Part 101

We have been told, Mr. President, in case the charter should not be renewed, that we shall find in future great difficulty in obtaining loans. What loans, I ask, have Government ever received from the Bank of the United States? I recollect, when I first entered Congress, that Government were indebted for loans made from the bank, but I also recollect that the bank complained of her loans as an inconvenience, and that Congress took the earliest measure in their power to pay them off, and have, since that period, made no new loan from the bank until that made payable the first of January last. I will not inquire whether even that loan was necessary, but I will venture to promise, sir, and will give any security that may be required, that the State banks will give a similar accommodation, to wit: If the Secretary of the Treasury will deposit with the State banks two millions five hundred thousand dollars of the public money, (the amount of the late loan,) they will lend Government to the same amount, and thus do as the Bank of the United States has done, lend you your own money, and very kindly receive from you an interest of six per cent. therefor. We are told that the bank has lately lessened the discounts of individuals ten per cent., and that the merchants are thereby greatly distressed. Is that a fact? If it is, and great distress has ensued therefrom, what will be the distress of the merchants if the bill now before you shall pass; and if, agreeably to its provisions, Congress should (at any time hereafter) call on the bank for the loan of four millions promised by the bill? If, sir, a lessening of their discounts one-tenth per cent. creates distress, what will be the consequence, when, by a loan of four millions, called for from the bank, the bank shall be compelled to lessen the discounts four-tenths?

But, sir, the promise to lend four millions from a bank of ten millions is idle; it is worse, it is deception on the face of it. The loan, if made, would not be from the bank but from the merchants, whose discounts would thereby be lessened, and whose ruin would follow.

We are told that, if the charter of this bank be not renewed, and the funds of the United States be deposited in the State banks, it will be extremely unsafe, because it is said we can have no control over them. And, I wish to know, sir, what control we have over the Bank of the United States? None, but the same as we may have over the State banks. We cannot check the operations of the Bank of the United States, and if they obtain this charter, they will know that they can have their charter renewed whenever they please; so that, the fear of a non-renewal of their charter will have no operation on them in future. You will have a much greater control over the State banks, because you are under no obligation to put money in them, and you can change them whenever you think proper; the danger of losing the public deposits will always be a sufficient control over their conduct. The security of the State banks is doubted, however; and we are told, very gravely, indeed, that there is much more security in the mother bank, and her nine children, than in ten independent banks. This I must deny. I should, as a merchant, place more confidence in ten independent houses than in one with nine branches.

MONDAY, February 18.

Bank of the United States.

Mr. BRENT said he had not the vanity to believe, after the subject had been so fully discussed, that he should be able to shed any new light on it; but having been instructed, by the Legislature of the State which he had the honor to represent, to vote on constitutional principles against the bill under consideration, and as he was reduced to the painful necessity of going counter to those instructions, it seemed to him to be indispensably necessary that he should submit to the Senate the grounds on which he acted. It is (said he) a most painful situation in which I stand in relation to the Legislature of Virginia, in being compelled to vote in opposition to their will, more especially as it is a prevalent opinion with many whose opinions are entitled to great respect, that instructions are obligatory on a Senator. This question is one which has never been settled, or even fully deliberated on. Instructions, when heretofore given to Senators, have generally been in accordance with the sentiments of the Senators, and only given to add the greater weight to their opinions. If called upon definitely to pronounce with regard to instructions on questions of expediency, I might be under some difficulty as to what course to pursue; because, although there is no clause in the constitution to that effect, I am under a strong impression that, according to the principles of our Government, there is much reason to believe that the respective State Legislatures should have such a right; but on a constitutional question (whatever may be the right of the State Legislatures in other instances) the right of instruction may be denied, in my judgment--that is, so far as to be imperative on the Senator. To give a vote in such a manner as in his estimation to inflict a vital wound on the constitution, is more than the Legislature of Virginia, or any other State Legislature in the Union, can compel me or any other Senator in the United States to do. The resolution of Virginia is bottomed, not on the ground of expediency, but on the principle that the constitution prohibited Congress from granting the bank charter in the first instance; that it now prohibited it, and therefore, because it was unconstitutional, the Legislature have instructed their Senators in Congress to oppose it. Now, sir, although I shall not immediately and directly violate the constitution by voting against the bank, yet, if I vote against it when I believe it constitutional and necessary, it must be known that I vote in conformity to the instructions of the Virginia Legislature; and so far as my vote goes, it will warrant and sanction that interpretation of the constitution which the Legislature of Virginia has given--which interpretation, in conscience, I believe to be erroneous. Therefore, though in ordinary cases the instructions of a Legislature may be imperative, (I will not determine that question,) I conclude that they cannot be so when they require of a Senator to commit either a positive or implied breach of the constitution, or to vote in such a manner as to warrant such interpretation of the constitution as will deprive it of an essential attribute. Virginia has the physical force, but has she a moral right to violate the Constitution of the United States? If she has it not, can she give it to her Legislature? If her Legislature possess it not, can they give it to a Senator? Can the Legislature give me a moral right to violate the Constitution of the United States, which I have sworn to support? I believe not, sir; and that, in the situation in which I stand, their instructions ought to have no operation on the vote I am to give on the subject under consideration.

The first question, whether the General Government, when it first came into operation, did not possess the power of creating a National Bank, is the primary object of investigation. In objection to this it has been said, that to carry into effect an enumerated power is one thing, and the right to incorporate a bank is a distinct power. Those who take this ground say that the creation of a National Bank is an original, independent, and substantive power. It is not sufficient, say they, to show that it is a convenient instrument to carry into effect an enumerated power, because it is an independent authority of itself, and the genius of our Government prohibits the derivation of any powers by implication with scrupulous limitation. It is true, sir, that our Government, being an emanation from the existing State governments, the rational construction is, that all power not given away is retained to them or to the people. If that construction does not result, then a positive amendment, which has been made to the constitution, has infused this principle into it. I therefore admit in its fullest latitude the construction that all powers not given away are still retained; yet I still contend that even in a Government like ours, there are some resulting powers. Or by what right do we create a military school? We have a right to raise armies; but we can have an army without a military school. Yet it is constitutional to create such an institution, because every given power implies rights inferior appertaining to the powers granted. We lay an embargo--is there any clause in the constitution authorizing us to lay embargoes? No, sir; we have a right to regulate trade, and we have a right to lay embargoes to protect it. We have a right to provide for arming and disciplining the militia. Under this authority we build armories. Is there any provision in the constitution directing it? We have erected forges and even purchased ore banks. These are inferior powers, necessarily resulting from the greater powers granted. But here gentlemen find the great difficulty. The creation of a corporation, say they, is an act of sovereignty; it cannot be used as a mean, because it is a sovereign act. Why, Mr. President, every law passed is quoad hoc a sovereign act. A law incorporating a military school is as much an act of sovereignty, as to the particular subject to which it relates, as an act incorporating, a bank. We create a military school--for what purpose? Because the sovereign authority has power to establish an army, and the power to create a military school is inseparably connected with and necessarily appertains to it. We establish a navy--we also establish a marine corps. There is no clause in the constitution giving that power, but we take it as inseparable from the power to create a navy, because the exercise of the greater implies every subordinate power necessarily connected with it. The great stumbling block, however, is, that this is one of those independent, original, and substantive powers, which cannot be given by implication. Blackstone says, "municipal law, thus understood, is properly defined to be a rule of civil conduct, prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong." Agreeably to this definition, every law passed by a deliberative body is an act of sovereignty as to the subject to which it relates. The establishment of a marine corps is as much an act of sovereignty as an act incorporating the Bank of the United States. The only question is, whether it be necessarily incident to the enumerated powers given to the General Government. Those who criticise most accurately on the constitution and most unwillingly concede resulting powers, will admit them to a certain extent even in our Government. The only question is the immediate and necessary connection of the means used with the object intended to be attained.

In inquiring then, sir, whether or not, at the first promulgation of the constitution, when it came into existence, it was intended that Congress should possess the power of incorporating the Bank of the United States, let us inquire whether there was any possibility of carrying into effect with any tolerable convenience and advantage the several provisions of the constitution, unless this power exists. It is said that you do not possess the power, because it is attempted to be derived by different gentlemen from so many different parts of the constitution. Now, Mr. President, I have never before understood that a capacity to derive a title from several different sources gives you less title than if derived from one source alone. I derive the power from the whole context of the constitution, although gentlemen seem to think that the title is invalidated in proportion to the number of sections in the constitution from whence we derive it. In order to avoid confusion of argument in examining this question, I will derive it from only one source at present, though I believe others equally give it by a necessary construction. At the time the constitution came into existence, I believe there were but three banks in the United States; none south of Philadelphia, and all of very limited capital. The Constitution of the United States gives the power to levy and collect taxes. Is it possible to imagine any system so convenient for the collection of this revenue, and sending it to the seat of Government, as that of the agency of banks? I am not inquiring whether the State banks can do it; but I say that the framers of the constitution must have had under consideration the state of things at the time when the constitution came into existence. At that time there was not one bank south of Philadelphia, and the banks which existed were very limited in their capital, and their paper had limited circulation. Congress, in such a state of things, then, has the power of levying and collecting taxes conferred on it, and yet Congress has not the power to create banks to aid in the collection of its taxes, notwithstanding a clause to make all laws necessary and proper for that purpose is contained in the constitution. No gentleman will say that the agency of banks is not necessary in some way or other in collecting the revenue. I admit without them you could have carried on our fiscal arrangements in an awkward and cumbrous form, but was that the intention of the constitution? When the power to collect taxes was given, it was intended to give all the means necessary to carry this power into execution. It was not to execute this power in a cumbrous form, but with the greatest facility with which the power is susceptible of being wielded. Now, is it possible that the constitution contemplated that the revenue should be collected and transmitted here, subject to all the risks and accidents and inconveniences that attend the transportation of specie? It is impossible. But all this doubt has arisen from its being a separate and independent power, although it is no more of that character than any other law passed to execute the enumerated powers of Congress.

In a word, Mr. President, it is admitted by all who have spoken on this question, whether for or against the bill under consideration, that the agency of a bank or of banks affords the greatest facility and security of any plan that can be devised for the collection of a revenue, and for its transmission to your Treasury.

It is admitted that no bank or banks of a capital or of sufficient circulating paper throughout the United States adequate to this object, did exist when the constitution was first formed, promulgated, or adopted. It is admitted that to levy and collect taxes is one of the enumerated powers of Congress. It is admitted that Congress has all power necessary and convenient to carry its enumerated powers into execution.

It is admitted there is no express clause in the constitution prohibiting the establishment of a National Bank.

If these principles and facts are admitted, does it not demonstrate, beyond the possibility of doubt, this unquestionable result, to wit: that as Congress is to levy and collect revenue; that as the agency of banks affords the most certain, speedy, and convenient means by which a revenue can be collected; that as neither, at the period when the constitution was made, promulgated, or adopted, banks of sufficient capital, or with paper of sufficient circulation, existed for the collection of the revenue, and its transmission to your Treasury; that as there was no positive clause prohibiting a National Bank in the constitution; that as Congress was to have all power necessary to carry its enumerated powers into execution; that as the convention who framed, and the people who adopted the constitution, must have had in view our then existing institutions, and the then general state of society, it was the intention of the convention who formed the constitution, and the people who adopted it, to give to Congress the power of establishing a National Bank. If at the time of adopting the constitution it was necessary and proper that Congress should possess it, for the exercise of any of its enumerated powers; if the foregoing result is undeniable, and I think it is, I would interrogate, if Congress, on the adoption of the constitution, possessed a power to establish a National Bank, what has since deprived that body of the power? I, Mr. President, can discover nothing which has. One argument, much confided in by gentlemen who have opposed the present bill, is, not that banks are not necessary to the collection of the revenue, but that State banks will answer. In return, I insist that no State banks did exist when the constitution was first formed, therefore the power to create a National Bank is necessarily given in the power to levy and collect taxes. To this it is replied that to create a National Bank is to legislate by implication; it is a separate, substantive, and independent power; to levy a tax is one thing, to make a bank another. I answer, to levy a tax is one thing, to create an officer for its collection another. By this kind of chop-logic we may prove any thing unconstitutional. I ask, when you levy a tax, if you do not provide officers for collecting it. I levy a tax and create a bank through whose instrumentality I mean to collect it; from the same authority by which I appoint a collector, I have a right to create a bank through whose instrumentality I mean to receive and transmit it. There is no clause in the constitution saying you may appoint officers for the collection of the revenue specifically; but the right to appoint officers to collect revenue is derived from the power of levying a tax, from which also may be derived the power of establishing a bank, if it be the best mode of collecting the revenue. It is said you may collect this tax by means of the State banks. Very well, sir, I say you may collect the revenue by means of State officers, and upon the principle that you cannot establish a bank to collect the revenue, because the State banks can collect it, I say that the State officers can collect our taxes, and if your argument is just, you cannot appoint any other officers. The constitution authorizes the President to appoint persons to fill all offices established by law, but says not a word about appointing officers to collect the tax you levy specifically. Upon the construction gentlemen contend for, they might say, because no power is expressly given to appoint officers of the customs, or for your taxes, and it is possible to collect the revenue by the agency of the State Governments, and nothing should be done by the United States authorities which can be done by the States, therefore these collectors of the customs or revenue should be such as are appointed by the States for State purposes. This kind of reasoning, sir, cannot be admissible, and is in hostility with a most manifest principle of the constitution, as it is evidently a prominent feature of that instrument that the General Government should have within itself all those powers necessary and convenient for the execution of its enumerated trusts, entirely free and independent of the interference and agency of the States, their officers, or ministers.

It is said that the corporation, which it is proposed to recharter, independent of the facility it affords to Government in the collection of the revenue, has also particular advantages given to it; that it is a monopoly; and what right, it is asked, has Congress to grant a monopoly? I will ask, in return, when an officer is appointed to collect the customs, has he not a salary and emoluments? Is not every office in law called a franchise or a particular privilege? If the officer who has these emoluments, privileges, or franchises, (call them what you will) receives these in consideration for his services, have you not the power to hold out inducements to associated bodies of men to form an institution from which the public may derive benefit, not with a view exclusively to their monopoly and benefit but on account of the advantages to be derived from it by the public?

The honorable gentleman from Kentucky, (Mr. CLAY,) with his usual ingenuity, spoke of the enormous evil and the danger to our liberties that is to be anticipated from giving the power to erect corporations, which he says is an original power, and has given being to institutions which have swelled to an enormous magnitude. The example of the East India Company and the South Sea Company were spoken of in an alarming, impressive, and ingenious manner. But, I ask, sir, if the State Governments do not possess this gigantic power? I see nothing to restrain them more than the General Government. I see that the only supervisors as to the State Governments are the people themselves, who are also the supervisors of Congress, who have also the invidious jealous eyes of the State Governments constantly upon them, as is illustrated in the conduct of some of the States on this very question, and who combined would guard this power from abuse by the General Government much more than the people alone will guard against abuses by the States. It is a visionary mode of reasoning to argue against the possession of power from the abuse of it. The gentleman may as well tell us that we may raise armies to so monstrous an extent as to crush our liberties; and, therefore, we ought not on any emergency to raise an army. He may as well say the creation of a military school, which is as much and no more a resulting power than the one in question, is giving to Congress a great substantive independent power to create a vast engine, under the name of a military school, which may swell to such an immense importance as to make it an instrument to swallow all the liberties of the country. So as respects sites for forts and armories, and ore banks, powers exercised by implication, the gentleman, from the unlimited indulgence he gives to a gloomy and foreboding imagination, may say, you may purchase the territorial rights of the States until you destroy their sovereignty. There is no end to the extent of such reasoning. We must rely in some degree on ourselves, on the vigilance of the State Governments, and on the discretion of the people. When the whole body politic is so corrupt that there are no eyes on our rulers to see when they transcend the powers of the constitution, all is lost, and no paper reservations can save us.

Mr. President, I am ready to admit that where a measure obtains, that inflicts a violation on our constitution that is unquestionable, palpable, and notorious, however frequently and however solemnly this measure had been sanctioned, however long it had been submitted to and endured, would not be considerations with me of any importance or create one moment of doubt. Error, however repeated and submitted to, is error still, and every occasion should be sought to get rid of it; but on an occasion in the origin of which the constitutional question was doubtful, when men of the purest integrity and most illumined intelligence might pause and differ and doubt, I should imagine that such case once acted on should never again be touched, unless considerations of irresistible importance lead to such a measure; and I imagine that every man of candor and intelligence who weighs with due deliberation the question under consideration, will at least admit, if the measure is not certainly constitutional, it is at least of that description of character I have last mentioned. In such an instance as this, will it be said that after this measure has been sanctioned by Congress on full deliberation and debate; after the bill establishing this bank had received the approbation of the President, who reserved his signature to it till the last moment permitted by the constitution, and after he had viewed the question with all its bearings in every attitude it could be presented, after full consultation with his Cabinet Ministers and others of high intellectual character; after the law thus sanctioned by the Legislature and the President has been acquiesced in and practised on for the space of twenty years, when it has been considered inviolable, and corroborating laws passed during the administration and legislation of different dominant political parties; when those laws have been sanctioned by the solemn adjudication of all our judges, both of the General and State Governments; to suppose that all these considerations are to have no influence as to putting to rest a constitutional question which was doubtful in its origin, is to be skeptical and scrupulous beyond all reasonable bound. If Congress had no right to incorporate a bank, was it not an act of usurpation in the President and Congress to pass laws punishing individuals for the forgery of its paper? Nay, more, Mr. President, when we inflict death for the support of institutions Congress had no right to create, and for the violation of laws the constitution prohibits that body from enacting--(and under the denomination of each of the political sects into which this country is divided, agreeable to the principles now contended for by gentlemen, such laws have been passed)--are not the Executive which sanctions, the Congress which passed, and the whole body of our Judiciary, both of the General and State Governments, which enforces such unconstitutional measures, and under their surreptitious authority inflicts death upon our citizens, worse than usurpers? Are they not murderers? Yes, Mr. President, I reiterate, are they not murderers? And are we prepared to pronounce so heavy a denunciation on our predecessors, on ourselves, and the other great Departments of our Government? Are we ready to inform the American people that this body and all their constituted authorities have sported with the lives and illegally shed the blood of our citizens? My colleague was foreman of the jury that pronounced sentence, or that found a verdict, on the famous or rather infamous Logwood, for forgery of the paper of the Bank of the United States. This verdict was confirmed by the judge of the court, and the criminal punished agreeably to the judgment. Is a measure of such weighty and awful import, so solemnly and deliberately acted on and decided, and multifarious other decisions of the same description, to have no influence on the decision we are about to give respecting the constitutionality of establishing a National Bank? If they are not, then gentlemen view the subject through a very different medium than that through which it is presented to my vision. Then, in my judgment, Mr. President, our situation is alarming indeed.

To recapitulate: I derive the power to create a National Bank, when this constitution came into existence, from the situation of society, and our legal institutions at that time, and the difficulty, as things existed, that the revenue could be collected with advantage in any other way than by the agency of a bank. If this reasoning be deemed erroneous, I insist that the constitutional power of Congress to create a bank was in the first instance doubtful, and the principle having been recognized, and having received every sanction the Government could give, and practised on for more than twenty years, is not now to be called in question. Admitting that on both these points my views are erroneous; say that the establishment of the bank, at its commencement, was improper, still, if it be demonstrated that the existence or re-chartering of the bank is indispensable, or highly expedient at present, to the due exercise of enumerated rights of Congress, that which was improper or even perhaps unconstitutional at first, because it was not necessary, becomes constitutional and proper, because now expedient or essential. Congress is clothed by the constitution with a variety of delegated rights. Now, admitting that the establishment of a bank in the first instance was not necessary for the due exercise of the legislative rights bestowed in any one of these enumerated powers, if our predecessors in office, by the creation of a bank, which at best was an improper institution, because not necessary, have placed our fiscal concerns in such a situation that it cannot be put down without great injury to the revenue, which Congress is bound to levy; and collect, without injuring our commerce, without impairing our public credit, without lessening the public welfare, all of which Congress is bound to provide for and protect; if this can be demonstrated to be the probable result of pulling down the bank at this period, I would ask whether that institution, which was improper at first, because not necessary, does not become proper, because almost indispensable at present?

In construing the Constitution of the United States, when legislating on the enumerated powers of Congress, I lay down this rule of construction: that the only limitation to the power of Congress is either some positive or implied prohibition in the constitution itself, or the exercise of an honest and sober discretion. If, therefore, there is any reason to believe, at the present period and existing state of things, that by putting down the bank your revenue will be greatly impaired, your commerce will be injured, the public credit lessened, all of which Congress is to protect; does not such a state of things make it proper that the bank, which ought not to have been created, because not necessary, now ought to be continued because indispensable? It may here be said, that I am varying the constitution if I say that a thing is proper to-day which was not proper five and twenty years ago; that this vibration will always keep the constitution in an uncertain state. I say, no. My doctrine is subject to no such accusation; the principles of the constitution are uniform and unalterable. It is an uniform and unalterable principle, that Congress have the power to lay and collect taxes; they have the same positive, unchangeable right to exercise all the enumerated powers, the only rule of construction relating to them being that the means you use have a necessary relation to the power on which you legislate. If the means be not enumerated, you exercise discretion as to the means, having a regard to the existing state of things when you legislate concerning them. The same means may be necessary and proper now, which would not have been twenty years ago. You change the means to attain the end, but the end itself, the enumerated power in the constitution, remains unchanged. As long as the constitution exists, you must select the means most proper for executing the enumerated rights at the precise moment at which you legislate respecting them. If this be the true construction of the constitution respecting the recharter of the bank, the question merely resolves itself into an inquiry how far such a measure is at present expedient. To determine at this moment whether or not it be constitutional, or in other words expedient, to incorporate the Bank of the United States, I am to say whether, under existing circumstances, in the present state of society, situation of trade and revenue, the preservation and continuance of this institution is essentially necessary. If it be essentially necessary, we have a right to recharter the bank. I have been precise in stating this view of the subject, because it has not before been taken by any other gentleman.

TUESDAY, February 19.

The credentials of JOHN CONDIT, appointed a Senator by the Legislature of the State of New Jersey, for the term of six years, commencing on the fourth day of March next; and of WILLIAM B. GILES, appointed a Senator by the Legislature of the State of Virginia, for the term of six years, commencing on the fourth day of March next, were severally read, and ordered to lie on file.

Bank of the United States.

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

Mr. TAYLOR.--Mr. President: Although much time has been consumed in the discussion of the subject before us, and the ground completely occupied by those who have gone before me, yet the importance of the subject, the immense magnitude of the unhappy consequences likely to result to the nation from the rejection of the bill on your table, compel me to offer to it all the support in my power. Indeed, sir, to this sense of duty to the nation is superadded a very sacred, and to me indispensable duty--my duty to the State which I have the honor in part to represent, as well as another duty, which from the course the debate has taken, is not to be disregarded; I mean, sir, the duty which I owe to myself.

I cannot, as other gentlemen have boasted they can, put my hand into my drawer and pull out the instructions by which I am to be directed on this important subject.

The State of South Carolina is a very large stockholder in some of her State banks, and if a selfish policy, contracted to the narrow sphere of the unique advantage in dollars and cents of the Government of that State--in contradiction and disregard of the great body of her own citizens, and the citizens of the rest of the States in the Union--could have weighed a moment with her Legislature, I too might have been instructed. Let me not be understood, Mr. President, as drawing any comparison between the conduct of the State of South Carolina and the conduct of the great and leading States who have acted otherwise; but I must and will tell of the things that I do know. I rejoice, sir, that the State which I come from has, in this instance, been actuated by that magnanimity and patriotism which on all former occasions has distinguished her conduct; that neither selfishness, nor party rage, nor a spirit of intolerance, has induced her to counteract or embarrass the National Legislature in its pursuit of the great object of its institution, the good of the whole.

I hope it will not be considered as savoring of egotism when I say that my appointment to the very honorable station I now hold was unsolicited by me. That my sentiments on the subject now under consideration had been by me unequivocally expressed at the last session of Congress, and were well known to those who appointed me. Nay, further, after my venerable and respected predecessor had resigned his seat here, and had declined, also, his appointment for the ensuing six years, pending the election of a successor to him, and when my name was held in nomination, a resolution was offered, similar to those which we have heard so much talk about, proposing to instruct the Senators of that State to oppose the renewal of the charter of the Bank of the United States. This resolution, as I am informed, lay on the Speaker's table when the election was gone into. I was elected, and the proposers of the resolution had not power nor influence enough to raise it from the table on which it lay, and it died stillborn at the end of the session; and if I were to make an inference at all on these transactions, I should suppose I was tacitly instructed to vote for the renewal of the bank charter. But I seek not the avoidance of responsibility. It is here, sir, in my own bosom, I have instructions paramount to all others. My beloved country has rested the matter here, and my gratitude is superadded to all other moral obligations operating on me to perform this trust, and to execute this duty with faithfulness. I find the authority of Congress to grant this charter in the same sections of the constitution which the gentlemen who have gone before me have pointed out to you. In section seven, clause first, power is given to Congress "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States; but all duties shall be uniform throughout the United States."

Clause second gives power "to borrow money on the credit of the United States." And, in the last clause of said section, power is also given to make all laws which shall be necessary and proper for carrying into execution the foregoing powers vested by this constitution in the Government of the United States, or any department or officer thereof.

Let us understand the meaning of the words necessary and proper, to the last-quoted clause, for upon a correct knowledge of these depends, in my opinion, the correctness of our conclusions on this subject. The word necessary, in its technical and legal sense, in the meaning affixed to it in common parlance, established by usage, custom, reason, and the common law of the land, is different and distinct from the signification of the same adjective derived from the substantive necessity, as used by Hobbes, Hutchinson, Hume, and the other metaphysicians of the last century. It is well known that they used the substantive necessity as synonymous with the word fate, and which necessity, according to the opinions of one party, controlled omnipotence itself. This necessity was supposed by them co-existent with the Deity itself, not prospective nor discretionary, bending in one way, and in one way only, all substance, all matter, and all spirit. This meaning of the word is only to be found with these metaphysicians and philosophers; but in our law books, in the daily and hourly use of the word in common conversation, it has no such meaning. When the old Congress passed the conditional charter--which I admit they had not a delegated power to grant, but which is fully in point, both as to the signification of the word, and, also, of their opinion of the necessity, and even indispensableness of a bank for the administering the fiscal concerns of the nation--in the conclusion of the preamble they say that the exigencies of the United States render it indispensably necessary to pass the act, &c.; and in the laws passed during that period, when this Government was in the habit of following the English custom of beginning the laws by a preamble, you find the word necessary used as synonymous to expediency--practical expediency, (see Laws of the United States, vol. 1, page 247; idem, page 276,) in fact, among frail mortals with fallible judgments like ours. With any beings endued with less than omniscience, the word necessary must be only applicable to the honest judgment we can make up concerning the subject to which we apply it; in other words, it is resolvable into that sound discretion with which, as moral agents, we are in the first instance intrusted by our Maker, and in the instance now before us, we are intrusted with by the constitution and by the citizens who have sent us here to transact their business. But the rigid necessity which our opponents wish to enforce on us, this metaphysical necessity, must, from its very nature, be immutable; it must be unique, and could not exist in a greater or less degree; and, therefore, the word joined to it in the constitution (proper) could have no meaning at all. The laws, to be passed, must be necessary, is the only one way given under heaven by which you are to effect the end desired; in other words, the law must be imposed by Fate. It is perfect nonsense to say that there is a latitude left with us to judge whether such a law is proper or improper. I have, I think, brought the meaning of the word necessary to the level and within the comprehension of frail human intellect. The signification of the word proper I take to contain the description of the measure or law to which it is applied, in the following respects: whether the law is in conformity to the letter, the spirit, and the meaning of the constitution; whether it will produce the good end desired in the most ready, easy, and convenient mode, that we are acquainted with.

Great stress is laid on that amendment of the constitution which says, that all power not expressly granted shall be retained, &c. Either the general clause I have relied on gives power or it does not; if it did not give power, why was this amendment made? And if it did, and this power was offensive, why was it not stricken out when the amendment was made? But if it expressly gave power, which I contend, its being suffered to remain is proof that it was not the design of the amendment to take away the power given. Could not the Territory of Columbia have been governed without erecting a single corporation in it? I don't mean well governed. But was there that fatal necessity; that command from Jove,