The gentleman from Virginia considers the opposers of the bill as suffering disadvantage, because it was not debated as bills usually are in the Committee of the Whole. He has prepared us to pronounce a eulogium upon his consistency by informing us that he voted in the old Congress against the Bank of North America, on the ground of his present objection to the constitutionality. He has told us that the meaning of the constitution is to be interpreted by contemporaneous testimony. He was a member of the Convention which formed it, and of course his opinion is entitled to peculiar weight. While we respect his former conduct, and admire the felicity of his situation, we cannot think he sustains disadvantage in the debate. Besides, he must have been prepared with objections to the constitutionality, because he tells us they are of long standing, and had grown into a settled habit of thinking. Why, then, did he suffer the bill to pass the committee in silence? The friends of the bill have more cause to complain of disadvantage; for while he has had time to prepare his objections, they are obliged to reply to them without premeditation.
In making this reply I am to perform a task for which my own mind has not admonished me to prepare. I never suspected that the objections I have heard stated had existence; I consider them as discoveries; and had not the acute penetration of that gentleman brought them to light, I am sure that my own understanding would never have suggested them.
It seems strange, too, that in our enlightened country the public should have been involved in equal blindness. While the exercise of even the lawful powers of Government is disputed, and a jealous eye is fixed on its proceedings, not a whisper has been heard against its authority to establish a bank. Still, however unseasonably, the old alarm of public discontent is sounded in our ears.
Two questions occur; may Congress exercise any powers which are not expressly given in the constitution, but may be deduced by a reasonable construction of that instrument? And, secondly, will such a construction warrant the establishment of the Bank?
The doctrine that powers may be implied which are not expressly vested in Congress has long been a bugbear to a great many worthy persons. They apprehend that Congress, by putting constructions upon the constitution, will govern by its own arbitrary discretion; and therefore that it ought to be bound to exercise the powers expressly given, and those only.
If Congress may not make laws conformably to the powers plainly implied, though not expressed in the frame of Government, it is rather late in the day to adopt it as a principle of conduct. A great part of our two years' labor is lost, and worse than lost to the public, for we have scarcely made a law in which we have not exercised our discretion with regard to the true intent of the constitution. Any words but those used in that instrument will be liable to a different interpretation. We may regulate trade; therefore we have taxed ships, erected light-houses, made laws to govern seamen, &c., because we say that they are the incidents to that power. The most familiar and undisputed acts of legislation will show that we have adopted it as a safe rule of action, to legislate beyond the letter of the constitution.
He proceeded to enforce this idea by several considerations, and illustrated it by various examples. He said, that the ingenuity of man was unequal to providing, especially beforehand, for all the contingencies that would happen. The constitution contains the principles which are to govern in making laws; but every law requires an application of the rule to the case in question. We may err in applying it; but we are to exercise our judgments, and on every occasion to decide according to an honest conviction of its true meaning.
The danger of implied power does not arise from its assuming a new principle; we have not only practised it often, but we can scarcely proceed without it; nor does the danger proceed so much from the extent of the power as from its uncertainty. While the opposers of the Bank exclaim against the exercise of this power by Congress, do they mark out the limits of the power which they will leave to us, with more certainty than is done by the advocates of the Bank? Their rules of interpretation by contemporaneous testimony, the debates of conventions, and the doctrine of substantive and auxiliary powers, will be found as obscure, and of course as formidable, as that which they condemn; they only set up one construction against another.
The powers of Congress are disputed. We are obliged to decide the question according to truth. The negative, if false, is less safe than the affirmative, if true. Why, then, shall we be told that the negative is the safe side? Not exercising the powers we have, may be as pernicious as usurping those we have not. If the power to raise armies had not been expressed in the enumeration of the powers of Congress, it would be implied from other parts of the constitution. Suppose, however, that it were omitted, and our country invaded, would a decision in Congress against raising armies be safer than the affirmative? The blood of our citizens would be shed, and shed unavenged. He thought, therefore, that there was too much prepossession with some against the Bank, and that the debate ought to be considered more impartially, as the negative was neither more safe, certain, nor conformable to our duty than the other side of the question. After all, the proof of the affirmative imposed a sufficient burden, as it is easier to raise objections than to remove them. Would any one doubt that Congress may lend money, that they may buy their debt in the market, or redeem their captives from Algiers? Yet no such power is expressly given, though it is irresistibly implied.
If, therefore, some interpretation of the constitution must be indulged, by what rules is it to be governed? The great end of every association of persons or States is to effect the end of its institution. The matter in debate affords a good illustration: a corporation, as soon as it is created, has certain powers, or qualities, tacitly annexed to it, which tend to promote the end for which it was formed; such as, for example, its individuality, its power to sue and be sued, and the perpetual succession of persons. Government is itself the highest kind of corporation; and from the instant of its formation, it has tacitly annexed to its being, various powers which the individuals who framed it did not separately possess, but which are essential to its effecting the purposes for which it was framed; to declare, in detail, every thing that Government may do could not be performed, and has never been attempted. It would be endless, useless, and dangerous; exceptions of what it may not do are shorter and safer.