Congress may do what is necessary to the end for which the constitution was adopted, provided it is not repugnant to the natural rights of man, or to those which they have expressly reserved to themselves, or to the powers which are assigned to the States. This rule of interpretation seems to be safe, and not a very uncertain one, independently of the constitution itself. By that instrument certain powers are specially delegated, together with all powers necessary or proper to carry them into execution. That construction may be maintained to be a safe one which promotes the good of society, and the ends for which the Government was adopted, without impairing the rights of any man, or the powers of any State.
This, he said, was remarkably true of the Bank; no man could have cause to complain of it; the bills would not be forced upon any one. It is of the first utility to trade. Indeed, the intercourse from State to State can never be on a good footing without a bank, whose paper will circulate more extensively than that of any State bank. Whether the power to regulate trade from State to State will involve that of regulating inland bills of exchange and bank paper, as the instruments of the trade, and incident to the power, he would not pause to examine. This is an injury and wrong which violates the right of another. As the bank is founded on the free choice of those who make use of it, and is highly useful to the people and to Government, a liberal construction is natural and safe. This circumstance creates a presumption in favor of its conformity to the constitution. This presumption is enforced by the necessity of a bank to other governments. The most orderly governments in Europe have banks. They are considered as indispensably necessary; these examples are not to be supposed to have been unnoticed. We are to pay the interest of our debt in thirteen places. Is it possible to transport the revenue from one end of the continent to the other? Nay, a week before the quarter's interest becomes due, transfers will be made which will require double the sum in Boston which was expected. To guard against this danger, an extra sum must be deposited at the different loan offices. This extra sum is not to be had; our revenue is barely equal to the interest due. This imposes an absolute necessity upon the Government to make use of a bank. The answer is, that the State banks will supply this aid. This is risking a good deal to the argument against the Bank; for will they admit the necessity, and yet deny to the Government the lawful and only adequate means for providing for it? Ten of the States have no banks; those who have may abolish theirs, and suffer their charters to expire. But the State banks are insufficient to the purpose; their paper has not a sufficient circulation; of course their capitals are small. Congress is allowed to have complete legislative power over its own finances; and yet without the courtesy of the States it cannot be exercised. This seems to be inconsistent.
If a war should suddenly break out, how is Congress to provide for it? Perhaps Congress would not be sitting; great expenses would be incurred; and they must be instantly provided for. How is this to be done? By taxes? And will the enemy wait till they can be collected? By loans at home? Our citizens would employ their money in war speculations, and they are not individually in a condition to lend a sufficient sum in specie. Or shall we send across the sea for loans? The dispute between England and Spain furnishes an example; the aid of their banks for several millions was prompt and effectual. Or, will you say that Congress might issue paper money? That power, ruinous and fallacious as it is, is deduced from implication, for it is not expressly given. A bank only can afford the necessary aid in time of sudden emergency. If we have not the power to establish it, our social compact is incomplete, we want the means of self-preservation.
I shall, perhaps, be told that necessity is the tyrant's plea. I answer that it is a miserable one when it is urged to palliate the violation of private right. Who suffers by this use of our authority? Not the States, for they are not warranted to establish a National Bank; not individuals, for they will be assisted in trade, and defended from danger by it.
Having endeavored to enforce his argument, by noticing the uses of banks to trade, to revenue, to credit, and, in cases of exigency, he adverted to the authority of our own precedents. Our right to govern the Western Territory is not disputed. It is a power which no State can exercise; it must be exercised, and therefore it resides in Congress. But how does Congress get this power? It is not expressly given in the constitution, but is derived either from the nature of the case, or by implication from the power to regulate the property of the United States. If the power flows from the nature and necessity of the case, it may be demanded, is the renot equal authority for the Bank? If it is derived from the power of Congress to regulate the territory and other property of the United States, and to make all needful rules and regulations concerning it, and for the disposal of it, a strict construction would restrain Congress merely to the management and disposal of property, and of its own property; yet it is plain that more is intended. Congress has accordingly made rules, not only for governing its own property, but the property of the persons residing there. It has made rules which have no relation to property at all—for punishing crimes. In short, it exercises all power in that territory. Nay, it has exercised this very power of creating a corporation. The government of that territory is a corporation; and who will deny that Congress may lawfully establish a bank beyond the Ohio? It is fair to reason by analogy from a power which is unquestionable, to one which is the subject of debate.
He then asked, whether it appeared, on this view of the subject, that the establishment of a National Bank would be a violent misinterpretation of the constitution? He did not contend for an arbitrary, unlimited discretion in the Government to do every thing. He took occasion to protest against such a misconception of his argument. He had noticed the great marks by which the construction of the constitution, he conceived, must be guided and limited; and these, if not absolutely certain, were very far from being arbitrary or unsafe. It is for the House, to judge whether the construction which denies the power of Congress is more definite and safe.
In proving that Congress may exercise powers which are not expressly granted by the constitution, he had endeavored to establish such rules of interpretation, and had illustrated his ideas by such observations as would anticipate, in a considerable degree, the application of his principles to the point in question. Before he proceeded to the construction of the clauses of the constitution which apply to the argument, lie observed that it would be proper to notice the qualities of a corporation, in order to take a more exact view of the controversy.
He adverted to the individuality and the perpetuity of a corporation, and that the property of the individuals should not be liable for the debts of the bank or company. These qualities are not more useful to the corporation than conformable to reason; but Government, it is said, cannot create these qualities. This is the marrow of the argument; for Congress may set up a bank of its own, to be managed as public property, to issue notes which shall be received in all payments at the Treasury, which shall be exchangeable into specie on demand, and which it shall be death to counterfeit. Such a bank would be less safe and useful than one under the direction of private persons; yet the power to establish it is indisputable. If Congress has the authority to do this business badly, the question returns, whether the powers of a corporation, which are essential to its being well done, may be annexed as incident to it. The Bank of New York is not a corporation, yet its notes have credit. Congress may agree with that bank, or with a company of merchants, to take their notes, and to cause all payments to pass through their coffers. Every thing that Government requires, and the bank will perform, may be lawfully done without giving them corporate powers; but to do this well, safely, and extensively, those powers are indispensable. This seems to bring the debate within a very narrow compass.
This led him to consider whether the corporate powers are incidental to those which Congress may exercise by the constitution.
He entered into a discussion of the construction of that clause which empowers Congress to regulate the territory and other property of the United States. The United States may hold property; may dispose of it; they may hold it in partnership; they may regulate the terms of the partnership. One condition may be, that the common stock only shall be liable for the debts of the partnership, and that any purchaser of a share shall become a partner. These are the chief qualities of a corporation. It seems that Congress, having power to make all needful rules and regulations for the property of the United States, may establish a corporation to manage it: without which we have seen that the regulations cannot be either safe or useful; the United States will be the proprietor of one-tenth of the bank stock.