himself and the House.

Mr. SMITH (of South Carolina) said, as he had been greatly misunderstood

by the gentleman last up, he wished to explain the position he had laid

down. He had never been so absurd as to contend, as the gentleman had

stated, that whatever the Legislature thought expedient, was therefore

constitutional. He had only argued that in cases where the question was,

whether a law was necessary and proper to carry a given power into

effect, the members of the Legislature had no other guide but their own

judgment, from which alone they were to determine whether the measure

proposed was necessary and proper to carry the powers vested in Congress

into full effect. If, in such cases, it appeared to them, on solemn

deliberation, that the measure was not prohibited by any part of the

constitution, was not a violation of the rights of any State or

individual, and was peculiarly necessary and proper to carry into

operation certain essential powers of the Government, it was then not

only justifiable on the part of Congress, but it was even their duty to

adopt such measure. That, nevertheless, it was still within the province

of the Judiciary to annul the law, if it should be by them deemed not to

result by fair construction from the powers vested by the constitution.

MONDAY, February 7.

_Bank of the United States._

The House resumed the consideration of the bill for incorporating the

Bank of the United States.

The question being on the passage of the bill,

Mr. GILES.--In the course of discussing the present important question,

it has been several times insinuated that local motives, and not a

candid and patriotic investigation of the subject upon its merits, have

given rise to that difference of opinion which has been heretofore

manifested in this House. I shall not examine the truth of this

observation, but merely remark, that the causes which may have produced

the arguments against the proposed measure, whatever they may be, can

neither add to, nor take from, their merit or influence, and, of course,

the insinuations might have been spared without injury to the subject;

but so far as the observation may have been intended to apply to myself,

I can truly say, that if a bias were to influence my conduct, it would

rather direct it to favor, than to oppose the proposed measure. This

bias would arise from two causes: the one from the respect which I

entertain for the judgments of the majority who advocate the measure;

the other of a more serious nature. I have observed with regret a

radical difference of opinion between gentlemen from the Eastern and

Southern States, upon the great Governmental questions, and have been

led to conclude, that the operation of that cause alone might cast

ominous conjecture on the promised success of this much valued

Government. Mutual concessions appear to be necessary to obviate this

effect, and I have always been pleased in manifesting my disposition to

make advances; but from the most careful view of the arguments in favor

of the proposed measure considered under this impression, they do not

seem to me sufficient to establish the propriety of its adoption, and I

am therefore impelled, by the joint influence of duty and opinion, to be

one in the opposition.

A gentleman from Massachusetts (Mr. AMES) prefaced his observations with

this remark, that it is easier to point out defects and raise objections

to any proposed system, than to defend it from objections, and prove its

affirmative propriety, and warned the House against the effects of

arguments of this nature, urged in opposition to the measures now under

consideration. I agree with the gentleman in this idea in general, but

we should reflect that in the present case the address of the arguments

in favor of the measure is made to one of the strongest affections of

the human mind, the love of dominion; and hence we may justly conclude,

that they will be received and relished with their full and unabated

influence. This reflection appears to me to be at least a counterpoise

to that remark.

The advocates of this bill have been called on, and I conceive with

propriety, to show its constitutionality and expediency, both of which

have been doubted by those of the opposition. In support of the first

position, a multitude of arguments have been adduced, all of which may

be reducible to the following heads; such as are drawn from the

constitution itself; from the incidentality of this authority to the

mere creation and existence of government; from the expediency of the

measure itself; and from precedents of Congress; to which may be added a

similar exercise of authority by Congress, under the former

Confederation.

Observations arising from the constitution itself, were of two kinds.

The right of exercising this authority is either expressed in the

constitution, or deducible from it by necessary implication. One

gentleman only, from Massachusetts, (Mr. SEDGWICK,) has ventured to

assert, that, discarding the doctrine of implication, he could show that

the right to exercise the authority contended for was expressly

contained in the constitution. This, I presume, must have been a mistake

in language, because the difference between an express and an implied

authority appears to me to consist in this--in the one case, the natural

import of the words used in granting the authority would of themselves

convey a complete idea to the mind of the authority granted, without the

aid of argument or deduction; in the other, to convey a complete idea to

the mind, the aid of argument and deduction is found necessary to the

usual import of words used; and that gentleman proceeded with a labored

argument to prove, that the authority was expressly granted, which would

have been totally useless, if his assertion had been just.

[Mr. SEDGWICK rose to explain; he never conceived the authority granted

by the express words of the constitution, but absolutely by necessary

implication from different parts of it.]

I shall not contend as to the assertion, but shall proceed to consider

the arguments in favor of the measure upon the doctrine of implication;

which, indeed, are those only which deserve consideration.

In doing this, I shall consider the authority contended for to apply to

that of granting charters to corporations in general, for I do not

recollect any circumstance, and I believe none has been pretended, which

could vary this case from the general exercise of that authority. To

establish the affirmative of this proposition, arguments have been drawn

from the several parts of the constitution; the context has been

resorted to. "We, the people of the United States, in order to form a

more perfect union, establish justice, ensure domestic tranquillity,

provide for the common defence, promote the general welfare, and secure

the blessings of liberty to ourselves and our posterity," &c. It has

been remarked, that here the ends for which this Government was

established are clearly pointed out; the means to produce the ends are

left to the choice of the Legislature, and that the incorporation of a

bank is one necessary mean to produce these general ends. It may be

observed, in reply, that the context contemplates every general object

of Government whatever; and if this reasoning were to be conclusive,

every object of Government would be within the authority of Congress,

and the detail of the constitution would have been wholly unnecessary,

further than to designate the several branches of the Government which

were to be intrusted with this unlimited, discretionary choice of means,

to produce these specified ends. The same reasoning would apply as

forcibly to every clause of the constitution, restraining the authority

of Congress to the present case, or to any one in which the constitution

is silent. The only candid construction arising from the context appears

to me to be this; it is designed, and it is the known office of every

member to point out the great objects proposed to be answered by the

subsequent regulations of which the constitution is composed. These

regulations contain the means by which these objects are presumed to be

best answered. These means consist in a proper distribution of all

Governmental rights between the Government of the United States and the

several State governments, and in fixing limits to the exercise of all

authorities granted to the Government of the United States. The context,

therefore, gives no authority whatever, but only contemplates the ends

for which certain authorities are subsequently given. Arguments drawn

from this source appear to be ineffectual in themselves, and the

reliance of gentlemen upon them indicates a suspicion and distrust of

such as may be drawn from other parts of the constitution. The advocates

of the bill have turned away from this context, and have applied to the

body of the constitution in search of arguments. They have fixed upon

the following clauses, to all or some one of which they assert the

authority contended for is clearly incidental; the right to lay and

collect taxes, &c., &c.; to provide for the common defence and general

welfare, &c.; to borrow money, &c.; to regulate commerce with foreign

nations, &c. The bill contemplates neither the laying nor collecting

taxes, and, of course, it cannot be included in that clause; indeed, it

is not pretended, by the bill itself, to be at all necessary to produce

either of those ends; the furthest the idea is carried in the bill, is,

that it will tend to give a facility to the collection.

The terms "common defence and general welfare" contain no grant of any

specific authority, and can relate to such only as are particularly

enumerated and specified. "To borrow money." Gentlemen have relied much

upon this clause; their reasoning is, that a right to incorporate a bank

is incidental to that of borrowing money, because it creates the ability

to lend, which is necessary to effectuate the right to borrow. I am at a

loss to discover one single relation between the right to borrow, and

the right to create the ability to lend, which is necessary to exist

between principal and incident. It appears to me that the incidental

authority is paramount to the principal, for the right of creating the

ability to lend is greater than that of borrowing from a previously

existing ability. I should, therefore, rather conclude that the right to

borrow, if there be a connection at all, would be incidental to the

right to grant charters of incorporation, than the reverse of that

proposition, which is the doctrine contended for by the advocates of the

measure. The same reasoning which would establish a right to create the

ability to lend, would apply more strongly to enforce the will after

the ability is created; because the creator would have a claim of

gratitude at least upon the created ability, which if withheld, perhaps,

with justice might be insisted on. "To regulate commerce with foreign

nations." This is by no means a satisfactory ground for the assumption

of this authority; for if it be deemed a commercial regulation, there is

a clause in the constitution which would absolutely inhibit its

exercise. I allude to that clause which provides that no preference

shall be given by any regulation of commerce or revenue to the ports of

one State over those of another; and it seems to be admitted, that one

principal effect to be produced by the operation of this measure will be

to give a decided commercial preference to this port over every other in

the United States.

Gentlemen finding it difficult to show that necessary relation and

intimate connection between the authority contended for, and any one of

the specified authorities before mentioned, which would be essential to

the establishment of their doctrine, have referred to what has been

generally called the sweeping clause, and have made deductions from the

terms "necessary" and "proper;" they have observed that certain

specified authorities being granted, all others necessary to their

execution follow without any particular specification. This observation

may in general be true, but its fallacy here consists in its application

to this particular case. It cannot be applied until the exercise of this

authority be proved to be necessarily connected with some one of the

previously enumerated authorities, and here the argument, as well as the

fact, fails.

The authority contended for seems to me to be a distinct substantive

branch of legislation, and, perhaps, paramount to any one of the

previously enumerated authorities, and should therefore not be usurped

as an incidental subaltern authority.

I am confirmed in this opinion from the indistinct, confused conceptions

of gentlemen who advocate the measure. They rely upon the incidentality

of this authority to some one of those particularly specified, and yet

have applied it as an incident to several distinct, unconnected subjects

of legislation; and then, distrusting their own conclusions, or as if

the inquiry would be too troublesome or minute, they leave this ground,

and assert that it is incidental to the result of the whole combined

specified authorities. Gentlemen must, therefore, view this right

through different optics, at different times; or, what I rather believe

to be the fact, they have no distinct view of it at all, the right

having no existence.

A gentleman from Massachusetts, (Mr. SEDGWICK,) finding the usual import

of the terms used in the constitution to be rather unfavorable to the

doctrines advanced by him, has favored us with a new exposition of the

word "necessary." He says that "necessary," as applicable to a mean to

produce an end, should be construed so as to produce the greatest

quantum of public utility. I have been taught to conceive that the true

exposition of a necessary mean to produce a given end was that mean

without which the end could not be produced.

The gentleman's reasoning, however, if pursued, will be found to teem

with dangerous effects, and would justify the assumption of any given

authority whatever. Terms are to be so construed as to produce the

greatest degree of public utility. Congress are to be the judges of this

degree of utility. This utility, when decided on, will be the ground of

constitutionality. Hence any measure may be proved constitutional which

Congress may judge to be useful. These deductions would suborn the

constitution itself, and blot out the great distinguishing

characteristic of the free constitutions of America, as compared with

the despotic Governments of Europe, which consist in having the

boundaries of governmental authority clearly marked out and ascertained.

The exclusive jurisdiction over ten miles square has been adverted to by

one gentleman (Mr. AMES) as a specified authority, to which the one

contended for is suggested to be incidental. He has reasoned in this

manner: Congress possess jurisdiction over ten miles square, &c.;

Congress may therefore establish a bank within the ten miles square,

and, as principle is not applicable to place, Congress may exercise the

same authority any where else. This seems to me to be an ingenious

improvement upon sophistical deduction; the gentleman, however, should

have reflected that the ground upon which he built the right to exercise

this authority was that of exclusive jurisdiction, and to extend the

principle it is necessary to extend the right of exclusive jurisdiction;

without this, the basis of his argument fails, and the superstructure,

however beautiful, must follow; for the principle, if at all deducible

from that source, is expressly confined to place, and cannot operate

beyond it.

I shall now consider the second resource, whence the constitutional

right of exercising the proposed authority is derived; its incidentality

to the mere creation and existence of government. It has been observed,

that in all governments there are certain rights tacitly granted, and

certain other rights retained; that it is impossible, in framing a

constitution, to enumerate every minute governmental right, and that

such an attempt would be chimerical and vain. And hence the

incidentality of this authority to the mere existence of government is

inferred. These observations seem to me to apply to a government growing

out of a state of society, and not to a government composed of chartered

rights from previously existing governments, or the people of those

governments. I have been taught to consider this as a Federal, not as a

consolidated Government, and am not prepared or disposed at present to

relinquish that idea. A gentleman from New York (Mr. LAWRENCE) has

remarked, that the Government is consolidated _quo ad_ the powers

granted, and of course _quo ad_ their incidents; but he should first

have shown that the authority contended for is one of those granted, or

incidental to some one of them, before the application can be made. The

observation can have no tendency to establish either of those positions.

What effect would this doctrine, if admitted, have upon the State

governments? And how would it be relished by them? Their dignity and

consequence will not only be prostrated by it, but their very existence

radically subverted. A third resource of deducing this constitutional

authority is resorted to--the expediency of the proposed measure itself.

I presume the great object of the constitution was to distribute all

governmental rights between the several State Governments and the

Government of the United States; the expediency, therefore, of the

exercise of all constitutional rights, as they relate to State or

General Governments, is properly contemplated and decided by the

constitution, and not by the Governments among which the distribution is

made. A gentleman from South Carolina (Mr. SMITH) has said, that the

expediency and constitutionality of the proposed measure cannot be

considered separately, because the constitutionality grows out of the

expediency. This is but candidly unveiling the subject of that

sophistical mask which has been ingeniously thrown over it by some

gentlemen; for all the arguments adduced in favor of the measure, from

whatever source they arise, if pursued, will be found to rush into the

great one of expediency, to bear down all constitutional provisions, and

to end themselves in the unlimited ocean of despotism.

Several gentlemen have said, that this authority may be safely

exercised, since it does not interfere with the rights of States or

individuals. I think this assertion not very correct; if the States be

constitutionally entitled to the exercise of this authority, it is an

intrusion on their rights to do an act which would eventually destroy or

impede the freest exercise of that authority; for it is totally

immaterial whether the effect be produced by the operation of this, or

by an inhibition in express terms. The States may not only incorporate

banks, but may of right prohibit the circulation of bank paper within

their respective limits; the act, therefore, if it be intended to have

an effectual operation, will certainly infringe this right, or exist at

the mercy of the State governments. This reasoning, however, places the

subject in another point of view a little singular. It contemplates the

authority contended for as vacant ground, and justifies the tenure by

the mere title of occupancy. In almost all the remarks in favor of the

measure, gentlemen seem to have forgotten the peculiar nature of this

Government. It being composed of mere chartered authorities, all

authority not contained within that charter would, from the nature of

the grant, have been retained to the granting party; and I will venture

to assert, that this opinion was the _sine qua_ _non_ of the adoption

and existence of this Government; but if this opinion had been doubtful,

Congress themselves have made an express declaration in favor of this

construction to the proposed amendments to the constitution. Gentlemen

have inferred a constitutional right to exercise the authority contended

for from a fourth resource--the former usages and habits of Congress. In

affirmance of this argument, several acts of Congress have been referred

to--the power of removal from office, the government of the Western

Territory, the cession from North Carolina, the purchase of West Point,

&c. I shall not examine into the propriety of these several acts, though

I conceive it would not be difficult to show, that they differ

materially, upon constitutional grounds, from the one now proposed. I

shall only remark, that, if Congress have heretofore been in the usage

and habit of disregarding and violating the constitution, it is high

time that that habit and usage be corrected. I hope and trust that the

people of the United States will not tamely see the only security of

their rights and liberties invaded and violated, but also see one

violation of it with impunity boldly urged as an argument to justify

another.

An instance of a similar exercise of authority by the Congress which

existed under the former Confederation, has been mentioned in favor of

its exercise by the present Congress. The argument has been, that as the

powers of the present Congress are greater than those of the former

Congress, and the former were competent to the exercise of this right,

the present must be more so. It is to be remarked, that that act was the

child of necessity, and that Congress doubted its legitimacy, and the

act itself was never confirmed by a judicial decision; and it should be

also remarked, that the same Congress did not pretend to possess the

right to punish those who should counterfeit the paper of the Bank, and

recommended it to the States to confirm the act which they had done, and

to pass laws for the purpose of punishing those who should counterfeit

the paper, and it is a little remarkable that this circumstance, which

is one of the most essential to the existence and operation of this act,

is withheld from our view. But as I think arguments drawn from this

source wholly foreign to the subject, I shall make no further remark

upon them.

I shall now suggest a few observations respecting the expediency of the

proposed measure. In doing this, I shall not say any thing as to the

utility of banks in general, nor as to the effects of the banks of

England, Scotland, Holland, &c. I possess not sufficient practical or

theoretical knowledge to justify the inquiry; I shall only point out a

few circumstances, which are peculiarly attached to the government we

are now administering, which might vary the application of general

rules, drawn from governments of a different nature, and which possess

the unquestioned right of granting charters of incorporation.

In the first place, the right of exercising that authority by the

Government is at least problematical, it is nowhere granted in express

terms; the Legislature, therefore, can have no competent security

against a judicial decision but a dependent or a corrupt court. I

presume that a law to punish with death those who counterfeit the paper

emitted by the Bank will be consequent upon the existence of this act.

Hence a judicial decision will probably be had of the most serious and

awful nature; the life of an individual at stake on the one hand, an

improvident act of the Government on the other. A distrust arising from

this cause will for ever keep the Bank in jeopardy, and the very first

trial of this nature will probably subject the Bank to a run which it

will be unable to withstand; for all stockholders will require the

greatest possible security for their money, and a distrust of such an

institution will be its destruction. This observation seems to me to

have peculiar force, from the great proportion of paper to that of gold

and silver, upon which the Bank is proposed to be founded. The peculiar

relation between the General and State Governments, will naturally

produce a contest for governmental rights, until long experience shall

settle the precise boundaries between them. The present measure appears

to me to be an unprovoked advance in this scramble for authority, and a

mere experiment how far we may proceed without involving the opposition

of the State Governments. It should be remarked that this Government is

in its childhood; it is therefore unfitted for such bold and manly

enterprises, and policy would dictate that it should wait at least until

it may have become more matured or invigorated. Two modes of

administering this Government present themselves; the one with mildness

and moderation, by keeping within the known boundaries of the

constitution, the other, by the creation and operation of fiscal

mechanism; the first will ensure us the affections of the people, the

only natural and substantial basis of Republican Governments; the other

will arise and exist in oppression and injustice, will increase the

previously existing jealousies of the people, and must be ultimately

discarded, or bring about a radical change in the nature of our

Government. Having suggested these observations upon the measure in

general, I shall now proceed to point out a few objections to the

details of the bill. I think the authority given to the Bank to purchase

and hold lands objectionable; in the first place I doubt the

constitutional right of Congress to invest such an authority; the lands

within the United States are holden of the individual States, and not of

the United States; and that tenure appears to me to be the true ground

upon which the right to exercise that authority grows. I believe it is

admitted, that although Congress may naturalize a foreigner, they cannot

authorize him to purchase lands; and I think the case at least as

strong, when they first create an artificial person, and then invest the

authority; besides, if we have any reference to the experience of other

countries, we shall find it dangerous to allow incorporated bodies to

hold lands at all. The exercise of that right produced great oppression

in England, and nothing but the masterly activity of an absolute prince

could apply a competent remedy. A gentleman from Massachusetts (Mr.

SEDGWICK) has denied that the Bank is invested with this right. It is

true it is confined to the mode of purchasing by mortgage, but that is

the most effectual mode of purchasing, and the most ruinous to the

landholder.

I will merely mention one other objection without a comment--the

authority given to make laws not contrary to law or its own

constitution; but the most objectionable clause is that which limits its

duration, and pledges the faith of the United States that no other bank

shall be established in the mean time, however dangerous and offensive

the present measure might prove in its operation, and whatever may be

the utility and advantage in any other scheme of banking which

experience may suggest. Such a stipulation cannot be justified but from

the most pointed necessity, and from the maturest deliberation. When I

search for the necessity of this measure, it escapes me; it is not

pretended in the bill itself; the chief stimulus which I can discover to

the existence of this measure, is to give artificial impulse to the

value of stock. This is not a sufficient justification; the subject has

not been sufficiently considered, and I therefore hope it may be

postponed to some future session of Congress; many evils may be avoided

by such a conduct, none can result from it.

Mr. GERRY said, he should principally confine himself to the objections

of the gentleman first up from Virginia, (Mr. MADISON,) not from a

disrespect to the observations of other gentlemen in the opposition, but

because he considered their arguments as grafts on the original stock of

those urged by the gentleman alluded to, and if the trunk fell, its

appendages must fall also.

The objects of the bill were to render the fiscal administration

successful, and to give facility to loans on sudden emergencies, and to

benefit trade and industry in general; and that these were objects of

high importance had not been denied, neither had it been asserted that

they ought not, if possible, to be attained.

It is objected, however, that the mode proposed by the bill is

unconstitutional, and the bill itself defective.

The mode proposed is a National Bank; to establish which he thought

Congress were as competent as either House were to adjourn from day to

day.

It is said that Congress have no power relating to this subject, except

what is contained in the clauses for laying and collecting taxes,

imposts, excises, &c.; for borrowing money, and for making all laws

necessary and proper for carrying these powers into effect; and that

these do not authorize the establishment of a National Bank.

To ascertain this, the gentleman from Virginia proposes a candid

interpretation of the constitution, which we shall agree to, and he

offers to assist us with his rules of interpretation, for his good

intentions in doing which we give him full credit; but as he

acknowledges that he has been long decided against the authority of

Congress to establish a bank, and is therefore prejudiced against the

measure; as his rules, being made for the occasion, are the result of

his interpretation, and not his interpretation of the rules; as they are

not sanctioned by law exposition, or approved by experienced judges of

the law, they cannot be considered as a criterion for regulating the

judgment of the House, but may, if admitted, prove an _ignis fatuus_

that may lead to destruction.

We wish not, however, by establishing our own rules of interpretation,

to enjoy the privilege which is denied to the gentleman, but will meet

him on fair ground, by applying rules which have the sanction mentioned;

and as the learned _Judge Blackstone_ has laid down such, it is presumed

the gentleman from Virginia will not contend for a preference, or refuse

to be tried by this standard.

The Judge observes: "That the fairest and most rational method to

interpret the will of the legislator is by exploring his intentions at

the time when the law was made by signs the most natural and probable;

and these signs are either the words, the context, the subject-matter,

the effect and consequence, or the spirit and reason of the law." With

respect to words, the Judge observes, that "they are generally

understood in their usual and most ordinary signification, not so much

regarding the grammar as their general and popular use."

The gentlemen on different sides of the question do not disagree with

respect to the meaning of the terms _taxes_, _duties_, _imposts_,

_excises_, &c., or of _borrowing money_, but of the word _necessary_:

and the question is, what is the general and popular meaning of this

term? Perhaps the answer to the question will be truly this, that in a

general and popular one the word does not admit of a definite meaning,

but that this varies according to the subject and circumstances. With

respect to the subject for instance, if the people, speaking of a

garrison besieged by a superior force, and without provisions, or a

prospect of relief, should say it was under the necessity of

surrendering, they would mean a physical necessity, for troops cannot

subsist long without provisions; but if speaking of a debtor, the people

should say he was frightened by his creditor and then reduced to the

necessity of paying his debts, they would mean a legal, which is very

different from a physical necessity; for although the debtor, by

refusing payment, might be confined, he would be allowed subsistence,

and the necessity he was under to pay his debts would not extend beyond

his confinement. Again, if it should be said that a client is under the

necessity of giving to his lawyer more than legal fees, the general

popular meaning of necessity would, in this instance, be very different

from that in the other; the necessity would neither be physical nor

legal, but artificial, or, if I may be allowed the expression, a

long-robe necessity.

The meaning of the word "_necessary_," varies also according to

circumstances; for although Congress have power to levy and collect

taxes, duties, &c., to borrow money, and to determine the time, quantum,

mode, and every regulation necessary and proper for supplying the

Treasury, yet the people would apply a different meaning to the word

"necessary" under different circumstances. For instance, without a

sufficiency of precious metals for a medium, laws creating an artificial

medium would be generally thought necessary for carrying into effect the

power to levy and collect taxes; but if there was a sufficiency of such

metals, those laws would not generally be thought necessary. Again, if

specie was scarce, and the credit of the Government low, collateral

measures would be by the people thought necessary for obtaining public

loans: but not so, if the case was reversed. Or, if part of the States

should be invaded and overrun by an enemy, it would be thought necessary

to levy on the rest heavy taxes, and collect them in a short period, and

to take stock, grain, and other articles from the citizens without their

consent, for the common defence; but in a time of peace and safety, such

measures would be supposed unnecessary. Instances may be multiplied in

other respects; but it is conceived that these are sufficient to show

that the popular and general meaning of the word "necessary," varies

according to the subject and circumstances.

The second rule of interpretation relates to the _context_, and the

Judge conceives that "if words are still dubious, we may establish their

meaning by the context; thus the preamble is often called in to help the

construction of an act of Parliament." The constitution, in the present

case, is the great law of the people, who are themselves the sovereign

Legislature, and the preamble is in these words: "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."

These are the objects for which the constitution was established, and in

administering it we should always keep them in view. And here it is

remarkable, that although the common defence and general welfare are

held up in the preamble among the primary objects of attention, they are

again mentioned in the eighth section of the first article, whereby we

are enjoined in levying taxes, duties, &c., particularly to regard the

common defence and general welfare; indeed common sense dictates the

measure; for the security of our property, families, and liberty--of

every thing dear to us, depends on our ability to defend them. The

means, therefore, for attaining this object, we ought not to omit a

year, month, or even a day, if we could avoid it; and we are never

provided for defence unless prepared for sudden emergencies. Should

Government be surprised in this case, it would be as dishonorable as for

a general to be surprised in a state of warfare, and the event to the

community may be much more fatal. If provision then for sudden

emergencies is indispensable, it must be evident that it will depend in

a great measure on the ability of the Government to command, at all

times, for this purpose, a sufficient sum of money, which is justly

denominated the sinews of war; and how is this to be effected? By

emissions of bills of credit? During the Revolution, bills of credit, it

must be acknowledged, have done wonders; they have, in conflict with the

banks, Treasury, and public credit of Great Britain, risen superior to

them all, and have since died a natural death. We have honored them with

a funeral pile; we now bid peace to their manes, and devoutly hope that

bills of credit will for ever be extinct in the United States. Are we to

depend, then, on taxes for commanding money in cases of urgent

necessity? These, as has been shown by other gentlemen, will be too slow

in their operations, unless, indeed, we should levy a tax for drawing

into and locking up in the Treasury three or four millions of dollars; a

law which would be universally considered as unnecessary and improper.

By loans, and loans only, can provision be made for sudden emergencies;

but if loans should be made previously to an emergency, the people would

be unnecessarily burdened by the interest thereof, and most of the other

evils would ensue that would arise from previous taxes; and if they were

to be made at an emergency, without previous arrangements, of whom are

we to borrow? Of individuals? These cannot be depended on, as has been

fully proved by our own experience at the commencement of the

Revolution. Are we to apply to the banks already established in the

States for loans? These can no more be depended upon than individuals;

for stockholders having not more attachment to Government than other

citizens, would, in cases of public danger, attend to the preservation

of their property by other means than loaning it to Government. And

moreover, the united capitals of all the banks existing in the Union

would be insufficient for Government, for they do not amount to a

million and a half of dollars, and only a part in this could, in any

case, be reasonably expected on loan.

Are we to apply to foreign banks or individuals? These, as has been

shown, are too remote; and if not, we have not been able, without the

assistance of an ally, to obtain foreign loans during the war, and

perhaps the power on whose assistance we may rely would be hostile to

us. Such dependence, then, as has been stated, would necessarily leave

us in a deplorable state; and it must be evident that a previous

arrangement to aid loans in cases of sudden emergency is necessary and

proper in the general and popular use of the term, inasmuch as any other

measure that Congress can adopt would be inadequate to the purpose of

common defence; and what previous arrangement can we make so proper as

that of a National Bank? If gentlemen in the opposition know of any, let

them produce it, and let the merits of it be investigated; for it is

unreasonable to propose a rejection of this plan without producing a

better. The plan proposed by the Secretary of the Treasury, which is now

the subject of discussion, does honor, like all his other measures, to

his head and heart; it will be mutually beneficial to the stockholders

and to Government, and consequently so to the people. The stockholders

by this plan will be deeply interested in supporting Government; because

three-quarters of their capital, consisting of funded certificates,

depend on the existence of Government, which therefore is the prop of

their capital, the main pillar that supports the bank. Again, the credit

of Government, which is immaterial to the other banks, is essential to

the National Bank, for the annual interest of three-quarters of its

capital, which must form a great share of its profits, will depend

altogether on the credit of Government, and produce, on the part of the

stockholders, the strongest attachment to it. On the other hand, it will

be the interest of Government to support the Bank, as well on account of

the benefits which the public will generally derive from the

institution, and the profits arising from the shares of Government in

the stock which will be hereafter noticed, as of the supplies of money

which it will be for the interest of the Bank to furnish in cases of

urgent necessity. Whenever these exist, Congress may lay a tax for

supplying the Treasury, and anticipate it with certainty by means of the

National Bank. It being then our duty to provide for the common defence

in cases of emergency, the provision must evidently be made by taxes,

loans, or by arrangements for obtaining the latter on the earliest

notice; and previous taxes and loans being oppressive, improper, and

unnecessary, the arrangements for aiding loans become indispensable, and

a bank consequently necessary and constitutional.

The third rule of the Judge, relative to the "subject-matter" of a law,

it is unnecessary to apply, because the members agree in their ideas

relative to the meaning of the terms taxes, duties, loans, &c.

The fourth rule, which relates to "effects and consequences," is

important; and here the learned Judge observes that "as to effects and

consequences, the rule is, where the words bear none, or a very absurd

signification, if literally understood, we must a little deviate from

the received sense of them." In the present case, the gentlemen in the

opposition generally, as well as the gentleman first up from Virginia,

give the whole clause by which Congress are authorized "to make all laws

necessary and proper," &c., no meaning whatever; for they say, the

former Congress had the same power under the Confederation without this

clause as the present Congress have with it. The _Federalist_ is quoted

on this occasion, but although the author of it discovered great

ingenuity, this part of his performance I consider as a political

heresy. His doctrine, indeed, was calculated to lull the consciences of

those who differed in opinion with him at that time; and having

accomplished his object, he is probably desirous that it may die with

the opposition itself. The rule in this case says, that where the words

bear no signification, we must deviate a little; and as this deviation

cannot be made by giving the words less than no meaning, it must be made

by a more liberal construction than is given by gentlemen in the

opposition. Thus their artillery is turned on themselves, for their own

interpretation is an argument against itself.

The last mentioned rule relates to the spirit and reason of the law, and

the Judge is of opinion "that the most universal and effectual way of

discovering the true meaning of a law, when the words are dubious, is by

considering the reason and spirit of it, or the cause which moved the

Legislature to enact it". The causes which produced the constitution

were an imperfect union, want of public and private justice, internal

commotions, a defenceless community, neglect of the public welfare, and

danger to our liberties. These are known to be the causes not only by

the preamble of the constitution, but also from our own knowledge of the

history of the times that preceded the establishment of it. If these

weighty causes produced the constitution, and it not only gives power

for removing them, but also authorizes Congress to make all laws

necessary and proper for carrying these powers into effect, shall we

listen to assertions that these words have no meaning, and that this

constitution has not more energy than the old? Shall we thus unnerve the

Government, leave the Union, as it was under the Confederation,

defenceless against a banditti of Creek Indians, and thus relinquish the

protection of its citizens? Or shall we, by a candid and liberal

construction of the powers expressed in the constitution, promote the

great and important objects thereof? Each member must determine for

himself; I shall without hesitation choose the latter, and leave the

people and States to determine whether or not I am pursuing their true

interest. If it is inquired where we are to draw the line of a liberal

construction, I will also inquire where the line of restriction is to be

drawn? The interpretation of the constitution, like the prerogative of a

sovereign, may be abused; but from hence the disuse of either cannot be

inferred. In the exercise of prerogative the minister is responsible for

his advice to his sovereign, and the members of either House are

responsible to their constituents for their conduct in construing the

constitution. We act at our peril; if our conduct is directed to the

attainment of the great objects of Government, it will be approved, and

not otherwise; but this cannot operate as a reason to prevent our

discharging the trusts reposed in us.

Let us now compare the different modes of reasoning on this subject, and

determine which is right, for both cannot be.

The gentleman from Virginia (Mr. MADISON) has urged the dangerous

tendency of a liberal construction; but which is most dangerous, a

liberal or a destructive interpretation? The liberty we have taken in

interpreting the constitution, we conceive to be necessary, and it

cannot be denied to be useful in attaining the objects of it; but whilst

he denies us this liberty, he grants to himself a right to annul a part,

and a very important part of the constitution. The same principle that

will authorize a destruction of part, will authorize the destruction of

the whole of the constitution; and if gentlemen have a right to make

such rules, they have an equal right to make others for enlarging the

powers of the constitution, and indeed of forming a despotism. Thus, if

we take the gentleman for our pilot, we shall be wrecked on the reef

which he cautions us to avoid.

The gentleman has referred us to the last article of the amendments

proposed to the constitution by Congress, which provides that the powers

not delegated to Congress, or prohibited to the States, shall rest in

them or the people; and the question is, what powers are delegated? Does

the gentleman conceive that such only are delegated as are expressed? If

so, he must admit that our whole code of laws is unconstitutional. This

he disavows, and yields to the necessity of interpretation, which, by a

fair and candid application of established rules of construction to the

constitution, authorizes, as has been shown, the measure under

consideration.

The usage of Congress has also been referred to; and if we look at their

acts under the existing constitution, we shall find they are generally

the result of a liberal construction. I will mention but two. The first

relates to the establishment of the Executive Departments, and gives to

the President the power of removing officers. As the constitution is

silent on this subject, the power mentioned, by the gentleman's own

reasoning, is vested in the States or the people; he, however, contended

for an assumption of the power, and when assumed, urged that it should

be vested in the President, although, like the power of appointment, it

was by a respectable minority in both Houses conceived that it should

have been vested in the President and Senate. His rule of interpretation

then was therefore more liberal than it is now. In the other case,

Congress determined by law, with the sanction of the President, when and

where they should hold their next session, although the constitution

provides that this power should rest solely in the two Houses. The

gentleman also advocated this measure, and yet appears to be

apprehensive of the consequences that may result from a construction of

the constitution which admits of a National Bank. But from which of

these measures is danger to be apprehended? The only danger from our

interpretation would be the exercise by Congress of a general power to

form corporations; but the dangers resulting from the gentleman's

interpretations, in the cases alluded to, are very different; for what

may we not apprehend from the precedent of having assumed a power on

which the constitution was silent, and from having annexed it to the

Supreme Executive? If we have this right in one instance, we may extend

it to others, and make him a despot. And here I think it necessary to

declare, that such is my confidence in the wisdom, integrity, and

justice of the Chief Magistrate, as that I should be at ease, if my

life, liberty, and property were at his disposal; but this is a trust

which I am not authorized to make for my constituents; and as his

successors in office will possess equal powers, but may not possess

equal virtues, caution with respect to them is necessary. Again, what

may be the result of the precedent relating to the session of Congress?

If we had a right by law to determine where the next Congress should

hold their session, one Congress may oblige another to sit in Kentucky,

or in the intended State Yazoo, under the protection of a Choctaw chief,

or his Excellency, Governor Tallan. It must therefore be evident that

the usage of Congress in both instances is against the gentleman, and

that the dangers from the precedent of establishing a bank are

comparatively small to those resulting from the other measures referred

to.

The gentleman from Virginia has endeavored to support his interpretation

of the constitution by the sense of the Federal Convention; but how is

this to be obtained? By applying proper rules of interpretation? If so,

the sense of the Convention is in favor of the bill; or are we to depend

on the memory of the gentleman for a history of their debates, and from

thence to collect their sense? This would be improper, because the

memories of different gentlemen would probably vary, as they had already

done, with respect to those facts; and if not, the opinions of the

individual members who debated are not to be considered as the opinions

of the Convention. Indeed, if they were, no motion was made in that

Convention, and therefore none could be rejected for establishing a

National Bank; and the measure which the gentleman has referred to was a

proposition merely to enable Congress to erect commercial corporations,

which was, and always ought to be, negatived.

The gentleman's arguments respecting the sense of the State Conventions

have as little force as those relating to the Federal Convention. The

debates of the State Conventions, as published by the short-hand

writers, were generally partial and mutilated; in this, if the

publications are to be relied on, the arguments were all on one side of

the question; for there is not in the record, which is said to contain

the Pennsylvania debates, a word against the ratification of the

constitution; although we all know that arguments were warmly urged on

both sides.

The gentleman has quoted the opinions, as recorded in the debates of

this State and North Carolina, of two of our learned judges; but the

speech of one member is not to be considered as expressing the sense of

a convention; and if it was, we have no record which can be depended on

of such speeches. Indeed, had even this been the case, the Union was at

that time divided into two great parties, one of which feared the loss

of the Union if the constitution was not ratified unconditionally, and

the other the loss of our liberties if it was. The object on either side

was so important as perhaps to induce the parties to depart from candor,

and to call in the aid of art, flattery, professions of friendship,

promises of office, and even good cheer; and when these failed, the

_Federal Bull_ was published, denouncing political death and destruction

to anti-federal infidels. Under such circumstances, the opinions of

great men ought not to be considered as authorities, and in many

instances could not be recognized by themselves.

Mr. G. then observing that the sense of the States respecting a bank

would be best ascertained by their legislative acts, showed, from the

journals of Congress, that when restrained by the Confederation from

exercising any powers but what were expressly delegated, Congress had,

without any authority, established a bank whose capital might extend to

ten millions of dollars; and had not only pledged the faith of the Union

not to erect any other, but had recommended it to the States to prohibit

any State establishment of the kind, and had also determined that the

bank bills should be receivable in the taxes and duties of every State.

That the States did not remonstrate against, or tacitly acquiesce in,

but actually supported the measures of Congress relative to the bank,

whilst the war continued, and after the peace. That this was the

strongest evidence the States could give that they thought the measure

salutary, and had no objection to it on the ground of its being

unconstitutional. He then urged, that if the States and the people at

large had no objection to a bank in that case, they could not in this;

and inquired whether there was any evidence of their disapprobation of

such an institution in the debates of their Conventions or propositions

for amendments? To this he answered in the negative, and urged, that

whilst the Conventions were silent on the subject, and had no objections

to such a measure, several of them had proposed amendments to the

constitution for restraining Congress from establishing commercial

corporations; which evinced their disapprobation of such institutions,

and admitted at the same time, in some degree, the power of Congress,

under the existing constitution, to form them.

Mr. G. then showed, that as a monopoly had been urged as an objection to

the bill, no such consequence could result from it; for the bill does

not restrain State or private banks, or even individuals, from

negotiations of a similar nature with those permitted to the

stockholders; nor does it restrain the States from forming similar

corporations. This plan has not a feature of monopoly, and the gentlemen

who oppose it contend for a bank which, according to its original

institution, was founded in monopoly.

He then answered the arguments urged against the authority of Congress

to enable corporations to hold lands, when they had no power themselves

of purchasing and holding land; and showed, that although Congress are

restrained from purchasing lands, (except in certain cases,) and from

exercising over the same exclusive legislation, yet that they may hold

lands obtained by execution, conquest, and by other means as well as by

those clauses of the constitution which relate to lands now belonging to

the Union; and that Congress had often invested others with powers which

they themselves could not exercise.

He then noticed the argument, that, by a law of Virginia, notes payable

to the bearer, or order, would not circulate in that State, and observed

that this law could not be supposed to extend to bank notes; and if it

did, it would be null and void, because the constitution of the Union,

and laws, made in pursuance thereof, were paramount to the laws and

constitutions of the several States. Having considered the arguments

against the constitutionality of the bill, he entered into the policy

and utility of the measure.

TUESDAY, February 8.

_Bank of the United States._

The House resumed the consideration of the bill for incorporating the

Bank of the United States.

The question still being on the passage of the bill,

Mr. VINING apologized for rising to offer his sentiments on this

subject, which had been already so ably discussed; but considering the

nature of the objections as arising from constitutional principles, it

had acquired an importance which would justify his troubling the House

with some remarks.

He began by noticing the leading argument of Mr. MADISON respecting the

sense of the Continental Convention on the power proposed to be

exercised by Congress in this bill. He showed that the opinion of the

gentleman, in this instance, was, if not singular, different from that

of his contemporaries; at least a similar objection had not been started

by those gentlemen of the Senate, who had been members of the

Convention; but granting that the opinion of the gentleman from Virginia

had been the full sense of the members of the Convention, their opinion

at that day, he observed, is not a sufficient authority by which for

Congress at the present time to construe the constitution.

Mr. V., in explaining the powers proposed by the bill to be given to the

corporation of the Bank, adverted to the particular power of "making

rules and regulations not contrary to law." He showed that this term law

means the common law; and alluded to the inquiry of Mr. MADISON, as to

what law was intended by this clause, who, in answering his own

question, said, "that if the laws of the United States were intended,

the power contemplated was dangerous and unconstitutional, as those laws

were very few in number."

Mr. V. observed, that the restriction contended for by the gentleman as

the result of his objection, would annihilate the most essential rights

and privileges of the citizens of the United States. He then observed, a

corporation is nothing more than constituting a body with powers to

effect certain objects in a combined capacity, which an individual may

do in his individual capacity, agreeable to the usage and customs of

common law.

Adverting to the act by which the United States became a free and

independent nation, he said, from that declaration, solemnly recognized

at home and abroad, they derive all the powers appertaining to a nation

thus circumstanced, and consequently the power under consideration. He

traced the origin of corporations to the time of Numa, the first of

which was for agricultural purposes; they were afterwards extended to

other objects; and from that day to this, all civilized and independent

nations have been in the practice of creating them; and what do they

amount to but this--enabling a number of persons, in a combined

capacity, to do that to a more certain effect than an individual may do;

but subject to the control of common law, in all its regulations and

transactions.

On the doctrine of construction, as applied to the constitution, he

observed, that on some occasions the constitution is like the sensitive

plant, which shrinks from the smallest touch; on others it is like the

sturdy oak, which braves the force of thunder. He referred to the act

containing the power of removability; in which the utmost latitude of

construing the constitution was contended for and adopted; and, said he,

the funding system cannot be defended on any other principle than of

implication.

He then inquired, of what right does this incorporation deprive a single

citizen? And can an act possibly meet the disapprobation of a single

person which does not infringe his rights, and which puts money into his

pocket? I think not. He insisted that the power of Congress alone was

equal to establishing a bank competent to creating a currency which

shall pervade all parts of the Union; the paper of the State banks

cannot circulate beyond the bounds of the particular States.

From the restrictions to the Government contended for by the opposers of

the bill, he compared the constitution to a horse finely proportioned in

every respect to the eye, and elegantly caparisoned, but deficient in

one, and the most essential requisite, that of ability to carry the

owner to his journey's end; he had rather, he said, mount the old

Confederation, and drag on in the old way, than be amused with the

appearance of a Government so essentially defective.

Mr. MADISON observed, that the present is a question which ought to be

conducted with moderation and candor; and, therefore, there is no

occasion to have recourse to those tragic representations which have

been adduced. Warmth and passion should be excluded from the discussion

of a subject which ought to depend on the cool dictates of reason for

its decision.

Adverting to the observation of Mr. SMITH, (of South Carolina,) "that it

would be a deplorable thing for the Senate of the United States to have

fallen on a decision which violates the constitution," he inquired, What

does the reasoning of the gentleman tend to show but this, that from

respect to the Senate this House ought to sanction their decisions? And

from hence it will follow, that the President of the United States

ought, out of respect to both, to sanction their joint proceedings; but

he could remind the gentleman of his holding different sentiments on

another occasion.

Mr. M. then enlarged on the exact balance or equipoise contemplated by

the constitution, to be observed and maintained between the several

branches of Government; and showed, that except this idea was preserved,

the advantages of different independent branches would be lost, and

their separate deliberations and determinations be entirely useless.

In describing a corporation, he observed, that the powers proposed to be

given are such as do not exist antecedent to the existence of the

corporation; these powers are very extensive in their nature, and to

which a principle of perpetuity may be annexed.

He waived a reply to Mr. VINING's observations on the common law, [in

which that gentleman had been lengthy and minute, in order to invalidate

Mr. MADISON's objections to the power proposed to be given to the Bank,

to make rules and regulations, not contrary to law.] Mr. M. said the

question would involve a very lengthy discussion; and other objects more

intimately connected with the subject remained to be considered.

The power of granting charters, he observed, is a great and important

power, and ought not to be exercised unless we find ourselves expressly

authorized to grant them. Here he dilated on the great and extensive

influence that incorporated societies had on public affairs in Europe.

They are powerful machines, which have always been found competent to

effect objects on principles in a great measure independent of the

people.

He argued against the influence of the precedent to be established by

the bill; for though it has been said, that the charter is to be granted

only for a term of years, yet he contended, that granting the powers on

any principle is granting them in _perpetuum_; and assuming this right

on the part of the Government involves the assumption of every power

whatever.

Noticing the arguments in favor of the bill, he said, it had been

observed that "Government necessarily possesses every power." However

true this idea may be in the theory, he denied that it applied to the

Government of the United States.

Here he read the restrictive clause in the constitution; and then

observed, that he saw no pass over this limit.

The preamble to the constitution, said he, has produced a new mine of

power; but this is the first instance he had heard of, in which the

preamble has been adduced for such a purpose. In his opinion, the

preamble only states the objects of the Confederation, and the

subsequent clauses designate the express powers by which those objects

are to be obtained; and a mean is proposed through which to acquire

those that may be found still requisite, more fully to effect the

purposes of the Confederation.

It is said, "there is a field of legislation yet unexplored." He had

often heard this language; but he confessed he did not understand it. Is

there a single blade of grass--is there any property in existence in the

United States, which is not a subject of legislation, either of the

particular States, or of the United States? He contended that the

exercise of this power, on the part of the United States, involves, to

all intents and purposes, every power which an individual State may

exercise. On this principle, he denied the right of Congress to make use

of a bank to facilitate the collection of taxes. He did not, however,

admit the idea, that the institution would conduce to that object. The

bank notes are to be equal to gold and silver, and consequently will be

as difficult to obtain as the specie. By means of the objects of trade

on which gold and silver are employed, there will be an influx of those

articles; but paper being substituted, will fill those channels which

would otherwise be occupied by the precious metals. This, experience

shows, is the uniform effect of such a substitution.

The right of Congress to regulate trade is adduced as an argument in

favor of this of creating a corporation; but what has this bill to do

with trade? Would any plain man suppose that this bill had any thing to

do with trade?

He noticed the observation respecting the utility of banks to aid the

Government with loans. He denied the necessity of the institution to aid

the Government in this respect. Great Britain, he observed, did not

depend on such institutions; she borrows from various sources.

Banks, it is said, are necessary to pay the interest of the public debt.

Then they ought to be established in the places where that interest is

paid; but can any man say, that the bank notes will circulate at par in

Georgia? From the example in Scotland, we know that they cannot be made

equal to specie, remote from the place where they can be immediately

converted into coin; they must depreciate in case of a demand for

specie; and if there is no moral certainty that the interest can be

paid by these bank bills, will the Government be justified in depriving

itself of the power of establishing banks in different parts of the

Union?

We reason, and often with advantage, from British models; but in the

present instance there is a great dissimilarity of circumstances. The

bank notes of Great Britain do not circulate universally. To make the

circumstances parallel, it ought to have been assumed as a fact, that

banks are established in various parts of Great Britain, at which the

interest of the national debt is paid; but the fact is, it is only paid

in one place.

The clause of the constitution which has been so often recurred to, and

which empowers Congress to dispose of its property, he supposed referred

only to the property left at the conclusion of the war, and has no

reference to the moneyed property of the United States.

The clause which empowers Congress to pass all laws necessary, &c., has

been brought forward repeatedly by the advocates of the bill; he noticed

the several constructions of this clause which had been offered. The

conclusion which he drew from the commentary of the gentleman from

Massachusetts, (Mr. GERRY,) was, that Congress may do what they please;

and recurring to the opinion of that gentleman in 1787, he said the

powers of the constitution were then dark, inexplicable, and dangerous;

but now, perhaps, as the result of experience, they are clear and

luminous!

The constructions of the constitution, he asserted, which have been

maintained on this occasion, go to the subversion of every power

whatever in the several States; but we are told, for our comfort, that

the judges will rectify our mistakes. How are the judges to determine in

the case; are they to be guided in their decisions by the rules of

expediency?

It has been asked, that if those minute powers of the constitution were

thought to be necessary, is it supposable that the great and important

power on the table was not intended to be given? Mr. M. interpreted this

circumstance in a quite different way, viz: if it was thought necessary

to specify in the constitution those minute powers, it would follow that

more important powers would have been explicitly granted, had they been

contemplated.

The Western Territory business, he observed, was a case _sui generis_,

and therefore cannot be cited with propriety. West Point, so often

mentioned, he said, was purchased by the United States, pursuant to law,

and the consent of the State of New York is supposed, if it has not been

expressly granted; but, on any occasion, does it follow that one

violation of the constitution is to be justified by another?

The permanent residence bill, he conceived, was entirely irrelative to

the subject; but he conceived it might be justified on truly

constitutional principles.

The act vesting in the President of the United States the power of

removability has been quoted; he recapitulated, in a few words, his

reasons for being in favor of that bill.

The Bank of North America he had opposed, as he considered the

institution as a violation of the Confederation. The State of

Massachusetts, he recollected, voted with him on that occasion. The Bank

of North America was, however, the child of necessity; as soon as the

war was over, it ceased to operate as to Continental purposes. But,

asked he, are precedents in war to justify violations of private and

State rights in a time of peace? And did the United States pass laws to

punish the counterfeiting the notes of that bank? They did not, being

convinced of the invalidity of any such law; the bank, therefore, took

shelter under the authority of the State.

The energetic administration of this Government is said to be connected

with this institution. Mr. M. here stated the principles on which he

conceived this Government ought to be administered; and added, other

gentlemen may have had other ideas on the subject, and may have

consented to the ratification of the constitution on different

principles and expectations; but he considered the enlightened opinion

and affection of the people the only solid basis for the support of this

Government.

Mr. M. then stated his objections to the several parts of the bill. The

first article he objected to was the duration. A period of twenty years

was, to this country, as a period of a century in the history of other

countries; there was no calculating for the events which might take

place. He urged the ill policy of granting so long a term, from the

experience of the Government in respect to some treaties, which, though

found inconvenient, could not now be altered.

The different classes of the public creditors, he observed, were not all

put on an equal footing by this bill; but in the bill for the disposal

of the Western Territory this had been thought essential. The holders of

six per cent. securities will derive undue advantages. Creditors at a

distance, and the holders of three per cent. securities, ought to be

considered, as the public good is most essentially promoted by an equal

attention to the interest of all.

I admit, said he, that the Government ought to consider itself as the

trustee of the public on this occasion, and therefore should avail

itself of the best disposition of the public property.

In this view of the subject, he objected to the bill, as the public, he

thought, ought to derive greater advantages from the institution than

those proposed. In case of a universal circulation of the notes of the

proposed bank, the profits will be so great that the Government ought to

receive a very considerable sum for granting the charter.

There are other defects in the bill, which render it proper and

necessary, in my opinion, that it should undergo a revision and

amendment before it passes into a law. The power vested by the bill in

the Executive to borrow of the bank, he thought was objectionable; and

the right to establish subordinate banks ought not to be delegated to

any set of men under Heaven.

The public opinion has been mentioned. If the appeal to the public

opinion is suggested with sincerity, we ought to let our constituents

have an opportunity to form an opinion on the subject.

He concluded by saying, he should move for the previous question.

The previous question, "Shall the main question now be put?" being

determined in the affirmative,

Mr. GERRY rose to reply to Mr. MADISON; but the House discovering an

impatience to have the main question put, after a few remarks, he waived

any further observations.

The yeas and nays were then taken as follows, on the passage of the

bill:

YEAS.--Messrs. Ames, Benson, Boudinot, Bourne, Cadwalader,

Clymer, Fitzsimons, Floyd, Foster, Gerry, Gilman, Goodhue,

Hartley, Hathorn, Heister, Huntington, Lawrence, Leonard,

Livermore, P. Muhlenberg, Partridge, Rensselaer, Schureman,

Scott, Sedgwick, Seney, Sevier, Sherman, Sylvester,

Sinnickson, Smith, (of Maryland,) Smith, (of South

Carolina,) Steele, Sturges, Thatcher, Trumbull, Vining,

Wadsworth, and Wynkoop--39.

NAYS.--Messrs. Ashe, Baldwin, Bloodworth, Brown, Burke,

Carroll, Contee, Gale, Grout, Giles, Jackson, Lee, Madison.

Mathews, Moore, Parker, Stone, Tucker, White, and

Williamson--20.

MONDAY, February 14.

_Commerce with England._

The following Message was received from the PRESIDENT OF THE UNITED

STATES:

_Gentlemen of the Senate, and House of Representatives:_

Soon after I was called to the administration of the

Government, I found it important to come to an

understanding with the Court of London, on several points

interesting to the United States; and particularly to know

whether they were disposed to enter into arrangements, by

mutual consent, which might fix the commerce between the

two nations on principles of reciprocal advantage. For this

purpose, I authorized informal conferences with their

Ministers; and from these, I do not infer any disposition,

on their part, to enter into any arrangements merely

commercial. I have thought it proper to give you this

information, as it might, at some time, have influence on

matters under your consideration.