Front Page Titles (by Subject) SECTION 10.: BANK DECISION—COMMON DEFENCE AND GENERAL WELFARE—NECESSARY AND PROPER—CONVENIENT—NATIONAL. - Construction Construed and Constitutions Vindicated
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SECTION 10.: BANK DECISION—COMMON DEFENCE AND GENERAL WELFARE—NECESSARY AND PROPER—CONVENIENT—NATIONAL. - John Taylor, Construction Construed and Constitutions Vindicated 
Construction Construed and Constitutions Vindicated (Richmond: Shepherd and Pollard, 1820).
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BANK DECISION—COMMON DEFENCE AND GENERAL WELFARE—NECESSARY AND PROPER—CONVENIENT—NATIONAL.
I turn with sorrow from the construction of an entire system, to the science of verbality; from a consistency of meaning, to the artifice of verbalizing a single word, to destroy that consistency; and proceed to examine a mode of managing controversies, into which prejudice, ambition and self-interest continually strive to drag reason. The frippery of precedents, like the tinsel patched upon lord Peter’s coat; here a bank, there a road, yonder a canal, bounties for these, their payment for those, now an epaulet of sovereignty, and then another of supremacy, may bespangle our form of government with armorial ensigns of despotism, and yet leave much of its original substance perceivable; but the art of verbalizing single words into a different system, may render the constitution as unintelligible, as a single word would be made by a syllabick dislocation, or a jumble of its letters; and turn it into a reservoir of every meaning for which its expounder may have occasion. I admit that wise and good men may entertain a great respect for the British form of government; and may conscientiously believe, that it would improve the constitution of the United States to draw it by construction towards that model: but yet I contend it would be proceeding too impetuously, to borrow its modes of construction practised in its most oppressive periods, and resisted by its best patriots.
In the time of James the second, all the judges of England (except one) decided “that the laws of England were the king’s laws. That it is an inseparable branch of the prerogative of the kings of England, as of all other sovereign princes, to dispense with all penal laws in particular cases, and on particular occasions. That of these reasons and necessity the king is the sole judge. That this is not a trust now invested in and granted to the present king, but the ancient remains of the sovereign power of the kings of England, which was never taken from them, nor can be.” Is not this decision a parallel both in language and substance with the decision of the court, and a complete precedent for its defence, except that the mode of construction it adopts is no longer justified in England? The harmony between the words “sovereignty, particular cases, prerogative, reasons and necessity,” used by the English judges, and the words “spherical sovereignty, supremacy, convenience and necessity,” used by the decision, strikes the ear, and settles in the understanding. Prerogative arises out of the king’s sovereignty; supremacy out of the spherical sovereignty given to congress. This sovereign power of the kings could not be taken away; that of congress may remove all obstacles to its action. Of particular cases, occasions, reasons and necessity, the king by virtue of his prerogative arising out of his sovereignty, is declared to be the sole judge; of convenience and necessity, congress in virtue of its supremacy, arising out of spherical sovereignty, is declared to be the sole judge. The king may dispense with the penal laws of England; but the decision does not declare that congress may dispense with the constitution. It only invests congress with a spherical sovereignty begetting a supremacy for removing all obstacles to its action, and establishes the premises producing the conclusion, that congress may dispense with the rights reserved to the states. The English judges reasoned illogically, by inferring only from their premises that the king could dispense with penal laws; but the decision of the court, rejecting an error so apparent, does not limit the supreme power of congress, but leaves it co-extensive with the premises asserted. Thus, as the king’s sovereignty made the laws of England his laws, so the supremacy of congress makes the constitution of the United States, its constitution.
Though this mode of construction be exploded in England, yet as it is revived here, I shall endeavour to bestow on it the consideration merited by its consequences.
“To provide for the common defence and promote the general welfare,” powers are bestowed upon the federal government, with a right to make all laws which shall be necessary and proper for carrying the delegated powers into execution. Some sound principle, sufficient to ascertain the true construction of these expressions, ought to be settled. The constitution consists of correlative rights and duties, divided between the state and federal governments; and neither allotment was intended to become the prey, directly or indirectly, of the other. This division was a limitation of the powers of both, and the laws to be made by either could not violate it, because a legal power in either of that character would have rendered the division itself utterly inefficient. The federal government cannot diminish the right of taxation reserved to the states, nor the state governments, the right of taxation delegated to the federal government, because these rights clash; since their clashing being foreseen as certain, was not intended to be prevented by the division. The division of powers was not intended to be subordinate to a clashing of rights, but a clashing of rights was intended to be subordinate to the division of powers. These positions are entirely reversed, if either party received with its share of powers a supremacy able by inferences to be made by itself, to remove all obstacles to its action; because all the clashings of powers, certain, foreseen, and not provided against by the constitution, would become accessions of power to the construing party and defeat the division itself. It would be exactly the case, as if the senate or house of representatives, between whom powers are divided and clashings arise, as in all such divisions, should either of them usurp a supremacy over the other, to remove the obstacles to its action, produced by these clashings. The ideas of limited powers and unlimited inferences being irreconcilable, any construction of particular words or phrases, which would unlimit the limitations expressed, is unconstitutional, if the constitution intended to make any substantial division of power. The field of expediency and convenience belonged exclusively to the framers of the constitution, and was shut by the constitution, against the trustees subsequently appointed to execute it, because otherwise it would have been no constitution at all.
The principle “that clashings of rights are subordinate to divisions of power” is applicable to the structure of the state and federal governments, and restrains their legislative, executive and judicial departments within their proper orbits. If either could make the rights of a co-ordinate department subordinate to itself, by inference or expediency, those constitutional divisions of power would be destroyed. I therefore contend, that no construction of particular words or phrases can change or abolish the division of power between the state and federal governments, without changing or abolishing an essential principle of the constitution itself.
It seems to me, that constitutional law, enacted by the people, is as binding upon political departments, as civil law is upon individuals; and that none of these departments have any better right to discharge themselves from its observance by the plea of convenience, than an individual would have to disobey a civil law under the same plea.
The states united “to provide for the common defence and the general welfare.” The words “common and general” can only refer to the parties uniting, and these were the states. Therefore, if these words bestowed any power, instead of only reciting the ends intended to be accomplished by the union and its terms, it could only extend to interests “common and general” to all the parties, in their state associated individuality. But they have been construed as conveying some local and internal powers over persons and things, and if they convey any, it must be admitted that they bestow all powers of this character. To determine the propriety of this construction, we can only advert to the nature and compass of the powers delegated to the federal government, and reserved to the states. No power is given to the general government to pass a law for the regulation of private property, or the security of personal rights; therefore, “common defence and general welfare” did not include these important objects of welfare and defence; and they are provided for in the reservation to the states, because they are not included by these terms. These terms of course have in view the defence and welfare of the states, as states, and not the internal government of the individual states. The provisions of the constitution, in relation to foreign nations and domestic insurrections, are analogous to this construction. Had these words conveyed power, there would have been no occasion for the provision in the case of insurrection; and this special power of internal interposition, excludes a general power of the same tenour. A similar exclusion is contained in the special power bestowed upon congress to legislate for the ten miles square “in all cases whatsoever.” As this anomalous district would lose state care and protection, it is thus specially provided for, because the words under consideration gave no power to the federal government. Had they done so, no specification of federal powers would have been necessary; and if they do so, the subsequent specifications mean nothing. Under the first supposition, the convention needed only to have organized the government after the first clause of the constitution, to take care of the common defence and general welfare, which would have comprised unlimited power. And if the second supposition be true, then a catalogue of powers was superfluous, because these words covered both those specified, and all others not specified, which might advance the general welfare. It follows, either that these words convey no power, or that the subsequent definitions of the powers delegated restrict their meaning. In fact, they are obviously introductory, and not decretal. The ends in view are recited, and then follow the means for effecting those ends. If these means should prove to be insufficient, the constitution, far from confiding to its officers a power to supply deficiencies, provides for the occurrence. In all questions, therefore, concerning banks, roads, canals, taxes, agriculture, manufactures and internal or local prosperity, the construction of the constitution ought to be confined to its decretal sections. In these we find two concurrent provisions. Both congress and the state governments may tax the same property and suppress the same insurrections. And the specification of these two instances of a concurrent power excludes the idea of a concurrency of power, in the other enumerated cases.
But, if the sweeping powers said to be conveyed by the introductory clause of the constitution cannot be proved, their absence is said to be nearly supplied, by the power given to congress to make all laws, “which shall be necessary and proper for carrying into execution the foregoing powers.” I shall endeavour to prove that these words, far from enlarging, restrict the legislative power of congress; and that, coupled with other parts of the constitution, they also limit the jurisdiction of the federal courts. 1. They expressly limit the legislative power of congress to laws necessary and proper for executing the delegated powers, and bestow no authority to assume powers not delegated. 2. The jurisdiction of the federal courts under laws, is limited to “the laws of the United States,” meaning such laws as these states by their representatives in congress have a right to enact. They have only a right to enact laws “for carrying into execution the delegated powers.” 3. Congress have no power to enact laws “necessary and proper for carrying into execution” the powers reserved to the states, as their legislative powers are limited to the foregoing or delegated powers; and in cases concerning which congress have no power of legislation, the federal courts have no jurisdiction. 4. The states possess an exclusive legislative power with respect to the powers reserved to them, with the appurtenant right of passing all laws, which shall be necessary and proper for carrying into execution such reserved powers. 5. The jurisdiction of the state courts is limited to the execution of the laws which the state governments have a right to pass, as the jurisdiction of the federal courts is limited to the laws which congress have a right to pass; and neither of these courts can derive any powers from laws, which the respective legislatures under which they act have no right to pass.
The remarks, in defence of these propositions, must be more concise than their importance merits. The division of delegated and reserved powers between the federal and state legislatures would have been quite nugatory, without a division of the right of legislation respecting them; and except for both divisions, the principles of representation adopted by the federal government would never have been approved of. These are calculated for external objects, or objects common to all the states, as to which a consentaneous interest and feeling would prevail among the representatives; and in the power of taxation necessarily bestowed on congress, precautions are taken to prevent the ill consequences which might be produced by the absence of those ingredients, necessary to secure legislative impartiality. These precautions shew, that the framers of the constitution were conscious, that the principles of representation in congress were so defective as to require some safeguard beyond the usual confidence in representation, against the abuse, even of a power of taxation for the benefit of the union. The constitution contains no provision whatsoever for the exercise of the rights reserved to the states, nor any stipulation respecting it. Can it be imagined, that, having expressly placed them without the compass of the compact between the states, it meant impliedly to bring them back under the power of congress, without subjoining any provision for its defective form of representation, as in the case of taxation? Numerous and important powers and rights are reserved to the states, to secure which the members of congress are bound by no sanction, nor any sympathy. The slave question, and the unlimited right of taxation reserved to the states, are among the number. Mutual prejudices, separate interests, different circumstances, and want of local information, all operate against the idea that the constitution intended to invest congress impliedly with a power of local and internal legislation. But arguments abound to prove, that the representation in congress is devoid of every principle of representation, in respect to these objects, or the powers reserved to the states. Local laws, passed by the representation in congress, could only operate upon the representatives of a single state. The sufferers under such laws could not by election influence the legislature. The qualifications, required by state constitutions in legislative representatives, would be wholly abolished. The necessity of residence would be superseded. In short, the representatives from Georgia in congress might legislate as to the local and internal concerns of Massachusett’s bay. Every relation between constituents and representatives would be violated by a power of local or internal legislation in congress. Both in theory and practice, it would approach near to that detestable virtual representation, under which the British parliament claimed a power of local and internal legislation over the colonies. Implied, inferred, and virtual representation, are substantially equivalent. No express power was given to congress to legislate in reference to local or internal objects, or to objects reserved to the states; because that body was not organized by any representative principle in reference to these objects. All the reasons which excluded an express, exclude an implied power of local and internal legislation. Implication cannot transform congress into a representation of local state rights, when they are not so recognized by the constitution, and are devoid of every quality and character of such a representation. In legislation they are therefore limited to the delegated powers, in the execution of which they have no right to usurp any power of local or internal legislation, as in the cases of roads and banks, because there is not in that body any species of local representation.
The acquisition of powers either not delegated, or inconsistent with the powers reserved to the states, or incongruous with the nature of the representation in congress, must all be very different from the execution of the powers bestowed. Congress may “make all laws which may be necessary and proper for carrying into execution the foregoing powers.” Suppose the clause had thus proceeded. “And may also invest themselves with other powers by implication, inconsistent with the principles of representation.” Would this addition have altered its meaning? If so, what does it mean as it stands? If I have proved that the powers of congress cannot, under colour of legislating for the execution of the powers delegated, be extended to powers not delegated and reserved, it follows that the jurisdiction of the federal courts cannot be extended by a species of legislation which is unconstitutional and void. The special objects of jurisdiction given to the federal judicial power, have no connexion with their jurisdiction founded upon the laws of congress. An act or law of congress, which is unconstitutional, is agreed to be no law at all. Suppose congress should pass a law to liberate the slaves of a particular state, or to give the land of A to B? Would the federal courts derive jurisdiction from it, or would the state courts retain their exclusive jurisdiction between the people or citizens of their own state? But is there not an appellate jurisdiction lodged in the federal supreme court, able to reach cases in which the federal judicial powers have no original jurisdiction? The reasoning upon this point seems to be superseded by a complete perspicuity in the constitution. We have seen, that the legislative power of congress is limited to the delegated powers, and that the federal judicial power under the laws of congress only extend to such as come within the limitation. Such is its original jurisdiction. The constitution declares, “that the appellate jurisdiction of the supreme court,” shall extend to the cases before mentioned. The jurisdiction arising under a law of congress is that, with which the argument is concerned. To bestow the original jurisdiction, the law must conform to the delegated powers. Therefore, the appellate jurisdiction cannot take cognizance of a case, in which the original jurisdiction has none. The federal courts derive no jurisdiction from state laws. Their jurisdiction, arising from law, is limited to laws passed by congress in conformity with the delegated powers. On the contrary, the jurisdiction of the state courts is limited to state laws in conformity with the reserved powers. Neither of these courts has an appellate jurisdiction from the other. As the federal and state legislatures have a right to legislate within their respective orbits, independently of each other, the respective judicial powers have a right to execute these independent laws, independently also of each other. It is said, that some supreme power is necessary to prevent collisions. A saying of the Marquis of Halifax (a man renowned for understanding) recorded by Wrangham, fits our case. “The word necessary, is miserably applied; it disordereth families and overturns governments by being abused.” Necessities are, strictly, things unavoidable. In practice, they may be divided into absolute or imaginary. In relation to the principles of government, they are all of the latter class, as governments are capable of endless modifications. In this case they are only expedients. The plain question, divested of verbal evolutions, is, whether congress are invested with the supreme power of altering or mending the constitution, should they imagine it to be expedient? The same management is used to excite the doubts, which have been laid hold of to produce a radical change in our constitution. As necessity is used instead of expediency, collision is used instead of check, whereas in political effect they are essentially the same. A supreme power able to abolish collisions, is also able to abolish checks, and there can be no checks without collisions. The checks resulting from the co-ordinacy of the lords and commons of England, could not produce any good, if a political department existed able to controul those collisions, and much less, if one of these bodies possessed a supremacy over the other. In that country, checks attended with collisions, are preferred to subordination, under a very imperfect supremacy, hardly acknowledged or capable of acting, called publick opinion. Here, also, we have preferred checks and collisions, to a dictatorship of one department, under the supremacy of the people, fully acknowledged, and acting without difficulty. If the inconvenience of collisions between coordinate political departments begets a necessity for the supremacy of one, and this necessity will justify its assumption, the scheme of checks and balances is entirely chimerical, and a political fabrick built upon that theory must fall. Necessity, inference and expediency never fail to beget an endless successive progeny. Roads are necessary in war; therefore congress may legislate locally concerning roads. Victuals, manufactures, and a certain state of national manners, are more necessary in war; therefore congress may legislate locally, concerning agriculture, manufactures and manners. The favour of the Deity is more necessary than either; therefore congress may provide salaries for priests of all denominations, in order to obtain it, without infringing the constitutional prohibition against an establishment; or they may incorporate sects, and exempt them from taxation. Roads are more necessary for collecting taxes than even banks. Taverns are very necessary or convenient for the officers of the army, congress themselves, the conveyance of the mail, and the accomodation of judges. But horses are undoubtedly more necessary for the conveyance of the mail and for war, than roads, which may be as convenient to assailants as defenders; and therefore the principle of an implied power of legislation, will certainly invest congress with a legislative power over horses. In short, this mode of construction completely establishes the position, that congress may pass any internal law whatsoever in relation to things, because there is nothing with which, war, commerce and taxation may not be closely or remotely connected; and the constitution does not contain any prohibited degrees of consanguinity. The personal departments established by the state constitutions seem indeed to be without the scope of this mode of construction, which can only strip them of their whole wardrobe of rights, and reduce them to a sort of naked political skeletons.
I see no end to the power of necessity, armed with supremacy. It seems already to have carried us nearly a thousand years backwards in the science of political justice. In 846, Ethel-wolf established tythes, and exempted the property of the clergy from taxation. Bankers are said to be useful and convenient to the government. The established clergy are still thought so by the English government. Governments and nations very often differ in opinion as to conveniences.
The argument of collision would reach a multitude of cases. As an instance. It has been judicially and practically established, that both congress and the state governments have a right to tax carriages. Suppose the states should impose a tax on them amounting to a prohibition. Would this state law be void, because it might defeat the law of congress? Collisions between concurrent and co-ordinate powers, are natural and certain, and must have been foreseen by the framers of the constitution. Moderation and the people, are the only arbiters they thought safe or necessary. But a conflict between a positive and an implied power, is the question we are considering. Can the latter abrogate the former under any pretext whatsoever?
Let us consider the subject in this new light with some attention. The natural rights of nations, in respect to each other, are more evident, better understood, and more universally recognized, than the rights of individual men; because a nation can more conveniently exist independently of other nations, than one man can of other men. Accordingly they are acknowledged by all political writers to confer on nations the character of individuality, and the utmost degree of independence, of which human nature is susceptible. The United States, whilst provinces, were imperfect nations. Under charters, they obtained and exercised a separate and distinct national character, in relation to internal affairs, yielding to Great Britain the management of their external national rights. By the revolution, each state became a perfect individual nation, possessed of all the natural rights of nations. As perfect nations, they have entered into two confederations, both influenced by the principles to which as colonies they were willing to have conformed in a union with Britain. By these confederations, they relinquished several national rights, and retained all not relinquished. As to their natural rights retained, they remain perfect nations; or in other words, their national individuality and independence of each other, respecting these rights, are unchanged. A conveyance of one portion of an estate, by metes and bounds, does not impair the title to the portion not conveyed, especially if attended with a positive reservation. Had they entered into a similar union with Britain, their internal and local rights must have been specified, as not having been settled; and they would have been justified in asserting and maintaining the specifications against any implications, for which an assumed British supremacy, or the appellate jurisdiction of the king in council might have contended. But, no specification of the state rights reserved was necessary in establishing our union, because these rights were not conceded, as being national and antecedent to the compact. Being natural and national rights, and also never delegated, but reserved, they are held by the states in their original character, as perfect national rights. This amounts to a plain specification of the powers of the states, and a positive prohibition bearing upon those of congress. The conflict, therefore, is not between implication and implication, but between specification and implication. Ought the positive stipulations of contracts to be supplanted by doubtful conjectures? “Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the delegated powers,” says the constitution; and also, subjoins the implication, “power to make all laws necessary and proper to contract the powers reserved to the states.” The chief forces on the two sides of the question are thus opposed. The states are armed with their original national rights; congress with conventional rights. The states have a natural right to make all necessary and proper laws within their national powers reserved; congress a right of legislation limited to delegated powers. Implied powers may be as copiously extracted from the rights of the states, as from those of congress; but if their absolute and conventional powers are independent of each other, their powers by implication must also be liable to the same limitation. If congress cannot directly contract the state power of taxation, being a national right, they cannot have an implied power to do it indirectly. But if congress can by implication assume a power of passing any local or internal law beyond the specifications of the constitution, it must be admitted that they have a right to undertake the care of state prosperity in relation to agriculture, manufactures, private property, corporations, roads and canals; as it is impossible to find a justification for one case, which will not extend to the others. Suppose the clashing laid hold of, for introducing a catalogue of implied powers, under the supremacy of the very power intended to be checked, was not between specification and implication, but between specification and specification. This supposition places the subject upon much stronger ground in favour of the doctrine of implied powers, in congress only (forgetting the equal right of the states to them,) than has been yet taken. Congress have no specified power to create a corporation, but they have one to impose a tax on stills and whiskey. It will not be denied that the states have a concurrent power to tax the same objects. Suppose they should impose on them a tax amounting to a prohibition. It would defeat a law passed by congress for taxing them. This would be a conflict between specification and specification, or between two powers, undoubtedly residing in the respective governments. Could the federal court defeat the state law, upon the ground “that the states have no right by taxation or otherwise, to retard, impede, burden, or in any manner controul the operations of the constitutional laws enacted by congress,” as the court has declared? In this case the law of congress would be constitutional, and the argument deducible from it surrenders the objection arising from the unconstitutionality of the bank law. If the question be answered in the negative, it follows, that if no power resides in congress or the federal court to abrogate a constitutional state law, thus impeding and controuling a constitutional law of congress, the argument is insufficient in every other similar case. And if I am not mistaken in the reason of its insufficiency, neither the constitutionality of the law passed by congress, nor its impediment nor controul by the state law, ought to have any weight upon the subject. This reasoning establishes an essential conclusion, towards which all my arguments have been directed. It is this. Powers are delegated or reserved both to the state and federal governments to make laws. Under the concurrent power of taxation, they may each pass a law, both of which may be constitutional, and yet these laws may clash with, or impede each other. The same thing may happen in many other cases. For this clashing the constitution makes no provision. The right of passing constitutional laws which clash with the constitutional laws of congress, is not prohibited to the states; nor is the right of passing constitutional laws, which may clash with the constitutional laws of the states, prohibited to congress; because the evil of clashing, balanced, or checked powers, appeared to its framers, to be inconsiderable, compared with that of an absolute supremacy. I have called the first an evil, in a spirit of concession, but I think it the only security for the whole catalogue of social blessings; and not to be counterpoised by a concentrated supremacy, which would be obviously a step towards consolidation and despotism. As the constitution has not provided for the clashing of constitutional laws, it may safely be demanded, by what authority either the state or federal legislative or judicial power, can abrogate one constitutional law because it clashes with another? After the people have invested two legislatures with the power of passing laws within specified orbits, who but themselves can circumscribe those orbits? If the constitutional rights and powers, established by the people between legislative, executive and judicial departments, and between state and federal departments, do in the language of the court retard, impede, burden or controul each other, where does the authority lie for removing the inconvenience, admitting it to be one; in the people, or in an implied supremacy of one of these departments, intended by the people to be controuled? If in the latter, the constitution is exposed to be altered by laws or adjudications without restraint. If in the former, then it can never be a question before any judicial department, whether a law is void because it retards, impedes, burdens or controuls another law; and the only chaste question is, whether or not the obstructing law is itself constitutional. Supposing then the bank law to be constitutional, and also that the national right of the states to impose internal taxes is not surrendered, and of course constitutional also, neither congress nor their courts can modify this state power without invading the sovereignty of the people.
In some of the West India islands, as I have heard, the power of an executor extends to all the testator’s estate, real and personal; and to such an extent has legal chicanery been carried, that he can easily cheat the devisees out of the whole. A rich father on his death bed informed an only son, that he had given a moderate legacy to one of his friends and appointed him his executor, but that he had devised to him (the son) the whole residue of his estate. The son, thanking his father for his good intentions, but recollecting the sophistry so successfully practised on behalf of executors, besought him to alter the will, to give him the small specifick legacy with the appointment of executor, and to make his friend residuary legatee. The federal government is the specifick, and the states the residuary legatee. If the former can transfer to itself such portions of the residuary estate as it pleases, either by its own will, or by judges appointed, paid and removable by itself, the fate of the latter must be that of a West India residuary legatee. I know of nothing, equivalent to this West India precedent, more in point for construing our constitution, so as to transfer the residuary estate to the special legatee. And yet even this precedent does not go far enough. The legal power of the executor extended to the whole estate, whereas the constitutional power of congress is prohibited from touching the powers reserved. Much less ingenuity was therefore necessary to hold a legal possession contrary to justice, than to acquire possession contrary to law. The executorial power of this country is more like the power of congress. It does not extend to real estate. When an executor or administrator here shall deprive the heirs or devisees of their lands, we shall have a better precedent for establishing the right of congress or the federal courts, to deprive the states, or rather the people, of their natural, national and reserved rights. These are truly their real estate, far surpassing in value the administration of external concerns.
The court, probably without intending it, seem to me to have advanced a position which fully justifies the ground I have taken. They say, “let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” It is plainly intimated in this extract, that whatever is constitutional, is valid; and of course conceded, that in a conflict between two constitutional acts, neither can have any sovereignty over the other. The court indeed in advancing this doctrine, seems only to have turned its eye towards the constitutionality of the acts of congress, overlooking entirely the constitutionality of the acts of the state governments. But if constitutionality bestows validity, and if the state governments, and other political departments can perform constitutional acts, then the validity of these acts rests upon the same foundation, with the validity of the acts of congress. By “ends” the court seems to understand expressed powers, and by “means” the execution of those expressed powers. What then are the powers expressed? Undoubtedly, those delegated and those reserved. Unless the reservation be an expression of powers, it can mean nothing. What are these powers? They can be none others, but the national rights not surrendered. Taxation is one of these: or rather the support of the state governments by revenue may be called the end, and taxation the means. This end is legitimate, within the scope of the constitution; the means are appropriate and plainly adapted to the end, not prohibited and consist with the spirit and letter of the constitution.
The constitution has involved ends and means, in such a manner, as to prove that it never intended that the latter should beget any ends inconsistent with its great principle, express letter, and obvious spirit; all uniting to establish a line between external and internal powers. The power of declaring war is an end for which the federal government was instituted, and nothing could be more necessary for carrying this end into execution, than to raise armies, support them, and to make rules for their government. Yet these means are not left to be implied as necessary for the execution of the end. The reason I take to be this. Wherever the means, such as taxation for the support of armies, and a code of military laws, would trench upon or circumscribe the national rights inherent in the states, they are expressed and constituted into a delegated power. If such was the reason for specifying means of this character, so necessary in war, it follows that no means of the same character, namely, such as subtract from the national state rights, were intended to be inferred from necessity.
But the court, apparently wanting confidence in the words necessary and proper, as being under an expressed restriction, and subjected to a comparison with all the other parts of the instrument, in which they are used; in order to determine their meaning, have taken a ground so comprehensive, and so adequate to the defence of any acquisition of unconstitutional powers by congress, that if it be solid, every thing hitherto said is immaterial. They add to the last extract, as conclusively responsive to its doctrine, “that banking is a convenient, a useful, and essential instrument in the prosecution of fiscal operations, is not now a subject of controversy.” Of course a syllogism bounces unexepectedly upon us, out of the two extracts. Fiscal operations are within the powers of congress, and all means appropriate to that end are constitutional; banking is a means convenient, useful and essential to fiscal operations; the conclusion is inevitable. But this interpolation of the words, “convenient, useful and essential,” into the constitution, is in my view not even a plausible argument. It is merely a tautology of the phrase “necessary and proper,” but excluding the restriction attached to the latter. If the tautology may be fairly used, it can only be as an illustration, since the word “proper” is equivalent to “convenient and useful” so far as they are applicable, and “necessary” to “essential.” “Proper” indeed has a reference to the impropriety of swerving from the constitution, and the substitution of words otherwise equivalent may be so far ingenious. The substitution, however, is not a correct illustration of the constitution without the restriction. To reason from it, the court ought to have stated it thus. Congress may pass all laws, which shall be “convenient, useful and essential” for carrying into execution the foregoing powers. Thus stated, all the arguments, used in reference to “necessary and proper,” plainly apply to the substituted words. And if no power, expressed or implied, be given to congress by the words used, to abrogate constitutional state laws, or to travel out of its delegated orbit into the reserved orbit, I think I may assert, that it cannot derive this power from the substituted words.
But whatever use can be made of these substituted words, it surely cannot appertain exclusively to the delegated powers, and must extend also to those reserved. These would be quite nugatory, under a prohibition to resort to that which was convenient, useful and essential for their execution or preservation. And the constitution having divided and balanced the powers between the federal and state governments, has united itself with common sense in dividing and balancing means, words, phrases and implications, by not investing either department with an exclusive use of these implements necessary to its existence; foreseeing that powers in either case divested of means, would be inefficient; but it did not intend that either should destroy the other with its means, though prohibited from doing it with its powers.
It is easy to see, that the court have erected a climax by the words “convenient, useful and essential,” to unite an extension of power with an apparent adherence to the words of the constitution. We are gently led along from convenient to essential, as if all the three words were legitimate, because of the resemblance in the last to the word “necessary.” Considering all three as restricted by the words “foregoing powers,” this is not very material; but yet, as the incorporating power of congress is deduced from these substituted words, the expediency of banking thus asserted by the court cannot be wholly passed over. I shall, therefore, subjoin a short catalogue of its inconveniences.
The court, with candour and justice, has limited the power of congress to create banks, to the circumstance of their being “convenient, useful and essential to fiscal operations,” and forborne to urge their general utility as a reason for the exercise of that power, because it was conscious that the country was not ripe for that doctrine; or that the constitution did not authorise the extension of federal power, upon the ground of internal social expediency; and therefore, it was necessary to hook every implied, to some delegated power. Banking is of course suspended to fiscal operations. As to these, the eulogy is consequently wholly pecuniary; and can have no other meaning, than that banking will save publick money, by the facility with which it can be transmitted. And I admit that pecuniary frugality is convenient, useful and even essential to republican governments. This solitary argument for investing congress with the right to incorporate banks, if it can overthrow all those I have advanced, depends yet upon the fact, to which I shall therefore call the reader’s attention.
The depreciation of money caused by banking, has been repeatedly and successfully urged both under the state and federal governments, as a reason, for an increase of wages and expenditure; and has considerably aggravated taxation, both state and federal. Whatever increase of wages or expenditure has been produced by banking, has been nearly a total loss to the nation, unless it can be proved, that an increase of taxation is a publick benefit; a doctrine, which all governments have inculcated, and no nation has yet believed. The reader must compute the extent of this increased taxation, both state and federal, for himself. I can only furnish him with two facts. The federal expenditure in the time of Washington amounted to about three millions annually, and in that of Jefferson to about six. At the first epoch, the United States were paying the interest of their debt; at the second, both the interest and a portion of the principal. Now, the expenditure of the federal government exceeds twenty-five millions. The same candour which will admit, that only a portion of this rapid increase of taxation is attributable to banking, must also allow that much of it is so. I compute the additional taxation, state and federal, thus derived, at not less than five millions annually; paid for the facility of transmitting the publick money from one place to another. Neither our army, nor our navy costs so much. Whatever is the amount, it undoubtedly is directly the reverse of fiscal convenience or utility; that is, in regard to the nation; for I know that it is not rare for governments to consider an increase of taxation as “a convenient, useful and essential instrument in the prosecution of fiscal operations,” and that banking has therefore been very much of a favourite with those of the old world. I acquit, however, all our governments of this design, because I believe they never thought of it, however extensively their laws may have brought it about. It only happened from the circumstance, that similar causes, either in the west or east, will generally produce similar effects. In the east, exclusive privileges have invariably turned out to be publick grievances; and aggravated taxation, legal extravagance and pauperism, have regularly brought up the rear of banking. But our legislatures have fondly hoped, that exclusive privileges, granted by good republicans, would be publick blessings.
It was once asserted, that banking would reimburse the loss it caused to the nation in aggravating wages, expense and taxation, by enhancing the price of our commodities; and the argument kept its ground, so long as these brought a high price in Europe; but woful experience has detected the delusion. It is at length demonstrated, that the price of our exports is fixed in foreign markets, and that banking does not, by enhancing it, reimburse the nation for the increase of taxation it causes. The argument of the court can derive no benefit from any utility in banking, except in fiscal operations, as it does not pretend a right to extend the powers of congress from any general considerations of national good; but only as means appurtenant to an actual delegated power, which in this case it supposes to be the power of taxation, though called “fiscal operations.” But, whilst the court, in sustaining this argument, is limited to the convenience of banking for the execution of a delegated power, in refuting it, all the national inconveniences it causes are fair counterpoises against its solitary convenience of transmitting publick money. This is, apparently, a pecuniary convenience; but if we pay for it more than it saves, by the increase of taxation arising from the depreciation of bank currency, it is clearly a pecuniary inconvenience; and it is not yet contended, that the powers of congress may be extended by implication to rights inconvenient and oppressive to the nation. No one, who computes impartially, will hesitate to conclude, that the increase of taxation, caused by the depreciation of bank currency, infinitely exceeds the saving of transmitting taxes by bank instrumentality. Waving the facilities arising from bills or orders, which would be considerable, I will venture to assert, that if it was removed under a military escort, the expense would be comparatively trifling.
To the increase of taxation by banking, another great item of pecuniary loss is to be added. The local depreciation of its currency causes us to pay an additional price for our imports. Sellers will reimburse themselves for this depreciation, to our excessive injury when the balance of trade happens to be against us, by asking a price sufficient to enable them to make remittances in specie. And exclusively of the diminution of the precious metals thus caused, the difference between their value and the value of bank paper is a large item of national pecuniary loss, independently of the pecuniary individual loss arising from the same cause.
Fiscal operations are the means, by which civilized nations are oppressed and enslaved. If a government may do whatever it pleases to think “convenient, useful or essential in the prosecution of fiscal operations,” however inconvenient, useless and injurious to a nation, and however detrimental to the morals, interest, and happiness of individuals, it is difficult to conceive any limitations by which it can be restrained. The framers of the constitution, aware of the necessity for restraining this dangerous instrument, confided to the federal government a fiscal power, defined and limited. In the division of powers between the federal and state governments, the care of the morals, interest and happiness of individuals is confided to the latter; nor is any power over persons given to the former, except for the carrying into execution the delegated powers, which were not intended to absorb a right to take out of the hands of the states their national and original right to provide for the morals, interest and happiness of the individuals composing each state. Suppose experience should disclose mischiefs and inconveniences to the people from the circulation of notes payable to the bearer. Is the federal or state governments to apply the remedy? The limited power of the federal government over persons does not reach the object. The state governments have endeavoured to prevent it, by prohibiting individuals or unincorporated banks from issuing such notes. They might have suffered this, but congress could not. It is merely an internal local regulation, like the transfer of bonds, bills or notes, within the power of the state governments, and without the power of congress. The right of prohibition is consecutive to the right of permission; and congress have no power to prohibit, because they have none to permit. Whilst the care of the morals, interest and happiness of the people internally, is confided to the states, it can hardly be imagined that congress was invested with a power of legislating, so as to afflict all three in a mode, which they had no power to prevent. They could not, constitutionally, even consider the inconveniences of banking under any power given to them by the federal constitution, as to the morals, interest and happiness of the people, because the care of these is reserved to the states; and ought to have confined themselves to the meagre point of its affording a facility in transmitting money, as all its other effects belonged to the state orbit. In this view, the decision of the court allows that congress may cause great and general internal inconveniences, of a character beyond its power to prohibit or even to consider; and that the states, who can only consider these inconveniences, and cannot apply a remedy under their internal power of forbidding the circulation of notes payable to order, often exercised and never relinquished.
Congress were never expected to consider those local frauds by which life is embittered and society corrupted; even the manners of the individuals who conduct its banks, are without its province and beyond its correction; and although the idea of correcting the frauds of institutions, shrouded in secrecy, is only a theory, yet this unfortunate fact is an unanswerable argument for a power of suppression in a government. Being of an internal nature, congress cannot exercise this power; yet evils ought to be suppressed. Is there a single case of a stock-holder, defrauded by the management of these secret institutions, having been able to obtain justice? Whilst widows and orphans are pining in silence, under the distress of the spoliations they have suffered, the newspapers roar with the dolours of the patriots who have employed their property in unsuccessful speculations. Legislatures are invoked by arts and wailings from bankrupts of borrowed property, to have compassion on their aversion to the payment of their debts, to sequester a poor remnant which their unfortunate creditors may recover, and confiscate this remnant, by devising some depreciated currency with which to balance accounts.
Under our form of government, fiscal operations ought not to be considered in reference to the convenience or benefit of a government, as they are considered under European monarchies, but in relation to the convenience or benefit of the people. Now, though the government may suffer no inconvenience or injury from the increase of salaries and expenses produced by the depreciation of bank currency, the people from our peculiar situation may sustain both. Their funds arise chiefly from the exportation of agricultural or marine productions, by which they are enabled to pay their taxes. The price of these productions being limited by their trans-atlantick value, the people cannot be reimbursed by the depreciation of a local currency, for an increase of taxation chiefly paid out of this restricted price.
Again. The fiscal operations of a government may be nurtured by a corruption of manners, and a violation of justice among individuals. Unhappily, the revolutionary patriots were driven into the latter evil by necessity. But we have voluntarily introduced both without any. The United States have ascertained the effects of paper money by two experiments, and its character under a free government has been settled by both. By the first it is ascertained, that the most solemn national promises of redemption, without equivalent funds, cannot sustain its value, or prevent its fraudulent operation upon individuals: By the second, that a promise of redemption by the payment of specie will sustain its value, or delay its fraudulent operation upon individuals, so long only as the nation believes in the falsehood, that the banks are able to pay it. In a free country, the detection, sooner or later, is inevitable, and a heavy shock of factitious misfortunes ensues. Banks, managed by the power of despotism or of aristocracy, live long either upon delusion, or upon supplies extracted from the people. The same motives unite these parties in these means, for conducting their fiscal operations. Exposed to the scrutinizing eye of liberty, a detection of fraud will come at last. Under the iron rod of despotick governments, these institutions are deterred from committing any frauds, but in concert with their accomplices, both by the fear of punishment, and the influence of patronage; but under our mild policy, neither expiation nor bribery is practicable in the case of banks. Their crimes may possibly be numbered, but no figures can record their punishments, because they are never punished. Had the bank of the United States commenced its very career, by committing the most enormous frauds, congress might have been deterred by the magnitude of its offences, or an inability to do justice to the injured, even from making them publick.
A catalogue of the immoral tendencies of banking ought to be awful to a republican government, which many great writers assert to be incapable of subsisting long, except by the preservation of virtuous principles. Can these be preserved, by investing corporate bodies with the privileges of committing remediless frauds, of laughing at detection, and of retaining the pillage? By nurturing and then ruining, pride, extravagance, speculation, folly, rapaciousness and dishonesty, as the arch fiend entices into guilt, and punishes those whom he has deluded? By corrupting legislative bodies, the temporary representatives of the people, into an opinion, that they may prolong their power and establish their speculations, however detrimental to their constituents, for unlimited periods? By deluging a whole nation with floods of depreciation usury, having first banished the only check by which it could be restrained? By enlisting in the cause of this overwhelming system of usury, from which even those who never borrow cannot escape, a great portion of the talents of the country; and teaching them to be satisfied with its intellectual pleasures, without salaries? By rewarding atrocious frauds, sometimes with wealth, and always with impunity? By first expelling specie, and then subjecting the nation to the alternative of suffering a great loss in getting it back, or of submitting for ever to banking prescription? By bribing corporations with an absolute power of acquiring wealth by frauds with impunity, for the sake of a trivial political convenience? By committing the national safety and prosperity to the care of individual character, without responsibility or controul, for indefinite periods; except such as may be fixed by the will of temporary representatives? By thus regenerarating the hereditary principle of subjecting mankind to the chance of being governed by knaves in the affair of money (so important to social happiness,) under an interest to do wrong, and under no compulsion to do right? By substituting an arrogant divination for actual experience (the true source of human knowledge,) in usurping a right to pass irrepealable laws? By staking the national prosperity on the maxim, that it may safely be intrusted to unchecked avarice? By arranging society into debtors and creditors, bribing usury to lend, tempting indiscretion to borrow, protecting the former against the payment of its own debts, and producing by law a state of things, calculated for destroying a good government, or subjecting it to the clamours and threats of dishonesty? And by making it improvident to be prudent; as by endeavouring to provide for old age or misfortune, we should probably lose the whole, and certainly a portion of our labours?
The facts, to justify these inconveniences produced by banking, are left to the recollection of the reader; but the expression “depreciation usury, “requires a short explanation. It refers to the loss sustained by the nation, from the depreciation of bank currency, beyond the interest paid for it by the borrower. This item of pecuniary loss, frequently repeated in the circulation of the paper, may possibly amount to as much as the additional taxation caused by the same depreciation. The two items and the interest paid to banks chiefly constitute the price paid by the nation for the convenience of transferring the taxes from place to place. It is probable that it amounts to thirty or forty per centum per annum, on a larger sum than the amount of taxes; and equally so, that these taxes could be transmitted in the most inconvenient mode, which could be devised, at less than one.
Wherein consists the difficulty on this subject? may the truth be permitted to answer the question? Men incline to acquire wealth, without encountering the labours of industry; as they incline to get to heaven, without discharging the duties of morality. Speculators for both objects are therefore greedily attended to, and often infuse tenets into nations so stubborn, as to divide society for ages into jugglers and dupes. Governments have repeatedly aggrandized themselves and enriched the initiated, under intricate and plausible schemes for enriching the nation; and labour is induced cheerfully to exchange its earnings, for a dogma or a charm. When these schemes or incantations are directed against a foreign nation, the imposition is easy; and governments generally cajole nations out of their property to a great amount, by ingenious lectures to prove that they will be reimbursed ten fold in heaven, or by other nations. Once taught that we may be enriched by the speculations of our government at the expence of foreigners, a transition from a dogma having a glimmering of truth, to one having none, becomes easy; and we rashly believe that a patriotick magician can instruct a nation to enrich itself, by speculations upon itself; that exclusive privileges conferred on an incorporated section of the national wealth will produce a greater degree of national prosperity, than equal privileges retained by the whole.
Congress, in rejecting lord North’s insidious proposal for raising a revenue by colonial laws, observed, “that all history shews that a power over the purse is the best intercessor for a redress of grievances, and a re-establishment of rights.” Banking has gotten into its possession that which the national purse contained; intolerable grievances have ensued; the right to private justice has been grossly violated, and no general benefit has been produced. The revolutionary congress, that highest emblem of wisdom and virtue, with which Providence has endowed man; the fathers of our liberty, uninfluenced by avarice or ambition; the revolutionary congress decided, “that a power over the purse is the best intercessor for a redress of grievances and a re-establishment of rights.” The power over the purse has escaped from the people and their governments. This best security against grievances and wrongs has been transferred by legislatures to corporations. If they had a right to transfer the best, they may transfer all other securities to the custody of chartered bodies. Dazzled by a spurious lustre, we have violated this sound maxim; we have worshipped a demon instead of a Deity; and now that we are awakened by sensation from the infatuation, we are told that the altars of fraud are sacred. Grievances and violated rights abound; the principles of justice are prostrated; but the hurricane of evils claims a power founded in the imposition of calling a law a charter, to molest an entire generation during its whole life, without redress; and the isinglass of construction is its ally against the diamond of justice. Money governs the world. Is a corporate despotism over the money or currency of a nation no political power? That which is able to do good or harm to nations, is power. All our constitutions have provided representation, checks and responsibilities, to prevent grievances and preserve rights. Can representation invest corporations with a power of doing good or harm to the nation for long terms, without being subject to the constitutional provisions for preventing grievances and preserving rights? No legislature is itself invested with any power, unsubjected to these provisions. If legislatures can create a power beyond their own, the coercion of which is without the reach even of election, they may thus overthrow every principle of our constitutions. Our constitutions unite in deciding, that political power ought to be responsible, to be entrusted for short periods, to be controuled, and to be punished if abused. In the legislative creation of political corporations, none of these precautions has been regarded. We have had an irresponsible, uncontrouled, unpunishable, unelected power over the national purse, in operation for a short time. Compare the effects of the two principles, exactly contrary to each other, and decide which is best. Can the evils embowelled in one, by having been littered over the land, hide the blessings which have flowed from the other? This absolute power over the national purse was never before conferred on banking corporations, nor has a pecuniary despotism been before entrusted by any government, to such establishments. The banks, created by monarchies and aristocracies, have all been subjected to those governments, and subservient to their designs. The government directs their political effects. Private bankers are liable, personally, to the payment of their debts. Our bankers are neither liable to the controul of our governments, nor subject, personally, to the payment of their debts. A non-descript in their nature, they have of course been a non-descript in their consequences.
But, if these evils of banking are recompensed to the nation by its convenience in transmitting federal money from one part of the country to another, there would yet remain weighty constitutional arguments against it. The absorption of power by money was so very well known by the framers of our constitutions, that they studiously erected a circumvallation of restrictions, such as election, representation, sympathy, rotation, responsibility, checks, balances, divisions and limitations, around the power of the purse, when exercised by the governments they created, and these governments have bestowed that power on bankers, unattended by any restriction at all, in return for the convenience of transmitting the publick money. It is, as if a monarch had surrendered to a corporation all the principles by which his throne was secured, for the same mighty object. Weighty enough, as the court think it, to invest a government with the most dangerous and oppressive of all powers, that of granting exclusive privileges, and creating bodies politick; neither France, nor many other large countries, have ever thought of it; and the novelty of making an object, so diminutive hitherto in the history of mankind, a source of acquiring enormous powers, must be an evidence of the profundity or shallowness of the American genius. There is evidently much ingenuity in making the convenience of transmitting publick money, on the ground of the great extent of the United States, the matrix of the right to incorporate, because the state governments cannot, with any plausibility, avail themselves of the argument, the whole force of which must redound to the federal government; but yet I shall proceed to controvert it.
The mother bank of the United States, I suppose (for I have not the law before me,) may, or may not, estabish or abolish branch banks at its own pleasure. If so, it may, or it may not, at its own will, transmit publick money from one place excepted. I do not know whether the bank is compelled by the law, under a penalty to receive and transmit publick money, wherever it may establish branches; or whether the law is merely preceptive as to the point; but I suppose, that it can only be required to transmit what it receives, and that it is not bound to receive where it has no branch. If this should be the case, this compensation to be paid by the bank, as justifying its incorporation, may be extended or diminished at its own pleasure. It is true, that the profit arising from deposites of publick money, inspired a very reasonable hope, that the bank would send out branches to those places where most of it was to be received, and from whence it could most easily be transmitted; but hope is eventual, and the constitutionality of a law ought to be positive and not fortuitous, at the time it is passed; not now constitutional and then unconstitutional, as the bank should choose to hook it to, or unhook it from fiscal operations; and not constitutional in one state, or at one place, where the bank might choose to have a branch to aid those operations, and unconstitutional in another, where it might choose to have none. However this may be, it must be admitted, that the size of the convenience can have nothing to do with its power to invest congress with the right of creating corporations, and that the transmission of a cent would be a convenience, as effectual to constitutionalize an incorporating law, as the transmission of a million. The constitution does not confine the virtue of this power-amplifying principle to conveniencies, or means of any specified degrees of magnitude, and each, however small, like every magnet, contains the power of attraction. The least convenience, therefore, in the exercise of every delegated power, will justify congress in granting individual or corporate privileges; and those who will transmit federal horses, arms or victuals, (so much more cumbersome than money,) have a better right to them than the money-changers themselves. In short, if the argument of convenience be sufficient to establish the constitutionality of the law in the case of the banks, every power whatsoever, delegated to congress, may reward its coadjutors with exclusive privileges, and embrace within its means, monopolies of every description.
It would be a subject worthy of mature consideration, whether a bank currency, such as we are suffering under, does not bear a strong analogy in its effects, to the monopoly of the colonial trade long held by the English, and which we supposed we had happily abolished by a long war. But it is too copious for the limits I must observe, and I only suggest it to the reader, that he may compare in his own mind, both the extent of the two monopolies, and the cost of getting rid of them.
A phalanx of words have been enlisted to assail the plainest provisions of the federal constitution; but only one more shall be adverted to. The word “national,” is often made an auxiliary of “sovereign, supreme, necessary and convenient,” towards destroying or relaxing the restrictions imposed upon congress by the union. It is contended, that congress may exercise national powers. Where is this nation, of which gentlemen speak? Is it composed of twenty-three individuals only? If so, if the states made the union, and if congress possess no powers, except those bestowed by the union, then the term is only an expedient, like that in using the words sovereign, supreme, convenient and necessary, to convey to the federal government recondite, in the place of defined powers. All these words being equally sufficient to convey indefinite, instead of the limited powers really delegated to congress, why should we be led round the radii of a circle to get at its centre, omnipotence? The premises being settled, the argument would terminate in a syllogism, and put us out of our pain. As thus: Such a thing is an act of power, congress is omnipotent, therefore it is within the sphere of congress. Is it not the same sort of reasoning to say, such a thing is an act of sovereignty, or of supremacy, or necessary, or convenient, or national; congress may do what is sovereign, supreme, necessary, convenient, or national, therefore it is within the sphere of congress?