reignty of this nation is vested in the state governments, and in the federal government, except that part of it which is restrained by the people, which is solely the right of electing their public functionaries.

The right to create a corporation is a right inherent in every sovereignty. The people of the United States cannot exercise this right. If, then, the states are restrained from creating a bank with authority to emit bills of credit, it appears to be established that the federal government does possess this right. If, however, it is still believed that the law by which this bank has been created was the result of a forced construction, yet I must contend that that construction is entitled to some weight in the decision of this question. The time and state of the public mind, when this construction was given, gives it a strong claim to consideration upon this occasion. This construction was given shortly after the government was organized, when first impressions had not been effaced by lapse of time, or distorted by party feelings or individual animosity. The parties which then existed were literally federal and anti-federal. Those who were friendly to the Federal Constitution, and those who were inimical to it, formed the only parties then known in this nation.

Mr. CLAY. What is the nature of this government? It is emphatically federal; vested with an aggregate of specified powers for general purposes, conceded by existing sovereignties, who have themselves retained what is not so conceded. It is said there are cases in which it must act on implied powers. This is not controverted; but the implication must be necessary, and obviously flow from the enumerated powers with which it is allied. The power to charter companies is not specified in the grant, and, I contend, is of a nature not transferable by mere implication. It is one of the most exalted attributes of sovereignty.

Is it to be imagined that a power so vast would have been left by the wisdom of the Constitution to doubtful inference? It has been alleged that there are many instances, in the Constitution, where powers in their nature incidental, and which would have necessarily been vested along with the principal, are nevertheless expressly enumerated; and the power "to make rules and regulations for the government of the land and naval forces," which, it is said, is incidental to the power to raise armies, and provide a navy, is given as an example. What does this prove? How extremely cautious the Convention were to leave as little as possible to implication! 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 incidental power ought to be strictly subordi nate, 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 femes covert, the ability to contract? And if you have the power to say that an association of individuals

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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.

On the Bill for raising a Volunteer Corps.

HOUSE OF REPRESENTATIVES, January 12, 1812. Mr. POINDEXTER. Can we constitutionally employ volunteer militia, without the jurisdiction of the United States, in the prosecution of hostilities, in the enemy's country? He was of opinion, that no legislative act of Congress could confer such a power on the President.

Mr. GRUNDY. If the Constitution forbids the President from sending the militia out of the United States, how can we authorize him to do so by law? We cannot: we should legislate to no purpose. Whether he had the authority or not, would depend upon the construction the President himself shall give to the Constitution. Nor could he see how this proposition gets over the difficulty.

It provides that a militiaman may authorize the President to send him beyond the limits of the United States. He had always understood that, in framing the Constitution of this government, there was great jealousy exhibited lest the general government should swallow up the powers of the state governments; and when the power of making war and raising armies was given to Congress, the militia was retained by the states, except in cases mentioned by the Constitution. How, then, can you permit militiamen to engage in the service of the United States, contrary to the provisions of the Constitution, and by that means leave the state unprotected? Mr. PORTER. He did not agree with the gentleman, (Mr. Poindexter,) that the militia could in no case be employed without the limits of the United States. He did not think their services were to be confined by geographical limits. If it became necessary for the executive to call out the militia to repel invasion, he thought they might pursue the enemy beyond the limits, until the invaders were effectually dispersed.

Mr. CHEVES. Though the gentleman from New York says the service of the militia is not to be bounded by geographical limits, I cannot, said Mr. C., discover the premises by which he comes to this conclusion, if the general government has no other power over the militia than is given to it in this clause of the Constitution. If they may cross the line, why not go to the walls of Quebec? The principle is trampled upon the instant they pass beyond the territorial limits of the United States; nor, if this be a correct construction, said he, can the consent of the individual add any thing to the powers or the rights of the general government, while he remains a member of the militia of the state.

Mr. CLAY. In one of the amendments, it is declared that a wellregulated militia is necessary to the security of a free state. But if you limit the use of the militia to executing the laws, suppressing insurrections, and repelling invasions, if you deny the use of the militia to make

war,

not.

can you say they are "the security of a state"? He thought

Mr. CHEVES. It is said that the powers of the general government were not sovereign, but limited. This was to deny the existence of any sovereignty which was limited as to its objects, than which nothing is, however, more common. But there is an authority on this point which Mr. C. supposed would not be controverted. He meant Mr. Hamilton's

argument on the constitutionality of the Bank of the United States.

[Here Mr. C. read the following extract from that work: "The circumstance that the powers of the sovereignty are, in this country, between the national and state governments, does not afford the distinction required. It does not follow from this that each of the portions of power, delegated to the one or the other, is not sovereign with regard to its proper objects. It will only follow from it that each has sovereign power with regard to certain things, and not as to other things. To deny that the government of the United States has sovereign power as to its declared purposes and trusts, because its power does not extend to all laws, would be equally to deny that state governments have sovereign power in any case, because their power does not extend to every case."]

It was said, by the same gentleman, that the writers contemporaneous with the adoption, and the debates of the several conventions on the adoption of the Constitution, repelled the construction now contended for; but that gentleman had not produced, nor had any other gentleman produced, a sentence to that effect, except the gentleman from Tennessee, (Mr. Grundy,) who read from the Virginia debates, in the argument of Mr. Nicholas, a detached sentence, in which, speaking of that article of the Constitution which gives power to Congress "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," he says they cannot call them forth for any other purpose than to execute the laws, suppress insurrections, and repel invasions. But Mr. Madison, in the same debate, says, "The most effectual way to render it unnecessary, is to give the general government full power to call forth the militia, and exert the whole natural strength of the Union, when necessary." He (Mr. C.) was opposed to the latitude of the bill.

Seamen's Bill. For the Regulation of Seamen on Board the Public Vessels, and in the Merchant Service of the United States.

HOUSE OF REPRESENTATIVES, February, 1813. Mr. SEYBERT. The Constitution of the United States declares, Congress shall have power “to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States." Sir, the rule only relates to the mode; it is only operative during the nascent state of the political conversion, and it ceases to have effect the moment after the process has been completed. Your Constitution only recognizes the highest grade of citizenship that can be conferred. The alien is thus made a native, as it were, and is fully vested with every right and privilege attached to the native, with the exception impressed on the Constitution. Your statutes cannot deprive any particular species of citizens of the right of personal liberty, or the locomotive faculty, because the Constitution does not characterize the citizens of the United States as native and naturalized. Our great family is composed of a class of men forming a single genus, who, to all intents and purposes, are equal, except in the instance specified that of not being eligible to the presi dency of the United States. The only exception to the rule is expressed

in the Constitution. If other exceptions had been contemplated by the framers of that instrument, they would also have been expressed. None other having been expressed, he said, it followed that your legislative acts could not make individual exceptions touching the occupation of a citizen. All freemen, citizens of the United States, may pursue their happiness in any manner and in any situation they please, provided they do not violate the rights of others. You cannot deny to any portion of your citizens, who desire to plough the deep, the right to do so, whilst you permit another portion of them the enjoyment of that right.

Mr. ARCHER. The framers of our Constitution did not intend to confine Congress to the technical meaning of the word naturalization, in the exercise of that power-the more especially when the comprehensive word rule was made use of. The principle upon which the power was to be exercised was left to the judicious exercise of Congress; all that was required was, that the rule should be uniform throughout the states. In the grant there is no other specification, as to the exercise of it, than that of its uniformity. The term naturalization was borrowed from England. It must be understood here in the sense and meaning which was there attached to it. Whether it was absolute or qualified, it was still a naturalization. But the grant of a power in general terms necessarily implied the right to exercise that power in all its gradations. It was in the political as it was in the natural world: the genus included the species. Besides, the power to naturalize was an attribute to sovereignty. It was either absolute or qualified; and if the grant to Congress only implied a power of unlimited naturalization, the power to qualify existed in the states or in the people, for what was not specifically granted was reserved. In treating of the executive power, the Constitution defines the qualifications of the President. It declares that he should be a natural-born citizen, or a citizen at the adoption of the Constitution. This article is unquestionably no limitation of the power of Congress upon the subject of naturalization. It was impossible to abridge a specific grant of power without a specific limitation, and the article alluded to could not be tortured, by the most ingenious mind, to diminish, even by implication, the authority of Congress upon a subject to which it was totally irrelevant

Internal Improvement. - Extract from Mr. Madison's Message to Congress.

December 5, 1815.

Among the means of advancing the public interest, the occasion is a proper one for recalling the attention of Congress to the great importance of establishing throughout our country the roads and canals which can best be executed under the national authority. No objects within the circle of political economy so richly repay the expense bestowed on them; there are none the utility of which is more universally ascertained and acknowledged; none that do more honor to the government, whose wise and enlarged patriotism duly appreciates them. Nor is there any country which presents field where Nature invites more the art of man to complete her own work for their accommodation and benefit. These considerations are strengthened, moreover, by the political effect of these facili ties for intercommunication, in bringing and binding more closely together the various parts of our extended confederacy.

Whilst the states, individually, with a laudable enterprise and emulation,

avail themselves of their local advantages, by new roads, by navigable canals, and by improving the streams susceptible of navigation, the general government is the more urged to similar undertakings, requiring a national jurisdiction, and national means, by the prospect of thus systematically completing so inestimable a work. And it is a happy reflection, that any defect of constitutional authority which may be encountered, can be supplied in a mode which the Constitution itself has providently pointed out.

On the Commercial Treaty with Great Britain.

HOUSE OF REPRESENTATIVES, January 8, 1816.

Mr. HOPKINSON. In the nature of things, there cannot exist, at the same time, under the same authority, two contradictory, inconsistent laws, and rules of action. One or the other must give way; both cannot be obeyed; and if, in this case, this [commercial] treaty has no constitutional supremacy over an ordinary act of legislation, it, at least, has the admitted advantages of being earlier in point of time, of being the last constitutional expression of the will of the nation on this subject. It is worthy of remark, that the general power of legislation is given to Congress in one part of the Constitution; the special power of making treaties, to the President and Senate, in another part; and then the acts of both, if done constitutionally, are declared, in the same sentence, in another part of the Constitution, to be the supreme law of the land, and placed upon the same footing of authority.

Mr. CALHOUN. From the whole complexion of the case, said Mr. C., the bill before the house was mere form, and not supposed to be necessary to the validity of the treaty. It would be proper, however, he observed, to reply to the arguments which have been urged on the general nature of the treaty-making power; and as it was a subject of great importance, he solicited the attentive hearing of the house.

It is not denied, he believed, that the President, with the concurrence of two thirds of the Senate, has a right to make commercial treaties; it is not asserted that this treaty is couched in such general terms as to require a law to carry the details into execution. Why, then, is this bill necessary? Because, say gentlemen, that the treaty of itself, without the aid of this bill, cannot exempt British tonnage, and goods imported in their bottoms, from the operation of the law laying additional duties on foreign tonnage and goods imported in foreign vessels; or, giving the question a more general form, because a treaty cannot annul a law. The gentleman from Virginia, (Mr. Barbour,) who argued this point very distinctly, though not satisfactorily, took as his general position, that to repeal a law is a legislative act, and can only be done by law; that, in the distribution of the legislative and treaty-making power, the right to repeal a law fell exclusively under the former.

How does this comport with the admission immediately made by him, that the treaty of peace repealed the act declaring war? If he admits the fact in a single case, what becomes of his exclusive legislative right? He indeed felt that his rule failed him, and in explanation assumed a position entirely new; for he admitted that, when the treaty did that which was not authorized to be done by law, it did not require the sanction of Congress, and might in its operation repeal a law inconsistent with it. He said, Congress is not authorized to make peace; and for this reason a treaty of peace repeals the act declaring war. In this position, he under