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 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
