Debates in the Several State Conventions/Volume 4/National Bank Charter Renewal
Renewal of the Charter of the United States Bank.
House of Representatives, April 13, 1810.
Mr. LOVE. The question of the constitutionality of the bank solely depends on the question, whether it is necessary and proper for conducting the moneyed operations of government. So great a change has taken place on that subject within twenty years past, that it is supposed the question is now settled. Not only the moneyed transactions of the United States, but, it is believed, of all the state governments, are carried on through the state banks, as well as commercial transactions, and other moneyed negotiations.
Mr. TROUP said, gentlemen might pass the bill but for the constitutional question. If they did pass it, he hoped they would not permit themselves to become the retailing hucksters of the community, for the sale of bank charters. There is a power in the Constitution to sell the public property; but there is certainly no power to sell privileges of any kind. I, therefore, move to strike out the bribe, the douceur, the bonus as gentlemen call it, of 1,250,000 dollars.
Mr. KEY said, to him it clearly appeared within the power and limit of the Constitution to establish a bank, if necessary, for the collection of the revenue.
Mr. TROUP observed, that some gentlemen had said that the power to incorporate a bank was derived from the power to lay and collect revenue; and that the power ought to be exercised, because banks give a facility to the collection of the revenue. If the power be exercised, it must be necessary and proper. If it be necessary to the collection of the revenue, the revenue cannot be collected without it. The gentleman from Maryland might say a bank institution was useful. He might say it would give facility to the collection of the revenue; but facility and necessity are wholly different, and the Constitution says that a power, to be incidental, must be necessary and proper.
Mr. ALSTON. In the 10th article, 1st section, of the Constitution, it is said, "No state shall coin money, emit bills of credit, or make any thing but gold and silver com a legal tender in payment of debts." The interpretation which I give to it is, that the United States possess power to make any thing, besides gold and silver, a legal tender. If what I conceive to be a fair interpretation be admitted, it must follow that they have a right to make bank paper a legal tender. Much more, then, sir, have they the power of causing it to be received by themselves, in payment of taxes.
January 16, 1811.
Mr. BURWELL. It is my most deliberate conviction, that the Constitution of the country gives no authority to Congress to incorporate a bank, and endow the stockholders with chartered immunities.
The power to establish a bank cannot be deduced from the general phrases, "to provide for the common defence and general welfare," because they merely announce the object for which the general government was instituted. The only means by which this object is to be attained are specifically enumerated in the Constitution; and if they are not ample, it is a defect which Congress are incompetent to supply.
P. B. PORTER. The Constitution is a specification of the powers, or means, themselves, by which certain objects are to be accomplished. The powers of the Constitution, carried into execution according to the strict terms and import of them, are the appropriate means, and the only means, within the reach of this government, for the attainment of its ends. It is true, as the Constitution declares,—and it would be equally true if the Constitution did not declare it,—that Congress have a right to pass all laws necessary and proper for executing the delegated powers; but this gives no latitude of discretion in the selection of means or powers.
Mr. KEY. The end, or power given, is to lay and collect taxes, and pay the public debt. The power to make laws necessary and proper to effect that end is also given, and consists in devising and establishing the means of accomplishing it. The means to accomplish the end are nowhere restricted.
If a bank is useful and necessary in the collection of taxes and imposts, and payment of the public debt, and is the best mode of effecting it, the creation of a bank for such purposes is definitely within the power of Congress; and more, it is the bounden duty of Congress to establish it, because they are bound to adopt the best practicable, or, in other words, necessary and proper means to collect the tax and imposts.
Mr. EPPES. The Constitution of the United States has universally been considered as a grant of particular, and not of general, powers. Those powers are the primary or expressly delegated, and the derivative or implied. The character of the instrument precluded the necessity of a "bill of rights," because the question never could arise, what was reserved, but what was granted. The framers of the Constitution were well aware of this, and so were the people who adopted it. It is, therefore, fairly to be inferred that, whenever there appears a limitation or restriction, in the shape of a negative clause. Congress might have exercised the power interdicted had such clause not been made part of the instrument.
Mr. CRAWFORD. If the state governments are restrained from exercising this right to incorporate a bank, it would appear, ex necessitate rei, that this right is vested in the government of the United States. The entire sovereignty 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 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 femes covert, the ability to contract? 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.