Front Page Titles (by Subject) part eight: Forging a Nation - The American Republic: Primary Sources
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part eight: Forging a Nation - Bruce Frohnen, The American Republic: Primary Sources 
The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002).
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Forging a Nation
The clear continuities in American politics and cul-ture played an important role in the development of the Republic but do not overshadow the significant developments brought about by the Revolution and the construction of a new, independent government for the United States. Furthermore, America changed significantly with such events as Jefferson’s Louisiana Purchase, by which the United States gained vast new territories and trade routes, and the effects of immigration and economic development, along with internal improvements such as roads, harbors, and canals, which vastly increased American population and commerce.
As America’s size and population increased—at times exponentially—new issues arose and old issues were transformed in character by new circumstances. New parties and coalitions arose, committed to greater and more widely spread political participation, to greater federal efforts on behalf of commercial growth, and to the spread of commercial habits and virtues. Issues of federal control and influence over commerce, taxation, and internal improvements often centered on particular events, such as the chartering of a national bank to hold deposits of the federal government. But they continued to raise nagging questions of the proper relationship between the state and the federal governments, as well as the proper size and scope of government in general, and the nature and purpose of America and her people.
Opinion against the Constitutionality of a National Bank
February 15, 1791
Opinion as to the Constitutionality of the Bank of the United States
February 23, 1791
Alexander Hamilton served as President Washington’s secre-tary of the treasury. One of his early legislative proposals was for the formation of a Bank of the United States. The bank would take deposits from and lend money to the federal government, as well as establish a common currency for use in commerce between the states and between American and foreign companies and governments. The new nation had no such bank at this time. Many supported the idea as a means by which to encourage commerce and bind the states together. Others opposed it as an unconstitutional exercise of federal power and a threat to the states and their people. Washington, a careful man, sought opinions on the proposal’s constitutionality from his secretary of state (Thomas Jefferson) and his attorney general (Edmund Randolph) as well as Hamilton. The opinions of Jefferson and Hamilton, reproduced here, flesh out questions of how far the Constitution’s Necessary and Proper Clause expands the powers expressly granted to the federal government and how far the central government’s power of regulating commerce extended.
Opinion against the Constitutionality of a National Bank
The bill for establishing a National Bank undertakes among other things:—
I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.
The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution.
It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are “necessary,” not those which are merely “convenient” for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed. Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory.
But let us examine this convenience and see what it is. The report on this subject, page 3, states the only general convenience to be, the preventing the transportation and re-transportation of money between the States and the treasury (for I pass over the increase of circulating medium, ascribed to it as a want, and which, according to my ideas of paper money, is clearly a demerit). Every State will have to pay a sum of tax money into the treasury; and the treasury will have to pay, in every State, a part of the interest on the public debt, and salaries to the officers of government resident in that State. In most of the States there will still be a surplus of tax money to come up to the seat of government for the officers residing there. The payments of interest and salary in each State may be made by treasury orders on the State collector. This will take up the great export of the money he has collected in his State, and consequently prevent the great mass of it from being drawn out of the State. If there be a balance of commerce in favor of that State against the one in which the government resides, the surplus of taxes will be remitted by the bills of exchange drawn for that commercial balance. And so it must be if there was a bank. But if there be no balance of commerce, either direct or circuitous, all the banks in the world could not bring up the surplus of taxes, but in the form of money. Treasury orders then, and bills of exchange may prevent the displacement of the main mass of the money collected, without the aid of any bank; and where these fail, it cannot be prevented even with that aid.
Perhaps, indeed, bank bills may be a more convenient vehicle than treasury orders. But a little difference in the degree of convenience, cannot constitute the necessity which the constitution makes the ground for assuming any non-enumerated power.
Besides; the existing banks will, without a doubt, enter into arrangements for lending their agency, and the more favorable, as there will be a competition among them for it; whereas the bill delivers us up bound to the national bank, who are free to refuse all arrangement, but on their own terms, and the public not free, on such refusal, to employ any other bank. That of Philadelphia, I believe, now does this business, by their post-notes, which, by an arrangement with the treasury, are paid by any State collector to whom they are presented. This expedient alone suffices to prevent the existence of that necessity which may justify the assumption of a non-enumerated power as a means for carrying into effect an enumerated one. The thing may be done, and has been done, and well done, without this assumption; therefore, it does not stand on that degree of necessity which can honestly justify it.
It may be said that a bank whose bills would have a currency all over the States, would be more convenient than one whose currency is limited to a single State. So it would be still more convenient that there should be a bank, whose bills should have a currency all over the world. But it does not follow from this superior conveniency, that there exists anywhere a power to establish such a bank; or that the world may not go on very well without it.
Can it be thought that the Constitution intended that for a shade or two of convenience, more or less, Congress should be authorized to break down the most ancient and fundamental laws of the several States; such as those against Mortmain, the laws of Alienage, the rules of descent, the acts of distribution, the laws of escheat and forfeiture, the laws of monopoly? Nothing but a necessity invincible by any other means, can justify such a prostitution of laws, which constitute the pillars of our whole system of jurisprudence. Will Congress be too straitlaced to carry the Constitution into honest effect, unless they may pass over the foundation-laws of the State government for the slightest convenience of theirs?
The negative of the President is the shield provided by the Constitution to protect against the invasions of the legislature: 1. The right of the Executive. 2. Of the Judiciary. 3. Of the States and State legislatures. The present is the case of a right remaining exclusively with the States, and consequently one of those intended by the Constitution to be placed under its protection.
It must be added, however, that unless the President’s mind on a view of everything which is urged for and against this bill, is tolerably clear that it is unauthorized by the Constitution; if the pro and the con hang so even as to balance his judgment, a just respect for the wisdom of the legislature would naturally decide the balance in favor of their opinion. It is chiefly for cases where they are clearly misled by error, ambition, or interest, that the Constitution has placed a check in the negative of the President.
Opinion as to the Constitutionality of the Bank of the United States
The Secretary of the Treasury having perused with attention the papers containing the opinions of the Secretary of State and Attorney-General, concerning the constitutionality of the bill for establishing a National Bank, proceeds, according to the order of the President, to submit the reasons which have induced him to entertain a different opinion.
It will naturally have been anticipated, that in performing this task, he would feel uncommon solicitude. Personal considerations alone, arising from the reflection that the measure originated with him, would be sufficient to produce it. The sense which he has manifested of the great importance of such an institution to the successful administration of the department under his particular care, and an expectation of serious ill consequences to result from a failure of the measure, do not permit him to be without anxiety on public accounts. But the chief solicitude arises from a firm persuasion, that principles of construction like those espoused by the Secretary of State and Attorney-General, would be fatal to the just and indispensable authority of the United States.
In entering upon the argument, it ought to be premised that the objections of the Secretary of State and Attorney-General are founded on a general denial of the authority of the United States to erect corporations. The latter, indeed, expressly admits, that if there be any thing in the bill which is not warranted by the Constitution, it is the clause of incorporation.
Now it appears to the Secretary of the Treasury that this general principle is inherent in the very definition of government, and essential to every step of the progress to be made by that of the United States, namely: That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.
This principle, in its application to government in general, would be admitted as an axiom; and it will be incumbent upon those who may incline to deny it, to prove a distinction, and to show that a rule which, in the general system of things, is essential to the preservation of the social order, is inapplicable to the United States.
The circumstance that the powers of sovereignty are in this country divided between the National and State governments, does not afford the distinction required. It does not follow from this, that each of the portion of powers delegated to the one or to the other, is not sovereign with regard to its proper objects. It will only follow from it, that each has sovereign power as 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 cases, would be equally to deny that the State governments have sovereign power in any case, because their power does not extend to every case. The tenth section of the first article of the Constitution exhibits a long list of very impor-tant things which they may not do. And thus the United States would furnish the singular spectacle of a political society without sovereignty, or of a people governed, without government.
If it would be necessary to bring proof to a proposition so clear, as that which affirms that the powers of the federal government, as to its objects, were sovereign, there is a clause of its Constitution which would be decisive. It is that which declares that the Constitution, and the laws of the United States made in pursuance of it, and all treaties made, or which shall be made, under their authority, shall be the supreme law of the land. The power which can create the supreme law of the land in any case, is doubtless sovereign as to such case.
This general and indisputable principle puts at once an end to the abstract question, whether the United States have power to erect a corporation; that is to say, to give a legal or artificial capacity to one or more persons, distinct from the natural. For it is unquestionably incident to sovereign power to erect corporations, and consequently to that of the United States, in relation to the objects intrusted to the management of the government. The difference is this: where the authority of the government is general, it can create corporations in all cases; where it is confined to certain branches of legislation, it can create corporations only in those cases.
Here then, as far as concerns the reasonings of the Secretary of State and the Attorney General, the affirmative of the constitutionality of the bill might be permitted to rest. It will occur to the President, that the principle here advanced has been untouched by either of them.
For a more complete elucidation of the point, nevertheless, the arguments which they had used against the power of the government to erect corporations, however foreign they are to the great and fundamental rule which has been stated, shall be particularly examined. And after showing that they do not tend to impair its force, it shall also be shown that the power of incorporation, incident to the government in certain cases, does fairly extend to the particular case which is the object of the bill.
The first of these arguments is, that the foundation of the Constitution is laid on this ground: “That all powers not delegated the United States by the Constitution, nor prohibited to it by the States, are reserved for the States, or to the people.” Whence it is meant to be inferred, that Congress can in no case exercise any power not included in those not enumerated in the Constitution. And it is affirmed, that the power of erecting a corporation is not included in any of the enumerated powers.
The main proposition here laid down, in its true signification is not to be questioned. It is nothing more than a consequence of this republican maxim, that all government is a delegation of power. But how much is delegated in each case, is a question of fact, to be made out by fair reasoning and construction, upon the particular provisions of the Constitution, taking as guides the general principles and general ends of governments.
It is not denied that there are implied, as well as express powers, and that the former are as effectually delegated as the latter. And for the sake of accuracy it shall be mentioned, that there is another class of powers, which may be properly denominated resulting powers. It will not be doubted, that if the United States should make a conquest of any of the territories of its neighbors, they would possess sovereign jurisdiction over the conquered territory. This would be rather a result, from the whole mass of the powers of the government, and from the nature of political society, than a consequence of either of the powers specially enumerated.
But be this as it may, it furnishes a striking illustration of the general doctrine contended for; it shows an extensive case, in which a power of erecting corporations is either implied in, or would result from, some or all of the powers vested in the national government. The jurisdiction acquired over such conquered country would certainly be competent to any species of legislation.
To return:—It is conceded that implied powers are to be considered as delegated equally with express ones. Then it follows, that as a power of erecting a corporation may as well be implied as any other thing, it may as well be employed as an instrument or mean of carrying into execution any of the specified powers, as any other instrument or mean whatever. The only question must be, in this, as in every other case, whether the mean to be employed, or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city. But one may be erected in relation to the collection of taxes, or to the trade with foreign countries, or to the trade between the States, or with the Indian tribes; because it is the province of the federal government to regulate those objects, and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage. . . .
Through this mode of reasoning respecting the right of employing all the means requisite to the execution of the specified powers of the government, it is objected, that none but necessary and proper means are to be employed; and the Secretary of State maintains, that no means are to be considered as necessary but those without which the grant of the power would be nugatory. Nay, so far does he go in his restrictive interpretation of the word, as even to make the case of necessity which shall warrant the constitutional exercise of the power to depend on casual and temporary circumstances; an idea which alone refutes the construction. The expediency of exercising a particular power, at a particular time, must, indeed, depend on circumstances; but the constitutional right of exercising it must be uniform and invariable, the same to-day as to-morrow.
All the arguments, therefore, against the constitutionality of the bill derived from the accidental existence of certain State banks,—institutions which happen to exist to-day, and, for aught that concerns the government of the United States, may disappear to-morrow,—must not only be rejected as fallacious, but must be viewed as demonstrative that there is a radical source of error in the reasoning.
It is essential to the being of the national government, that so erroneous a conception of the meaning of the word necessary should be exploded.
It is certain, that neither the grammatical nor popular sense of the term requires that construction. According to both, necessary often means no more than needful, requisite, incidental, useful, or conducive to. It is a common mode of expression to say, that it is necessary for a government or a person to do this or that thing, when nothing more is intended or understood, than that the interests of the government or person require, or will be promoted by, the doing of this or that thing. The imagination can be at no loss for exemplifications of the use of the word in this sense. And it is the true one in which it is to be understood as used in the Constitution. The whole turn of the clause containing it indicates, that it was the intent of the Convention, by that clause, to give a liberal latitude to the exercise of the specified powers. The expressions have peculiar comprehensiveness. They are, “to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof.”
To understand the word as the Secretary of State does, would be to depart from its obvious and popular sense, and to give it a restrictive operation, an idea never before entertained. It would be to give it the same force as if the word absolutely or indispensably had been prefixed to it.
Such a construction would beget endless uncertainty and embarrassment. The cases must be palpable and extreme, in which it could be pronounced, with certainty, that a measure was absolutely necessary, or one, without which, the exercise of a given power would be nugatory. There are few measures of any government which would stand so severe a test. To insist upon it, would be to make the criterion of the exercise of any implied power, a case of extreme necessity; which is rather a rule to justify the overleaping of the bounds of constitutional authority, than to govern the ordinary exercise of it.
It may be truly said of every government, as well as of that of the United States, that it has only a right to pass such laws as are necessary and proper to accomplish the objects intrusted to it. For no government has a right to do merely what it pleases. Hence, by a process of reasoning similar to that of the Secretary of State, it might be proved that neither of the State governments has a right to incorporate a bank. It might be shown that all the public business of the state could be performed without a bank, and inferring thence that it was unnecessary, it might be argued that it could not be done, because it is against the rule which has been just mentioned. A like mode of reasoning would prove that there was no power to incorporate the inhabitants of a town, with a view to a more perfect police. For it is certain that an incorporation may be dispensed with, though it is better to have one. It is to be remembered that there is no express power in any State constitution to erect corporations.
The degree in which a measure is necessary, can never be a test of the legal right to adopt it; that must be a matter of opinion, and can only be a test of expediency. The relation between the measure and the end; between the nature of the mean employed towards the execution of a power, and the object of that power, must be the criterion of constitutionality, not the more or less of necessity or utility.
The practice of the government is against the rule of construction advocated by the Secretary of State. Of this, the Act concerning light-houses, beacons, buoys, and public piers, is a decisive example. This, doubtless, must be referred to the powers of regulating trade, and is fairly relative to it. But it cannot be affirmed that the exercise of that power in this instance was strictly necessary, or that the power itself would be nugatory, without that of regulating establishments of this nature.
This restrictive interpretation of the word necessary is also contrary to this sound maxim of construction; namely, that the powers contained in a constitution of government, especially those which concern the general administration of the affairs of a country, its finances, trade, defence, &c., ought to be construed liberally in advancement of the public good. This rule does not depend on the particular form of a government, or on the particular demarkation of the boundaries of its powers, but on the nature and objects of government itself. The means by which national exigencies are to be provided for, national inconveniences obviated, national prosperity promoted, are of such infinite variety, extent, and complexity, that there must of necessity be great latitude of discretion in the selection and application of those means. Hence, consequently, the necessity and propriety of exercising the authorities intrusted to a government on principles of liberal construction.
The Attorney-General admits the rule, but takes a distinction between a State and the Federal Constitution. The latter, he thinks, ought to be construed with greater strictness, because there is more danger of error in defining partial than general powers. But the reason of the rule forbids such a distinction. This reason is, the variety and extent of public exigencies, a far greater proportion of which, and of a far more critical kind, are objects of National than of State administration. The greater danger of error, as far as it is supposable, may be a prudential reason for caution in practice, but it cannot be a rule of restrictive interpretation.
In regard to the clause of the Constitution immedi-ately under consideration, it is admitted by the Attorney-General, that no restrictive effect can be ascribed to it. He defines the word necessary thus: “To be necessary is to be incidental, and may be denominated the natural means of executing a power.”
But while on the one hand the construction of the Secretary of State is deemed inadmissible, it will not be contended, on the other, that the clause in question gives any new or independent power. But it gives an explicit sanction to the doctrine of implied powers, and is equivalent to an admission of the proposition that the government, as to its specified powers and objects, has plenary and sovereign authority, in some cases paramount to the States; in others, co-ordinate with it. For such is the plain import of the declaration, that it may pass all laws necessary and proper to carry into execution those powers.
It is no valid objection to the doctrine to say, that it is calculated to extend the power of the general government throughout the entire sphere of State legislation. The same thing has been said, and may be said, with regard to every exercise of power by implication or construction.
The moment the literal meaning is departed from, there is a chance of error and abuse. And yet an adherence to the letter of its powers would at once arrest the motions of government. It is not only agreed, on all hands, that the exercise of constructive powers is indispensable, but every act which has been passed is more or less an exemplification of it. One has been already mentioned—that relating to light-houses, &c.—that which declares the power of the President to remove officers at pleasure, acknowledges the same truth in another and a signal instance.
The truth is, that difficulties on this point are inherent in the nature of the Federal Constitution; they result inevitably from a division of the legislative power. The consequence of this division is, that there will be cases clearly within the power of the national government; others, clearly without its powers; and a third class, which will leave room for controversy and difference of opinion, and concerning which a reasonable latitude of judgment must be allowed.
But the doctrine which is contended for is not chargeable with the consequences imputed to it. It does not affirm that the national government is sovereign in all respects, but that it is sovereign to a certain extent; that is, to the extent of the objects of its specified powers.
It leaves, therefore, a criterion of what is constitutional, and of what is not so. This criterion is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion, which may materially assist the decision: Does the proposed measure a bridge a pre-existing right of any State or of any individual? If it does not, there is a strong presumption in favor of its constitutionality, and slighter relations to any declared object of the Constitution may be permitted to turn the scale.
The general objections, which are to be inferred from the reasonings of the Secretary of State and Attorney-General, to the doctrine which has been advanced, have been stated, and it is hoped satisfactorily answered. Those of a more particular nature shall now be examined.
The Secretary of State introduces his opinion with an observation, that the proposed incorporation undertakes to create certain capacities, properties, or attributes, which are against the laws of alienage, descents, escheat, and forfeiture, distribution and monopoly, and to confer a power to make laws paramount to those of the States. And nothing, says he, in another place, but necessity, invincible by other means, can justify such a prostration of laws, which constitute the pillars of our whole system of jurisprudence, and are the foundation laws of the State governments. If these are truly the foundation laws of the several States, then have most of them subverted their own foundations. For there is scarcely one of them which has not, since the establishment of its particular constitution, made material alterations in some of those branches of its jurisprudence, especially the law of descents. But it is not conceived how any thing can be called the fundamental law of a State government which is not established in its constitution, unalterable by the ordinary legislature. And, with regard to the question of necessity, it has been shown that this can only constitute a question of expediency, not of right.
To erect a corporation, is to substitute a legal or artifi-cial to a natural person, and where a number are concerned, to give them individuality. To that legal or artificial person, once created, the common law of every State, of itself, annexes all those incidents and attributes which are represented as a prostration of the main pillars of their jurisprudence.
It is certainly not accurate to say, that the erection of a corporation is against those different heads of the State laws; because it is rather to create a kind of person or entity, to which they are inapplicable, and to which the general rule of those laws assign a different regimen. The laws of alienage cannot apply to an artificial person, because it can have no country; those of descent cannot apply to it, because it can have no heirs; those of escheat are foreign from it, for the same reason; those of forfeiture, because it cannot commit a crime; those of distribution, because, though it may be dissolved, it cannot die.
As truly might it be said, that the exercise of the power of prescribing the rule by which foreigners shall be naturalized, is against the law of alienage, while it is, in fact, only to put them in a situation to cease to be the subject of that law. To do a thing which is against a law, is to do something which it forbids, or which is a violation of it.
But if it were even to be admitted that the erection of a corporation is a direct alteration of the stated laws, in the enumerated particulars, it would do nothing towards proving that the measure was unconstitutional. If the government of the United States can do no act which amounts to an alteration of a State law, all its powers are nugatory; for almost every new law is an alteration, in some way or other, of an old law, either common or statute.
There are laws concerning bankruptcy in some States. Some States have laws regulating the values of foreign coins. Congress are empowered to establish uniform laws concerning bankruptcy throughout the United States, and to regulate the values of foreign coins. The exercise of either of these powers by Congress, necessarily involves an alteration of the laws of those States.
Again. Every person, by the common law of each State, may export his property to foreign countries, at pleasure. But Congress, in pursuance of the power of regulating trade, may prohibit the exportation of commodities; in doing which, they would alter the common law of each State, in abridgment of individual right.
It can therefore never be good reasoning to say this or that act is unconstitutional, because it alters this or that law of a State. It must be shown that the act which makes the alteration is unconstitutional on other accounts; not because it makes the alteration.
There are two points in the suggestions of the Secretary of State, which have been noted, that are peculiarly incorrect. One is, that the proposed incorporation is against the laws of monopoly, because it stipulates an exclusive right of banking under the national authority; the other, that it gives power to the institution to make laws paramount to those of the States.
But, with regard to the first point: The bill neither prohibits any State from erecting as many banks as they please, nor any number of individuals from associating to carry on the business, and consequently, is free from the charge of establishing a monopoly; for monopoly implies a legal impediment to the carrying on of the trade by others than those to whom it is granted.
And with regard to the second point, there is still less foundation. The by-laws of such an institution as a bank can operate only on its own members—can only concern the disposition of its own property, and must essentially resemble the rules of a private mercantile partnership. They are expressly not to be contrary to law; and law must here mean the law of a State, as well as of the United States. There never can be a doubt, that a law of a corporation, if contrary to a law of a State, must be overruled as void, unless the law of the State is contrary to that of the United States, and then the question will not be between the law of the State and that of the corporation, but between the law of the State and that of the United States. . . .
Most of the arguments of the Secretary of State, which have not been considered in the foregoing remarks, are of a nature rather to apply to the expediency than to the constitutionality of the bill. They will, however, be noticed in the discussions which will be necessary in reference to the particular heads of the powers of the government which are involved in the question.
Those of the Attorney-General will now properly come under view.
His first objection is, that the power of incorporation is not expressly given to Congress. This shall be conceded, but in this sense only, that it is not declared in express terms that Congress may erect a corporation. But this cannot mean, that there are not certain express powers which necessarily include it. For instance, Congress have express power to exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased, by consent of the legislature of the State in which the same shall be, for the erection of forts, arsenals, dock-yards, and other needful buildings. Here, then, is express power to exercise exclusive legislation, in all cases whatsoever, over certain places; that is, to do, in respect to those places, all that any government whatsoever may do. For language does not afford a more complete designation of sover-eign power than in those comprehensive terms. It is, in other words, a power to pass all laws whatsoever, and, consequently, to pass laws for erecting corporations, as well as for any other purpose which is the proper object of law in a free government.
Surely it can never be believed that Congress, with exclusive powers of legislation in all cases whatsoever, cannot erect a corporation within the district which shall become the seat of government, for the better regulation of its police. And yet there is an unqualified denial of the power to erect corporations in every case, on the part both of the Secretary of State and of the Attorney-General; the former, indeed, speaks of that power in these emphatical terms: That it is a right remaining exclusively with the States.
As far, then, as there is an express power to do any particular act of legislation, there is an express one to erect a corporation in the case above described. But, accurately speaking, no particular power is more than that implied in a general one. Thus the power to lay a duty on a gallon of rum is only a particular implied in the general power to lay and collect taxes, duties, imposts, and excises. This serves to explain in what sense it may be said that Congress have not an express power to make corporations.
This may not be an improper place to take notice of an argument which was used in debate in the House of Representatives. It was there argued, that if the Constitution intended to confer so important a power as that of erecting corporations, it would have been expressly mentioned. But the case which has been noticed is clearly one in which such a power exists, and yet without any specification or express grant of it, further than as every particular implied in a general power can be said to be so granted.
But the argument itself is founded upon an exaggerated and erroneous conception of the nature of the power. It has been shown that it is not of so transcendent a kind as the reasoning supposes, and that, viewed in a just light, it is a mean, which ought to have been left to implication, rather than an end, which ought to have been expressly granted.
Having observed that the power of erecting corporations is not expressly granted to Congress, the Attorney-General proceeds thus:—
“If it can be exercised by them, it must be—
To be implied in the nature of the federal government, says he, would beget a doctrine so indefinite as to grasp at every power.
This proposition, it ought to be remarked, is not precisely, or even substantially, that which has been relied upon. The proposition relied upon is, that the specified powers of Congress are in their nature sovereign. That it is incident to sovereign power to erect corporations, and that therefore Congress have a right, within the sphere and in relation to the objects of their power, to erect corporations. It shall, however, be supposed that the Attorney-General would consider the two propositions in the same light, and that the objection made to the one would be made to the other.
To this objection an answer has been already given. It is this, that the doctrine is stated with this express qualification, that the right to erect corporations does only extend to cases and objects within the sphere of the specified powers of the government. A general legislative authority implies a power to erect corporations in all cases. A particular legislative power implies authority to erect corporations in relation to cases arising under that power only. Hence the affirming that, as incident to sovereign power, Congress may erect a corporation in relation to the collection of their taxes, is no more than to affirm that they may do whatever else they please,—than the saying that they have a power to regulate trade, would be to affirm that they have a power to regulate religion; or than the maintaining that they have sovereign power as to taxation, would be to maintain that they have sovereign power as to every thing else.
The Attorney-General undertakes in the next place to show, that the power of erecting corporations is not involved in any of the specified powers of legislation confided to the national government. In order to this, he has attempted an enumeration of the particulars, which he supposes to be comprehended under the several heads of the powers to lay and collect taxes, &c.; to borrow money on the credit of the United States; to regulate commerce with sovereign nations; between the States, and with the Indian tribes; to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. The design of which enumeration is to show, what is included under those different heads of power, and negatively, that the power of erecting corporations is not included.
The truth of this inference or conclusion must depend on the accuracy of the enumeration. If it can be shown that the enumeration is defective, the inference is destroyed. To do this will be attended with no difficulty.
The heads of the power to lay and collect taxes are stated to be:
This enumeration is liable to a variety of objections. It omits in the first place, the pledging or mortgaging of a fund for the security of the money lent, an usual, and in most cases an essential ingredient.
The idea of a stipulation of an interest or no interest is too confined. It should rather have been said, to stipulate the consideration of the loan. Individuals often borrow on considerations other than the payment of interest, so may governments, and so they often find it necessary to do. Every one recollects the lottery tickets and other douceurs often given in Great Britain as collateral inducements to the lending of money to the government. There are also frequently collateral conditions, which the enumeration does not contemplate. Every contract which has been made for moneys borrowed in Holland, induces stipulations that the sum due shall be free from taxes, and from sequestration in time of war, and mortgages all the land and property of the United States for the reimbursement.
It is also known that a lottery is a common expedient for borrowing money, which certainly does not fall under either of the enumerated heads.
The heads of the power to regulate commerce with foreign nations, are stated to be:
This enumeration is far more exceptionable than either of the former. It omits every thing that relates to the citizens’ vessels, or commodities of the United States.
The following palpable omissions occur at once:
The last enumeration relates to the power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States.
The heads of this power are said to be:
The idea of exerting an ownership over the territory or other property of the United States, is particularly indefinite and vague. It does not at all satisfy the conception of what must have been intended by a power to make all needful rules and regulations, nor would there have been any use for a special clause, which authorized nothing more. For the right of exerting an ownership is implied in the very definition of property. It is admitted, that in regard to the western territory, something more is intended; even the institution of a government, that is, the creation of a body politic, or corporation of the highest nature; one which, in its maturity, will be able itself to create other corporations. Why, then, does not the same clause authorize the erection of a corporation, in respect to the regulation or disposal of any other of the property of the United States?
This idea will be enlarged upon in another place.
Hence it appears, that the enumerations which have been attempted by the Attorney-General, are so imperfect, as to authorize no conclusion whatever; they therefore have no tendency to disprove that each and every of the powers, to which they relate, includes that of erecting corporations, which they certainly do, as the subsequent illustrations will more and more evince.
It is presumed to have been satisfactorily shown in the course of the preceding observations:
And lastly, that the right to exercise such a power in certain cases is unequivocally granted in the most positive and comprehensive terms. To all which it only remains to be added, that such a power has actually been exercised in two very eminent instances; namely, in the erection of two governments; one northwest of the River Ohio, and the other southwest—the last independent of any antecedent compact. And these result in a full and complete demonstration, that the Secretary of State and Attorney-General are mistaken when they deny generally the power of the national government to erect corporations.
It shall now be endeavored to be shown that there is a power to erect one of the kind proposed by the bill. This will be done by tracing a natural and obvious relation between the institution of a bank and the objects of several of the enumerated powers of the government; and by showing that, politically speaking, it is necessary to the effectual execution of one or more of those powers.
In the course of this investigation, various instances will be stated, by way of illustration of a right to erect corporations under those powers.
Some preliminary observations may be proper.
The proposed bank is to consist of an association of persons, for the purpose of creating a joint capital, to be employed chiefly and essentially in loans. So far the object is not only lawful, but it is the mere exercise of a right which the law allows to every individual. The Bank of New-York, which is not incorporated, is an example of such an association. The bill proposes in addition, that the government shall become a joint proprietor in this undertaking, and that it shall permit the bills of the company, payable on demand, to be receivable in its revenues; and stipulates that it shall not grant privileges, similar to those which are to be allowed to this company, to any others. All this is incontrovertibly within the compass of the discretion of the government. The only question is, whether it has a right to incorporate this company, in order to enable it the more effectually to accomplish ends which are in themselves lawful.
To establish such a right, it remains to show the relation of such an institution to one or more of the specified powers of the government. Accordingly it is affirmed that it has a relation, more or less direct, to the power of collecting taxes, to that of borrowing money, to that of regulating trade between the States, and to those of raising and maintaining fleets and armies. To the two former the relation may be said to be immediate; and in the last place it will be argued, that it is clearly within the provision which authorizes the making of all needful rules and regulations concerning the property of the United States, as the same has been practised upon by the government.
A bank relates to the collection of taxes in two ways—indirectly, by increasing the quantity of circulating medium and quickening circulation, which facilitates the means of paying directly, by creating a convenient species of medium in which they are to be paid.
To designate or appoint the money or thing in which taxes are to be paid, is not only a proper, but a necessary exercise of the power of collecting them. Accordingly Congress, in the law concerning the collection of the duties on imposts and tonnage, have provided that they shall be paid in gold and silver. But while it was an indispensable part of the work to say in what they should be paid, the choice of the specific thing was mere matter of discretion. The payment might have been required in the commodities themselves. Taxes in kind, however ill-judged, are not without precedents, even in the United States; or it might have been in the paper money of the several States, or in the bills of the Bank of North America, New-York and Massachusetts, all or either of them; or it might have been in bills issued under the authority of the United States.
No part of this can, it is presumed, be disputed. The appointment, then, of the money or thing in which the taxes are to be paid, is an incident to the power of collection. And among the expedients which may be adopted, is that of bills issued under the authority of the United States.
Now the manner of issuing these bills is again matter of discretion. The government might doubtless proceed in the following manner:
It might provide that they should be issued under the direction of certain officers, payable on demand; and, in order to support their credit, and give them a ready circulation, it might, besides giving them a currency in its taxes, set apart, out of any moneys in its treasury, a given sum, and appropriate it, under the direction of those officers, as a fund for answering the bills, as presented for payment.
The constitutionality of all this would not admit of a question, and yet it would amount to the institution of a bank, with a view to the more convenient collection of taxes. For the simplest and most precise idea of a bank is, a deposit of coin, or other property, as a fund for circulating a credit upon it, which is to answer the purpose of money. That such an arrangement would be equivalent to the establishment of a bank, would become obvious, if the place where the fund to be set apart was kept should be made a receptacle of the moneys of all other persons who should incline to deposit them there for safe-keeping; and would become still more so, if the officers charged with the direction of the fund were authorized to make discounts at the usual rate of interest, upon good security. To deny the power of the government to add these ingredients to the plan, would be to refine away all government.
A further process will still more clearly illustrate the point. Suppose, when the species of bank which has been described was about to be instituted, it was to be urged that, in order to secure to it a due degree of confidence, the fund ought not only to be set apart and appropriated generally, but ought to be specifically vested in the officers who were to have the direction of it, and in their successors in office, to the end that it might acquire the character of private property, incapable of being resumed without a violation of the sanctions by which the rights of property are protected, and occasioning more serious and general alarm—the apprehension of which might operate as a check upon the government. Such a proposition might be opposed by arguments against the expediency of it, or the solidity of the reason assigned for it, but it is not conceivable what could be urged against its constitutionality; and yet such a disposition of the thing would amount to the erection of a corporation; for the true definition of a corporation seems to be this: It is a legal person, or a person created by act of law, consisting of one or more natural persons authorized to hold property, or a franchise in succession, in a legal, as contradistinguished from natural, capacity.
Let the illustration proceed a step further. Suppose a bank of the nature which has been described, with or without incorporation, had been instituted, and that experience had evinced, as it probably would, that, being wholly under a public direction, it possessed not the confidence requisite to the credit of the bills. Suppose, also, that, by some of those adverse conjunctures which occasionally attend nations, there had been a very great drain of the specie of the country, so as not only to cause general distress for want of an adequate medium of circulation, but to produce, in consequence of that circumstance, considerable defalcations in the public revenues. Suppose, also, that there was no bank instituted in any State; in such a posture of things, would it not be most manifest, that the incorporation of a bank like that proposed by the bill would be a measure immediately relative to the effectual collection of the taxes, and completely within the province of the sovereign power of providing, by all laws necessary and proper, for that collection? If it be said, that such a state of things would render that necessary, and therefore constitutional, which is not so now, the answer to this, and a solid one it doubtless is, must still be that which has been already stated—circumstances may affect the expediency of the measure, but they can neither add to nor diminish its constitutionality.
A bank has a direct relation to the power of borrow-ing money, because it is an usual, and in sudden emergencies an essential, instrument in the obtaining of loans to government.
A nation is threatened with a war; large sums are wanted on a sudden to make the requisite preparations. Taxes are laid for the purpose, but it requires time to obtain the benefit of them. Anticipation is indispensable. If there be a bank, the supply can at once be had. If there be none, loans from individuals must be sought. The progress of these is often too slow for the exigency; in some situations they are not practicable at all. Frequently, when they are, it is of great consequence to be able to anticipate the product of them by advance from a bank.
The essentiality of such an institution as an instrument of loans, is exemplified at this very moment. An Indian expedition is to be prosecuted. The only fund, out of which the money can arise, consistently with the public engagements, is a tax, which only begins to be collected in July next. The preparations, however, are instantly to be made. The money must, therefore, be borrowed—and of whom could it be borrowed if there were no public banks?
It happens that there are institutions of this kind, but if there were none, it would be indispensable to create one.
Let it then be supposed that the necessity existed, (as but for a casualty would be the case,) that proposals were made for obtaining a loan; that a number of individuals came forward and said, we are willing to accommodate the government with the money; with what we have in hand, and the credit we can raise upon it, we doubt not of being able to furnish the sum required; but in order to this, it is indispensable that we should be incorporated as a bank. This is essential towards putting it in our power to do what is desired, and we are obliged on that account to make it the consideration or condition of the loan.
Can it be believed that a compliance with this proposition would be unconstitutional? Does not this alone evince the contrary? It is a necessary part of a power to borrow, to be able to stipulate the consideration or conditions of a loan. It is evident, as has been remarked elsewhere, that this is not confined to the mere stipulation of a franchise. If it may, and it is not perceived why it may not, then the grant of a corporate capacity may be stipulated as a consideration of the loan. There seems to be nothing unfit or foreign from the nature of the thing in giving individuality, or a corporate capacity to a number of persons, who are willing to lend a sum of money to the government, the better to enable them to do it, and make them an ordinary instrument of loans in future emergencies of the state. But the more general view of the subject is still more satisfactory. The legislative power of borrowing money, and of making all laws necessary and proper for carrying into execution that power, seems obviously competent to the appointment of the organ, through which the abilities and wills of individuals may be most efficaciously exerted for the accommodation of the government by loans.
The Attorney-General opposes to this reasoning the following observation:—“Borrowing money presupposes the accumulation of a fund to be lent, and is secondary to the creation of an ability to lend.” This is plausible in theory, but is not true in fact. In a great number of cases, a previous accumulation of a fund equal to the whole sum required does not exist. And nothing more can be actually presupposed, than that there exists resources, which, put into activity to the greatest advantage by the nature of the operation with the government, will be equal to the effect desired to be produced. All the provisions and operations of government must be presumed to contemplate as they really are.
The institution of a bank has also a natural relation to the regulation of trade between the States, in so far as it is conducive to the creation of a convenient medium of exchange between them, and to the keeping up a full circulation, by preventing the frequent displacement of the metals in reciprocal remittances. Money is the very hinge on which commerce turns. And this does not merely mean gold and silver; many other things have served the purpose, with different degrees of utility. Paper has been extensively employed.
It cannot, therefore, be admitted, with the Attorney-General, that the regulation of trade between the States, as it concerns the medium of circulation and exchange, ought to be considered as confined to coin. It is even supposable that the whole, or the greatest part, of the coin of the country might be carried out of it.
The Secretary of State objects to the relation here insisted upon, by the following mode of reasoning:—To erect a bank, says he, and to regulate commerce, are very different acts. He who creates a bank, creates a subject of commerce; 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.
This making the regulation of commerce to consist in prescribing rules for buying and selling—this, indeed, is a species of regulation of trade, but is one which falls more aptly within the province of the local jurisdictions than within that of the general government, whose care they must be presumed to have been intended to be directed to those general political arrangements concerning trade on which its aggregate interests depend, rather than to the details of buying and selling. Accordingly, such only are the regulations to be found in the laws of the United States, whose objects are to give encouragement to the enterprise of our own merchants, and to advance our navigation and manufactures. And it is in reference to these general relations of commerce, that an establishment which furnishes facilities to circulation, and a convenient medium of exchange and alienation, is to be regarded as a regulation of trade.
The Secretary of State further argues, that if this was a regulation of commerce, it would be void, as extending as much to the internal commerce of every State as to its external. But what regulation of commerce does not extend to the internal commerce of every State? What are all the duties upon imported articles, amounting to prohibitions, but so many bounties upon domestic manufactures, affecting the interests of different classes of citizens, in different ways? What are all the provisions in the Coasting Act which relate to the trade between district and district of the same State? In short, what regulation of trade between the States but must affect the internal trade of each State? What can operate upon the whole but must extend to every part?
The relation of a bank to the execution of the powers that concern the common defence, has been anticipated. It has been noted, that, at this very moment, the aid of such an institution is essential to the measures to be pursued for the protection of our frontiers.
It now remains to show, that the incorporation of a bank is within the operation of the provision which authorizes Congress to make all needful rules and regulations concerning the property of the United States. But it is previously necessary to advert to a distinction which has been taken by the Attorney-General.
He admits that the word property may signify personal property, however acquired, and yet asserts that it cannot signify money arising from the sources of revenue pointed out in the Constitution, “because,” says he, “the disposal and regulation of money is the final cause for raising it by taxes.”
But it would be more accurate to say that the object to which money is intended to be applied is the final cause for raising it, than that the disposal and regulation of it is such.
The support of government—the support of troops for the common defence—the payment of the public debt, are the true final causes for raising money. The disposition and regulation of it, when raised, are the steps by which it is applied to the ends for which it was raised, not the ends themselves. Hence, therefore, the money to be raised by taxes, as well as any other personal property, must be supposed to come within the meaning, as they certainly do within the letter, of authority to make all needful rules and regulations concerning the property of the United States.
A case will make this plainer. Suppose the public debt discharged, and the funds now pledged for it liberated. In some instances it would be found expedient to repeal the taxes; in others, the repeal might injure our own indus-try, our agriculture and manufactures. In these cases they would, of course, be retained. Here, then, would be moneys arising from the authorized sources of revenue, which would not fall within the rule by which the Attorney-General endeavors to except them from other personal property, and from the operation of the clause in question. The moneys being in the coffers of government, what is to hinder such a disposition to be made of them as is contemplated in the bill; or what an incorporation of the parties concerned, under the clause which has been cited?
It is admitted, that with regard to the western territory they give a power to erect a corporation—that is, to institute a government; and by what rule of construction can it be maintained, that the same words in a constitution of government will not have the same effect when applied to one species of property as to another, as far as the subject is capable of it?—Or that a legislative power to make all needful rules and regulations, or to pass all laws necessary and proper, concerning the public property, which is admitted to authorize an incorporation in one case, will not authorize it in another?—will justify the institution of a government over the western territory, and will not justify the incorporation of a bank for the more useful management of the moneys of the United States? If it will do the last, as well as the first, then, under this provision alone, the bill is constitutional, because it contemplates that the United States shall be joint proprietors of the stock of the bank.
There is an observation of the Secretary of State to this effect, which may require notice in this place:—Congress, says he, are not to lay taxes ad libitum, for any purpose they please, but only to pay the debts or provide for the welfare of the Union. Certainly no inference can be drawn from this against the power of applying their money for the institution of a bank. It is true that they cannot without breach of trust lay taxes for any other purpose than the general welfare; but so neither can any other government. The welfare of the community is the only legitimate end for which money can be raised on the community. Congress can be considered as under only one restriction which does not apply to other governments,—they cannot rightfully apply the money they raise to any purpose merely or purely local. But, with this exception, they have as large a discretion in relation to the application of money as any legislature whatever. The constitutional test of a right application must always be, whether it be for a purpose of general or local nature. If the former, there can be no want of constitutional power. The quality of the object, as how far it will really promote or not the welfare of the Union, must be matter of conscientious discretion, and the arguments for or against a measure in this light must be arguments concerning expediency or inexpediency, not constitutional right. Whatever relates to the general order of the finances, to the general interests of trade, &c., being general objects, are constitutional ones for the application of money.
A bank, then, whose bills are to circulate in all the revenues of the country, is evidently a general object, and, for that very reason, a constitutional one, as far as regards the appropriation of money to it. Whether it will really be a beneficial one or not, is worthy of careful examination, but is no more a constitutional point, in the particular referred to, than the question, whether the western lands shall be sold for twenty or thirty cents per acre.
A hope is entertained that it has, by this time, been made to appear, to the satisfaction of the President, that a bank has a natural relation to the power of collecting taxes—to that of regulating trade—to that of providing for the common defence—and that, as the bill under consideration contemplates the government in the light of a joint proprietor of the stock of the bank, it brings the case within the provision of the clause of the Constitution which immediately respects the property of the United States.
Under a conviction that such a relation subsists, the Secretary of the Treasury, with all deference, conceives, that it will result as a necessary consequence from the position, that all the specified powers of government are sovereign, as to the proper objects; that the incorporation of a bank is a constitutional measure; and that the objections taken to the bill, in this respect, are ill-founded.
But, from an earnest desire to give the utmost possible satisfaction to the mind of the President, on so delicate and important a subject, the Secretary of the Treasury will ask his indulgence, while he gives some additional illustrations of cases in which a power of erecting corporations may be exercised, under some of those heads of the specified powers of the government, which are alleged to include the right of incorporating a bank.
A power to make all needful rules and regulations concerning territory, has been construed to mean a power to erect a government. A power to regulate trade, is a power to make all needful rules and regulations concerning trade. Why may it not, then, include that of erecting a trading company, as well as, in other cases, to erect a government?
It is remarkable that the State conventions, who had proposed amendments in relation to this point, have most, if not all of them, expressed themselves nearly thus: Congress shall not grant monopolies, nor erect any company with exclusive advantages of commerce! Thus, at the same time, expressing their sense, that the power to erect trading companies or corporations was inherent in Congress, and objecting to it no further than as to the grant of exclusive privileges.
The Secretary entertains all the doubts which prevail concerning the utility of such companies, but he cannot fashion to his own mind a reason, to induce a doubt, that there is a constitutional authority in the United States to establish them. If such a reason were demanded, none could be given, unless it were this: That Congress cannot erect a corporation. Which would be no better than to say, they cannot do it, because they cannot do it—first presuming an inability, without reason, and then assigning that inability as the cause of itself. Illustrations of this kind might be multiplied without end. They shall, however, be pursued no further.
There is a sort of evidence on this point, arising from an aggregate view of the Constitution, which is of no inconsiderable weight: the very general power of laying and collecting taxes, and appropriating their proceeds—that of borrowing money indefinitely—that of coining money, and regulating foreign coins—that of making all needful rules and regulations respecting the property of the United States. These powers combined, as well as the reason and nature of the thing, speak strongly this language: that it is the manifest design and scope of the Constitution to vest in Congress all the powers requisite to the effectual administration of the finances of the United States. As far as concerns this object, there appears to be no parsimony of power.
To suppose, then, that the government is precluded from the employment of so usual and so important an instrument for the administration of its finances as that of a bank, is to suppose what does not coincide with the general tenor and complexion of the Constitution, and what is not agreeable to impressions that any new spectator would entertain concerning it.
Little less than a prohibitory clause can destroy the strong presumptions which result from the general aspect of the government. Nothing but demonstration should exclude the idea that the power exists.
In all questions of this nature, the practice of man-kind ought to have great weight against the theories of individuals.
The fact, for instance, that all the principal commercial nations have made use of trading corporations or companies, for the purpose of external commerce, is a satisfactory proof that the establishment of them is an incident to the regulation of the commerce.
This other fact, that banks are an usual engine in the administration of national finances, and an ordinary and the most effectual instrument of loan, and one which, in this country, has been found essential, pleads strongly against the supposition that a government, clothed with most of the most important prerogatives of sovereignty in relation to its revenues, its debts, its credits, its defence, its trade, its intercourse with foreign nations, is forbidden to make use of that instrument as an appendage to its own authority.
It has been stated as an auxiliary test of constitutional authority to try whether it abridges any pre-existing right of any State, or any individual. The proposed investigation will stand the most severe examination on this point. Each State may still erect as many banks as it pleases. Every individual may still carry on the banking business to any extent he pleases.
Another criterion may be this: whether the institution or thing has a more direct relation, as to its uses, to the objects of the reserved powers of the State governments than to those of the powers delegated by the United States. This rule, indeed, is less precise than the former; but it may still serve as some guide. Surely a bank has more reference to the objects intrusted to the national government than to those left to the care of the State governments. The common defence is decisive in this comparison.
It is presumed that nothing of consequence in the observations of the Secretary of State, and Attorney-General, has been left unnoticed.
There are, indeed, a variety of observations of the Secretary of State designed to show that the utilities ascribed to a bank, in relation to the collection of taxes, and to trade, could be obtained without it; to analyze which, would prolong the discussion beyond all bounds. It shall be forborne for two reasons. First, because the report concerning the bank, may speak for itself in this respect; and secondly, because all those observations are grounded on the erroneous idea that the quantum of necessity or utility is the test of a constitutional exercise of power.
One or two remarks only shall be made. One is, that he has taken no notice of a very essential advantage to trade in general, which is mentioned in the report, as peculiar to the existence of a bank circulation, equal in the public estimation to gold and silver. It is this that renders it unnecessary to lock up the money of the country, to accumulate for months sucessively, in order to the periodical payment of interest. The other is this: that his arguments to show that treasury orders and bills of exchange, from the course of trade, will prevent any considerable displacement of the metals, are founded on a particular view of the subject. A case will prove this. The sums collected in a State may be small in comparison with the debt due to it; the balance of its trade, direct and circuitous with the seat of government, may be even, or nearly so; here, then, without bank bills, which in that State answer the purpose of coin, there must be a displacement of the coin, in proportion to the difference between the sum collected in the State, and that to be paid in it. With bank bills, no such displacement would take place, or as far as it did, it would be gradual and insensible. In many other ways, also, would there be at least a temporary and inconvenient displacement of the coin, even where the course of trade would eventually return it to its proper channels.
The difference of the two situations in point of convenience to the treasury, can only be appreciated by one, who experiences the embarrassments of making provision for the payment of the interest on a stock, continually changing place in thirteen different places.
One thing which has been omitted, just occurs, although it is not very material to the main argument. The Secretary of State affirms that the bill only contemplates a repayment, not a loan, to the government. But here he is certainly mistaken. It is true the government invests in the stock of the bank a sum equal to that which it receives on loan. But let it be remembered, that it does not, therefore, cease to be a proprietor of the stock, which would be the case, if the money received back were in the nature of a payment. It remains a proprietor still, and will share in the profit or loss of the institution, according as the dividend is more or less than the interest it is to pay on the sum borrowed. Hence that sum is manifestly, and in the strictest sense, a loan.
July 10, 1832
It was Jefferson’s close ally and presidential successor, James Madison, who oversaw the chartering of a second Bank of the United States after the first bank’s charter expired in 1811. Madison had supported the first bank and, after the War of 1812 left inflation and a large national debt, won support for a second bank. But financial panic during the 1820s and an increasing hostility toward financial interests cut into the popularity and public prestige of this second Bank of the United States. During this era, increasing numbers of American men were given the vote; requirements that voters own some form of property were becoming increasingly uncommon. With the election of Andrew Jackson, the conflict between small landholders, particularly in the South and West, and manufacturing and financial interests (including many mechanics and artisans) in the North became increasingly pronounced. Powerful politicians supporting the American system of high tariffs and federally controlled internal improvements sought to gain an extension of the bank’s charter in 1832, and they won sufficient votes to secure legislation to that effect. But Jackson saw that bank as an undemocratic tool of monied interests—including foreigners. Presidential vetoes of legislation passed by Congress were extremely rare at this time, and almost always cited the bill’s violation of the Constitution as the reason for refusing to sign it into law. Amos Kendall, a leading adviser to Jackson, is generally credited with having taken the lead in drafting this message.
The bill “to modify and continue” the act entitled “An act to incorporate the subscribers to the Bank of the United States” was presented to me on the 4th July instant. Having considered it with the solemn regard to the principles of the Constitution which the day was calculated to inspire, and come to the conclusion that it ought not to become a law, I herewith return it to the Senate, in which it originated, with my objections.
A bank of the United States is in many respects convenient for the Government and useful to the people. Entertaining this opinion, and deeply impressed with the belief that some of the powers and privileges possessed by the existing bank are unauthorized by the Constitution, subversive of the rights of the States, and dangerous to the liberties of the people, I felt it my duty at an early period of my Administration to call the attention of Congress to the practicability of organizing an institution combining all its advantages and obviating these objections. I sincerely regret that in the act before me I can perceive none of those modifications of the bank charter which are necessary, in my opinion, to make it compatible with jus-tice, with sound policy, or with the Constitution of our country.
The present corporate body, denominated the president, directors, and company of the Bank of the United States, will have existed at the time this act is intended to take effect twenty years. It enjoys an exclusive privilege of banking under the authority of the General Government, a monopoly of its favor and support, and, as a necessary consequence, almost a monopoly of the foreign and domestic exchange. The powers, privileges, and favors bestowed upon it in the original charter, by increasing the value of the stock far above its par value, operated as a gratuity of many millions to the stockholders.
An apology may be found for the failure to guard against this result in the consideration that the effect of the original act of incorporation could not be certainly foreseen at the time of its passage. The act before me proposes another gratuity to the holders of the same stock, and in many cases to the same men, of at least seven millions more. This donation finds no apology in any uncertainty as to the effect of the act. On all hands it is conceded that its passage will increase at least 20 or 30 percent more the market price of the stock, subject to the payment of the annuity of $200,000 per year secured by the act, thus adding in a moment one-fourth to its par value. It is not our own citizens only who are to receive the bounty of our Government. More than eight millions of the stock of this bank are held by foreigners. By this act the American Republic proposes virtually to make them a present of some millions of dollars. For these gratuities to foreigners and to some of our own opulent citizens the act secures no equivalent whatever. They are the certain gains of the present stockholders under the operation of this act, after making full allowance for the payment of the bonus.
Every monopoly and all exclusive privileges are granted at the expense of the public, which ought to receive a fair equivalent. The many millions which this act proposes to bestow on the stockholders of the existing bank must come directly or indirectly out of the earnings of the American people. It is due to them, therefore, if their Government sell monopolies and exclusive privileges, that they should at least exact for them as much as they are worth in open market. The value of the monopoly in this case may be correctly ascertained. The twenty-eight millions of stock would probably be at an advance of 50 percent, and command in market at least $42 million subject to the payment of the present bonus. The present value of the monopoly, therefore, is $17 million and this the act proposes to sell for three millions, payable in fifteen annual installments of $200,000 each.
It is not conceivable how the present stockholders can have any claim to the special favor of the Government. The present corporation has enjoyed its monopoly during the period stipulated in the original contract. If we must have such a corporation, why should not the Government sell out the whole stock and thus secure to the people the full market value of the privileges granted? Why should not Congress create and sell twenty-eight millions of stock, incorporating the purchasers with all the powers and privileges secured in this act and putting the premium upon the sales into the Treasury?
But this act does not permit competition in the purchase of this monopoly. It seems to be predicated on the erroneous idea that the present stockholders have a prescriptive right not only to the favor but to the bounty of Government. It appears that more than a fourth part of the stock is held by foreigners and the residue is held by a few hundred of our own citizens, chiefly of the richest class. For their benefit does this act exclude the whole American people from competition in the purchase of this monopoly and dispose of it for many millions less than it is worth. This seems the less excusable because some of our citi-zens not now stockholders petitioned that the door of competition might be opened, and offered to take a charter on terms much more favorable to the Government and country.
But this proposition, although made by men whose aggregate wealth is believed to be equal to all the private stock in the existing bank, has been set aside, and the bounty of our Government is proposed to be again bestowed on the few who have been fortunate enough to secure the stock and at this moment wield the power of the existing institution. I can not perceive the justice or policy of this course. If our Government must sell monopolies, it would seem to be its duty to take nothing less than their full value, and if gratuities must be made once in fifteen or twenty years let them not be bestowed on the subjects of a foreign government nor upon a designated and favored class of men in our own country. It is but justice and good policy, as far as the nature of the case will admit, to confine our favors to our own fellow-citizens, and let each in his turn enjoy an opportunity to profit by our bounty. In the bearings of the act before me upon these points I find ample reasons why it should not become a law.
It has been urged as an argument in favor of rechartering the present bank that the calling in of its loans will produce great embarrassment and distress. The time allowed to close its concerns is ample, and if it has been well managed its pressure will be light, and heavy only in case its management has been bad. If, therefore, it shall produce distress, the fault will be its own, and it would furnish a reason against renewing a power which has been so obviously abused. But will there ever be a time when this reason will be less powerful? To acknowledge its force is to admit that the bank ought to be perpetual, and as a consequence the present stockholders and those inheriting their rights as successors be established a privileged order, clothed both with great political power and enjoying immense pecuniary advantages from their connection with the Government.
The modifications of the existing charter proposed by this act are not such, in my view, as make it consistent with the rights of the States or the liberties of the people. The qualification of the right of the bank to hold real estate, the limitation of its power to establish branches, and the power reserved to Congress to forbid the circulation of small notes are restrictions comparatively of little value or importance. All the objectionable principles of the existing corporation, and most of its odious features, are retained without alleviation.
The fourth section provides
that the notes or bills of the said corporation, although the same be, on the faces thereof, respectively made payable at one place only, shall nevertheless be received by the said corporation at the bank or at any of the offices of discount and deposit thereof if tendered in liquidation or payment of any balance or balances due to said corporation or to such office of discount and deposit from any other incorporated bank.
This provision secures to the State banks a legal privilege in the Bank of the United States which is withheld from all private citizens. If a State bank in Philadelphia owe the Bank of the United States and have notes issued by the St. Louis branch, it can pay the debt with those notes, but if a merchant, mechanic, or other private citizen be in like circumstances he can not by law pay his debt with those notes, but must sell them at a discount or send them to St. Louis to be cashed. This boon conceded to the State banks, though not unjust in itself, is most odious because it does not measure out equal justice to the high and the low, the rich and the poor. To the extent of its practical effect it is a bond of union among the banking establishments of the nation, erecting them into an interest separate from that of the people, and its necessary tendency is to unite the Bank of the United States and the State banks in any measure which may be thought conducive to their common interest.
The ninth section of the act recognizes principles of worse tendency than any provision of the present charter.
It enacts that “the cashier of the bank shall annually report to the Secretary of Treasury the names of all stockholders who are not resident citizens of the United States, and on the application of the treasurer of any State shall make out and transmit to such treasurer a list of stockholders residing in or citizens of such State, with the amount of stock owned by each.” Although this provision, taken in connection with a decision of the Supreme Court, surrenders, by its silence, the right of the States to tax the banking institutions created by this corporation under the name of branches throughout the Union, it is evidently intended to be construed as a concession of their right to tax that portion of the stock which may be held by their own citizens and residents. In this light, if the act becomes a law, it will be understood by the States, who will probably proceed to levy a tax equal to that paid upon the stock of banks incorporated by themselves. In some States that tax is now 1 percent, either on the capital or on the shares, and that may be assumed as the amount which all citizen or resident stockholders would be taxed under the operation of this act. As it is only the stock held in the States and not that employed within them which would be subject to taxation, and as the names of foreign stockholders are not to be reported to the treasurers of the States, it is obvious that the stock held by them will be exempt from this burden. Their annual profits will therefore be 1 percent more than the citizen stockholders, and as the annual dividends of the bank may be safely estimated at 7 percent, the stock will be worth 10 or 15 percent more to foreigners than to citizens of the United States. To appreciate the effects which this state of things will produce, we must take a brief review of the operations and present condition of the Bank of the United States.
By documents submitted to Congress at the present session it appears that on the 1st of January 1832, of the twenty-eight millions of private stock in the corporation, $8,405,500 were held by foreigners, mostly of Great Britain. The amount of stock held in the nine Western and Southwestern States is $140,200, and in the four Southern States is $5,623,100, and in the Middle and Eastern States is about $13,522,000. The profits of the bank in 1831, as shown in a statement to Congress, were about $3,455,598; of this there accrued in the nine Western States about $1,640,048; in the four Southern States about $352,507, and in the Middle and Eastern States about $1,463,041. As little stock is held in the West, it is obvious that the debt of the people in that section to the bank is principally a debt to the Eastern and foreign stockholders; that the interest they pay upon it is carried into the Eastern States and into Europe, and that it is a burden upon their industry and a drain of their currency, which no country can bear without inconvenience and occasional distress. To meet this burden and equalize the exchange operations of the bank, the amount of specie drawn from those States through its branches within the last two years, as shown by its official reports, was about $6 million. More than half a million of this amount does not stop in the Eastern States, but passes on to Europe to pay the dividends of the foreign stockholders. In the principle of taxation recognized by this act the Western States find no adequate compensation for this perpetual burden on their industry and drain of their currency. The branch bank at Mobile made last year $95,140, yet under the provisions of this act the State of Alabama can raise no revenue from these profitable operations, because not a share of the stock is held by any of her citizens. Mississippi and Missouri are in the same condition in relation to the branches at Natchez and St. Louis, and such, in a greater or less degree, is the condition of every Western State. The tendency of the plan of taxation which this act proposes will be to place the whole United States in the same relation to foreign countries which the Western States now bear to the Eastern. When by a tax on resident stockholders the stock of this bank is made worth 10 or 15 percent more to foreigners than to residents, most of it will inevitably leave the country.
Thus will this provision in its practical effect deprive the Eastern as well as the Southern and Western States of the means of raising a revenue from the extension of business and great profits of this institution. It will make the American people debtors to aliens in nearly the whole amount due to this bank, and send across the Atlantic from two to five millions of specie every year to pay the bank dividends.
In another of its bearings this provision is fraught with danger. Of the twenty-five directors of this bank five are chosen by the Government and twenty by the citizen stockholders. From all voice in these elections the foreign stockholders are excluded by the charter. In proportion, therefore, as the stock is transferred to foreign holders the extent of suffrage in the choice of directors is curtailed. Already is almost a third of the stock in foreign hands and not represented in elections. It is constantly passing out of the country, and this act will accelerate its departure. The entire control of the institution would necessarily fall into the hands of a few citizen stockholders, and the ease with which the object would be accomplished would be a temptation to designing men to secure that control in their own hands by monopolizing the remaining stock. There is danger that a president and directors would then be able to elect themselves from year to year, and without responsibility or control manage the whole concerns of the bank during the existence of its charter. It is easy to conceive that great evils to our country and its institutions might flow from such a concentration of power in the hands of a few men irresponsible to the people.
Is there no danger to our liberty and independence in a bank that in its nature has so little to bind it to our country? The president of the bank has told us that most of the State banks exist by its forbearance. Should its influence become concentered, as it may under the operation of such an act as this, in the hands of a self-elected directory whose interests are identified with those of the foreign stockholders, will there not be cause to tremble for the purity of our elections in peace and for the independence of our country in war? Their power would be great whenever they might choose to exert it; but if this monopoly were regularly renewed every fifteen or twenty years on terms proposed by themselves, they might seldom in peace put forth their strength to influence elections or control the affairs of the nation. But if any private citizen or public functionary should interpose to curtail its powers or prevent a renewal of its privileges, it can not be doubted that he would be made to feel its influence.
Should the stock of the bank principally pass into the hands of the subjects of a foreign country, and we should unfortunately become involved in a war with that country, what would be our condition? Of the course which would be pursued by a bank almost wholly owned by the subjects of a foreign power, and managed by those whose interests, if not affections, would run in the same direction there can be no doubt. All its operations within would be in aid of the hostile fleets and armies without. Controlling our currency, receiving our public moneys, and holding thousands of our citizens in dependence, it would be more formidable and dangerous than the naval and military power of the enemy.
If we must have a bank with private stockholders, every consideration of sound policy and every impulse of American feeling admonishes that it should be purely American. Its stockholders should be composed exclusively of our own citizens, who at least ought to be friendly to our Government and willing to support it in times of difficulty and danger. So abundant is domestic capital that competition in subscribing for the stock of local banks has recently led almost to riots. To a bank exclusively of American stockholders, possessing the powers and privileges granted by this act, subscriptions for $200 million could be readily obtained. Instead of sending abroad the stock of the bank in which the Government must deposit its funds and on which it must rely to sustain its credit in times of emergency, it would rather seem to be expedient to prohibit its sale to aliens under penalty of absolute forfeiture.
It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its favor. Prior to the present Congress, therefore, the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial, and executive opinions against the bank have been probably to those in its favor as 4 to 1. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me.
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.
But in the case relied upon the Supreme Court have not decided that all the features of this corporation are compatible with the Constitution. It is true that the court have said that the law incorporating the bank is a constitutional exercise of power by Congress; but taking into view the whole opinion of the court and the reasoning by which they have come to that conclusion, I understand them to have decided that inasmuch as a bank is an appropriate means for carrying into effect the enumerating powers of the General Government, therefore the law incorporating it is in accordance with that provision of the Constitution which declares that Congress shall have power “to make all laws which shall be necessary and proper for carrying those powers into execution.” Having satisfied themselves that the word “necessary” in the Constitution means “needful,” “requisite,” “essential,” “conducive to,” and that “a bank” is a convenient, a useful, and essential instrument in the prosecution of the Government’s “fiscal operations,” they conclude that to “use one must be within the discretion of Congress” and that “the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution”; “but,” say they, “where the law is not prohibited and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground.”
The principle here affirmed is that the “degree of its necessity,” involving all the details of a banking institution, is a question exclusively for legislative consideration. A bank is constitutional, but it is the province of the Legislature to determine whether this or that particular power, privilege, or exemption is “necessary and proper” to enable the bank to discharge its duties to the Government, and from their decision there is no appeal to the courts of justice. Under the decision of the Supreme Court, therefore, it is the exclusive province of Congress and the President to decide whether the particular features of this act are necessary and proper in order to enable the bank to perform conveniently and efficiently the public duties assigned to it as a fiscal agent, and therefore constitutional, or unnecessary and improper, and therefore unconstitutional.
Without commenting on the general principle affirmed by the Supreme Court, let us examine the details of this act in accordance with the rule of legislative action which they have laid down. It will be found that many of the powers and privileges conferred on it can not be supposed necessary for the purpose for which it is proposed to be created, and are not, therefore, means necessary to attain the end in view, and consequently not justified by the Constitution.
The original act of incorporation, section 21, enacts “that no other bank shall be established by any future law of the United States during the continuance of the corporation hereby created, for which the faith of the United States is hereby pledged: Provided, Congress may renew existing charters for banks within the District of Columbia not increasing the capital thereof, and may also establish any other bank or banks in said District with capitals not exceeding in the whole $6 million if they shall deem it expedient.” This provision is continued in force by the act before me fifteen years from the 3d of March 1836.
If Congress possessed the power to establish one bank, they had power to establish more than one if in their opinion two or more banks had been “necessary” to facilitate the execution of the powers delegated to them in the Constitution. If they possessed the power to establish a second bank, it was a power derived from the Constitution to be exercised from time to time, and at any time when the interests of the country or the emergencies of the Government might make it expedient. It was possessed by one Congress as well as another, and by all Congresses alike, and alike at every session. But the Congress of 1816 have taken it away from their successors for twenty years, and the Congress of 1832 proposes to abolish it for fifteen years more. It can not be “necessary” or “proper” for Congress to barter away or divest themselves of any of the powers vested in them by the Constitution to be exercised for the public good. It is not “necessary” to the efficiency of the bank, nor is it “proper” in relation to themselves and their successors. They may properly use the discretion vested in them, but they may not limit the discretion of their successors. This restriction on themselves and grant of a monopoly to the bank is therefore unconstitutional.
In another point of view this provision is a palpable attempt to amend the Constitution by an act of legislation. The Constitution declares that “the Congress shall have power to exercise exclusive legislation in all cases whatsoever” over the District of Columbia. Its constitutional power, therefore, to establish banks in the District of Columbia and increase their capital at will is unlimited and uncontrollable by any other power than that which gave authority to the Constitution. Yet this act declares that Congress shall not increase the capital of existing banks, nor create other banks with capitals exceeding in the whole $6 million. The Constitution declares that Congress shall have power to exercise exclusive legislation over this District “in all cases whatsoever,” and this act declares they shall not. Which is the supreme law of the land? This provision can not be “necessary” or “proper” or constitutional unless the absurdity be admitted that whenever it be “necessary and proper” in the opinion of Congress they have a right to barter away one portion of the powers vested in them by the Constitution as a means of executing the rest.
On two subjects only does the Constitution recognize in Congress the power to grant exclusive privileges or monopolies. It declares that “Congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Out of this express delegation of power have grown our laws of patents and copyrights. As the Constitution expressly delegates to Congress the power to grant exclusive privileges in these cases as the means of executing the substantive power “to promote the progress of science and useful arts,” it is consistent with the fair rules of construction to conclude that such a power was not intended to be granted as a means of accomplishing any other end. On every other subject which comes within the scope of Congressional power there is an ever-living discretion in the use of proper means, which can not be restricted or abolished without an amendment of the Constitution. Every act of Congress, therefore, which attempts by grants of monopolies or sale of exclusive privileges for a limited time, or a time without limit, to restrict or extinguish its own discretion in the choice of means to execute its delegated powers is equivalent to a legislative amendment of the Constitution, and palpably unconstitutional.
This act authorizes and encourages transfers of its stock to foreigners and grants them an exemption from all State and national taxation. So far from being “necessary and proper” that the bank should possess this power to make it a safe and efficient agent of the Government in its fiscal operations, it is calculated to convert the Bank of the United States into a foreign bank, to impoverish our people in time of peace, to disseminate a foreign influence through every section of the Republic, and in war to endanger our independence.
The several States reserved the power at the formation of the Constitution to regulate and control titles and transfers of real property, and most, if not all, of them have laws disqualifying aliens from acquiring or holding lands within their limits. But this act, in disregard of the undoubted right of the States to prescribe such disqualifications, gives to alien stockholders in this bank an interest and title, as members of the corporation, to all the real property it may acquire within any of the States of this Union. This privilege granted to aliens is not “necessary” to enable the bank to perform its public duties, nor in any sense “proper,” because it is vitally subversive of the rights of the States.
The Government of the United States have no constitutional power to purchase lands within the States except “for the erection of forts, magazines, arsenals, dockyards, and other needful buildings,” and even for these objects only “by the consent of the legislature of the State in which the same shall be.” By making themselves stockholders in the bank and granting to the corporation the power to purchase lands for other purposes they assume a power not granted in the Constitution and grant to others what they do not themselves possess. It is not “necessary” to the receiving, safe-keeping, or transmission of the funds of the Government that the bank should possess this power, and it is not “proper” that Congress should thus enlarge the powers delegated to them in the Constitution.
The old Bank of the United States possessed a capital of only $11 million, which was found fully sufficient to enable it with dispatch and safety to perform all the functions required of it by the Government. The capital of the present bank is $35 million—at least twenty-four more than experience has proved to be necessary to enable a bank to perform its public functions. The public debt which existed during the period of the old bank and on the establishment of the new has been nearly paid off, and our revenue will soon be reduced. This increase of capital is therefore not for public but for private purposes.
The Government is the only “proper” judge where its agents should reside and keep their offices, because it best knows where their presence will be “necessary.” It can not, therefore, be “necessary” or “proper” to authorize the bank to locate branches where it pleases to perform the public service, without consulting the Government, and contrary to its will. The principle laid down by the Supreme Court concedes that Congress can not establish a bank for purposes of private speculation and gain, but only as a means of executing the delegated powers of the General Government. By the same principle a branch bank can not constitutionally be established for other than public purposes. The power which this act gives to establish two branches in any State, without the injunction or request of the Government and for other than public purposes, is not “necessary” to the due execution of the powers delegated to Congress.
The bonus which is exacted from the bank is a confession upon the face of the act that the powers granted by it are greater than are “necessary” to its character of a fiscal agent. The Government does not tax its officers and agents for the privilege of serving it. The bonus of a million and a half required by the original charter and that of three millions proposed by this act are not exacted for the privilege of granting “the necessary facilities for transferring the public funds from place to place within the United States or the Territories thereof, and for distributing the same in payment of the public creditors without charging commission or claiming allowance on account of the difference of exchange,” as required by the act of incorporation, but for something more beneficial to the stockholders. The original act declares that it (the bonus) is granted “in consideration of the exclusive privileges and benefits conferred by this act upon the said bank,” and the act before me declares it to be “in consideration of the exclusive benefits and privileges continued by this act to the said corporation for fifteen years, as aforesaid.” It is therefore for “exclusive privileges and benefits” conferred for their own use and emolument, and not for the advantage of the Government, that a bonus is exacted. These surplus powers for which the bank is required to pay can not surely be “necessary” to make it the fiscal agent of the Treasury. If they were, the exaction of a bonus for them would not be “proper.”
It is maintained by some that the bank is a means of executing the constitutional power “to coin money and regulate the value thereof.” Congress have established a mint to coin money and passed laws to regulate the value thereof. The money so coined, with its value so regulated, and such foreign coins as Congress may adopt are the only currency known to the Constitution. But if they have other power to regulate the currency, it was conferred to be exercised by themselves, and not to be transferred to a corporation. If the bank be established for that purpose, with a charter unalterable without its consent, Congress have parted with their power for a term of years, during which the Constitution is a dead letter. It is neither necessary nor proper to transfer its legislative power to such a bank, and therefore unconstitutional.
By its silence, considered in connection with the decision of the Supreme Court in the case of McCulloch against the State of Maryland, this act takes from the States the power to tax a portion of the banking business carried on within their limits, in subversion of one of the strongest barriers which secured them against Federal encroachments. Banking, like farming, manufacturing, or any other occupation or profession, is a business, the right to follow which is not originally derived from the laws. Every citizen and every company of citizens in all of our States possessed the right until the State legislatures deemed it good policy to prohibit private banking by law. If the prohibitory State laws were now repealed, every citizen would again possess the right. The State banks are a qualified restoration of the right which has been taken away by the laws against banking, guarded by such provisions and limitations as in the opinion of the State legislatures the public interest requires. These corporations, unless there be an exemption in their charter, are, like private bankers and banking companies, subject to State taxation. The manner in which these taxes shall be laid depends wholly on legislative discretion. It may be upon the bank, upon the stock, upon the profits, or in any other mode which the sovereign power shall will.
Upon the formation of the Constitution the States guarded their taxing power with peculiar jealousy. They surrendered it only as it regards imports and exports. In relation to every other object within their jurisdiction, whether persons, property, business, or professions, it was secured in as ample a manner as it was before possessed. All persons, though United States officers, are liable to a poll tax by the States within which they reside. The lands of the United States are liable to the usual land tax, except in the new States, from whom agreements that they will not tax unsold lands are exacted when they are admitted into the Union. Horses, wagons, any beasts or vehicles, tools, or property belonging to private citizens, though employed in the service of the United States, are subject to State taxation. Every private business, whether carried on by an officer of the General Government or not, whether it be mixed with public concerns or not, even if it be carried on by the Government of the United States itself, separately or in partnership, falls within the scope of the taxing power of the State. Nothing comes more fully within it than banks and the business of banking, by whomsoever instituted and carried on. Over this whole subject-matter it is just as absolute, unlimited, and uncontrollable as if the Constitution had never been adopted, because in the formation of that instrument it was reserved without qualification.
The principle is conceded that the States can not rightfully tax the operations of the General Government. They can not tax the money of the Government deposited in the State banks, nor the agency of those banks in remitting it; but will any man maintain that their mere selection to perform this public service for the General Government would exempt the State banks and their ordinary business from State taxation? Had the United States, instead of establishing a bank at Philadelphia, employed a private banker to keep and transmit their funds, would it have deprived Pennsylvania of the right to tax his bank and his usual banking operations? It will not be pretended. Upon what principle, then, are the banking establishments of the Bank of the United States and their usual banking operations to be exempted from taxation? It is not their public agency or the deposits of the Government which the States claim a right to tax, but their banks and their banking powers, instituted and exercised within State jurisdiction for their private emolument—those powers and privileges for which they pay a bonus, and which the States tax in their own banks. The exercise of these powers within a State, no matter by whom or under what authority, whether by private citizens in their original right, by corporate bodies created by the States, by foreigners or the agents of foreign governments located within their limits, forms a legitimate object of State taxation. From this and like sources, from the persons, property, and business that are found residing, located, or carried on under their jurisdiction, must the States, since the surrender of their right to raise a revenue from imports and exports, draw all the money necessary for the support of their governments and the maintenance of their independence. There is no more appropriate subject of taxation than banks, banking, and bank stocks, and none to which the States ought more pertinaciously to cling.
It can not be necessary to the character of the bank as a fiscal agent of the Government that its private business should be exempted from that taxation to which all the State banks are liable, nor can I conceive it “proper” that the substantive and most essential powers reserved by the States shall be thus attacked and annihilated as a means of executing the powers delegated to the General Government. It may be safely assumed that none of those sages who had an agency in forming or adopting our Constitution ever imagined that any portion of the taxing power of the States not prohibited to them nor delegated to Congress was to be swept away and annihilated as a means of executing certain powers delegated to Congress.
If our power over means is so absolute that the Supreme Court will not call in question the constitutionality of an act of Congress the subject of which “is not prohibited, and is really calculated to effect any of the objects intrusted to the Government,” although, as in the case before me, it takes away powers expressly granted to Congress and rights scrupulously reserved to the States, it becomes us to proceed in our legislation with the utmost caution. Though not directly, our own powers and the rights of the States may be indirectly legislated away in the use of means to execute substantive powers. We may not enact that Congress shall not have the power of exclusive legislation over the District of Columbia, but we may pledge the faith of the United States that as a means of executing other powers it shall not be exercised for twenty years or forever. We may not pass an act prohibiting the States to tax the banking business carried on within their limits, but we may, as a means of executing our powers over other objects, place that business in the hands of our agents and then declare it exempt from State taxation in their hands. Thus may our own powers and the rights of the States, which we can not directly curtail or invade, be frittered away and extinguished in the use of means employed by us to execute other powers. That a bank of the United States, competent to all the duties which may be required by the Government, might be so organized as not to infringe on our own delegated powers or the reserved rights of the States I do not entertain a doubt. Had the Executive been called upon to furnish the project of such an institution, the duty would have been cheerfully performed. In the absence of such a call it was obviously proper that he should confine himself to pointing out those prominent features in the act presented which in his opinion make it incompatible with the Constitution and sound policy. A general discussion will now take place, eliciting new light and settling important principles; and a new Congress, elected in the midst of such discussion, and furnishing an equal representation of the people according to the last census, will bear to the Capitol the verdict of public opinion, and, I doubt not, bring this important question to a satisfactory result.
Under such circumstances the bank comes forward and asks a renewal of its charter for a term of fifteen years upon conditions which not only operate as a gratuity to the stockholders of many millions of dollars, but will sanction any abuses and legalize any encroachments.
Suspicions are entertained and charges are made of gross abuse and violation of its charter. An investigation unwillingly conceded and so restricted in time as necessarily to make it incomplete and unsatisfactory discloses enough to excite suspicion and alarm. In the practices of the principal bank partially unveiled, in the absence of important witnesses, and in numerous charges confidently made and as yet wholly uninvestigated there was enough to induce a majority of the committee of investigation—a committee which was selected from the most able and honorable members of the House of Representatives—to recommend a suspension of further action upon the bill and a prosecution of the inquiry. As the charter had yet four years to run, and as a renewal now was not necessary to the successful prosecution of its business, it was to have been expected that the bank itself, conscious of its purity and proud of its character, would have withdrawn its application for the present, and demanded the severest scrutiny into all its transactions. In their declining to do so there seems to be an additional reason why the functionaries of the Government should proceed with less haste and more caution in the renewal of their monopoly.
The bank is professedly established as an agent of the executive branch of the Government, and its constitutionality is maintained on that ground. Neither upon the propriety of present action nor upon the provisions of this act was the Executive consulted. It has had no opportunity to say that it neither needs nor wants an agent clothed with such powers and favored by such exemptions. There is nothing in its legitimate functions which makes it necessary or proper. Whatever interest or influence, whether public or private, has given birth to this act, it can not be found either in the wishes or necessities of the executive department, by which present action is deemed premature, and the powers conferred upon its agent not only unnecessary, but dangerous to the Government and country.
It is to be regretted that the rich and powerful too often bend the acts of Government to their selfish purposes. Distinctions in society will always exist under every just government. Equality of talents, of education, or of wealth can not be produced by human institutions. In the full enjoyment of the gifts of Heaven and the fruits of superior industry, economy, and virtue, every man is equally entitled to protection by law; but when the laws undertake to add to these natural and just advantages artificial distinctions, to grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent more powerful, the humble members of society—the farmers, mechanics, and laborers—who have neither the time nor the means of securing like favors to themselves, have a right to complain of the injustice of their Government. There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary departure from these just principles.
Nor is our Government to be maintained or our Union preserved by invasions of the rights and powers of the several States. In thus attempting to make our General Government strong we make it weak. Its true strength consists in leaving individuals and States as much as possible to themselves—in making itself felt, not in its power, but in its beneficence; not in its control, but in its protection; not in binding the States more closely to the center, but leaving each to move unobstructed in its proper orbit.
Experience should teach us wisdom. Most of the difficulties our Government now encounters and most of the dangers which impend over our Union have sprung from an abandonment of the legitimate objects of Government by our national legislation, and the adoption of such principles as are embodied in this act. Many of our rich men have not been content with equal protection and equal benefits, but have besought us to make them richer by act of Congress. By attempting to gratify their desires we have in the results of our legislation arrayed section against section, interest against interest, and man against man, in a fearful commotion which threatens to shake the foundations of our Union. It is time to pause in our career to review our principles, and if possible revive that devoted patriotism and spirit of compromise which distinguished the sages of the Revolution and the fathers of our Union. If we can not at once, in justice to interests vested under improvident legislation, make our Government what it ought to be, we can at least take a stand against all new grants of monopolies and exclusive privileges, against any prostitution of our Government to the advancement of the few at the expense of the many, and in favor of compromise and gradual reform in our code of laws and system of political economy.
I have now done my duty to my country. If sustained by my fellow-citizens, I shall be grateful and happy; if not, I shall find in the motives which impel me ample grounds for contentment and peace. In the difficulties which surround us and the dangers which threaten our institutions there is cause for neither dismay nor alarm. For relief and deliverance let us firmly rely on that kind Providence which I am sure watches with peculiar care over the destinies of our Republic, and on the intelligence and wisdom of our countrymen. Through His abundant goodness and their patriotic devotion our liberty and Union will be preserved.
March 3, 1817
Madison split with Jefferson in supporting a national bank. But Madison held to Jefferson’s strict construction of the powers granted the federal government by the Constitution in regard to internal improvements—the building of federal roads, canals, and the like. The bill for which this veto message was delivered provided that the federal government’s bonus and dividends from the Bank of the United States should fund internal improvements.
To the House of Representatives of the United States:
Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause “to provide for the common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
A restriction of the power “to provide for the common defense and general welfare” to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill cannot confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and a reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of pow-ers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest. . . .
Commentaries on the Constitution of the United States
In these sections of Commentaries, Story spells out the view that the commerce power is exclusive rather than concurrent; that because Congress has the power to regulate commerce the states cannot have that same power. In addition, Story interprets the Constitution as supporting national tariffs aimed at protecting domestic companies entering into the manufacturing business.
Commentaries on the Constitution of the United States
Power to Borrow Money, and Regulate Commerce
§162. The next power of Congress is, “to borrow money on the credit of the United States.” This power, also, seems indispensable to the sovereignty and existence of the National Government; for otherwise, in times of great public dangers, or severe public calamities, it might be impossible to provide, adequately, for the public exigencies. In times of peace, it may not, ordinarily, be necessary for the expenditures of a nation to exceed its revenues. But the experience of all nations must convince us, that, in times of war, the burdens and expenses of a single year may more than equal the ordinary revenue of ten years. And, even in times of peace, there are occasions, in which loans may be the most facile, convenient, and economical means of supplying any extraordinary expenditure. The experience of the United States, has already shown the importance of the power, both in peace and in war. Without this resource, neither the war of Independence, nor the more recent war with Great Britain could have been successfully carried on, or terminated. And the purchase of Louisiana was by the same means promptly provided for, without being felt by the nation, in its ordinary fiscal concerns.
§168. The next power of Congress is, “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” The want of this power to regulate commerce was, as has been already suggested, a leading defect of the Confederation. In the different States, the most opposite and conflicting regulations existed; each pursued its own real or supposed local interests; each was jealous of the rivalry of its neighbors; and each was successively driven to retaliatory measures, in order to satisfy public clamor, or to alleviate private distress. In the end, however, all their measures became utterly nugatory, or mischievous, engendering mutual hostilities, and prostrating all their commerce at the feet of foreign nations. It is hardly possible to exaggerate the oppressed and degraded state of domestic commerce, manufactures, and agriculture, at the time of the adoption of the Constitution. Our ships were almost driven from the ocean; our work-shops were nearly deserted; our mechanics were in a starving condition; and our agriculture was sunk to the lowest ebb. These were the natural results of the inability of the General Government to regulate commerce, so as to prevent the injurious monopolies and exclusions of foreign nations, and the conflicting, and often ruinous regulations of the different States. If duties were laid by one State, they were rendered ineffectual by the opposite policy of another. If one State gave a preference to its own ships or commerce, it was counteracted by another. If one State endeavored to foster its own manufactures by any measures of protection, that made it an object of jealousy to others; and brought upon it the severe retaliation of foreign governments. If one State was peculiarly favored in its agricultural products, that constituted an inducement with others to load them with some restrictions, which should redress the inequality. It was easy to foresee, that this state of things could not long exist, without bringing on a border warfare, and a deep-rooted hatred, among neighboring States, fatal to the Union, and, of course, fatal also to the liberty of every member of it.
§164. The power “to regulate foreign commerce,” enabled the government at once to place the whole country upon an equality with foreign nations; to compel them to abandon their narrow and selfish policy towards us; and to protect our own commercial interests against their injurious competitions. The power to regulate commerce “among the several States,” in like manner, annihilated the causes of domestic feuds and rivalries. It compelled every State to regard the interests of each, as the interests of all; and thus diffused over all the blessings of a free, active, and rapid exchange of commodities, upon the footing of perfect equality. The power to regulate commerce “with the Indian tribes,” was equally necessary to the peace and safety of the frontier States. Experience had shown the utter impracticability of escaping from sudden wars, and invasions, on the part of these tribes; and the dangers were immeasurably increased by the want of uniformity of regulations and control in the intercourse with them. Indeed, in nothing has the profound wisdom of the framers of the Constitution been more displayed, than in the grant of this power to the Union. By means of it, the country has risen from poverty to opulence; from a state of narrow and scanty resources to an ample national revenue; from a feeble, and disheartening intercourse and competition with foreign nations, in agriculture, commerce, manufactures, and population, to a proud, and conscious independence in arts, in numbers, in skill, and in civil polity.
§165. In considering this clause of the Constitution, several important inquiries are presented. In the first place, what is the natural import of the terms; in the next place, how far the power is exclusive of that of the States; in the third place, to what purposes and for what objects the power may be constitutionally applied; and in the fourth place, what are the true nature and extent of the power to regulate commerce with the Indian tribes.
§166. In the first place, then, what is the constitutional meaning of the words, “to regulate commerce;” for the Constitution being (as has been aptly said) one of enumeration, and not of definition, it becomes necessary, in order to ascertain the extent of the power, to ascertain the meaning of the words. The power is, to regulate; that is, to prescribe the rule, by which commerce is to be governed. The subject to be regulated, is commerce. Is that limited to traffic, to buying and selling, or the interchange of commodities? Or does it comprehend navigation and intercourse? If the former construction is adopted, then a general term, applicable to many objects, is restricted to one of its significations. If the latter, then a general term is retained in its general sense. To adopt the former, without some guiding grounds furnished by the context, or the nature of the power, would be improper. The words being general, the sense must be general, also, and embrace all subjects comprehended under them, unless there be some obvious mischief, or repugnance to other clauses, to limit them. In the present case, there is nothing to justify such a limitation. Commerce undoubtedly is traffic; but it is something more. It is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches; and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation; which shall be silent on the admission of the vessels of one nation into the ports of another; and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling, or barter. It may, therefore, be safely affirmed, that the terms of the Constitution have, at all times, been understood to include a power over navigation, as well as over trade, over intercourse, as well as over traffic. It adds no small strength to this interpreation, that the practice of all foreign countries, as well as of our own, has uniformly conformed to this view of the subject.
§167. The next inquiry is, whether this power to regulate commerce, is like that to lay taxes. The latter, may well be concurrent, while the former, is exclusive, resulting from the different nature of the two powers. The power of Congress in laying taxes is not necessarily, or naturally inconsistent with that of the States. Each may lay a tax on the same property, without interfering with the action of the other; for taxation is but taking small portions from the mass of property, which is susceptible of almost infin-ite division. In imposing taxes for State purposes, a State is not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes, which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power, which is granted to Congress; and is doing the very thing, which Congress is authorized to do. There is no analogy, then, between the power of taxation, and the power of regulating commerce.
§168. Nor can any power be inferred in the States, to regulate commerce, from other clauses in the Constitution, or the acknowledged rights exercised by the States. The Constitution has prohibited the States from laying any impost or duty on imports or exports; but this does not admit, that the State might otherwise have exercised the power, as a regulation of commerce. The laying of such imposts and duties may be, and indeed often is, used, as a mere regulation of commerce, by governments possessing that power. But the laying of such imposts and duties is as certainly, and more usually, a right exercised as a part of the power to lay taxes; and with this latter power the States are clearly intrusted. So that the prohibition is an exception from the acknowledged power of the State to lay taxes, and not from the questionable power to regulate commerce. Indeed, the Constitution treats these as distinct and independent powers. The same remarks apply to a duty on tonnage.
§169. In the next place, to what extent, and for what objects and purposes, the power to regulate commerce may be constitutionally applied.
§170. And first, among the States. It is not doubted, that it extends to the regulation of navigation, and to the coasting trade and fisheries, within, as well as without any State, wherever it is connected with the commerce or intercourse with any other State, or with foreign nations. It extends to the regulation and government of seamen on board of American ships; and to conferring privileges upon ships built and owned in the United States, in domestic, as well as in foreign trade. It extends to quarantine laws, and pilotage laws, and wrecks of the sea. It extends, as well to the navigation of vessels engaged in carrying passengers, and whether steam vessels or of any other description, as to the navigation of vessels engaged in traffic and general coasting business. It extends to the laying of embargoes, as well on domestic, as on foreign voyages. It extends to the construction of lighthouses, the placing of buoys and beacons, the removal of obstructions to navigation in creeks, rivers, sounds, and bays, and the establishment of securities to navigation against the inroads of the ocean. It extends also to the designation of a particular port or ports of entry and delivery for the purposes of foreign commerce. These powers have been actually exerted by the National Government under a system of laws, many of which commenced with the early establishment of the Constitution; and they have continued unquestioned unto our day, if not to the utmost range of their reach, at least to that of their ordinary application.
§171. Many of the like powers have been applied in the regulation of foreign commerce. The commercial system of the United States has also been employed sometimes for the purpose of revenue; sometimes for the purpose of prohibition; sometimes for the purpose of retaliation and commercial reciprocity; sometimes to lay embargoes; sometimes to encourage domestic navigation, and the shipping and mercantile interest, by bounties, by discriminating duties, and by special preferences and privileges; and sometimes to regulate intercourse with a view to mere political objects, such as to repel aggressions, increase the pressure of war, or vindicate the rights of neutral sovereignty. In all these cases, the right and duty have been conceded to the National Government by the unequivocal voice of the people.
§172. It may be added, that Congress have also, from the earliest period of the government, applied the same power of regulating commerce for the purpose of encouraging and protecting domestic manufactures; and although this application of it has been recently contested, yet Congress have never abandoned the exercise of it for such a purpose. Indeed, if Congress does not possess the power to encourage domestic manufactures, by regulations of commerce, it is a power, that is utterly annihilated; for it is admitted, on all sides, that the States do not possess it. And America would then present the singular spectacle of a nation voluntarily depriving itself, in the exercise of its admitted rights of sovereignty, of all means of promoting some of its most vital interests.
§173. In respect to trade with the Indian tribes. Antecedently to the American Revolution, the authority to regulate trade and intercourse with the Indian tribes, whether they were within, or without the boundaries of the Colonies, was understood to belong to the prerogative of the British crown. And after the American Revolution, the like power would naturally fall to the Federal Government, with a view to the general peace and interests of all the States. Two restrictions, however, upon the power, were, by express terms, incorporated into the Confederation, which occasioned endless embarrassments and doubts. The power of Congress was restrained to Indians, not members of any of the States; and was not to be exercised so as to violate or infringe the legislative right of any State, within its own limits. What description of Indians were to be deemed members of a State, was never settled under the Confederation; and was a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet resid-ing within its legislative jurisdiction, was to be regulated by an external authority, without so far intruding on the internal rights of legislation, was absolutely incomprehensible. In this case, as in some other cases, the Articles of Confederation inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to sub-vert a mathematical axiom, by taking away a part, and letting the whole remain. The Constitution has wisely disembarrassed the power of these two limitations; and has thus given to Congress, as the only safe and proper depositary, the exclusive power, which belonged to the Crown in the ante-revolutionary times; a power indispensable to the peace of the States, and to the just preservation of the rights and territory of the Indians.
Naturalization, Bankruptcy, and Coinage of Money
§174. The next power of Congress is, “to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the States.” The power of naturalization is, with great propriety, confided to Congress, since, if left to the States, they might naturalize foreigners upon very different, and even upon opposite systems; and, as the citizens of all the States have common privileges in all, it would thus be in the power of any one State to defeat the wholesome policy of all the others in regard to this most important subject. Congress alone can have power to pass uniform laws, obligatory on all the States; and thus to adopt a system, which shall secure all of them against any dangerous results from the indiscriminate admission of foreigners to the right of citizenship upon their first landing on our shores. And, accordingly, this power is exclusive in Congress.
§175. The power to pass bankrupt laws is equally important, and proper to be intrusted to Congress, although it is greatly to be regretted, that it has not, except for a very brief period, been acted upon by Congress. Bankrupt and insolvent laws, when properly framed, have two great objects in view; first, to secure to honest but unfortunate debtors a discharge from debts, which they are unable to pay, and thus to enable them to begin anew in the career of industry, without the discouraging fear, that it will be wholly useless; secondly, to secure to creditors a full surrender, and equal participation, of and in the effects of their debtors, when they have become bankrupt, or failed in business. On the one hand, such laws relieve the debtor from perpetual bondage to his creditors, in the shape, either of an unlimited imprisonment for his debts, or of an absolute right to appropriate all his future earnings. The latter course obviously destroys all encouragement to future enterprise and industry, on the part of the debtor; the former is, if possible, more harsh, severe, and indefensible; for it makes poverty, in itself sufficiently oppressive, the cause or occasion of penalties and punishments.
§176. It is obvious, that no single State is competent to pass a uniform system of bankruptcy, which shall operate throughout all of them. It can have no power to discharge debts, contracted in other States; or to bind creditors in other States. And it is hardly within the range of probability, that the same system should be universally adopted, and persevered in permanently, by all the States. In fact, before, as well as since the adoption of the Constitution, the States have had very different systems on the subject, exhibiting a policy as various and sometimes as opposite, as could well be imagined. The future will, in all human probability, be, as the past. And the utter inability of any State to discharge contracts made within its own territo-rial limits, before the passage of its own laws, or to discharge any debts whatever, contracted in other States, or due to the citizens thereof, must perpetually embarrass commercial dealings, discourage industry, and diminish private credit and confidence. The remedy is in the hands of Congress. It has been given for wise ends, and has hitherto been strangely left without any efficient operation.
§177. The next power of Congress is, to “coin money, regulate the value thereof, and of foreign coins, and fix the standard of weights and measures.” The object of the power over the coinage and currency of the country is, to produce uniformity in the value of money throughout the Union, and thus to save us from the embarrassments of a perpetually fluctuating and variable currency. If each State might coin money, as it pleased, there would be no security for any uniform coinage, or any uniform standard of value; and a great deal of base and false coin, would constantly be thrown into the market. The evils from this cause are abundantly felt among the small principalities of continental Europe. The power to fix the standard of weights and measures is a matter of great public convenience, although it has hitherto remained in a great measure dormant. The introduction of the decimal mode of calculation, in dollars and cents, instead of the old and awkward system of pounds, shillings, and pence, has been found of great public convenience, although it was at first somewhat unpopular. A similar system in weights and measures has been thought by many statesmen to have advantages equally great and universal. At all events, the power is safe in the hands of Congress, and may hereafter be acted upon, whenever either our foreign, or our domestic intercourse, shall imperiously require a new system.
§178. The next power of Congress is, “to provide for the punishment of counterfeiting the securities, and current coin of the United States.” This is a natural, and, in a just view, an indispensable appendage to the power to borrow money, and to coin money. Without it, there would be no adequate means for the General Government to punish frauds or forgeries, detrimental to its own interests, and subversive of public and private confidence. . . .
§1073. A question has been recently made, whether congress have a constitutional authority to apply the power to regulate commerce for the purpose of encouraging and protecting domestic manufactures. It is not denied, that congress may, incidentally, in its arrangements for revenue, or to countervail foreign restrictions, encourage the growth of domestic manufactures. But it is earnestly and strenuously insisted, that, under the colour of regulating commerce, congress have no right permanently to prohibit any importations, or to tax any unreasonably for the purpose of securing the home market to the domestic manufacturer, as they thereby destroy the commerce entrusted to them to regulate, and foster an interest, with which they have no constitutional power to interfere.1 This opinion constitutes the leading doctrine of several states in the Union at the present moment; and is maintained, as vital to the existence of the Union. On the other hand, it is as earnestly and strenuously maintained, that congress does possess the constitutional power to encourage and protect manufactures by appropriate regulations of commerce; and that the opposite opinion is destructive of all the purposes of the Union, and would annihilate its value.
§1074. Under such circumstances, it becomes indispensable to review the grounds, upon which the doctrine of each party is maintained, and to sift them to the bottom; since it cannot be disguised, that the controversy still agitates all America, and marks the divisions of party by the strongest lines, both geographical and political, which have ever been seen since the establishment of the national government.
§1075. The reasoning, by which the doctrine is maintained, that the power to regulate commerce cannot be constitutionally applied, as a means, directly to encourage domestic manufactures, has been in part already adverted to in considering the extent of the power to lay taxes. It is proper, however, to present it entire in its present connexion. It is to the following effect.—The constitution is one of limited and enumerated powers; and none of them can be rightfully exercised beyond the scope of the objects, specified in those powers. It is not disputed, that, when the power is given, all the appropriate means to carry it into effect are included. Neither is it disputed, that the laying of duties is, or may be an appropriate means of regulating commerce. But the question is a very different one, whether, under pretence of an exercise of the power to regulate commerce, congress may in fact impose duties for objects wholly distinct from commerce. The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legisla-tive functions, to the utter demolition of all constitutional boundaries between the state and national governments. When duties are laid, not for purposes of revenue, but of retaliation and restriction, to countervail foreign restrictions, they are strictly within the scope of the power, as a regulation of commerce. But when laid to encourage manufactures, they have nothing to do with it. The power to regulate manufactures is no more confided to congress, than the power to interfere with the systems of education, the poor laws, or the road laws of the states. It is notorious, that, in the convention, an attempt was made to introduce into the constitution a power to encourage manufactures; but it was withheld.2 Instead of granting the power to congress, permission was given to the states to impose duties, with the consent of that body, to encourage their own manufactures; and thus, in the true spirit of justice, imposing the burthen on those, who were to be benefited. It is true, that congress may, incidentally, when laying duties for revenue, consult the other interests of the country. They may so arrange the details, as indirectly to aid manufactures. And this is the whole extent, to which congress has ever gone until the tariffs, which have given rise to the present controversy. The former precedents of congress are not, even if admitted to be authoritative, applicable to the question now presented.3
§1076. The reasoning of those, who maintain the doctrine, that congress has authority to apply the power to regulate commerce to the purpose of protecting and encouraging domestic manufactures, is to the following effect. The power to regulate commerce, being in its terms unlimited, includes all means appropriate to the end, and all means, which have been usually exerted under the power. No one can doubt or deny, that a power to regulate trade involves a power to tax it. It is a familiar mode, recognised in the practice of all nations, and was known and admitted by the United States, while they were colonies, and has ever since been acted upon without opposition or question. The American colonies wholly denied the authority of the British parliament to tax them, except as a regulation of commerce; but they admitted this exercise of power, as legitimate and unquestionable. The distinction was with difficulty maintained in practice between laws for the regulation of commerce by way of taxation, and laws, which were made for mere monopoly, or restriction, when they incidentally produced revenue.4 And it is certain, that the main and admitted object of parliamentary regulations of trade with the colonies was the encouragement of manufactures in Great-Britain. Other nations have, in like manner, for like purposes, exercised the like power. So, that there is no novelty in the use of the power, and no stretch in the range of the power.
§1077. Indeed, the advocates of the opposite doctrine admit, that the power may be applied, so as incidentally to give protection to manufactures, when revenue is the principal design; and that it may also be applied to countervail the injurious regulations of foreign powers, when there is no design of revenue. These concessions admit, then, that the regulations of commerce are not wholly for purposes of revenue, or wholly confined to the purposes of commerce, considered per se. If this be true, then other objects may enter into commercial regulations; and if so, what restraint is there, as to the nature or extent of the objects, to which they may reach, which does not resolve itself into a question of expediency and policy? It may be admitted, that a power, given for one purpose, cannot be perverted to purposes wholly opposite, or beside its legitimate scope. But what perversion is there in applying a power to the very purposes, to which it has been usually applied? Under such circumstances, does not the grant of the power without restriction concede, that it may be legitimately applied to such purposes? If a different intent had existed, would not that intent be manifested by some corresponding limitation?
§1078. Now it is well known, that in commercial and manufacturing nations, the power to regulate commerce has embraced practically the encouragement of manufactures. It is believed, that not a single exception can be named. So, in an especial manner, the power has always been understood in Great-Britain, from which we derive our parentage, our laws, our language, and our notions upon commercial subjects. Such was confessedly the notion of the different states in the Union under the confederation, and before the formation of the present constitution. One known object of the policy of the manufacturing states then was, the protection and encouragement of their manufactures by regulations of commerce.5 And the exercise of this power was a source of constant difficulty and discontent; not because improper of itself; but because it bore injuriously upon the commercial arrangements of other states. The want of uniformity in the regulations of commerce was a source of perpetual strife and dissatisfaction, of inequalities, and rivalries, and retaliations among the states. When the constitution was framed, no one ever imagined, that the power of protection of manufactures was to be taken away from all the states, and yet not delegated to the Union. The very suggestion would of itself have been fatal to the adoption of the constitution. The manufacturing states would never have acceded to it upon any such terms; and they never could, without the power, have safely acceded to it; for it would have sealed their ruin. The same reasoning would apply to the agricultural states; for the regulation of commerce, with a view to encourage domestic agriculture, is just as important, and just as vital to the interests of the nation, and just as much an application of the power, as the protection or encouragement of manufactures. It would have been strange indeed, if the people of the United States had been solicitous solely to advance and encourage commerce, with a total disre-gard of the interests of agriculture and manufactures, which had, at the time of the adoption of the constitution, an unequivocal preponderance throughout the Union. It is manifest from contemporaneous documents, that one object of the constitution was, to encourage manufactures and agriculture by this very use of the power.6
§1079. The terms, then, of the constitution are sufficiently large to embrace the power; the practice of other nations, and especially of Great-Britain and of the American states, has been to use it in this manner; and this exercise of it was one of the very grounds, upon which the establishment of the constitution was urged and vindicated. The argument, then, in its favour would seem to be absolutely irresistible under this aspect. But there are other very weighty considerations, which enforce it.
§1080. In the first place, if congress does not possess the power to encourage domestic manufactures by regulations of commerce, the power is annihilated for the whole nation. The states are deprived of it. They have made a voluntary surrender of it; and yet it exists not in the national government. It is then a mere nonentity. Such a policy, voluntarily adopted by a free people, in subversion of some of their dearest rights and interests, would be most extraordinary in itself, without any assignable motive or reason for so great a sacrifice, and utterly without example in the history of the world. No man can doubt, that domestic agriculture and manufactures may be most essentially promoted and protected by regulations of commerce. No man can doubt, that it is the most usual, and generally the most efficient means of producing those results. No man can question, that in these great objects the different states of America have as deep a stake, and as vital interests, as any other nation. Why, then, should the power be surrendered and annihilated? It would produce the most serious mischiefs at home; and would secure the most complete triumph over us by foreign nations. It would introduce and perpetuate national debility, if not national ruin. A foreign nation might, as a conqueror, impose upon us this restraint, as a badge of dependence, and a sacrifice of sovereignty, to subserve its own interests; but that we should impose it upon ourselves, is inconceivable. The achievement of our independence was almost worthless, if such a system was to be pursued. It would be in effect a perpetuation of that very system of monopoly, of encouragement of foreign manufactures, and depression of domestic industry, which was so much complained of during our colonial dependence; and which kept all America in a state of poverty, and slavish devotion to British interests. Under such circumstances, the constitution would be established, not for the purposes avowed in the preamble, but for the exclusive benefit and advancement of foreign nations, to aid their manufactures, and sustain their agriculture. Suppose cotton, rice, tobacco, wheat, corn, sugar, and other raw materials could be, or should hereafter be, abundantly produced in foreign countries, under the fostering hands of their governments, by bounties and commercial regulations, so as to become cheaper with such aids than our own; are all our markets to be opened to such products without any restraint, simply because we may not want revenue, to the ruin of our products and industry? Is America ready to give every thing to Europe, without any equivalent; and take in return whatever Europe may choose to give, upon its own terms? The most servile provincial dependence could not do more evils. Of what consequence would it be, that the national government could not tax our exports, if foreign governments might tax them to an unlimited extent, so as to favour their own, and thus to supply us with the same articles by the overwhelming depression of our own by foreign taxation? When it is recollected, with what extreme discontent and reluctant obedience the British colonial restrictions were enforced in the manufacturing and navigating states, while they were colonies, it is incredible, that they should be willing to adopt a government, which should, or might entail upon them equal evils in perpetuity. Commerce itself would ultimately be as great a sufferer by such a system, as the other domestic interests. It would languish, if it did not perish. Let any man ask himself, if New-England, or the Middle states would ever have consented to ratify a constitution, which would afford no protection to their manufactures or home industry. If the constitution was ratified under the belief, sedulously propagated on all sides, that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?
§1081. It is idle to say, that with the consent of congress, the states may lay duties on imports or exports, to favour their own domestic manufactures. In the first place, if congress could constitutionally give such consent for such a purpose, which has been doubted;7 they would have a right to refuse such consent, and would certainly refuse it, if the result would be what the advocates of free trade contend for. In the next place, it would be utterly impracticable with such consent to protect their manufactures by any such local regulations. To be of any value they must be general, and uniform through the nation. This is not a matter of theory. Our whole experience under the confederation established beyond all controversy the utter local futility, and even the general mischiefs of indepen-dent state legislation upon such a subject. It furnished one of the strongest grounds for the establishment of the constitution.8
§1082. In the next place, if revenue be the sole legitimate object of an impost, and the encouragement of domestic manufactures be not within the scope of the power of regulating trade, it would follow, (as has been already hinted,) that no monopolizing or unequal regulations of foreign nations could be counteracted. Under such circumstances, neither the staple articles of subsistence, nor the essential implements for the public safety, could be adequately ensured or protected at home by our regulations of commerce. The duty might be wholly unnecessary for revenue; and incidentally, it might even check revenue. But, if congress may, in arrangements for revenue, incidentally and designedly protect domestic manufactures, what ground is there to suggest, that they may not incorporate this design through the whole system of duties, and select and arrange them accordingly? There is no constitutional measure, by which to graduate, how much shall be assessed for revenue, and how much for encouragement of home industry. And no system ever yet adopted has attempted, and in all probability none hereafter adopted will attempt, wholly to sever the one object from the other. The constitutional objection in this view is purely speculative, regarding only future possibilities.
§1083. But if it be conceded, (as it is,) that the power to regulate commerce includes the power of laying duties to countervail the regulations and restrictions of foreign nations, then, what limits are to be assigned to this use of the power?9 If their commercial regulations, either designedly or incidentally, do promote their own agriculture and manufactures, and injuriously affect ours, why may not congress apply a remedy coextensive with the evil? If congress have, as cannot be denied, the choice of the means, they may countervail the regulations, not only by the exercise of the lex talionis in the same way, but in any other way conducive to the same end. If Great Britain by commercial regulations restricts the introduction of our staple products and manufactures into her own territories, and levies prohibitory duties, why may not congress apply the same rule to her staple products and manufactures, and secure the same market to ourselves? The truth is, that as soon as the right to retaliate foreign restrictions or foreign policy by commercial regulations is admitted, the question, in what manner, and to what extent, it shall be applied, is a matter of legislative discretion, and not of constitutional authority. Whenever commercial restrictions and regulations shall cease all over the world, so far as they favour the nation adopting them, it will be time enough to consider, what America ought to do in her own regulations of commerce, which are designed to protect her own industry and counteract such favoritism. It will then become a question, not of power, but of policy. Such a state of things has never yet existed. In fact the concession, that the power to regulate commerce may embrace other objects, than revenue, or even than commerce itself, is irreconcilable with the foundation of the argument on the other side.
§1084. Besides; the power is to regulate commerce. And in what manner regulate it? Why does the power involve the right to lay duties? Simply, because it is a common means of executing the power. If so, why does not the same right exist as to all other means equally common and appropriate? Why does the power involve a right, not only to lay duties, but to lay duties for revenue, and not merely for the regulation and restriction of commerce, considered per se? No other answer can be given, but that revenue is an incident to such an exercise of the power. It flows from, and does not create the power. It may constitute the motive for the exercise of the power, just as any other cause may; as for instance, the prohibition of foreign trade, or the retaliation of foreign monopoly; but it does not constitute the power.
§1085. Now, the motive of the grant of the power is not even alluded to in the constitution. It is not even stated, that congress shall have power to promote and encourage domestic navigation and trade. A power to regulate commerce is not necessarily a power to advance its interests. It may in given cases suspend its operations and restrict its advancement and scope. Yet no man ever yet doubted the right of congress to lay duties to promote and encourage domestic navigation, whether in the form of tonnage duties, or other preferences and privileges, either in the foreign trade, or coasting trade, or fisheries.10 It is as certain, as any thing human can be, that the sole object of congress, in securing the vast privileges to American built ships, by such preferences, and privileges, and tonnage duties, was, to encourage the domestic manufacture of ships, and all the dependent branches of business.11 It speaks out in the language of all their laws, and has been as constantly avowed, and acted on, as any single legislative policy ever has been. No one ever dreamed, that revenue constituted the slightest ingredient in these laws. They were purely for the encouragement of home manufactures, and home artisans, and home pursuits. Upon what grounds can congress constitutionally apply the power to regulate commerce to one great class of domestic manufactures, which does not involve the right to encourage all? If it be said, that navigation is a part of commerce, that is true. But a power to regulate navigation no more includes a power to encourage the manufacture of ships by tonnage duties, than any other manufacture. Why not extend it to the encouragement of the growth and manufacture of cotton and hemp for sails and rigging; of timber, boards, and masts; of tar, pitch, and turpentine; of iron and wool; of sheetings and shirtings; of artisans and mechanics, however remotely connected with it? There are many products of agriculture and manufactures, which are connected with the prosperity of commerce as intimately, as domestic ship building. If the one may be encouraged, as a primary motive in regulations of commerce, why may not the others? The truth is, that the encouragement of domestic ship building is within the scope of the power to regulate commerce, simply, because it is a known and ordinary means of exercising the power. It is one of many, and may be used like all others according to legislative discretion. The motive to the exercise of a power can never form a constitutional objection to the exercise of the power.
§1086. Here, then, is a case of laying duties, an ordinary means used in executing the power to regulate commerce; how can it be deemed unconstitutional? If it be said, that the motive is not to collect revenue, what has that to do with the power? When an act is constitutional, as an exercise of a power, can it be unconstitutional from the motives, with which it is passed? If it can, then the constitutionality of an act must depend, not upon the power, but upon the motives of the legislature. It will follow, as a consequence, that the same act passed by one legislature will be constitutional, and by another unconstitutional. Nay, it might be unconstitutional, as well from its omissions as its enactments, since if its omissions were to favour manufactures, the motive would contaminate the whole law. Such a doctrine would be novel and absurd. It would confuse and destroy all the tests of constitutional rights and authorities. Congress could never pass any law without an inquisition into the motives of every member; and even then, they might be re-examinable. Besides; what possible means can there be of making such investigations? The motives of many of the members may be, nay must be utterly unknown, and incapable of ascertainment by any judicial or other inquiry: they may be mixed up in various manners and degrees; they may be opposite to, or wholly independent of each other. The constitution would thus depend upon processes utterly vague, and incomprehensible; and the written intent of the legislature upon its words and acts, the lex scripta, would be contradicted or obliterated by conjecture, and parol declarations, and fleeting reveries, and heated imaginations. No government on earth could rest for a moment on such a foundation. It would be a constitution of sand heaped up and dissolved by the flux and reflux of every tide of opinion. Every act of the legislature must therefore be judged of from its object and intent, as they are embodied in its provisions; and if the latter are within the scope of admitted powers, the act must be constitutional, whether the motive for it were wise, or just, or otherwise. The manner of applying a power may be an abuse of it; but this does not prove, that it is unconstitutional.
§1087. Passing by these considerations, let the practice of the government and the doctrines maintained by those, who have administered it, be deliberately examined; and they will be found to be in entire consistency with this reasoning. The very first congress, that ever sat under the constitution, composed in a considerable degree of those, who had framed, or assisted in the discussion of its provisions in the state conventions, deliberately adopted this view of the power. And what is most remarkable, upon a subject of deep interest and excitement, which at the time occasioned long and vehement debates, not a single syllable of doubt was breathed from any quarter against the constitutionality of protecting agriculture and manufactures by laying duties, although the intention to protect and encourage them was constantly avowed.12 Nay, it was contended to be a paramount duty, upon the faithful fulfilment of which the constitution had been adopted, and the omission of which would be a political fraud, without a whisper of dissent from any side.13 It was demanded by the people from various parts of the Union; and was resisted by none.14 Yet, state jealousy was never more alive than at this period, and state interests never more actively mingled in the debates of congress. The two great parties, which afterwards so much divided the country upon the question of a liberal and strict construction of the constitution, were then distinctly formed, and proclaimed their opinions with firmness and freedom. If, therefore, there had been a point of doubt, on which to hang an argument, it cannot be questioned, but that it would have been brought into the array of opposition. Such a silence, under such circumstances, is most persuasive and convincing.
§1088. The very preamble of this act15 (the second passed by congress) is, “Whereas it is necessary for the support of the government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures, that duties be laid on goods, wares, and merchandises imported, Be it enacted,” &c.16 Yet, not a solitary voice was raised against it. The right, and the duty, to pass such laws was, indeed, taken so much for granted, that in some of the most elaborate expositions of the government upon the subject of manufactures, it was scarcely alluded to.17 The Federalist itself, dealing with every shadow of objection against the constitution, never once alludes to such a one; but incidentally commends this power; as leading to beneficial results on all domestic interests.18 Every successive congress since that time has constantly acted upon the system through all the changes of party and local interests. Every successive executive has sanctioned laws on the subject; and most of them have actively recommended the encouragement of manufactures to congress.19 Until a very recent period, no person in the public councils seriously relied upon any constitutional difficulty. And even now, when the subject has been agitated, and discussed with great ability and zeal through-out the Union, not more than five states have expressed an opinion against the constitutional right, while it has received an unequivocal sanction in the others with an almost unexampled degree of unanimity. And this too, when in most other respects these states have been in strong opposition to each other upon the general system of politics pursued by the government.
§1089. If ever, therefore, contemporaneous exposition, and the uniform and progressive operations of the government itself, in all its departments, can be of any weight to settle the construction of the constitution, there never has been, and there never can be more decided evidence in favour of the power, than is furnished by the history of our national laws for the encouragement of domestic agriculture and manufactures. To resign an exposition so sanctioned, would be to deliver over the country to interminable doubts; and to make the constitution not a written system of government, but a false and delusive text, upon which every successive age of speculatists and statesmen might build any system, suited to their own views and opinions. But if it be added to this, that the constitution gives the power in the most unlimited terms, and neither assigns motives, nor objects for its exercise; but leaves these wholly to the discretion of the legislature, acting for the common good, and the general interests; the argument in its favour becomes as absolutely irresistible, as any demonstration of a moral or political nature ever can be. Without such a power, the government would be absolutely worthless, and made merely subservient to the policy of for-eign nations, incapable of self-protection or self-support;20 with it, the country will have a right to assert its equality, and dignity, and sovereignty among the other nations of the earth.21
§1089. In regard to the rejection of the proposition in the convention “to establish institutions, rewards, and immunities for the promotion of agriculture, commerce, trades, and manufactures,”22 it is manifest, that it has no bearing on the question. It was a power much more broad in its extent and objects, than the power to encourage manufactures by the exercise of another granted power. It might be contended with quite as much plausibility, that the rejection was an implied rejection of the right to encourage commerce, for that was equally within the scope of the proposition. In truth, it involved a direct power to establish institutions, rewards, and immunities for all the great interests of society, and was, on that account, deemed too broad and sweeping. It would establish a general, and not a limited power of government.
§1090. Such is a summary (necessarily imperfect) of the reasoning on each side of this contested doctrine. The reader will draw his own conclusions; and these Commentaries have no further aim, than to put him in possession of the materials for a proper exercise of his judgment.
§1091. When the subject of the regulation of commerce was before the convention, the first draft of the constitution contained an article, that “no navigation act shall be passed, without the assent of two thirds of the members present in each house.”23 This article was afterwards recommended in a report of a committee to be stricken out. In the second revised draft it was left out; and a motion, to insert such a restriction to have effect until the year 1808, was negatived by the vote of seven states against three.24 Another proposition, that no act, regulating the commerce of the United States with foreign powers, should be passed without the assent of two thirds of the members of each house, was rejected by the vote of seven states against four.25 The rejection was, probably, occasioned by two leading reasons. First, the general impropriety of allowing the minority in a government to control, and in effect to govern all the legislative powers of the majority. Secondly, the especial inconvenience of such a power in regard to regulations of commerce, where the proper remedy for grievances of the worst sort might be withheld from the navigating and commercial states by a very small minority of the other states.26 A similar proposition was made, after the adoption of the constitution, by some of the states; but it was never acted upon.27
§1092. The power of congress also extends to regu-late commerce with the Indian tribes. This power was not contained in the first draft of the constitution. It was afterwards referred to the committee on the constitution (among other propositions) to consider the propriety of giving to congress the power “to regulate affairs with the Indians, as well within, as without the limits of the United States.” And, in the revised draft, the committee reported the clause, “and with the Indian Tribes,” as it now stands.28
§1093. Under the confederation, the continental congress were invested with the sole and exclusive right and power “of regulating the trade and managing all affairs with the Indians, not members of any of the states, provided, that the legislative right of any state within its own limits be not infringed or violated.”29
Admission of New States—Government of Territories
§216. The first clause of the fourth article declares, “New States may be admitted by the Congress into this Union. But no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.” It was early foreseen, from the extent of the territory of some States, that a division thereof into several States might become important and convenient to the inhabitants thereof, as well as add to the security of the Union. And it was also obvious, that new States would spring up in the then vacant western territory, which had been ceded to the Union, and that such new States could not long be retained in a state of dependence upon the National Government. It was indispensable, therefore, to make some suitable provisions for both these emergencies. On the one hand, the integrity of any of the States ought not to be severed without their own consent; for their sovereignty would, otherwise, be at the mere will of Congress. On the other hand, it was equally clear, that no State ought to be admitted into the Union without the consent of Congress; for, otherwise, the balance, equality, and harmony of the existing States might be destroyed. Both of these objects are, therefore, united in the present clause. To admit a new State into the Union, the consent of Congress is necessary; to form a new State within the boundaries of an old one, the consent of the latter is also necessary. Under this clause, besides Vermont, three new States formed within the boundaries of the old States, viz. Kentucky, Tennessee, and Maine; and nine others, viz. Ohio, Indiana, Illinois, Mississippi, Alabama, Louisiana, Missouri, Arkansas, and Michigan, formed within the territories ceded to the United States, have been already admitted into the Union. Thus far, indeed, the power has been most propitious to the general welfare of the Union, and has realized the patriotic anticipation, that the parents would exult in the glory and prosperity of their children.
§217. The second clause of the same section is, “The Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory, or other property, belonging to the United States. And nothing in this Constitution shall be so construed, as to prejudice any claims of the United States, or of any particular State.” As the General Government possesses the right to acquire territory by cession and conquest, it would seem to follow, as a natural incident, that it should possess the power to govern and protect, what it had acquired. At the time of the adoption of the Constitution, it had acquired the vast region included in the Northwestern Territory; and its acquisitions have since been greatly enlarged by the purchase of Louisiana and Florida. The two latter Territories, (Louisiana and Florida,) subject to the treaty stipulations, under which they were acquired, are of course under the general regulation of Congress, so far as the power has not been or may not be parted with by erecting them into States. The Northwestern Territory has been peopled under the admirable Ordinance of the Continental Congress of the 13th of July, 1787, which we owe to the wise forecast and political wisdom of a man, whom New England can never fail to reverence.1
§218. The main provisions of this Ordinance, which constitute the basis of the Constitutions and Governments of all the States and Territories organized within the Northwestern Territory, deserve here to be stated, as the ordinance is equally remarkable for the beauty and exactness of its text, and for its masterly display of the fundamental principles of civil and religious and political liberty. It begins, by providing a scheme for the descent and distribution of estates equally among all the children, and their representatives, or other relatives of the deceased in equal degree, making no distinction between the whole and the half blood; and for the mode of disposing of real estate by will, and by conveyances. It then proceeds to provide for the organization of the territorial governments, according to their progress in population, confiding the whole power to a Governor and Judges, in the first instance, subject to the control of Congress. As soon as the Territory contains five thousand inhabitants, it provides for the establishment of a general Legislature, to consist of three branches, a Governor, a Legislative Council, and a House of Representatives; with a power to the Legislature to appoint a delegate to Congress. It then proceeds to state certain fundamental articles of compact between the original States, and the people and States in the Territory, which are to remain unalterable, unless by common consent. The first provides for the freedom of religious opinion and worship. The second provides for the right to the writ of habeas corpus; for the trial by jury; for a proportionate representation in the Legislature; for judicial proceedings according to the course of the common law; for capital offences being bailable; for fines being moderate, and punishments not being cruel or unusual; for no man’s being deprived of his liberty or property, but by the judgement of his peers, or the law of the land; for full compensation for property taken, or services demanded, for the public exigencies; “and, for the just preservation of rights and property, that no law ought ever to be made, or have force in the said Territory, that shall, in any manner whatever, interfere with, or affect private contracts or engagements, bona fide, and without fraud, previously formed.” The third provides for the encouragement of religion, and education, and schools, and for good faith and due respect for the rights and property of the Indians. The fourth provides, that the Territory, and States formed therein, shall for ever remain a part of the Confederacy, subject to the constitutional authority of Congress; that the inhabitants shall be liable to be taxed proportionately for the public expenses; that the Legislatures in the Territory shall never interfere with the primary disposal of the soil by Congress, nor with their regulations for securing the title to the soil to purchasers; that no tax shall be imposed on lands, the property of the United States; and non-resident proprietors shall not be taxed more than residents; that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and for ever free. The fifth provides, that there shall be formed in the Territory not less than three, nor more than five States, with certain boundaries; and whenever any of the said States shall contain sixty thousand free inhabitants, such State shall (and may not before) be admitted, by its delegates, into Congress, on an equal footing with the original States in all respects whatever, and shall be at liberty to form a permanent Constitution and State government, provided it shall be republican, and in conformity to these articles of compact. The sixth and last provides, that there shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes; but fugitives from other States, owing service therein, may be reclaimed. Such is a brief outline of this most important ordinance, the effects of which upon the destinies of the country have already been abundantly demonstrated in the Territory, by an almost unexampled prosperity and rapidity of population, by the formation of republican governments, and by an enlightened system of jurisprudence. Already five States, composing a part of that Territory, have been admitted into the Union; and others are fast advancing towards the same grade of political dignity.
§219. The proviso, reserving the claims of the Union, as well as of the several States, was adopted from abundant caution, to quiet public jealousies upon the subject of the contested titles, which were then asserted by some of the States to some parts of the Western Territory. Happily, these sources of alarm and irritation have long since been dried up.
§220. And here is closed our Review of the express powers conferred upon Congress. There are other incidental and implied powers, resulting from other provisions of the Constitution, which will naturally present themselves to the mind in our future examination of those provisions. At present, it may suffice to say, that, with reference to due energy in the General Government, to due protection of the national interests, and to due security to the Union, fewer powers could scarcely have been granted, without jeoparding the existence of the whole system. Without the power to lay and collect taxes, to provide for the common defence, and promote the general welfare, the whole system would have been vain and illusory. Without the power to borrow money upon sudden or unexpected emergencies, the National Government might have been embarrassed, and sometimes have been incapable of performing its own proper functions and duties. Without the power to declare war and raise armies, and provide a navy, the whole country would have been placed at the mercy of foreign nations, or of invading foes, who should trample upon our rights and liberties. Without the power exclusively to regulate commerce, the intercourse between the States would have been liable to constant jealousies, rivalries, and dissensions; and the intercourse with foreign nations would have been liable to mischievous interruptions, from secret hostilities, or open retaliatory restrictions. The other powers are principally auxiliary to these; and are dictated by an enlightened policy, a devotion to justice, and a regard to the permanence of the Union. The wish of every patriot must be, that the system thus formed may be perpetual, and that the powers thus conferred may be constantly used for the purposes, for which they were originally given, for the promotion of the true interests of all the States, and not for the gratification of party spirit, or the aggrandizement of rulers at the expense of the people.
Prohibitions on the United States
§1801. The next clause is as follows: “A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state, from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.” A provision, substantially the same, existed under the confederation.1
§1802. It has been often made a question, how far any nation is, by the law of nations, and independent of any treaty stipulations, bound to surrender upon demand fugitives from justice, who, having committed crimes in another country, have fled thither for shelter. Mr. Chancellor Kent considers it clear upon principle, as well as authority, that every state is bound to deny an asylum to criminals, and, upon application and due examination of the case, to surrender the fugitive to the foreign state, where the crime has been committed.2 Other distinguished judges and jurists have entertained a different opinion.3 It is not uncommon for treaties to contain mutual stipulations for the surrender of criminals; and the United States have sometimes been a party to such an arrangement.4
§1803. But, however the point may be, as to foreign nations, it cannot be questioned, that it is of vital importance to the public administration of criminal justice, and the security of the respective states, that criminals, who have committed crimes therein, should not find an asylum in other states; but should be surrendered up for trial and punishment. It is a power most salutary in its general operation, by discouraging crimes, and cutting off the chances of escape from punishment. It will promote harmony and good feelings among the states; and it will increase the general sense of the blessings of the national government. It will, moreover, give strength to a great moral duty, which neighbouring states especially owe to each other, by elevating the policy of the mutual suppression of crimes into a legal obligation. Hitherto it has proved as useful in practice, as it is unexceptionable in its character.5
§1804. The next clause is, “No person held to service or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labour; but shall be delivered up on the claim of the party, to whom such service or labour may be due.”6
§1805. This clause was introduced into the constitution solely for the benefit of the slave-holding states, to enable them to reclaim their fugitive slaves, who should have escaped into other states, where slavery was not tolerated. The want of such a provision under the confederation was felt, as a grievous inconvenience, by the slave-holding states,7 since in many states no aid whatsoever would be allowed to the owners; and sometimes indeed they met with open resistance. In fact, it cannot escape the attention of every intelligent reader, that many sacrifices of opinion and feeling are to be found made by the Eastern and Middle states to the peculiar interests of the south. This forms no just subject of complaint; but it should for ever repress the delusive and mischievous notion, that the south has not at all times had its full share of benefits from the Union.
§1806. It is obvious, that these provisions for the arrest and removal of fugitives of both classes contemplate summary ministerial proceedings, and not the ordinary course of judicial investigations, to ascertain, whether the complaint be well founded, or the claim of ownership be established beyond all legal controversy. In cases of suspected crimes the guilt or innocence of the party is to be made out at his trial; and not upon the preliminary inquiry, whether he shall be delivered up. All, that would seem in such cases to be necessary, is, that there should be primâ facie evidence before the executive authority to satisfy its judgment, that there is probable cause to believe the party guilty, such as upon an ordinary warrant would justify his commitment for trial.8 And in the cases of fugitive slaves there would seem to be the same necessity of requiring only primâ facie proofs of ownership, without putting the party to a formal assertion of his rights by a suit at the common law. Congress appear to have acted upon this opinion; and, accordingly, in the statute upon this subject have authorized summary proceedings before a magistrate, upon which he may grant a warrant for a removal.9
Address to the Young Men’s Lyceum of Springfield, Illinois
January 27, 1838
Address to the Wisconsin State Agricultural Society, Milwaukee, Wisconsin
September 30, 1859
Lincoln began his political career as an Illinois Whig—as a member of a political party devoted to high tariffs and internal improvements. Born and raised on the frontier, his life was in large measure spent attempting to tame it—to spread law (his chosen profession) and commerce throughout the United States.
Lincoln’s address to the Young Men’s Lyceum, titled “The Perpetuation of Our Political Institutions,” aims to quell mob violence and lynching through the spread of a “political religion” devoted to the Constitution, its authors, and the revolution that spawned it. His “Address to the Wisconsin State Agricultural Society” paints a picture of economic progress and individual betterment in which all who are willing to work might participate and profit from labor and commerce.
Address to the Young Men’s Lyceum of Springfield, Illinois
The Perpetuation of Our Political Institutions
As a subject for the remarks of the evening, the perpetuation of our political institutions, is selected.
In the great journal of things happening under the sun, we, the American People, find our account running, under date of the nineteenth century of the Christian era. We find ourselves in the peaceful possession, of the fairest portion of the earth, as regards extent of territory, fertility of soil, and salubrity of climate. We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us. We, when mounting the stage of existence, found ourselves the legal inheritors of these fundamental blessings. We toiled not in the acquirement or establishment of them—they are a legacy bequeathed us, by a once hardy, brave, and patriotic, but now lamented and departed race of ancestors. Their’s was the task (and nobly they performed it) to possess themselves, and through themselves, us, of this goodly land; and to uprear upon its hills and its valleys, a political edifice of liberty and equal rights; ’tis ours only, to transmit these, the former, unprofaned by the foot of an invader; the latter, undecayed by the lapse of time, and untorn by usurpation—to the latest generation that fate shall permit the world to know. This task of gratitude to our fathers, justice to ourselves, duty to posterity, and love for our species in general, all imperatively require us faithfully to perform.
How, then, shall we perform it? At what point shall we expect the approach of danger? By what means shall we fortify against it? Shall we expect some transatlantic military giant, to step the Ocean, and crush us at a blow? Never! All the armies of Europe, Asia and Africa combined, with all the treasure of the earth (our own excepted) in their military chest; with a Buonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.
At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.
I hope I am over wary; but if I am not, there is, even now, something of ill-omen amongst us. I mean the increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgement of Courts; and the worse than savage mobs, for the executive ministers of justice. This disposition is awfully fearful in any community; and that it now exists in ours, though grating to our feelings to admit, it would be a violation of truth, and an insult to our intelligence, to deny. Accounts of outrages committed by mobs, form the every-day news of the times. They have pervaded the country, from New England to Louisiana;—they are neither peculiar to the eternal snows of the former, nor the burning suns of the latter;—they are not the creature of climate—neither are they confined to the slaveholding, or the non-slaveholding States. Alike, they spring up among the pleasure hunting masters of Southern slaves, and the order loving citizens of the land of steady habits. Whatever, then, their cause may be, it is common to the whole country.
It would be tedious, as well as useless, to recount the horrors of all of them. Those happening in the State of Mississippi, and at St. Louis, are, perhaps, the most dangerous in example, and revolting to humanity. In the Mississippi case, they first commenced by hanging the regular gamblers: a set of men, certainly not following for a livelihood, a very useful, or very honest occupation; but one which, so far from being forbidden by the laws, was actually licensed by an act of the Legislature, passed but a single year before. Next, negroes, suspected of conspiring to raise an insurrection, were caught up and hanged in all parts of the State: then, white men, supposed to be leagued with the negroes; and finally, strangers, from neighboring States, going thither on business, were, in many instances, subjected to the same fate. Thus went on this process of hanging, from gamblers to negroes, from negroes to white citizens, and from these to strangers; till, dead men were seen literally dangling from the boughs of trees upon every road side; and in numbers almost sufficient, to rival the native Spanish moss of the country, as a drapery of the forest.
Turn, then, to that horror-striking scene at St. Louis. A single victim was only sacrificed there. His story is very short; and is, perhaps, the most highly tragic, of any thing of its length, that has ever been witnessed in real life. A mulatto man, by the name of McIntosh, was seized in the street, dragged to the suburbs of the city, chained to a tree, and actually burned to death; and all within a single hour from the time he had been a freeman, attending to his own business, and at peace with the world.
Such are the effects of mob law; and such are the scenes, becoming more and more frequent in this land so lately famed for love of law and order; and the stories of which, have even now grown too familiar, to attract any thing more, than an idle remark.
But you are, perhaps, ready to ask, “What has this to do with the perpetuation of our political institutions?” I answer, it has much to do with it. Its direct consequences are, comparatively speaking, but a small evil; and much of its danger consists, in the proneness of our minds, to regard its direct, as its only consequences. Abstractly considered, the hanging of the gamblers at Vicksburg, was of but little consequence. They constitute a portion of population, that is worse than useless in any community; and their death, if no pernicious example be set by it, is never matter of reasonable regret with any one. If they were annually swept, from the stage of existence, by the plague or small pox, honest men would, perhaps, be much profited, by the operation. Similar too, is the correct reasoning, in regard to the burning of the negro at St. Louis. He had forfeited his life, by the perpetration of an outrageous murder, upon one of the most worthy and respectable citizens of the city; and had he not died as he did, he must have died by the sentence of the law, in a very short time afterwards. As to him alone, it was as well the way it was, as it could otherwise have been. But the example in either case, was fearful. When men take it in their heads to day, to hang gamblers, or burn murderers, they should recollect, that, in the confusion usually attending such transactions, they will be as likely to hang or burn some one, who is neither a gambler nor a murderer as one who is; and that, acting upon the example they set, the mob of to-morrow, may, and probably will, hang or burn some of them, by the very same mistake. And not only so; the innocent, those who have ever set their faces against violations of law in every shape, alike with the guilty, fall victims to the ravages of mob law; and thus it goes on, step by step, till all the walls erected for the defence of the persons and property of individuals, are trodden down, and disregarded. But all this even, is not the full extent of the evil. By such examples, by instances of the perpetrators of such acts going unpunished, the lawless in spirit, are encouraged to become lawless in practice; and having been used to no restraint, but dread of punishment, they thus become, absolutely unrestrained. Having ever regarded Government as their deadliest bane, they make a jubilee of the suspension of its operations; and pray for nothing so much, as its total annihilation. While, on the other hand, good men, men who love tranquility, who desire to abide by the laws, and enjoy their benefits, who would gladly spill their blood in the defence of their country; seeing their property destroyed; their families insulted, and their lives endangered; their persons injured; and seeing nothing in prospect that forebodes a change for the better; become tired of, and disgusted with, a Government that offers them no protection; and are not much averse to a change in which they imagine they have nothing to lose. Thus, then, by the operation of this mobocratic spirit, which all must admit, is now abroad in the land, the strongest bulwark of any Government, and particularly of those constituted like ours, may effectually be broken down and destroyed—I mean the attachment of the People. Whenever this effect shall be produced among us; whenever the vicious portion of population shall be permitted to gather in bands of hundreds and thousands, and burn churches, ravage and rob provision stores, throw printing presses into rivers, shoot editors, and hang and burn obnoxious persons at pleasure, and with impunity; depend on it, this Government cannot last. By such things, the feelings of the best citizens will become more or less alienated from it; and thus it will be left without friends, or with too few, and those few too weak, to make their friendship effectual. At such a time and under such circumstances, men of sufficient talent and ambition will not be wanting to seize the opportunity, strike the blow, and overturn that fair fabric, which for the last half century, has been the fondest hope, of the lovers of freedom, throughout the world.
I know the American People are much attached to their Government;—I know they would suffer much for its sake;—I know they would endure evils long and patiently, before they would ever think of exchanging it for another. Yet, notwithstanding all this, if the laws be continually despised and disregarded, if their rights to be secure in their persons and property, are held by no better tenure than the caprice of a mob, the alienation of their affections from the Government is the natural consequence; and to that, sooner or later, it must come.
Here then, is one point at which danger may be expected.
The question recurs “how shall we fortify against it?” The answer is simple. Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;—let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges;—let it be written in Primmers, spelling books, and in Almanacs;—let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.
While ever a state of feeling, such as this, shall universally, or even, very generally prevail throughout the nation, vain will be every effort, and fruitless every attempt, to subvert our national freedom.
When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws, nor that grievances may not arise, for the redress of which, no legal provisions have been made. I mean to say no such thing. But I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed. So also in unprovided cases. If such arise, let proper legal provisions be made for them with the least possible delay; but, till then, let them if not too intolerable, be borne with.
There is no grievance that is a fit object of redress by mob law. In any case that arises, as for instance, the promulgation of abolitionism, one of two positions is necessarily true; that is, the thing is right within itself, and therefore deserves the protection of all law and all good citizens; or, it is wrong, and therefore proper to be prohibited by legal enactments; and in neither case, is the interposition of mob law, either necessary, justifiable, or excusable.
But, it may be asked, why suppose danger to our political institutions? Have we not preserved them for more than fifty years? And why may we not for fifty times as long?
We hope there is no sufficient reason. We hope all dangers may be overcome; but to conclude that no danger may ever arise, would itself be extremely dangerous. There are now, and will hereafter be, many causes, dangerous in their tendency, which have not existed heretofore; and which are not too insignificant to merit attention. That our government should have been maintained in its original form from its establishment until now, is not much to be wondered at. It had many props to support it through that period, which now are decayed, and crumbled away. Through that period, it was felt by all, to be an undecided experiment; now, it is understood to be a successful one. Then, all that sought celebrity and fame, and distinction, expected to find them in the success of that experiment. Their all was staked upon it:—their destiny was inseparably linked with it. Their ambition aspired to display before an admiring world, a practical demonstration of the truth of a proposition, which had hitherto been considered, at best no better, than problematical; namely, the capability of a people to govern themselves. If they succeeded, they were to be immortalized; their names were to be transferred to counties and cities, and rivers and mountains; and to be revered and sung, and toasted through all time. If they failed, they were to be called knaves and fools, and fanatics for a fleeting hour; then to sink and be forgotten. They succeeded. The experiment is successful; and thousands have won their deathless names in making it so. But the game is caught; and I believe it is true, that with the catching, end the pleasures of the chase. This field of glory is harvested, and the crop is already appropriated. But new reapers will arise, and they, too, will seek a field. It is to deny, what the history of the world tells us is true, to suppose that men of ambition and talents will not continue to spring up amongst us. And, when they do, they will as naturally seek the gratification of their ruling passion, as others have so done before them. The question then, is, can that gratification be found in supporting and maintaining an edifice that has been erected by others? Most certainly it cannot. Many great and good men sufficiently qualified for any task they should undertake, may ever be found, whose ambition would aspire to nothing beyond a seat in Congress, a gubernatorial or a presidential chair; but such belong not to the family of the lion, or the tribe of the eagle. What! think you these places would satisfy an Alexander, a Caesar, or a Napoleon? Never! Towering genius disdains a beaten path. It seeks regions hitherto unexplored. It sees no distinction in adding story to story, upon the monuments of fame, erected to the memory of others. It denies that it is glory enough to serve under any chief. It scorns to tread in the footsteps of any predecessor, however illustrious. It thirsts and burns for distinction; and, if possible, it will have it, whether at the expense of emancipating slaves, or enslaving freemen. Is it unreasonable then to expect, that some man possessed of the loftiest genius, coupled with ambition sufficient to push it to its utmost stretch, will at some time, spring up among us? And when such a one does, it will require the people to be united with each other, attached to the government and laws, and generally intelligent, to successfully frustrate his designs.
Distinction will be his paramount object; and although he would as willingly, perhaps more so, acquire it by doing good as harm; yet, that opportunity being past, and nothing left to be done in the way of building up, he would set boldly to the task of pulling down.
Here then, is a probable case, highly dangerous, and such a one as could not have well existed heretofore.
Another reason which once was; but which, to the same extent, is now no more, has done much in maintaining our institutions thus far. I mean the powerful influence which the interesting scenes of the revolution had upon the passions of the people as distinguished from their judgment. By this influence, the jealousy, envy, and avarice, incident to our nature, and so common to a state of peace, prosperity, and conscious strength, were, for the time, in a great measure smothered and rendered inactive; while the deep rooted principles of hate, and the powerful motive of revenge, instead of being turned against each other, were directed exclusively against the British nation. And thus, from the force of circumstances, the basest principles of our nature, were either made to lie dormant, or to become the active agents in the advancement of the noblest of cause—that of establishing and maintaining civil and religious liberty.
But this state of feeling must fade, is fading, has faded, with the circumstances that produced it.
I do not mean to say, that the scenes of the revolution are now or ever will be entirely forgotten; but that like every thing else, they must fade upon the memory of the world, and grow more and more dim by the lapse of time. In history, we hope, they will be read of, and recounted, so long as the bible shall be read;—but even granting that they will, their influence cannot be what it heretofore has been. Even then, they cannot be so universally known, nor so vividly felt, as they were by the generation just gone to rest. At the close of that struggle, nearly every adult male had been a participator in some of its scenes. The consequence was, that of those scenes, in the form of a husband, a father, a son or a brother, a living history was to be found in every family—a history bearing the indubitable testimonies of its own authenticity, in the limbs mangled, in the scars of wounds received, in the midst of the very scenes related—a history, too, that could be read and understood alike by all, the wise and the ignorant, the learned and the unlearned. But those histories are gone. They can be read no more forever. They were a fortress of strength; but, what invading foemen could never do, the silent artillery of time has done; the levelling of its walls. They are gone. They were a forest of giant oaks; but the all resistless hurricane has swept over them, and left only, here and there, a lonely trunk, despoiled of its verdure, shorn of its foliage; unshading and unshaded, to murmur in a few more gentle breezes, and to combat with its mutilated limbs, a few more ruder storms, then to sink, and be no more.
They were the pillars of the temple of liberty; and now, that they have crumbled away, that temple must fall, unless we, their descendants, supply their places with other pillars, hewn from the solid quarry of sober reason. Passion has helped us; but can do so no more. It will in future be our enemy. Reason, cold, calculating, unimpassioned reason, must furnish all the materials for our future support and defence. Let those materials be moulded into general intelligence, sound morality and, in particular, a reverence for the constitution and laws; and, that we improved to the last; that we remained free to the last; that we revered his name to the last; that, during his long sleep, we permitted no hostile foot to pass over or desecrate his resting place; shall be that which to learn the last trump shall awaken our Washington.
Upon these let the proud fabric of freedom rest, as the rock of its basis; and as truly as has been said of the only greater institution, “the gates of hell shall not prevail against it.”
Address to the Wisconsin State Agricultural Society, Milwaukee, Wisconsin
Members of the Agricultural Society and Citizens of Wisconsin:
Agricultural Fairs are becoming an institution of the country; they are useful in more ways than one; they bring us together, and thereby make us better acquainted, and better friends than we otherwise would be. From the first appearance of man upon the earth, down to very recent times, the words “stranger” and “enemy” were quite or almost, synonymous. Long after civilized nations had defined robbery and murder as high crimes, and had affixed severe punishments to them, when practiced among and upon their own people respectively, it was deemed no offence, but even meritorious, to rob, and murder, and enslave strangers, whether as nations or as individuals. Even yet, this has not totally disappeared. The man of the highest moral cultivation, in spite of all which abstract principle can do, likes him whom he does know, much better than him whom he does not know. To correct the evils, great and small, which spring from want of sympathy, and from positive enmity, among strangers, as nations, or as individuals, is one of the highest functions of civilization. To this end our Agricultural Fairs contribute in no small degree. They make more pleasant, and more strong, and more durable, the bond of social and political union among us. Again, if, as Pope declares, “happiness is our being’s end and aim,” our Fairs contribute much to that end and aim, as occasions of recreation—as holidays. Constituted as man is, he has positive need of occasional recreation; and whatever can give him this, associated with virtue and advantage, and free from vice and disadvantage, is a positive good. Such recreation our Fairs afford. They are a present pleasure, to be followed by no pain, as a consequence; they are a present pleasure, making the future more pleasant.
But the chief use of agricultural fairs is to aid in improving the great calling of agriculture, in all it’s departments, and minute divisions—to make mutual exchange of agricultural discovery, information, and knowledge; so that, at the end, all may know every thing, which may have been known to but one, or to but a few, at the beginning—to bring together especially all which is supposed to not be generally known, because of recent discovery, or invention.
And not only to bring together, and to impart all which has been accidentally discovered or invented upon ordinary motive; but, by exciting emulation, for premiums, and for the pride and honor of success—of triumph, in some sort—to stimulate that discovery and invention into extraordinary activity. In this, these Fairs are kindred to the patent clause in the Constitution of the United States; and to the department, and practical system, based upon that clause.
One feature, I believe, of every fair, is a regular address. The Agricultural Society of the young, prosperous, and soon to be, great State of Wisconsin, has done me the high honor of selecting me to make that address upon this occasion—an honor for which I make my profound, and grateful acknowledgement.
I presume I am not expected to employ the time assigned me, in the mere flattery of the farmers, as a class. My opinion of them is that, in proportion to numbers, they are neither better nor worse than other people. In the nature of things they are more numerous than any other class; and I believe there really are more attempts at flattering them than any other; the reason of which I cannot perceive, unless it be that they can cast more votes than any other. On reflection, I am not quite sure that there is not cause of suspicion against you, in selecting me, in some sort a politician, and in no sort a farmer, to address you.
But farmers, being the most numerous class, it follows that their interest is the largest interest. It also follows that that interest is most worthy of all to be cherished and cultivated—that if there be inevitable conflict between that interest and any other, that other should yield.
Again, I suppose it is not expected of me to impart to you much specific information on Agriculture. You have no reason to believe, and do not believe, that I possess it—if that were what you seek in this address, any one of your own number, or class, would be more able to furnish it.
You, perhaps, do expect me to give some general interest to the occasion; and to make some general suggestions, on practical matters. I shall attempt nothing more. And in such suggestions by me, quite likely very little will be new to you, and a large part of the rest possibly already known to be erroneous.
My first suggestion is an inquiry as to the effect of greater thoroughness in all the departments of Agriculture than now prevails in the North-West—perhaps I might say in America. To speak entirely within bounds, it is known that fifty bushels of wheat, or one hundred bushels of Indian corn can be produced from an acre. Less than a year ago I saw it stated that a man, by extraordinary care and labor, had produced of wheat, what was equal to two hundred bushels from an acre. But take fifty of wheat, and one hundred of corn, to be the possibility, and compare with it the actual crops of the country. Many years ago I saw it stated in a Patent Office Report that eighteen bushels was the average crop throughout the wheat growing region of the United States; and this year an intelligent farmer of Illinois, assured me that he did not believe the land harvested in that State this season, had yielded more than an average of eight bushels to the acre. The brag crop I heard of in our vicinity was two thousand bushels from ninety acres. Many crops were thrashed, producing no more than three bushels to the acre; much was cut, and then abandoned as not worth threshing; and much was abandoned as not worth cutting. As to Indian corn, and, indeed, most other crops, the case has not been much better. For the last four years I do not believe the ground planted with corn in Illinois, has produced an average of twenty bushels to the acre. It is true, that heretofore we have had better crops, with no better cultivators; but I believe it is also true that the soil has never been pushed up to one-half of its capacity.
What would be the effect upon the farming interest, to push the soil up to something near its full capacity? Unquestionably it will take more labor to produce fifty bushels from an acre, than it will to produce ten bushels from the same acre. But will it take more labor to produce fifty bushels from one acre, than from five? Unquestionably, thorough cultivation will require more labor to the acre; but will it require more to the bushel? If it should require just as much to the bushel, there are some probable, and several certain, advantages in favor of the thorough practice. It is probable it would develope those unknown causes, or develope unknown cures for those causes, which of late years have cut down our crops below their former average. It is almost certain, I think, that in the deeper plowing, analysis of soils, experiments with manures, and varieties of seeds, observance of seasons, and the like, these cases would be found. It is certain that thorough cultivation would spare half or more than half, the cost of land, simply because the same product would be got from half, or from less than half the quantity of land. This proposition is self-evident, and can be made no plainer by repetitions or illustrations. The cost of land is a great item, even in new countries; and constantly grows greater and greater, in comparison with other items, as the country grows older.
It also would spare a large proportion of the making and maintaining of inclosures—the same, whether these inclosures should be hedges, ditches, or fences. This again, is a heavy item—heavy at first, and heavy in its continual demand for repairs. I remember once being greatly astonished by an apparently authentic exhibition of the proportion the cost of inclosures bears to all the other expenses of the farmer; though I can not remember exactly what that proportion was. Any farmer, if he will, can ascertain it in his own case, for himself.
Again, a great amount of “locomotion” is spared by thorough cultivation. Take fifty bushels of wheat, ready for the harvest, standing upon a single acre, and it can be harvested in any of the known ways, with less than half the labor which would be required if it were spread over five acres. This would be true, if cut by the old hand sickle; true, to a greater extent if by the scythe and cradle; and to a still greater extent, if by the machines now in use. These machines are chiefly valuable, as a means of substituting animal power for the power of men in this branch of farm work. In the highest degree of perfection yet reached in applying the horse power to harvesting, fully nine-tenths of the power is expended by the animal in carrying himself and dragging the machine over the field, leaving certainly not more than one-tenth to be applied directly to the only end of the whole operation—the gathering in the grain, and clipping of the straw. When grain is very thin on the ground, it is always more or less intermingled with weeds, chess and the like, and a large part of the power is expended in cutting these. It is plain that when the crop is very thick upon the ground, the larger proportion of the power is directly applied to gathering in and cutting it; and the smaller, to that which is totally useless as an end. And what I have said of harvesting is true, in a greater or less degree of mowing, plowing, gathering in of crops generally, and, indeed, of almost all farm work.
The effect of thorough cultivation upon the farmer’s own mind, and, in reaction through his mind, back upon his business, is perhaps quite equal to any other of its effects. Every man is proud of what he does well; and no man is proud of what he does not do well. With the former, his heart is in his work; and he will do twice as much of it with less fatigue. The latter performs a little imperfectly, looks at it in disgust, turns from it, and imagines himself exceedingly tired. The little he has done, comes to nothing, for want of finishing.
The man who produces a good full crop will scarcely ever let any part of it go to waste. He will keep up the enclosure about it, and allow neither man nor beast to trespass upon it. He will gather it in due season and store it in perfect security. Thus he labors with satisfaction, and saves himself the whole fruit of his labor. The other, starting with no purpose for a full crop, labors less, and with less satisfaction; allows his fences to fall, and cattle to trespass; gathers not in due season, or not at all. Thus the labor he has performed, is wasted away, little by little, till in the end, he derives scarcely anything from it.
The ambition for broad acres leads to poor farming, even with men of energy. I scarcely ever knew a mammoth farm to sustain itself; much less to return a profit upon the outlay. I have more than once known a man to spend a respectable fortune upon one; fail and leave it; and then some man of more modest aims, get a small fraction of the ground, and make a good living upon it. Mammoth farms are like tools or weapons, which are too heavy to be handled. Ere long they are thrown aside, at a great loss.
The successful application of steam power, to farm work is a desideratum—especially a Steam Plow. It is not enough, that a machine operated by steam, will really plow. To be successful, it must, all things considered, plow better than can be done with animal power. It must do all the work as well, and cheaper; or more rapidly, so as to get through more perfectly in season; or in some way afford an advantage over plowing with animals, else it is no success. I have never seen a machine intended for a Steam Plow. Much praise, and admiration, are bestowed upon some of them; and they may be, for aught I know, already successful; but I have not perceived the demonstration of it. I have thought a good deal, in an abstract way, about a Steam Plow. That one which shall be so contrived as to apply the larger proportion of its power to the cutting and turning the soil, and the smallest, to the moving itself over the field, will be the best one. A very small stationary engine would draw a large gang of plows through the ground from a short distance to itself; but when it is not stationary, but has to move along like a horse, dragging the plows after it, it must have additional power to carry itself; and the difficulty grows by what is intended to overcome it; for what adds power also adds size, and weight to the machine, thus increasing again, the demand for power. Suppose you should construct the machine so as to cut a succession of short furrows, say a rod in length, transversely to the course the machine is locomoting, something like the shuttle in weaving. In such case the whole machine would move North only the width of a furrow, while in length, the furrow would be a rod from East to West. In such case, a very large proportion of the power, would be applied to the actual plowing. But in this, too, there would be a difficulty, which would be the getting of the plow into, and out of, the ground, at the ends of all these short furrows.
I believe, however, ingenious men will, if they have not already, overcome the difficulty I have suggested. But there is still another, about which I am less sanguine. It is the supply of fuel, and especially of water, to make steam. Such supply is clearly practicable, but can the expense of it be borne? Steamboats live upon the water, and find their fuel at stated places. Steam mills, and other stationary steam machinery, have their stationary supplies of fuel and water. Railroad locomotives have their regular wood and water station. But the steam plow is less fortunate. It does not live upon the water; and if it be once at a water station, it will work away from it, and when it gets away can not return, without leaving its work, at a great expense of its time and strength. It will occur that a wagon and horse team might be employed to supply it with fuel and water; but this, too, is expensive; and the question recurs, “can the expense be borne?” When this is added to all other expenses, will not the plowing cost more than in the old way?
It is to be hoped that the steam plow will be finally successful, and if it shall be, “thorough cultivation”—putting the soil to the top of its capacity—producing the largest crop possible from a given quantity of ground—will be most favorable to it. Doing a large amount of work upon a small quantity of ground, it will be, as nearly as possible, stationary while working, and as free as possible from locomotion; thus expending its strength as much as possible upon its work, and as little as possible in travelling. Our thanks, and something more substantial than thanks, are due to every man engaged in the effort to produce a successful steam plow. Even the unsuccessful will bring something to light, which, in the hands of others, will contribute to the final success. I have not pointed out difficulties, in order to discourage, but in order that being seen, they may be the more readily overcome.
The world is agreed that labor is the source from which human wants are mainly supplied. There is no dispute upon this point. From this point, however, men immediately diverge. Much disputation is maintained as to the best way of applying and controlling the labor element. By some it is assumed that labor is available only in connection with capital—that nobody labors, unless somebody else, owning capital, somehow, by the use of that capital, induces him to do it. Having assumed this, they proceed to consider whether it is best that capital shall hire laborers, and thus induce them to work by their own consent; or buy them, and drive them to it without their consent. Having proceeded so far they naturally conclude that all laborers are necessarily either hired laborers, or slaves. They further assume that whoever is once a hired laborer, is fatally fixed in that condition for life; and thence again that his condition is as bad as, or worse than that of a slave. This is the “mud-sill” theory.
But another class of reasoners hold the opinion that there is no such relation between capital and labor, as assumed; and that there is no such thing as a freeman being fatally fixed for life, in the condition of a hired laborer, that both these assumptions are false, and all inferences from them groundless. They hold that labor is prior to, and independent of, capital; that, in fact, capital is the fruit of labor, and could never have existed if labor had not first existed—that labor can exist without capital, but that capital could never have existed without labor. Hence they hold that labor is the superior—greatly the superior—of capital.
They do not deny that there is, and probably always will be, a relation between labor and capital. The error, as they hold, is in assuming that the whole labor of the world exists within that relation. A few men own capital; and that few avoid labor themselves, and with their capital, hire, or buy, another few to labor for them. A large majority belong to neither class—neither work for others, nor have others working for them. Even in all our slave States, except South Carolina, a majority of the whole people of all colors, are neither slaves nor masters. In these Free States, a large majority are neither hirers nor hired. Men, with their families—wives, sons and daughters—work for themselves, on their farms, in their houses and in their shops, taking the whole product to themselves, and asking no favors of capital on the one hand, nor of hirelings or slaves on the other. It is not forgotten that a considerable number of persons mingle their own labor with capital; that is, labor with their own hands, and also buy slaves or hire freemen to labor for them; but this is only a mixed, and not a distinct class. No principle stated is disturbed by the existence of this mixed class. Again, as has already been said, the opponents of the “mud-sill” theory insist that there is not, of necessity, any such thing as the free hired laborer being fixed to that condition for life. There is demonstration for saying this. Many independent men, in this assembly, doubtless a few years ago were hired laborers. And their case is almost if not quite the general rule.
The prudent, penniless beginner in the world, labors for wages awhile, saves a surplus with which to buy tools or land, for himself; then labors on his own account another while, and at length hires another new beginner to help him. This, say its advocates, is free labor—the just and generous, and prosperous system, which opens the way for all—gives hope to all, and energy, and progress, and improvement of condition to all. If any continue through life in the condition of the hired laborer, it is not the fault of the system, but because of either a dependent nature which prefers it, or improvidence, folly, or singular misfortune. I have said this much about the elements of labor generally, as introductory to the consideration of a new phase which that element is in process of assuming. The old general rule was that educated people did not perform manual labor. They managed to eat their bread, leaving the toil of producing it to the uneducated. This was not an insupportable evil to the working bees, so long as the class of drones remained very small. But now, especially in these free States, nearly all are educated—quite too nearly all, to leave the labor of the uneducated, in any wise adequate to the support of the whole. It follows from this that henceforth educated people must labor. Otherwise, education itself would become a positive and intolerable evil. No country can sustain, in idleness, more than a small per centage of its numbers. The great majority must labor at something productive. From these premises the problem springs, “How can labor and education be the most satisfactorily combined?”
By the “mud-sill” theory it is assumed that labor and education are incompatible; and any practical combination of them impossible. According to that theory, a blind horse upon a tread-mill, is a perfect illustration of what a laborer should be—all the better for being blind, that he could not tread out of place, or kick understandingly. According to that theory, the education of laborers, is not only useless, but pernicious, and dangerous. In fact, it is, in some sort, deemed a misfortune that laborers should have heads at all. Those same heads are regarded as explosive materials, only to be safely kept in damp places, as far as possible from that peculiar sort of fire which ignites them. A Yankee who could invent a strong handed man without a head would receive the everlasting gratitude of the “mud-sill” advocates.
But Free Labor says “no!” Free Labor argues that, as the Author of man makes every individual with one head and one pair of hands, it was probably intended that heads and hands should cooperate as friends; and that that particular head, should direct and control that particular pair of hands. As each man has one mouth to be fed, and one pair of hands to furnish food, it was probably intended that that particular pair of hands should feed that particular mouth—that each head is the natural guardian, director, and protector of the hands and mouth inseparably connected with it; and that being so, every head should be cultivated, and improved, by whatever will add to its capacity for performing its charge. In one word Free Labor insists on universal education.
I have so far stated the opposite theories of “Mud-Sill” and “Free Labor” without declaring any preference of my own between them. On an occasion like this I ought not to declare any. I suppose, however, I shall not be mistaken, in assuming as a fact, that the people of Wisconsin prefer free labor, with its natural companion, education.
This leads to the further reflection, that no other human occupation opens so wide a field for the profitable and agreeable combination of labor with cultivated thought, as agriculture. I know of nothing so pleasant to the mind, as the discovery of anything which is at once new and valuable—nothing which so lightens and sweetens toil, as the hopeful pursuit of such discovery. And how vast, and how varied a field is agriculture, for such discovery. The mind, already trained to thought, in the country school, or higher school, cannot fail to find there an exhaustless source of profitable enjoyment. Every blade of grass is a study; and to produce two, where there was but one, is both a profit and a pleasure. And not grass alone; but soils, seeds, and seasons—hedges, ditches, and fences, drain-ing, droughts, and irrigation—plowing, hoeing, and harrowing—reaping, mowing, and threshing—saving crops, pests of crops, diseases of crops, and what will prevent or cure them—implements, utensils, and machines, their relative merits, and how to improve them—hogs, horses, and cattle—sheep, goats, and poultry—trees, shrubs, fruits, plants, and flowers—the thousand things of which these are specimens—each a world of study within itself.
In all this, book-learning is available. A capacity, and taste, for reading, gives access to whatever has already been discovered by others. It is the key, or one of the keys, to the already solved problems. And not only so. It gives a relish, and facility, for successfully pursuing the yet unsolved ones. The rudiments of science, are available, and highly valuable. Some knowledge of Botany assists in dealing with the vegetable world—with all growing crops. Chemistry assists in the analysis of soils, selection, and application of manures, and in numerous other ways. The mechanical branches of Natural Philosophy, are ready help in almost everything; but especially in reference to implements and machinery.
The thought recurs that education—cultivated thought—can best be combined with agricultural labor, or any labor, on the principle of thorough work—that careless, half performed, slovenly work, makes no place for such combination. And thorough work, again, renders sufficient, the smallest quantity of ground to each man. And this again, conforms to what must occur in a world less inclined to wars, and more devoted to the arts of peace, than heretofore. Population must increase rapidly—more rapidly than in former times—and ere long the most valuable of all arts, will be the art of deriving a comfortable subsistence from the smallest area of soil. No community whose every member possesses this art, can ever be the victim of oppression in any of its forms. Such community will be alike independent of crowned-kings, money-kings, and land-kings.
But, according to your programme, the awarding of premiums awaits the closing of this address. Considering the deep interest necessarily pertaining to that performance, it would be no wonder if I am already heard with some impatience. I will detain you but a moment longer. Some of you will be successful, and such will need but little philosophy to take them home in cheerful spirits; others will be disappointed, and will be in a less happy mood. To such, let it be said, “Lay it not too much to heart.” Let them adopt the maxim, “Better luck next time;” and then, by renewed exertion, make that better luck for themselves.
And by the successful, and the unsuccessful, let it be remembered, that while occasions like the present, bring their sober and durable benefits, the exultations and mortifications of them, are but temporary; that the victor shall soon be the vanquished, if he relax in his exertion; and that the vanquished this year, may be victor the next, in spite of all competition.
It is said an Eastern monarch once charged his wise men to invent him a sentence, to be ever in view, and which should be true and appropriate in all times and situations. They presented him the words: “And this, too, shall pass away.” How much it expresses! How chastening in the hour of pride!—how consoling in the depths of affliction! “And this, too, shall pass away.” And yet let us hope it is not quite true. Let us hope, rather, that by the best cultivation of the physical world, beneath and around us; and the intellectual and moral world within us, we shall secure an individual, social, and political prosperity and happiness, whose course shall be onward and upward, and which, while the earth endures, shall not pass away.