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Oct. 13, 1837.]

merce,” &c. I will conclude my remarks on this clause, by reading from Mr. Jefferson's official opinion on the constitutionality of a United States bank, the following extract : “To erect a bank, and to regulate commerce, are very different acts. He who erects a bank creates a subject of commerce in its bills; so does he who makes a bushel of wheat, or digs a dollar out of the mines. Yet neither of these persons regulate commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling. Besides, if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every State, as to its external. For the power given to Congress by the constitution does not extend to the internal regulation of the commerce of a State, (that is to say, of the commerce between citizen and citizen,) which remains exclusively with its own Legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with Indian tribes. Accordingly, the bill does not propose the measure as a “regulation of trade,’ but as “productive of considerable advantage to trade.’” Some have attempted to locate the power to incorporate a national bank—Mr. McDuffie, for example, in his report of 1830, as chairman of the Committee of Ways and Means—on the fifth article of the eighth section of the constitution, which gives Congress the power “to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.” “The power to “coin money, and fix the value thereof.” is expressly and exclusively vested in Congres. This grant was evidently intended to invest Congress with the power of regulating the circulating medium. “Coin' was regarded, at the period of framing the constitution, as synonymous with ‘currency,” as it was then generally believed that bank notes could only be maintained in circulation by being the true representative of the precious metals. The word “coin,” therefore, must be regarded as a particular term, standing as the representative of a general idea.” Now, sir, if “coin and currency are synonymous,” signifying the same thing; if coin be currency and currency coin, Congress is vested with the power “to coin money, regulate the value thereof, and of foreign currency.” According to this reading, Congress is authorized, not only to regulate the currency of this country, which consists principally of bank notes, but also the currency of other nations, whatever symbols of industry they may select as mediums of exchange. The chairman of the Committee of Ways and Means appears to have been as mueh at fault in his knowledge of the currency, properly considered, as of the character and powers of the constitution ; otherwise he would not have confounded bank notes with coin-the pretended representative with the thing represented. I say the pretended representative, because the amount of paper money afloat, exceeds at least five times the amount of specie wherewith to redeem it. It is not, therefore, strictly speaking, a representative of coin or real money. It has become rather an instrument of speculation, than a measure or representative of value. The currency of a country, in order to be sound, as every political economist knows, ought to be equal to the precious metals, or to consist of the metals themselves. But the paper currency of this country is, and was, even during the existence of the late United States Bank, but the mere supposititious representative of property. That paper money can never become a proper standard of value, is evident from the fact that it is constantly liable to fluctuation, depreciation, expansion, and contraction. And would it be doing justice to the framers of the constitution—to their sagacity and integrity—so to construe that instrument, or any part thereof, as to authorize Congress to make paper credit, of

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whatever kind or description, a standard of value ! The only standard or measure of value known to the constitution is gold and silver; a standard, by the way, which has been recognised and adopted from the earliest ages, by all civilized nations throughout the world. If Congress are authorized to incorporate a company, which shall possess the independent and sovereign right to coin or inanufacture money, and regulate the value thereof, why may they not also invest such corporations with power to control the commerce of the country in all such exchangeable articles or commodities that may properly come under the standard of weights and measures Why not go still farther—for if Congress can delegate to a corporation this prime attribute of sovereignty, the establishment of a standard of value— why not, I say, extend it to every other specified power of the constitution ? For I repeat it, if Congress have the power, under this or any other clause of the constitution, to delegate to a corporation of its own creating any one of the enumerated powers, they may, with equal propriety, delegate to it every other power. Let Congress recognise this construction, and what would be the consequence 1 Sir, we should no longer be a nation of freemen, living under a free constitution; but the slaves of soulless corporations. An independent and irresponsible power would be established in the land ; the restraints and limitations imposed upon Congress by the constitution would be overthrown; and the foundations of your Government not only rocked, but riven. Sir, let us examine a little further the extraordinary argument urged by Mr. McDuffie in support of his most extraordinary position. “Coin,” says he, “was regarded, at the period of framing the constitution, as synonymous with currency, as it was then generally believed that bank notes could only be maintained in circulation by being the true representatives of the precious metals.” What, sir! coin and currency--coin and paper money--coin and bank notes regarded as one and the same thing, as synonymous, at the time of framing the constitution | What! “generally believed at that period,” that paper money was “the true representative of the precious metals " Sir, does not the who e history of that period contradict these reckless and unfounded assertions? I appeal to the historical recollections of every gentleman on this floor, if it does not. Is it not notorious that the framers of the constitution were emphatically hard-money men Is it not notorious that gold and silver are the only currency recognised by the constitution ? Is it not known to all, that Congress have no power, under the constitution, to authorize any individual, company, or corporation, to issue federal paper money ! Every part of the constitution which relates to the subject of money is clear, explicit, and unequivocal. The intention of the framers of the constitution, on this subject, is not only made manifest by the letter of the constitution itself, but also by a law passed immediately after the meeting of the first Congress under the constitution, which defines the kind of money to be received by the federal Treasury. This law provides, “that the fees and duties payable to the Government, shall be received in gold and silver only.” This statute, be it remembered, was passed within one month after Congress had assembled. And, again, the law in reference to that part of the revenue accruing from the sale of the public lands, passed in 1800, declares that specie and evidences of the public debt, shall alone be received in payment of such lands. These two acts relating to the subject of the federal revenue, passed immediately after the adoption of the constitution, ought and must be regarded as unerring interpreters of that instrument, so far as the point immediately under consideration is concerned. If the members of the first Congress regarded paper money and “coin” as synonymous, why did they enact that gold and silver coin only should be received in payment of the federal revenue ! If they even

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considered paper money, or bank notes, as synonymous with coin, as contended by Mr. McDuffie, they appeared, at all events, to discriminate between paper coin and gold and silver coin, by making the latter only receivable in payment of the public dues. So that “gold and silver coin,” and not paper coin, appear to be the only currency known to the constitution; or to the laws of Congress which define the kind of currency to be received in payment of the federal revenues. I would now call the attention of the committee, for a few moments, to the last paragraph of the 8th section of the constitution : “To make all laws which shall be necessary and proper to carry into effect the foregoing powers.” It will not be pretended, I apprehend, that this clause vests in Congress any new substantive power; or that it in anywise supersedes or invalidates any one of the enumerated powers. This position would be too extravagant—too monstrous, for even modern sophists to take. It will, I trust, be conceded, that the powers comprehended in this clause are subordinate and incidental in their nature, merely conferring on Congress the right to exercise such means as shall be strictly necessary and proper to execute the express powers; or, without which, the powers expressly granted cannot be carried into effect. This point yielded, as yielded it must be, the question arises, whether a national bank be a necessary and proper means to carry into effect any of the specified powers 4 In order to show that it is necessary, essential, indispensable, it must be made to appear that the enumerated powers cannot be carried into effect independent of a national bank. Experience has demonstrated that they can, one and all. And, in the second place, in order to prove that a national bank is a proper means, it must be shown that the power to create it is an incidental and not a substantive power; which, I apprehend, cannot be done. No, sir, it cannot be shown that the power to grant charters of incorporation, is merely an incidental or subsidiary power. Among all the powers enumerated in the constitution, I defy gentlemen to designate a solitary one that is capable of being wielded with more potent effect; not for good, but for evil. If Congress possess the power to grant a charter of incorporation, in their national cap city, in one case, they do in another. If they possess it at all, they possess it without limit, and can extend it, whenever they think proper, to any and every object whatever; whether it be in derogation of State and individual rights, to a Mississippi land monopoly, to a monopoly of the trade of the Indies, or to the cod and whale fisheries. Sir, what is the distinguishing characteristics of incorporations 1 They are essentially aristocratic in their nature; being invested with exclusive privileges—privileges withheld from the rest of society. They are allowed to purchase and hold real estate; which the United States themselves cannot do without obtaining the consent of the States. They are allowed to hold property in mortmain, and are capable of being so organized or constituted as to change the course of descent in the several States; I mean where their corporate character is concerned. Nor is this all: so sacred are their rights held, and so carefully guarded are they by the legislature and judici. ary, that they cannot be reached by law without permission on their parts; nay, more, they are even placed beyond the control of future legislatures—at least, such is the opinion of some. And yet we are told that a power to incorporate—a power of such great and fearful magnitude, and capable of producing so much mischief—is, after all, a mere incident of a power Think you, sir, that if the members of the convention who framed the constitution had considered a national bank either a proper or necessary means to carry into effect any of the enumerated powers of the constitution, that they would have rejected a direct proposition to establish a bank, or refused to inwest Congress with power to grant charters of incorpora

tion, of whatever description ? Is it probable that wise and patriotic men would have acted so inconsistently—so absurdly “It is known,” says Mr. Jefferson, “that the very power now proposed as a means, was rejected as an end, by the convention which framed the constitution.” “A proposition,” he adds, “was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected; and one of the reasons of rejection urged in debate was, that they then would have power to erect a bank.” Here, then, sir, is authority not to be questioned, not to be controverted, that the power to erect a bank, “proposed as a means, was rejected as an end,” by the very authors of the constitution itself The fact, therefore, that the framers of the constitution deliberately and designedly withheld from Congress the power to incorporate a bank, utterly excludes the idea that such power was intended to be granted, either expressly or incidentally, specifically or impliedly. To contend that a power, intentionally withheld from Congress by the framers of the constitution, can be rightfully exercised by Congress, is to outrage common sense, and all approved rules of construction. Let the principle be once established, that neither the express letter of an instrument, nor the evident intention of its author or authors, is to be taken as evidence of its meaning, and all written constitutions, contracts, laws, and charters, become a dead letter. I would entreat gentlemen to consider well before they give further countenance to such doctrines. . I would respectfully remind them, that, by disregarding the express provisions of the constitution, and the evident in: tention of its framers, and resorting to construction and implication alone for authority, they will eventually raise up a monument of folly, which, if not as impious, will create as much confusion as that which towered on Shinar's plain. Let it not be supposed, however, that I would deny the existence of all implied powers. . I am aware, sir, that the convention, in framing the constitution, marked out and enumerated the principal ends of Government, without particularizing all the means by which these ends were to be secured. A discretionary power, to a certain extent, must necessarily be left with Congress. The constitution, for example, has vested in Congress the power to raise and support armies. But at what time armies are to be raised, to what extent, and for what cause this power is to be exercised, it has necessarily left to be determined by the national legislature. Many other cases might be cited, where the means necessary to carry into effect the enumerated powers are left to the selection of Congress. But the mean, or incidental power, ought, in all cases; to bear a due relationship to the specified power. It was well remarked by a distinguished Senator (Mr. Clay) in debate, that: “In all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a common nature. The inci: dental power ought to be strictly subordinate, and limited to the end proposed to be attained by the specified power. In other words, under the name of accomplishing one object which is specified, the power implied ought not to be made to embrace other objects, which are not specified in the constitution. If, then, you could establish a bank to collect and distribute the revenue, it ought to be expressly restricted to the purpose of such collection and distribution. “I contend that the States have the exclusive power to regulate contracts, to declare the capacities and incapacities to contract, and to provide as to the extent of responsibility of debtors to their creditors. If Congress have the power to erect an artificial body, and say it shall be endowed with the attributes of an individual—if you can bestow on this object of your own creation the ability to contract, may you not, in contravention of State rights, confer upon slaves, infants, and sémes coverte, the ability to con

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tract And if you have the power to say that an association of individuals shall be responsible for their debts only in a certain limited degree, what is to prevent an extension of a similar exemption to individuals Where is the limitation upon this power to set up corporations ! You establish one in the heart of a State, the basis of whose capital is money. You may erect others, whose capital shall consist of land, slaves, and personal estates, and thus the whole property within the jurisdiction of a State might be absorbed by these political bodies. The existing bank contends, that it is beyond the power of a State to tax it; and if this pretension be well founded, it is in the power of Congress, by chartering companies, to dry up all the sources of State revenue.”

Yes, sir, the honorable Senator was right, when he said that the incidental power ought to be strictly subordinate, and limited to the end proposed to be attained by the specified power. He was right in saying, that in all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a coinmon nature. And he would have been equally right, had he added, that no means can bc proper that are not compatible with the spirit of the constitution and the genius of our Government. But I will no longer detain the committee on this branch of the subject, having already shown, as I believe, beyond all cavil, that the clause which has been last examined does not confer on Congress power to incorporate a moneyed institution of any description.

I will now proceed to examine arguments—not of a constitutional character, nor strictly applicable—but nevertheless frequently appealed to by the advocates of a national bank. I allude to that class of arguments which rest on precedent alone for support. The friends and champions of a United States bank, when no longer able to find legitimate support, when forced to abandon every constitutional position, seek refuge in the misty regions of precedent. The acts of former legislatures, and the opinions of the Supreme Court, and not the constitution, are apPealed to for authority ; and lo! King Precedent is anointed with the unction of infallibility; becomes the keeper of their consciences, and the object of their idolatry; his behests the laws, his standard the mistletoe, which these political Druids venerate. But to vary the figure—what is there in the character or nature of precedent so sanative and holy that can heal all moral maladies, and justify all political transgressions ! Or, wherefore is it, that precedent should setter the intellect, destroy moral agency, and bear sway where reason and conscience should alone preside Sir, would it not be well for those who have sworn to support the constitution, to pause and reflect before they subscribe to a doctrine so fraught with mischief, and so ininical to reason 1

It is alleged, by some of the servile brain-bound slaves of precedent, that Congress would be justified in chartering a bank, (at the present time,) whether authorized by the constitution or not, because similar institutions have hitherto existed. They contend that, inasmuch as those institutions were established by Congress, submitted to by the people, acquiesced in by the States, and sanctioned by the Supreme Court, they were recognised by all the acts which imply the sanction of organic.law. Sir, I cannot, for one, yield assent to doctrines so false, so loose, so licentious I deny that the great body of the American people, the democracy, are, or ever were, in favor of a chartered money monopoly, whether State or national. The insinuation is a rank and insolent libel on their patriotism, their intelligence, and their integrity. No, sir, the frauk and honest-hearted democrats of this country utterly reject and abhor the doctrine, that time or precedent can sanctify iniquity, or justify any infraction of the social compact.

Wol. XIV.-100

It is contended by another, but similar class of moralists, that the constitution ought to be so construed, as to expand with the growth of the country, and conform to its diversified and mutable relations. Against this doctrine, also, I enter my protest. It is too ductile to be either safe or sound ; too liable to be drawn out to dangerous lengths, and bent to mischievous purposes. Sir, what is the nature of the obligation under which we act What is required of us before entering upon our duties as representatives 2 It is required, by the constitution, that “the Senators and Representatives, and the members of the several State Legislatures,"ind all Executive and Judicial officers, both of the United States, and of the several States, shall be bound by oath or affirmation to support this constitution.” Sir, the requisition is emphatic and positive—couched in language not to be misunderstood. Our duty is palpable; we cannot err ignorantly. We are bound, by all the obligations which an oath imposes, to “support this constitution.” We are not required to “support” the forced constructions that may be given by a pliant court, or by a careless or venal legislature. We are not called upon to “support” a constitution corrupted by congressional interpolations, or distorted and sophisticated by the legal inummeries of the bar or the bench. Nor are we obligated to support a constitution that may be construed to change with times and circumstances; that may grow with the growth, and decay with the deciine of the country: but we are bound by our solemn oaths or affirmations to “support this constitution” in its purity and integrity, unsophisticaed and uncontaminated. Sir, there are two classes of men in this world who rely upon precedent, and who seem to believe in its infallibility, with a great deal of spirit and perseverance. The one, the morally lax, who have no objection to transgress, provided they can find a pretext in precedent; the other, the mentally indolent, who find less labor in adopting the opinions of others, than in analyzing and investigating for themselves; while the rigidly honest and intellectually industrious, spurn all mental tyranny, refusing, in all cases, to yield their assent, but as the result of their conviction. Sir, let me not be misunderstood when I say that precedent is dangerous and pernicious; I mean that it is so when regarded as an obligatory rule in matters of legislation, and in the common affairs of life. In courts of justice, in the dispensation of civil and criminal law, it may, to a certain extent, be advantageously referred to as a guide. For so diversified and complicated are the subjects of litigation, that it is impossible for the legislator to anticipate and provide for every case that may occur. It becomes the duty, therefore, of the judge, the organ of the law, not only to proclaim the written law of the land, but also to decide in cases where no statutory provision has been made, as reason and justice may dictate. Nor, as a general rule, ought decisions thus made to be lightly regarded by succeeding judges, especially in cases where the points in litigation are analogous. But, sir, while I willingly admit that precedent may be properly referred to as authority in the administration of the law, I utterly deny that it is necessarily obligatory upon legislative bodies. It matters not, therefore, whether a precedent in savor of a United States bank be found in the acts of former legislatures, or in the decisions of the Supreme Court, it is, in either case, incompetent to control the acts of this body. Congress, I trust, will never be willing to acknowledge the binding force of precedent, in the decision of constitutional questions. But, sir, admitting, for the sake of argument, precedent to be good authority, what does it prove in this case ? I apprehend that it would rather make against than in favor of a bank. We find, in 1811, when a renewal of the charter granted in 1791 was applied for, that its constitutionality was discussed, and that the application was rejected. And further, when the bank petitioned Congress for time to wind up its affairs, the petition was referred to

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a committee who reported against the application, urging that it was unconstitutional, and the report was concurred in. In 1813, when the subject of a bank was again before Congress, and while under discussion in the House of Representatives, a distinguished gentleman from Massachusetts, [Mr. Webster, then a member of the House, declared in his place, while opposing the bank, that the renewal of the bank charter had been refused, because it was unconstitutional ; and Congress again decided against a bank. In 1832, the bill to renew the charter granted in 1816 was vetoed by the late President, ". subsequently rejected by Congress, both alleging that it was unconstitutional. So that the precedents, so far as the action of Congress is concerned, are equal. If reference be had to the States, we shall find that a large majority of them have been opposed, on constitutional ground, to a United States bank. Whatever authority, therefore, may attach to precedent, makes against a bank. But the Supreme Court has decided that Congress have power to incorporate a bank; and these decisions are appealed to with as much apparent triumph, by the advocates of a national bank, as if the decrees of that court were binding on Congress, and settled the constitutional question forever. Sir, what are we to understand from this? Is it meant to be insinuated that the three departments of Government are not co-ordinate, and that the judiciary is clothed with the exclusive attributes of supremacy 1 that neither the Executive nor the Legislative departnents are allowed to judge of their own powers, when acting within their appropriate spheres, and in the discharge of their official duties? Is it intended

that the understandings, the oaths, and the consciences of

the other two departments, are to be silenced and overawed by the despotic fiat of the bench This heretical, servile, and detestable doctrine is industriously propogated, I am aware; not boldly and openly, but clandestinely and insidiously, by hints, innuendoes, and mysterious givings out. God forbid, patriotism forbid, that it should ever be acknowledged by the Executive or Legislative departments, or received by the American people. For one, I reject it with disdain. I deny, and desy mortal man to prove, that the decision of the Supreme Court can settle a constitutional question in any other than in a judicial sense. It cannot affect legislation—cannot control the decisions of Congress, or of the Executive—cannot control the sovereign and absolute power of the people, nor of their representatives. It is just as much the province of Congress, or of the Executive, to decide upon the constitutionality of any matter that may properly come before them for their action, as it is for the judiciary when it comes before them for decision. Congress is no more bound by the opinions of the Supreme judges than are the judges by the opinions of Congress. The constitution vests “the judicial power in a Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.” In all instances, therefore, where suits are prosecuted in the courts of the United States, of which the courts have jurisdiction, and decided by the Supreme Court, all such decisions are final. That being the court of the last resort, the parties cannot appeal, but in all cases are bound to abide by such decision. But, as has been before remarked, no decision of the Supreme Court can be obligatory upon either of the other co-ordinate departments. When either is called to the discharge of its appropriate duties, that branch, and not the Supreme Court, is the judge, under the constitution, of its own acts. Nor are the decisions of the Executive or Legislative departments binding upon the judges of the Supreme Court, when acting within their appropriate spheres. So long as each of the several departments acts as a check upon the other, there is less danger of the abuse of power—whether springing from ignorance or unlawful ambition. But it may be asked, how constitutional questions are to be settled in the event of a non-concurrence of opinion in the co-or

dinate departments. I answer, by the people through the ballot boxes. For let it be borne in mind, that this Government is emphatically a Government of the people: it emanates from the people, its powers are granted by the people, and are to be exercised for their benefit; and, so far at least as the representative department is concerned, in pursuance of their instructions, whenever they may think proper to exercise the right. All the departments of Government, the Executive, the Legislative, and the Judiciary, were established by the people to transact their business, agreeably to the powers bestowed. Consequently, when contradictory opinions are entertained by the several departments, with regard to the extent of their constitutional powers, the people are the only tribunal to which the matter in dispute can be properly referred; and their decision, proclaimed through the ballot box, must be final and conclusive. I am aware, sir, that this doctrine will not be very popular in certain quarters; but I conceive it, nevertheless, to be in accordance with the genius and spirit of our institutions, and maintainable upon strict denocratic principles. It being admitted, then, that the several departments are co-ordinate, and their opinions, therefore, not binding upon each other, it remains to be considered what weight is due to the decisions of the judiciary in favor of the constitutionality of a United States bank. Sir, whatever importance I might be willing to attach to the opinions of such an enlightened tribunal on doubtful and intricate subjects, I am unwilling to concede to them a controlling influence in the decision of a question like the one under discussion, when I am furnished with a written constitution for my guide, and in which every delegated power is distinctly and accurately delineated, both to the natural and the mental eye. °sir, I have examined this instrument intently, anxiously, and, I trust, honestly ; but nowhere do I find in it a power to grant charters of incorporation. Sir, I affirm, and hold that I am able to maintain, in defiance of all the arts of sophistry and mystification, that the convention which framed the constitution did neither grant any express power authorizing Congress to charter a national bank, nor intend that any power whatever, whether incidental or otherwise, should be exercised for such purpose. And further, that the convention positively rejected a direct proposition to empower Congress to incorporate a national bank, and repeatedly rejected written propositions to grant charters of incorporation. Butlet us first examine for a moment the ground assumed by the judiciary, in arguing the constitutionality of a national bank. By reference to a decision had in the case of McCulloch against the State of Maryland, it will be found that the principles upon which the judiciary rely, are substantially the same which prevailed in 179i, and ushered into being the first United States Bank. The main point of the argument of General Hamilton, as well as that of the Supreme Court, in support of the constitutionality of a bank, turns upon the alleged necessity of the measure. The judges, as I understand them, acknowledge the absence of all express constitutional authority, admit that the power can only be derived by implication, and only exercised on the ground of a just necessity. That is, a bank is constitutional, if it be neeessary to carry into execution any of the express powers; but, if not necessary to that end, or if that end can be attained by other appropriate means, then it is not constitutional, the power to incorporate not being expressly granted to Congress. Upon this hypothesis Congress have no constitutional power to charter a national lank, if such bank be not absolutely and indispensably necessary to the execution of a specified power. Query : would even the necessity of the measure justify its adoption, without an amendment to the constitution ? But, sir, it yet remains to be shown that a national bank is an essential means of execu

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has a right to do an act, and has imposed on it the duty of performing that act, must be allowed to select the means.” Sir, I am constrained to doubt the validity of this doctrine when carried to its full extent. Suppose we put it to the test. It is not only the right but the duty of Congress to “regulate commerce.” Does it follow that they have the right to make use of what means they please in order to accomplish that end ? If so, they may incorporate a company for that purpose, alleging that an act of incorporation is a necessary mean for the attainment of the end proposed. In other words, that the regulation of commerce could not be so well effected in any other way. And why not There is no constitutional difficulty in the way that may not be surmounted with the ladder of construction. And if Congress should only happen to think that a chartered company would be the best mean to “regulate commerce,” what would there be to prevent such incorporation According to the position assumed by the Supreme Court, you can first raise this power from an incident, and then consider it a principal—confer on it the power of legislative procreation, and authorize the mother institution to propagate her bastard progeny in every State and Territory in the Union. And why not, I say ! You have all the authority in favor of it which precedent can furnish, in the charter of the late bank of the United States Bank. That institution had the power conferred upon it by Congress of multiplying its progeny at pleasure. It had the power, by virtue of its character, to establish branch banks, without the consent of the States, whenever and wheresoever it pleased. It had the legislative power delegated to it by Congress, in defiance of the checks and restraints which the American constitutions interpose, of creating, at its option, other banks and other directors; and this power received the sanction of the judiciary. If Congress possessed the constitutional power to incorporate a moneyed institution, such as the late United States Bank, it may also possess the power to charter a company, and endow it with the faculty of legislative fecundity, to regulate the commerce of the country. Only let Congress adopt the principle that they have the power to select what means they please, in order to carry into execution a specific power, and all the limitations, all the restraints which the grant of delegated powers impose, are broken down and subverted forever. Sir, I must be permitted to say that I consider this doctrine not only false, but dangerous to liberty. The exercise of a discretionary power, in the selection of means, must necessarily be limited to such means as are strictly proper; and no means that are incompatible with the principles upon which our Government is founded, can be proper, however convenient they may be. A chartered monopoly is not, cannot be a proper mean to carry into efsect any of the ends of a Government based on the principles of political equality. Would you consider the exercise of exclusive political privileges as an appropriate means to promote the principle of equal political rights? The idea is absurd on the very face of it. Mr. Chairman, I would not wantonly assail the reputation of the judiciary. I trust that I am capable of fairly and honestly appreciating the character of that enlightened and honorable tribunal. But however highly I may esteen them for purity of purpose and integrity of character, I cannot, with the evidence before me, regard them as unerring in judgment; and I trust that the day is far distant when they will be recognised by Congress, or the American people, as a body of infallibles. Sir, I believe that I am justified in saying that the circumstances which surround

Sub-Treasury Bill.

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and necessarily operate upon the American judiciary, are unpropitious to liberty; the nature of their office, the tenure by which it is held, and the fact of their non-accountability to the people, must, on the known principles of human nature, have a tendency to render them covetous of power, arbitrary, and despolic. Nor is this all. Indoctrinated from their youth in the principles and prejudices of English jurists; educated in English books; ever consulting English authorities; constantly familiar with monarchical doctrines; in a word, all the laws of mental association, under which their intellects are reared and fashioned, are inimical to that broad-based and high-toned freedom which the American people delight to cherish. Nor will the truth of this position be doubted or denied by those who are familiar with the history of the past; who have studied the springs of human action; reflected upon the nature of human power; and observed its constant proneness to enlarge or overleap its boundaries. But why appeal to hypotheses, when I can so readily summon facts to my aid The history of the Supreme Court is rise with testimony directly to the point. By a careful examination and analysis of its decisions, it will be found that they have, in most instances, leaned to the side of federal power; overlooked the rights of the citizen and of the States; and evinced a strong and uniform bias for a consolidated Government. The alien and sedition laws—notoriously unconstitutional, and so pronounced by Mr. Jefferson and the American people--received the sanction of that court. The sedition, or “gag law,” made it an offence, punishable by indictment, to publish any thing which even had a tendency to bring into disrepute the officers of the Government; and many worthy and patriotic citizens were, in pursuance of that nefarious law, incarcerated for daring to complain of the opressions of their rulers. And this law, unconstitutional as it was, and subversive of the rights of the citizens and of the principles of our Government as it was, received the judicial sanction of the Supreme Court. Sir, I will hazard the declaration, and without the fear of contradiction, that, if all the principles which have received the sanction of the judiciary were now in full force and operation, the American people, berest of all the blessings of a free constitution, would, at this moment, be writhing under the unmitigated oppressions of a heartless, ruthless despotism. And yet, sir, strange as it may appear, there are those among us, notwithstanding their knowledge of this truth, and notwithstanding all the judicial libels upon the constitution, which are plain to their eyes and to their understandings, who still cleave to that tribunal with all the zeal and enthusiasm of infatuation—regard it as the exclusive depository of wisdom, of freedom, of patriotism—and its decrees as infallible, fixed, and immutable, as the fiat of fate. But, sir, I will bring the decisions of the judiciary to a decisive test, viz: the intentions of the framers of the constitution with regard to such institution. And here, then, I wish it to be borne in mind, that the judiciary have uniformly admitted that the power to incorporate a national bank was not among the enumerated powers of the constitution, and that it could only be derived by implication. In admitting that the power in question was an implied and not an express power, they necessarily assume that the framers of the constitution intended to vest in Congress a power which they omitted to specify ; for surely it could not be pretended by an intelligent body of men, such as compose out judiciary, that Congress possessed the constitutional power to do an act which the constitution nowhere expressly authorizes, and which the framers of that instrument evidently intended to interdict. This doctrine of construction, therefore, rests entirely upon the known or supposed intentions of the convention which framed the constitution. It is incumbent, therefore, on those who allege, in the absence of all direct authority, that Congress

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