SPEECH OF MR. MOORE, OF NEW YORK, ON THE BILL IMPOSING ADDITIONAL DUTIES AS DEPOSITORIES IN CERTAIN CASES. ON *PUBLIC OFFICERS. DELIVERED IN THS HOUSE OF REPRESENTATIVES, OCTOBER 13, 1637. WASHINGTON: BLAIR AND RIVES, PRINTERS. 1837
Mr. Chairman: It is with a degree of reluctance that 1 solicit the indulgence of the committee at this late period of the session. It is well known that, since I have had the honor of a seat in this house, I have troubled it but seldom with remarks of my own. Indeed, I have long considered it neither proper nor respectful in any member’of.any legislative body to engross the time to be devoted to public business in speechmaking, unless the speaker have it in his power to impart some important information, or shed new light bn the subject of debate. And here, sir, I feel bound to confess, that were I now to be governed strictly by this rule, I would have refrained from participating in this discussion. Mr Chairman, 1 regret to say, that such is the poor and unprofitable fashion of the times, that unless the people’s representatives occasionally make long and lusty speeches, they are but too liable to incur the people’s displeasure. And for this reason they often deem it expedient to make elaborate speeches on some given subject, that shall, when printed, occupy so many columns of a newspaper, or so many pages of a pamphlet. In order to comply with this requisition, the member is often compelled, especially when the subject does not happen to be a very fruitful one, or the speaker does not chance to possess that kind of creative power which can produce something' out of nothings so to draw out and dilute his ideas, that the reader, should he judge from their texture and gossamer properties, would be liable to conclude, that, like the spider’s web, they had been spun rather from .the bowels than the brain. The cause of this evil, sir, lies, in a great measure, with the people themselves. The representative, unless he inflicts some half dozen speeches upon the body to which he may belong, in the course of a session—whether called for or not, whether to the,purpose or not—returns to his constituents under the apprehension that he will not receive at their hands the gratifying welcome of ft well done, good and faithful servant.” The political aspirant, therefore, must either make up his mind to swim with the current of public opinion, and speak, often ; or to remain silent, arid sink beneath its waves. And as legislators, like other men, are more or less moved by self-love, pride, and ambition—passions upon which hang the fever of thi world, and which stimulate men to action—they are but too liable to consult their own rather than their country’s interest, and to embarrass the business of the nation, by making speeches designed for home consumption^ and their own political aggrandizement. Sir, I intend no disrespect to the members of this body, nor to the people who send them here. I but speak of a custom which I conceive to be justly obnoxious to censure.. I speak of men as I find them, and as they are. 1 am aware, sir, of the irrelevancy of these remarks, and will not further occupy the time of the committee by pursuing them. Previously to approaching the subject, properly before the committee, I will briefly notice certain remarks of 'the gentleman from Pennsylvania, (Mr. Naylor,) who has just taken his seat. He has paid high and deserved W0R20JW34
4 compliments to the workingmen of the north—to their intelligence, and to their integrity. To those sentiments my heart most cordially responded. He represented himself to .be a workingman ; he professed great regard for the interests of workingmen ; he declaimed most energetically in their behalf ; but he uniformly votes against every measure which they advocate. During the present session he has voted for the United States Bank; he has expressed his determination to vote against the bill on your table. But he knows that the workingmen are opposed to the United States Bank; that they are in favor of the divorce bill, so called; and I feel justified in saying, t that ninety-nine out of every hundred workingmen are favorable to this bill. Sir, the relation in which I stand to the laboring classes enables me to judge of their views on this subject. ’ I am in daily correspondence with workingmen in different parts of the Union ; and 1 know that an unanimity of opinion and of sentiments in its favor prevails amongst them. Sir, I cannot conceive how the honorable gentleman can reconcile his professions with his practice. If he knows the feelings and the opinions of the workingmen, as he ought to know them; and if he estimates their intelligence and their integrity as he professes to estimate them ; why then does he go counter to their views and to their will? Sir, the laboring classes have had too many such advocates ! They have been too often flattered and betrayed by politicians 1 Too often deceived by those who caressed and bepraised them ! But, sir; the gentleman from Pennsylvania, not content with eulogizing the laboring men of the north, has made a false issue with the gentleman from South Carolina, (Mr. Pickens,) by misrepresenting hip views. Sir, what was the position taken by the gentleman from South Carolina? I understood him to say that the incorporated monopolies of the north were inimical to the interests and the liberties of the laboring classes ; wvere calculated to abridge their natural and political freedom, and to subject them to a moneyed aristocracy; and, for the expression of these sentiments, the gentleman from Pennsylvania has thought proper to rebuke him. But let me tell the gentleman from Pennsylvania, that the laboring classes of the north are apprehensive of the very evils so ably depicted by the gentleman from South Carolina. Look at their organs ;, consult their papers; and you will find that exclusive legislation—that the grants of chartered monopolies—are regarded by them as hostile to their interests and dangerous to their liberties. And did not the gentleman from Pennsylvania, previous to his election, and during the canvass, did not he intimate his .opposition to these very moneyed monopolies, now dignified by him under the title of institutions ? And how has he answered the expectations which he created by his professions ? By voting for a United States Bank ? By opposing the bill which proposes to disconnect bank and State! In a word, by warring with all the principles and opposing all the wishes of the laboring classes!’ “ If such be thy gods, O 1 Israel 1 wo! wo ! to those who bow before them!” 1 now1, sir, feel constrained to notice, briefly, some remarks which were made yesterday by my honorable and much respected colleague (Mr. Hoffman) while addressing this committee on the bill under consideration. I understood him to say, sir, that the present Chief Magistrate is, in a great degree, indebted to the influence of the banks for his political elevation. Sir, 1 deny the correctness of this assertion. I am satisfied that Martin Van Buren owes his elevation to his own merits, and to the unbought .suffrages of a majority of the American people. But, sir. if my colleague *
5 represents this matter truly, and the-election of Mr. Van Buren to the Presidency was achieved through bank officers or bank influence, what an important lesson does it teach us ? And How forcibly does it illustrate the dangers of the banking system? If banks band together in one political contest, they may in another, If they unite their energies in behalf of one individual, they also may unite in behalf of another, without any regard to his merits, his virtues, or his qualifications, provided he will lend himself to their interests. This is a fruitful theme, but I will not pursue it at- present. I now turn to the subject of political changes, on which my colleague has said so much. If I mistake not, he took occasion, to rebuke the chairman of the Committee of Ways and Means for certain alleged political somersets, which he is said to have made some few years since. My friend over the way (Mr. Cambrel eng) is fully competent to defend himself from the charge, and I shall, therefore, leave this part of the subject in his hands. On the general topic of political changes, my colleague (Mr. Hoffman) has all the advantages over me which practice and experience can give. It would, therefore, be manifestly imprudent for me to enter the lists with so old and so experienced a tactician in this branch of political science. Did I desire instruction on this subject, my colleague would be the very first man to whom I would apply. He should be my preceptor above all others; for I am satisfied that none can be better qualified than himself, to descant on the facility with which political changes can be made; none have the power to speak more feelingly and understandingly on the subject. It was but a short time since, sir, when my colleague and myself stood foremost in the ranks of the democracy; when the old wigwam resounded with our respective voices; when we advocated the same measures and the same men; when we sang the same political hosannahs* and worshipped at the same political altar. But, sir, that time has passed ; and my colleague, instead of joining with me in the old rallying cry, chooses to lift up his-musical voice in a political palinode; and we now find ourselves planted foot to foot as political opponents, instead of standing shoulder to shoulder, as political associates, as we were wont to stand. In the course of his remarks, my colleague discoursed right eloquently on the calamities of the times and on the sufferings of the people. But on this topic he is not singu- Jar nor alone. - All his whig brethren have strenuously emulated each other in their extraordinary professions of peculiar love for the patient people. When I reflect on the wonderful solicitude manifested .by the members of the opposition for the welfare of the nation, I cannot withhold an expression of admiration at the patriotic and benevolent spirit which pervades and warms and expands their benevolent bosoms. We have heard gentlemen from the East and the West, from the North and the South, mingling their notes of lamentation over the sufferings of the unfortunate wherever found. Every fibre of their heads and hearts, every feeling of their souls and bodies, appears to be attuned to benevolence, and to vibrate with deepest sympathy at the calamities which they assure us have befallen our common country. Sir, these are honorable feelings, and highly creditable to human nature. Patriotism so exalted, philanthropy so generous, sympathy so sincere, benevolence so pure, holy, and disinterested, cannot fail to challenge our warmest admiration. When we heal men sincerely deplore the misfortunes of their fellows, we cannot but admire, honor, and respect them. But how are these feelings of respect and admiration strengthened and augmented when we behold them exerting
6 their utmost energies in behalf of the unfortunate; when we see them prmptly and eagerly rushing to the rescue? And, sir, here I must be permitted to intimate to my political opponents, that in order firmly to establish their characters for superior patriotism and philanthropy, it will be necessary for them to act as well as to feel. If you know the remedy, gentlemen, and apply it not, the sincerity of your professions may be doubted. , The uncharitable may surmise that party is your object, and public good the scapegoat. Sir, what would we think of the patriotism of the man who was able, but unwilling, to succour his country in the hour of her extremity ? Or what would we say of the benevolence of a physician who refused to administer to his sick and dying patient, the remedies which he knew would restore him to life, health, and vigor? And are not gentlemen aware, that after having,so constantly, so earnestly, and so eloquently, bewailed the fallen fortunes of their country, they will naturally be looked to by that country with anxious shuddering solicitude for the reinedies competent to heal the deep disease, which, we are told, is preying upon its vitals ? Are they not aware that thbir benevolence will be questioned, and their sincerity doubted, even by the confiding and the faithful ? But, sir, we have been told that the friends of the. administration have the power, and that the responsibility rests with them I Sir, what are we to understand by this ? Is it meant to be insinuated that the administration party in this house have the power to relieve the distresses of this country, but that they have not the will to exercise it ? Is it meant to be affirmed that the dominant party are so utterly destitute of feeling and of patriotism, as willingly and intentionally to withhold the aid which they might rightfully and constitutionally extend to the people ? Is it their intention to represent us to the American people in so odious and offensive a light ? Sir, I am aware that the gentlemen in the opposition have long claimed ah the wisdom, and all the worth, and all the decency; but I did not suppose, until now, that they also claimed ail.the patriotism, and all the benevolence, and all the sympathy. For one, sir, 1 protest against such unwarrantable and unfounded pretensions. I am clearly against this additional monopoly. If the gentlemen really possess all the charity and benevolence which they claim, I trust that they will not be inexorable towards us; that they will not thrust us beyond the pale of humanity; that they will not strip us of all the common attributes of civilized men, nor paint us as savages or brutes, by representing us to be deaf or indifferent to the voice of distress. Why should we be thus treated as guilty of the 'grossest injustice—of the most flagrant inhumanity? If the gentlemen of the opposition do not consider adequate the means of relief proposed by the Executive, let them suggest such as will be effective, and, .my life on it, if these means shall be just, proper, and constitutional, the friends of the administration will cheerfully yield them their most cordial and hearty support. We confess that we know no other remedies for the ills complained of than those we have already suggested. And if the gentlemen in the opposition have it in their power, as they would have us ahd the country believe, of proposing an efficacious and constitutional remedy, for heaven’s sake let them tell us what it is 1 If there be a balm in Gilead—if there be a physician there—let him administer the balm to our afflicted country. Do not, I beseech you, gentlemen, do not any longer keep secret your political catholicon. like quack physicians;
blit, like, good and true patriots, make it publicly known, that it may be employed for the healing of tHe nation. My colleague has pronounced the sub-treasury system unconstitutional^ but did not attempt to prove it so. Now, sir, by way of a set off, 1 pronounce unconstitutional the substitute of my colleague, a national bank; and so I shall endeavor to prove it by calm and dispassionate -argument. A national bank, being the principal antagonist measure to the bill wilder discussion, I shall confine my remarks principally to that subject ; and, as this is the only point that has not been fully and thoroughly discussed in the progress of this debate, there will be the greater propriety in this course. I shall, therefore, attempt to argue at length this part of the subject. I can find no authority in the constitution for granting charters of incorporation, of whatever narpe/kind, or description ; and no honorable geritle- 'man, I presume, will hazard the declaration that such power is directly given to Congress by the constitution. The most hardy and reckless advocates of a'national bank have never ventured to affirm that such power was specific and direct—that the warrant was express. They all resort to the doctrine of implication and construction. Sir, let us examine this doctrine ; let us take up the constitution in a spirit of honesty and soberness, and see what clause of that instrument, if any, vests in Congress even an implied power to incorporate a national bank Sir, I am aware of the vastness of the subject which T propose to examine. I am aware that the constitutionality of a national bank has been repeatedly discussed by the most eminent jurists and statesmen of the nation. Arid I am also aware that an attempt, on my part, to grapple with a subject of such magnitude, arid under such circumstances, will be attributed by many to a want of discretion, if not to a culpable vanity. Be it so. I conceive it to be my duty—I know it to be my right—to express my views fully on this subject ; and, although I may be unable to shed any additional light bn this Jong agitated arid vexations question, yet I will, nevertheless, state the arguments and considerations which exert a controlling influence on my judgment. Permit me then, sir, to call, for a moment, the attention of the committee to the peculiar character of our Government. It is conceded by all parties, I believe, to be a government of limited and specified powers; which powers are expressly prescribed by the constitution. To the constitution, then, and to the constitution alone, must Congress look for all and every power they would exercise. Unless, therefore, the power to grant charters of incorporation be expressly granted by the constitution, the exercise of such power, on the part of Congress, would be a violation of that instrument. But, say gentlemen, although we do not pretend to assert, that the power to incorporate is given in direct terms to Congress by the constitution, we contend, nevertheless, that such power is derived by fair and legitimate construction. But, when the advocates of this doctrine have been called upon to designate the clause of the constitution which confers on Congress the power to incorporate a bank, they have been sadly puzzled to comply with the requisition, but have wandered arid wandered from article to article, and from clause to clause, seeking in vain,for authority. When driven from one position they flee to another ; ever vacillating ; never fixed in their views ; never satisfied with their own, nor with each others’ arguments. No unity of opinion prevails among them as to the particular clause in the constitution, where this doctrine of construction and implication, authorizing acts of incorporation, is
to bo found : but, like certain deluded ones of old, one cries, lo! it is here— and another, lo! it is there; when, as was the case with the asses of Kish, it happens to be “ nowhere.” But, sir, let us examine those parts of the constitution where this power is said to reside. Some have attempted to locate it in the first article of the eighth section of the constitution, which gives Congress the power “ 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.” The power to “ lay and collect taxes” and to “ pay the debts of the United States in other words, the power to raise and appropriate money, and the power to grant charters of incorporation, 1 believe never have been, and I presume never will be, regarded as synonymous, even by the most desperate “ constructionists.” Those, therefore, who pretend to find authority to grant charters of incorporation, in the article under consideration, must look for it in the words “ common defence and general welfare.” And it is from these words that some pretend to derive the power to incorporate a national bank. Can those who have contended for this construction have considered well of the consequences which must inevitably follow from an exercise of such implied powers? Have they reflected, that, by giving to these words the construction they contend for, they render the enumerated powers of the constitution nugatory? that they virtually annul the powers reserved to the State Governments? break down all the constitutional guards designed to protect the rights of the States, and of the people, and make the constitution itself, in the hands of Congress, what clay would be in the hands of the potter? And, lastly, have they considered that this doctrine is-flatly contradicted by the tenth amendment to the constitution, which expressly declares that “the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people?” General Hamilton, latitudinarian as he was on the subject of construction, had too much regard for his reputation to give to the words, “to provide for the common defence and general welfare,” a construction that would confer on Congress powers not enumerated in the constitution. By reference to his report on manufactures, it will be found that he confines, in every instance, the application of these words to the power given by the firstsentence of the clause; and in this particular Mr. Jefferson agrees with him. The latter,'in adverting to this subject, calls it “ a grammatical quibble, which has countenanced the General Government in a claim of universal power.. For, continues he, in the phrase to lay taxes, lo pay the debts, and provide, for the general welfare, it is a mere question of syntax, whether the two last infinitives are governed by the first, or are distinct and co-ordinate powers; a question unequivocally decided by the exact definition of powers immediately following.” Sir, I conceive that the clause of the constitution under consideration admits of but two constructions; the one, limiting the powers of Congress, as contended by General Hamilton and, Mr. Jefferson; the other, conferring on Congress powers incompatible with the spirit, and utterly subversive of all the express powers of the.constitution—powers independent of, and paramount to, the constitution itself-—powers indefinite, boundless, omnipotent. If the latter construction be admitted, the will of Congress, and not the constitution, is the law of the land. Or, if, peradventure, Congress should think it expedient to revert to the constitution at all, it would only be necessary to refer to that part of it containing the cabalistic words “ common defence and general welfare.” And as these
9 < words, according to certain commentators, convey a plenary power.on all subjects, and are applicable to all cases that come within the jurisdiction of the national legislature, it would be quite unnecessary to look further. This would be economical, withal—saving much precious time to the people’s representatives, which otherwise might be squandered in wandering about the constitutional kingdom in search (as well search for the lost pleiad) of the enumerated powers, which, unfortunately, have been swallowed up by the implied powers discovered in the words “common defence and general welfare.” Let us suppose the doctrine here combatted to be established and carried out into practical legislation. Congress is applied to by a number of influential individuals for an act of incorporation, granting to them and to their successors and assigns forever, the sole and exclusive right, extending to all the States in the Union, of smelting iron ore with anthracite coal, and of manufacturing the same. The memorialists set forth in their petition the immense benefits that would result to the nation from their contemplated enterprise. They dwell upon the advantages incident to associated capital, and concentrated wisdom and.industry. • They represent, that the mining interest of the country would be benefitted in proportion to the extent of the monopoly—inasmuch as the products of the iron and coal mines would ever find a ready, market at the company’s works; that the public in general would be enabled to obtain the manufactured articles at a much cheaper rate and of a better quality ; and that, in time of war, arms and ordnance could be furnished with greater facility, and of superior temper and calibre. The' States, notwithstanding all these plausible representations, remonstrate—individuals remonstrate. The States urge that the grant would be a violation of their reserved rights, and the principle upon which the Union was founded; and demand of Congress'the source whence the power is derived to grant such charter of incorporation ? Congress very complacently point them to the potent words 11 common defence and general welfare,” and the thing is settled. Individuals represent, that an equality of civil and political rights constitute the basis of purely democratical governments ; that none but equal laws can legitimately-flow from the principle of equal rights ; and that all laws, which invade that principle, conflict with the spirit of our institutions, and are, to all intents and purposes, legislative frauds upon the rights of the people ; and, consequently, utterly destitute of constitutional sanction. „ They •further show, that an exercise of power, such as asked for by the petitioners, would confer exclusive privileges and legislative favors—infringe on their natural and political rights—-violate the sacred principles of justice and political equality, and, for this reason, be clearly unconstitutional. But Congress, regardless of the truth and propriety of these representations, grant the charter of incorporation, and when called upon to show their constitutional right to do so, triumphantly refer to the magical words “common defence and general welfare,” and there the matter ends. I have put this case for the purpose of illustrating the evils consequent upon an assumption of power, such as contended for by those who maintain that the clause we have been examining authorizes Congress to establish a federal bank. And, as legislators are as much subject to infirmities as other men, and the world not having, as yet, approached that desirable state of which Plato dreamed—“ the perfectibility of man”—it is not only possible, but very probable, that cases of this kind might frequently happen. Nor can those who contend for the principle which merges all power in the words “ com-
mon defence and general welfare,” or, what amounts to the same thing— in the will of Congress,—object to any case coming within that principle, Woweyer dangerous and pernicious in its consequences. As this clause of the constitution has been, and is still much relied oh by the advocates of a United States Bank, I will take the liberty of introducing such authority in Opposition to their views, as will, 1 trust, have weight, both with this house and the nation. The fourth resolution'passed by the General Assembly of Virginia, in December, 1798, reads as follows : “ That the General Assembly doth also express its deep regret, that a spirit has in sundry instances been manifested by the Federal'Government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have'appeared of ‘a design to expound certain general phrases (which having been copied from the very limited grant of powers in the former articles of confederation, were the less liable to be misconstrued,) So as to destroy the meaning and dffect of the particular enumeration which necessarily explains and limits the general phrases; and s o as to consolidate the States, by degress, into one sovereignty; the obvious tendency, and inevitable result of which would be to transform the present republican system of the United States into an absolute, or at best a mixed monarchy.” Mr. Madison, in his report commenting bn this resolution, observes: “ The first question here to be considered is, whether a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charier. . “ The general assembly having declared their opinion merely,.by regretting in general terms, that forced constructions.for enlarging the federal.powers have taken place; it does not appear to the committee necessary to go into a specification of every instance to which the resolution may allude. The alien and sedition acts, being particularly named in a succeeding resolution, are of course to be understood.as included in the allusion. Omitting others which have less occupied public attention, or been less extensively, regarded as unconstitutional, the resolution may be presumed to refer particularly to the bank law, which, from the circumstances of its passage, as well as the latitude5 Qf construction on which it is founded, strikes the attention with singular force ; and the carriage tax, distinguished also by circumstances in its history having a similar tendency.” . * , *. * * * ■'* * * “1. The general phrases here meant must be those “of providing for the common defence and general welfare.” ... “In the ‘Article of Confederation,’ the phrases are.used as follows, in Art. VIII: ‘All charges of war, and all other expenses that shall be incurred for the common defence and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proporlipn to the value of all land within each State, granted to, or surveyed for, any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United Slate's in Congress assembled, shall from time to time direct and appoint.’ “In the existing constitution, they make the following part of sec. 8: ‘ The Congress shall have power 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.’ “ This similarity in the use of these phrases in the two great federal charters, might well be considered as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said, that in the former, they were ever understood to be either a general grant of power, w lo authorize tlie requisition dr application of money by the old Congress to the common defence and general welfare, except in. cases afterwards enumerated,. which explained and limited their meaning, and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present constitution, it can never be supposed that when copied into this constitution, a different meaning ought to be attached to them. “ That, notwithstanding this remarkable security against misconstruction, a design has been indicated toexpound these’ phrases in the constitution; so as to destroy the effect of the particular enumeration of powers ’ by which it explains and limits them, . must have fallen under the observation of those who have attended to the course of. public transactions. Not to multiply proofs on this subject, it will suffice to refer to the debate’s of the federal legislature, in which arguments have on different occasions been.drawn, with apparent effect, from-these phrases, in their indefinite meaning.—Elliot's Debates, vol. 4. p. 577—8.
11 Again? the samedistipguished personage, in a letter to Mr. Steverisdnz dated November 27, 1830, in whichlhe examines the origin and progress of the clause under consideration, remarks that: “ A special proyisiofl, says Mr. Madison, could not have been necessary for the debts of thenew Congress; for a power to provide 'money, and a power to perform certain acts, of which money is the ordinary and appropriate means, must, of.course, carry with, them a power to pay the expense of performing the acts. Nor was any special provision for debts proposed, till the case of the revolutionary debts was1 brought into view; and it is a fair presumption, from the course of the varied propositions which have been noticed,'that but for the old debts, and their association with.the terms, ‘common defence and general welfare,’ the clause would have remained, as reported in'the first draught of a constitution, expressing generally ‘ a power in Congress to lay and collect taxes, duties, imposts, and excises,’ without any addition of the phrase ‘ to provide for the common defence and general welfare.’ With this addition, indeed, the language of the clause being in conformity with that of the clause in the articles of confederation, it would be qualified, as in those articles, by the specification of powers subjoined to it. But there is-sufficient reason to suppose, that the terras'in question would not have been introduced, but for the introduction of the old. debts, with which they happened to stand/in a familiar, though inoperative relation. Thus introduced, however, they pass undisturbed through the subsequent stages of the constitution. “If it be asked, why the terms 1 common defence and general welfare,’ if not meant to.convey the comprehensive power, which, taken literally, they express, were not qualified and explained by some reference to the particular power subjoined, the .answer is.at hand, that although it might easily have been done, and experience shows it might be well if it had been done, yet the omission is accounted1 for by an inattention to the phraseology, occasioned, doubtless, by the identity with the harmless character attached to it in the instrument, from which it was borrowed. - . “ But may it not be asked with infinitely more propriety, and without the possibility' of a ■satisfactory answer, why, if the terms were meant to embrace, not only all the powers particularly expressed, but the indefinite power which has been claimed under them, the intention was not so declared; why, oh that supposition,"so much critical labor... was employed in enumerating the particular-powers, and in defining and limiting their extent? * * $ * * 4- * “ The obvious conclusion, to/which we are brought, is, that these terms, copied from the articles of confederation, were regarded in the new, as in the old instrument, merely as general terms, explained and limited by the subjoined specification^, and therefore requiring no critical attention or studied precaution. * * ■* * * * * * ■ “Mr. Wilson, justly distinguished for his intellectual powers, being deeply impressed with the importance of a bank at such a crisis, published a small pamphlet, entitled ‘ Considerations- oh the Bank of North America,’ in which he endeavored to derive the power frdm the nature of the Union in which the colonies were declared and became independent States ; and also from the tenor of the ‘ articles of confederation’ themselves. But'what is particularly worthy of notice is, that with all his anxious search in those articles for such a power, he never glanced at the terms ‘common defence and general welfare,’as a source of it.”’—Elliot's Debates, vol. 4, pp. 646—7. And here, sir, 1 think I may safely rest tins part of the subject. The second paragraph of the 8th section of the constitution, which vests in Congress the power “to borrow money on the credit of the United States,” has also been appealed to by the friends of a national bank. But as nothing like an argument has ever been adduced in support of this position, as it rests upon mere conjecture, without the shadow of authority to support it, and as a bill to charter a bank is not a bill to bofrow money, I will not trouble the Committee with any further remarks on this point, but proceed to examine the third paragraph of the Sth section of the constitution, which gives Congress the power “ To regulate commerce with foreign nations, among the several States, and with the Indian tribes.” This clause has been appealed to by the advocates of internal improvements, as authorizing Congress to construct roads and canals, &c ; it has also been appealed to by the friends of the tariff system, as vesting in Congress an implied power to protect our domestic manufactures ; and lastly, it has been appealed to, as authorizing Congress to establish a United'States
12 Bank. Now, sir, in my humble opinion; the power to regulate commerce. does not include the power to make internal improvements of the character just noticed—to protect manufactures, by imposing a tariff—nor to establish a national bank. Neither the clause immediately under consideration, nor any other found in the constitution, authorizes Congress, in my judgment, to do either of those three things. Sir, is it meant to be affirmed, that the power to “ regulate commerce,’.’ includes the power to regulate the currency of the several States ? If so, then is Congress authorized, under the power to “regulate commerce,” to regulate the issues of all the State banks—for these constitute the principal currency of. the country; on the other hand, if it be meant that Congress have not the power, under this clause of the constitution, to regulate the currency, how can it be said that Congress are thereby authorized to charter a bank for the purpose of regulating commerce, when the only object of a national bank, as we are told, is to regulate and equalize the exchanges and currency .of the country ? Again : If the power “to regulate commerce” includes the power to incorporate a bank, why may it not also include the power to grant charters of incorporation for other purposes? Why not authorize Congress to incorporate companies for objects of internal improvements—for manufactures—or, what would appear to be rather more congenial, for ordinary commercial purposes? If Congress can, by this clause of the constitution, authorize one set of men, under an act of incorporation, to deal in bank paper, they possess equally the power to authorize another set to deal in silks and satins, calicoes and. ginghams. Nor can this position be controverted. The stockholders and agents of a bank are as much traffickers and dealers in paper money, which is a species of commercial commodity, as merchants are in, broadcloths and cassimeres. If an act of incorporation, therefore, can be claimed in the one case, as a proper and necessary means to “ regulate commerce,” it unquestionably can in the other. But the clause in question confers no such power. The power to “regulate commerce,” and the power to grant charters of incorporation are separate and distinct. The former is conferred by the constitution, the latter is not. Sir, what was the nature of the power which the framers of the constitution intended to confer on Congress by this clause? Evidently, to authorize Congress to prescribe or establish certain rules by which commerce should be governed. But will it be pretended that the authors of the constitution meant that this power, which they vested in Congress alone, should be transferred by Congress to an incorporated company? That a chartered company should possess the exclusive power of regulating the commercial interests of the nation ? of prescribing rules for its government? of determining the principles on which it should be conducted ? and thus place one of the great interests of the country beyond legislative and constitutional control? No one, I presume, will say, in direct terms, that such was the intention of the framers of the constitution ; and yet such is the inevitable result to which the doctrine of construction, here combatted, leads/ If such rules of construction prevail, it will be impossible to define the limits of the power of the federal government j under the clause, “Congress shall have power to regulate commerce,” &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
13 creates a subject of coilitncrte 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. Be* sides, 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 the 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 Com* mittee of Ways and Means—on the fifth article of the eight.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 Congress. This grant was evidently intended to invest Congress with the power of regulating the circulating medium. ‘Coin’ was regarded, at the peripd 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.”-—Rep. H. R. 1st Sess: 21st Cong. No. 358,' Vol. 3, p. 6. 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, blit 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 much 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 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 com-
‘pany, which shall possess the independent and sovereign right to coin or manufacture money, and regulate the value thereof, why may they not also invest such corporationswith 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? 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 farther the extraordinary argument urged by Mr. McDuffie in support of bis most extraordinary position. “ Coin,” says he, l( 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 rhetals,” What I 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 whole 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 recog- niesd 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 coin 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 twdacts 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
15 federal revenue,1? If they even 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 com, 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 8 th section of the constitution : “ To make all laws which shall be necessary and proper to carry into effect theforegoingpowers.” It will not be pretended, I apprehend, that.this clause vests in Congress any newsubstantive power; or that it in any wise 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 mean to carry into effect any of the specified powers ? 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, 1 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 capacity, 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? 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 teal estate; which the United States themselves cannot do without obtaining the .consent of the, S tates. 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 judiciary, 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! east, 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,
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