Part 119

He proceeded to enforce this idea by several considerations, and illustrated it by various examples. He said, that the ingenuity of man was unequal to providing, especially beforehand, for all the contingencies that would happen. The constitution contains the principles which are to govern in making laws; but every law requires an application of the rule to the case in question. We may err in applying it; but we are to exercise our judgments, and on every occasion to decide according to an honest conviction of its true meaning.

The danger of implied power does not arise from its assuming a new principle; we have not only practised it often, but we can scarcely proceed without it; nor does the danger proceed so much from the extent of the power as from its uncertainty. While the opposers of the Bank exclaim against the exercise of this power by Congress, do they mark out the limits of the power which they will leave to us, with more certainty than is done by the advocates of the Bank? Their rules of interpretation by contemporaneous testimony, the debates of conventions, and the doctrine of substantive and auxiliary powers, will be found as obscure, and of course as formidable, as that which they condemn; they only set up one construction against another.

The powers of Congress are disputed. We are obliged to decide the question according to truth. The negative, if false, is less safe than the affirmative, if true. Why, then, shall we be told that the negative is the safe side? Not exercising the powers we have, may be as pernicious as usurping those we have not. If the power to raise armies had not been expressed in the enumeration of the powers of Congress, it would be implied from other parts of the constitution. Suppose, however, that it were omitted, and our country invaded, would a decision in Congress against raising armies be safer than the affirmative? The blood of our citizens would be shed, and shed unavenged. He thought, therefore, that there was too much prepossession with some against the Bank, and that the debate ought to be considered more impartially, as the negative was neither more safe, certain, nor conformable to our duty than the other side of the question. After all, the proof of the affirmative imposed a sufficient burden, as it is easier to raise objections than to remove them. Would any one doubt that Congress may lend money, that they may buy their debt in the market, or redeem their captives from Algiers? Yet no such power is expressly given, though it is irresistibly implied.

If, therefore, some interpretation of the constitution must be indulged, by what rules is it to be governed? The great end of every association of persons or States is to effect the end of its institution. The matter in debate affords a good illustration: a corporation, as soon as it is created, has certain powers, or qualities, tacitly annexed to it, which tend to promote the end for which it was formed; such as, for example, its individuality, its power to sue and be sued, and the perpetual succession of persons. Government is itself the highest kind of corporation; and from the instant of its formation, it has tacitly annexed to its being, various powers which the individuals who framed it did not separately possess, but which are essential to its effecting the purposes for which it was framed; to declare, in detail, every thing that Government may do could not be performed, and has never been attempted. It would be endless, useless, and dangerous; exceptions of what it may not do are shorter and safer.

Congress may do what is necessary to the end for which the constitution was adopted, provided it is not repugnant to the natural rights of man, or to those which they have expressly reserved to themselves, or to the powers which are assigned to the States. This rule of interpretation seems to be safe, and not a very uncertain one, independently of the constitution itself. By that instrument certain powers are specially delegated, together with all powers necessary or proper to carry them into execution. That construction may be maintained to be a safe one which promotes the good of society, and the ends for which the Government was adopted, without impairing the rights of any man, or the powers of any State.

This, he said, was remarkably true of the Bank; no man could have cause to complain of it; the bills would not be forced upon any one. It is of the first utility to trade. Indeed, the intercourse from State to State can never be on a good footing without a bank, whose paper will circulate more extensively than that of any State bank. Whether the power to regulate trade from State to State will involve that of regulating inland bills of exchange and bank paper, as the instruments of the trade, and incident to the power, he would not pause to examine. This is an injury and wrong which violates the right of another. As the bank is founded on the free choice of those who make use of it, and is highly useful to the people and to Government, a liberal construction is natural and safe. This circumstance creates a presumption in favor of its conformity to the constitution. This presumption is enforced by the necessity of a bank to other governments. The most orderly governments in Europe have banks. They are considered as indispensably necessary; these examples are not to be supposed to have been unnoticed. We are to pay the interest of our debt in thirteen places. Is it possible to transport the revenue from one end of the continent to the other? Nay, a week before the quarter's interest becomes due, transfers will be made which will require double the sum in Boston which was expected. To guard against this danger, an extra sum must be deposited at the different loan offices. This extra sum is not to be had; our revenue is barely equal to the interest due. This imposes an absolute necessity upon the Government to make use of a bank. The answer is, that the State banks will supply this aid. This is risking a good deal to the argument against the Bank; for will they admit the necessity, and yet deny to the Government the lawful and only adequate means for providing for it? Ten of the States have no banks; those who have may abolish theirs, and suffer their charters to expire. But the State banks are insufficient to the purpose; their paper has not a sufficient circulation; of course their capitals are small. Congress is allowed to have complete legislative power over its own finances; and yet without the courtesy of the States it cannot be exercised. This seems to be inconsistent.

If a war should suddenly break out, how is Congress to provide for it? Perhaps Congress would not be sitting; great expenses would be incurred; and they must be instantly provided for. How is this to be done? By taxes? And will the enemy wait till they can be collected? By loans at home? Our citizens would employ their money in war speculations, and they are not individually in a condition to lend a sufficient sum in specie. Or shall we send across the sea for loans? The dispute between England and Spain furnishes an example; the aid of their banks for several millions was prompt and effectual. Or, will you say that Congress might issue paper money? That power, ruinous and fallacious as it is, is deduced from implication, for it is not expressly given. A bank only can afford the necessary aid in time of sudden emergency. If we have not the power to establish it, our social compact is incomplete, we want the means of self-preservation.

I shall, perhaps, be told that necessity is the tyrant's plea. I answer that it is a miserable one when it is urged to palliate the violation of private right. Who suffers by this use of our authority? Not the States, for they are not warranted to establish a National Bank; not individuals, for they will be assisted in trade, and defended from danger by it.

Having endeavored to enforce his argument, by noticing the uses of banks to trade, to revenue, to credit, and, in cases of exigency, he adverted to the authority of our own precedents. Our right to govern the Western Territory is not disputed. It is a power which no State can exercise; it must be exercised, and therefore it resides in Congress. But how does Congress get this power? It is not expressly given in the constitution, but is derived either from the nature of the case, or by implication from the power to regulate the property of the United States. If the power flows from the nature and necessity of the case, it may be demanded, is the renot equal authority for the Bank? If it is derived from the power of Congress to regulate the territory and other property of the United States, and to make all needful rules and regulations concerning it, and for the disposal of it, a strict construction would restrain Congress merely to the management and disposal of property, and of its own property; yet it is plain that more is intended. Congress has accordingly made rules, not only for governing its own property, but the property of the persons residing there. It has made rules which have no relation to property at all--for punishing crimes. In short, it exercises all power in that territory. Nay, it has exercised this very power of creating a corporation. The government of that territory is a corporation; and who will deny that Congress may lawfully establish a bank beyond the Ohio? It is fair to reason by analogy from a power which is unquestionable, to one which is the subject of debate.

He then asked, whether it appeared, on this view of the subject, that the establishment of a National Bank would be a violent misinterpretation of the constitution? He did not contend for an arbitrary, unlimited discretion in the Government to do every thing. He took occasion to protest against such a misconception of his argument. He had noticed the great marks by which the construction of the constitution, he conceived, must be guided and limited; and these, if not absolutely certain, were very far from being arbitrary or unsafe. It is for the House, to judge whether the construction which denies the power of Congress is more definite and safe.

In proving that Congress may exercise powers which are not expressly granted by the constitution, he had endeavored to establish such rules of interpretation, and had illustrated his ideas by such observations as would anticipate, in a considerable degree, the application of his principles to the point in question. Before he proceeded to the construction of the clauses of the constitution which apply to the argument, lie observed that it would be proper to notice the qualities of a corporation, in order to take a more exact view of the controversy.

He adverted to the individuality and the perpetuity of a corporation, and that the property of the individuals should not be liable for the debts of the bank or company. These qualities are not more useful to the corporation than conformable to reason; but Government, it is said, cannot create these qualities. This is the marrow of the argument; for Congress may set up a bank of its own, to be managed as public property, to issue notes which shall be received in all payments at the Treasury, which shall be exchangeable into specie on demand, and which it shall be death to counterfeit. Such a bank would be less safe and useful than one under the direction of private persons; yet the power to establish it is indisputable. If Congress has the authority to do this business badly, the question returns, whether the powers of a corporation, which are essential to its being well done, may be annexed as incident to it. The Bank of New York is not a corporation, yet its notes have credit. Congress may agree with that bank, or with a company of merchants, to take their notes, and to cause all payments to pass through their coffers. Every thing that Government requires, and the bank will perform, may be lawfully done without giving them corporate powers; but to do this well, safely, and extensively, those powers are indispensable. This seems to bring the debate within a very narrow compass.

This led him to consider whether the corporate powers are incidental to those which Congress may exercise by the constitution.

He entered into a discussion of the construction of that clause which empowers Congress to regulate the territory and other property of the United States. The United States may hold property; may dispose of it; they may hold it in partnership; they may regulate the terms of the partnership. One condition may be, that the common stock only shall be liable for the debts of the partnership, and that any purchaser of a share shall become a partner. These are the chief qualities of a corporation. It seems that Congress, having power to make all needful rules and regulations for the property of the United States, may establish a corporation to manage it: without which we have seen that the regulations cannot be either safe or useful; the United States will be the proprietor of one-tenth of the bank stock.

Congress may exercise exclusive legislation in all cases whatsoever over the ten miles square, and the places ceded by the States for arsenals, light-houses, docks, &c. Of course it may establish a bank in those places with corporate powers. The bill has not restrained the bank to this city; and if it had, the dispute would lose a part of its solemnity. If, instead of principles, it concerns only places, what objection is there to the constitutional authority of Congress to fix the Bank at Sandy Hook, or Reedy Island, where we have light-houses, and a right of exclusive legislation? A bank established there, or in the district located by law on the Potomac for the seat of Government, could send its paper all over the Union; it is true that the places are not the most proper for a bank; but the authority to establish it in them overthrows the argument which is deduced from the definite nature of the powers vested in Congress, and the dangerous tendency of the proposed construction of them.

The preamble of the constitution warrants this remark, that a bank is not repugnant to the spirit and essential objects of that instrument.

He then considered the power to borrow money. He said it was natural to understand that authority as it was actually exercised in Europe; which is, to borrow of the bank. He observed, the power to borrow was of narrow use without the institution of a bank; and in the most dangerous crisis of affairs would be a dead letter.

After noticing the power to lay and collect taxes, he adverted to the sweeping clause, as it is usually called, which empowers Congress to exercise all powers necessary and proper to carry the enumerated powers into execution. He did not pretend that it gives any new powers; but it establishes the doctrine of implied powers. He then demanded whether the power to incorporate a bank is not fairly relative, and a necessary incident to the entire powers to regulate trade and revenue, and to provide for the public credit and defence.

He entered into a particular answer to several objections, and after recapitulating his argument, he concluded with observing that we had felt the disadvantages of the Confederation. We adopted the constitution, expecting to place the national affairs under a Federal head; this is a power which Congress can only exercise. We may reason away the whole constitution. All nations have their times of adversity and danger; the neglect of providing against them in season may be the cause of ruining the country.

FRIDAY, February 4.

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. SEDGWICK said, he would endeavor not to fatigue the patience of the House in the observations he should make on the important subject now under consideration. Without entering into the discussion on a scale so extensive as had been indulged by some gentlemen, he would dwell only on a few important principles, and such consequences as were conclusively deducible from them, which had made a strong impression on his own mind. The opposition to the bill had called in question the constitutional powers of Congress to establish the proposed corporation, and the utility of banks, neither of which till within a few days did he suppose was doubted by any intelligent man in America; and had charged the present system with holding out unequal terms against the Government to those who should subscribe to the proposed stock.

With regard to the question of constitutionality, much had been said which, in his opinion, had not an intimate relation to the subject now before the House. We have with great earnestness been warned of the danger of grasping power by construction and implication; and this warning has been given in very animated language by the gentleman from Virginia (Mr. MADISON.) I do not wish to deprive that member of the honor of consistency; but I well remember the time when the energy of his reasoning impressed on the minds of the majority of this House a conviction that the power of removal from office, holden at pleasure, was, by construction and implication, vested by the constitution in the President; for there could be no pretence that it is expressly granted to him.

He would only observe, in answer to every thing which had been said of the danger of extending construction and implication, that the whole business of legislation was a practical construction of the powers of the Legislature; and that probably no instrument for the delegation of power could be drawn with such precision and accuracy as to leave nothing to necessary implication. That all the different Legislatures in the United States had, and this, in his opinion, indispensably must construe the powers which had been granted to them, and they must assume such auxiliary powers as are necessarily implied in those which are expressly granted. In doing which, it was no doubt their duty to be careful not to exceed those limits to which it was intended they should be restricted. By any other limitation the Government would be so shackled that it would be incapable of producing any of the effects which were intended by its institution.

He observed, that on almost all the great and important measures which come under the deliberation of Congress there were immense difficulties to be surmounted. If we attempt, said he, to proceed in one direction, our ears are assailed with the exclamation of "the constitution is in danger!" if we attempt to attain our objects by pursuing a different course, we are told the pass is guarded by the stern spirit of democracy. Did I concur with gentlemen in opinion on this subject, I should think it my duty to go home to my constituents, and honestly declare to them that by their jealousy of power they had so restrained the operations of the Government that we had not the means of effecting any of the great purposes for which the constitution was designed, without attempting, what perhaps would be found impracticable, to fix by general rules the nice point within which Congress would be authorized to assume powers by construction and implication, and beyond which they may be justly considered as usurpers.

He wished gentlemen to reflect what effect a single principle, universally acknowledged, would have in determining the question now under consideration. It is universally agreed that wherever a power is delegated for express purposes, all the known and usual means for the attainment of the objects expressed are conceded also. That to decide what influence this acknowledged principle would have on the subject before the House, it would be necessary to reflect on the powers with which Congress are expressly invested. He then repeated that Congress was authorized to lay and collect taxes, to borrow money on the credit of the United States, to raise and support armies, provide and maintain navies, to regulate foreign and domestic trade, and to make all laws necessary and proper to carry these and the other enumerated powers into effect. They were, in fine, intrusted with the exercise of all those powers which the people of America thought necessary to secure their fame and happiness against the attacks of internal violence and external invasion; and in the exercise of those powers, the Legislature was authorized, agreeably to the principle which he had mentioned, to employ all the known and usual means necessary and proper to effectuate the ends which are expressed. It might be of use to determine with precision what was the meaning of the words necessary and proper--they did not restrict the power of the Legislature to enacting such laws only as are indispensable. Such a construction would be infinitely too narrow and limited; and, to apply the meaning strictly, it would prove, perhaps, that all the laws which had been passed were unconstitutional; for few, if any of them, could be proved indispensable to the existence of the Government. The conduct of Congress had a construction on those words more rational and consistent with common sense and the purposes for which the Government was instituted; which he conceived to be that the laws should be established on such principles, and such an agency in the known and usual means employed in the execution of them, as to effect the ends expressed in the constitution with the greatest possible degree of public utility.