It is a fact that the greatest part of the Continental debt has travelled eastward of the Potomac. This law is to raise the value of the Continental paper. Here, then, is the strong impulse of immediate interest in favor of the Bank. He took notice of the distinction made by the plan of the bill, between Continental and State paper. The State paper, on account of partial payments of interest, still remained in the respective States. But this could not, by the present system, be subscribed; so that the Southern States were deprived of the advantage that might have been given to the only paper they have. But if gentlemen charge us with defending the seat of Government, let them remember that this betrays consciousness of an attack. If they believe that this scheme tends to break the faith of the Union pledged to the Potomac, it is no wonder they suppose we oppose it upon that ground. He would not have mentioned this subject, had it not been hinted at. But let the whole of it come forth; let gentlemen consult their own bosoms; let the public decide the truth of his observations. He hoped he should not be suspected of any bias. That so uniform had been his conduct upon all questions, turning upon principles similar to the present, that every member in the House, he believed, had conjectured rightly of the side he would take, before he had uttered a word upon the subject, When implication first raised its head in this House, he started from it as a serpent which was to sting and poison the constitution. He felt in unison with his country. The fears, the opinions, the jealousies of individuals and of States, had been explained by a gentleman from Virginia, (Mr. Madison.) He should only remark, that all those who opposed the Government dreaded this doctrine; those who advocated it, declared that it could not be resorted to; and all combined in opinion that it ought not to be tolerated. Never did any country more completely unite in any sentiment than America in this, "that Congress ought not to exercise, by implication, powers not granted by the constitution." And is it not strange? For the admission of this doctrine destroys the principle of our Government at a blow; it at once breaks down every barrier which the Federal constitution had raised against unlimited legislation. He said, that necessity was the most plausible pretext for breaking the spirit of the social compact, but the people of this country have anticipated that pretext. They have said to the Ministers of this country, "we have given you what we think competent powers, but if experience proves them inadequate, we will enlarge them; but, in the mean time, dare not usurp those which we have reserved."
It is agreed on all hands, that the power to incorporate the subscribers to a banking company, is not expressly granted, and although gentlemen have agreed that it is implied—that it is an incident, that it is a means for effectuating powers expressly granted, yet they are not agreed as to the particular power to which this is an incident. They admit, that the sweeping clause in the constitution confers no additional power. But if he understood the gentlemen, several of them were of opinion that all governments, instituted for certain ends, draw to them the means of execution as of common right. This doctrine would make ours but a short constitution. [Here he read the preamble and then said:] Here is your constitution! Here is your bill of rights! Do these gentlemen require any thing more respecting the powers of Congress, than a description of the ends of government? And if, of right, they can carry these into effect, will they regard the means, though they be expressly pointed out? But I would ask if there is any power under heaven which could not be exercised within the extensive limits of this preamble?
The Convention might have stopped here; and there was no need, according to the doctrine of the gentleman, to point out any of the means for the ends mentioned in the preamble. That portion of the constitution which by all America has been thought so important, according to their logic, would become a dead letter; but the preamble, in fair construction, is a solemn compact, that the powers granted shall be made use of to the ends thereby specified.
He then reprobated, in pointed terms, the latitude of the principles premised. He said the end of all government is the public good; and if the means were left to legislation, all written compacts were nugatory. He observed, that the sober discretion of the Legislature, which, in the opinions of gentlemen, ought to be paramount, was the very thing intended to be curbed and restrained by our constitution.
He then declared, that our form of government not only pointed out the ends of government, but specified the means of execution. He said, we may make war—this would draw to it the power of raising an army and navy, laying taxes, establishing a judiciary, &c. But the spirit of the constitution, in this respect, had been well explained by Mr. Madison, and he should not recapitulate.
He said, a gentleman from South Carolina (Mr. Smith) had remarked that all our laws proceeded upon the principle of expediency—that we were the judges of that expediency—as soon as we gave it as our opinion that a thing was expedient, it became constitutional. What then remains of your constitution, except its mode of organization? We may look into it to refresh our memories respecting the times, places, and manner of composing the Government; that, as to the powers of Congress, were he of that gentleman's opinion, he would never look into it again. Gentlemen see the difficulties of their theories, and are obliged to confess that these incidental powers are not easily defined. They rest in the sober discretion of the Legislature.
One gentleman (Mr. Ames) has said, no implication ought to be made against the law of nature, against rights acquired, or against power pre-occupied by the States; that it is easier to restrain than to give competent powers of execution. Now these notions are hostile to the main principle of our Government, which is only a grant of particular portions of power, implying a negative to all others. It has been shown that the ends of government will include every thing. If gentlemen are allowed to range in their sober discretion for the means, it is plain that they have no limits. By the cabalistic word incident, your constitution is turned upside down, and instead of being a grant of particular powers, guarded by an implied negative to all others, it is made to imply all powers. But, strange to tell, America forgot to guard it by express negative provisions. Is there any difference in effect between lodging general powers in a government, and permitting the exercise of them by subtle constructions? He said there was a difference. In the one case the people fairly gave up their liberty, and stood prepared; in the other, they were unexpectedly tricked out of their constitution.
The preceding remarks showed how dangerous is the doctrine of implication, and upon what small data ingenuity can raise the most dangerous superstructure. He should now take a view of these precedents, in the former and present Congress, which are relied on to justify the present measure.
1st. The Bank of North America. Here he stated the distressful and critical situation of America at the period of its establishment; he remarked, that it was at the time of the declension of the Continental money. He showed that there were no powers in the Confederation to which (even according to the reasoning of the other side) this power could be incidental, but what required the vote of nine States; that the ordinance passed by a vote of seven States, which showed that necessity alone gave birth to that measure. He showed the dissimilarity of the situations of the former and this Congress, and the difference in their powers, and, consequently, in the dangers to be apprehended from the encroachment of either.
2d. The redemption of our prisoners at Algiers. This comes within the power to regulate trade. If, said he, we are not capable of redeeming, by the best means in our power, our citizens, our trade may be entirely ruined; and hence, the law which would be made for their redemption would be necessary and proper. But, by the constitution, the Executive may make treaties; these may be general, or for a particular object, and the Legislature may effectuate them by grants of money.