21 principles upon which the judiciary rely, are substantially the same which prevailed in ,1791, and ushered into being the first United States bank. The main point of the argument of Gen. 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 necessary 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 bank, 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 mean of executing any of the enumerated powers ; and, until this be done, the opinions of the judiciary avail nothing. Whatever may be the general principle affirmed.by them, their arguments neither make for, nor against, the constitutionality of a national bank. It is affirmed by the Supreme Court, in the case already alluded to, that “the government which 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 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 charter, 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 princi-
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