Gentlemen finding it difficult to show that necessary relation and intimate connection between the authority contended for, and any one of the specified authorities before mentioned, which would be essential to the establishment of their doctrine, have referred to what has been generally called the sweeping clause, and have made deductions from the terms "necessary" and "proper;" they have observed that certain specified authorities being granted, all others necessary to their execution follow without any particular specification. This observation may in general be true, but its fallacy here consists in its application to this particular case. It cannot be applied until the exercise of this authority be proved to be necessarily connected with some one of the previously enumerated authorities, and here the argument, as well as the fact, fails.
The authority contended for seems to me to be a distinct substantive branch of legislation, and, perhaps, paramount to any one of the previously enumerated authorities, and should therefore not be usurped as an incidental subaltern authority.
I am confirmed in this opinion from the indistinct, confused conceptions of gentlemen who advocate the measure. They rely upon the incidentality of this authority to some one of those particularly specified, and yet have applied it as an incident to several distinct, unconnected subjects of legislation; and then, distrusting their own conclusions, or as if the inquiry would be too troublesome or minute, they leave this ground, and assert that it is incidental to the result of the whole combined specified authorities. Gentlemen must, therefore, view this right through different optics, at different times; or, what I rather believe to be the fact, they have no distinct view of it at all, the right having no existence.
A gentleman from Massachusetts, (Mr. Sedgwick,) finding the usual import of the terms used in the constitution to be rather unfavorable to the doctrines advanced by him, has favored us with a new exposition of the word "necessary." He says that "necessary," as applicable to a mean to produce an end, should be construed so as to produce the greatest quantum of public utility. I have been taught to conceive that the true exposition of a necessary mean to produce a given end was that mean without which the end could not be produced.
The gentleman's reasoning, however, if pursued, will be found to teem with dangerous effects, and would justify the assumption of any given authority whatever. Terms are to be so construed as to produce the greatest degree of public utility. Congress are to be the judges of this degree of utility. This utility, when decided on, will be the ground of constitutionality. Hence any measure may be proved constitutional which Congress may judge to be useful. These deductions would suborn the constitution itself, and blot out the great distinguishing characteristic of the free constitutions of America, as compared with the despotic Governments of Europe, which consist in having the boundaries of governmental authority clearly marked out and ascertained.
The exclusive jurisdiction over ten miles square has been adverted to by one gentleman (Mr. Ames) as a specified authority, to which the one contended for is suggested to be incidental. He has reasoned in this manner: Congress possess jurisdiction over ten miles square, &c.; Congress may therefore establish a bank within the ten miles square, and, as principle is not applicable to place, Congress may exercise the same authority any where else. This seems to me to be an ingenious improvement upon sophistical deduction; the gentleman, however, should have reflected that the ground upon which he built the right to exercise this authority was that of exclusive jurisdiction, and to extend the principle it is necessary to extend the right of exclusive jurisdiction; without this, the basis of his argument fails, and the superstructure, however beautiful, must follow; for the principle, if at all deducible from that source, is expressly confined to place, and cannot operate beyond it.
I shall now consider the second resource, whence the constitutional right of exercising the proposed authority is derived; its incidentality to the mere creation and existence of government. It has been observed, that in all governments there are certain rights tacitly granted, and certain other rights retained; that it is impossible, in framing a constitution, to enumerate every minute governmental right, and that such an attempt would be chimerical and vain. And hence the incidentality of this authority to the mere existence of government is inferred. These observations seem to me to apply to a government growing out of a state of society, and not to a government composed of chartered rights from previously existing governments, or the people of those governments. I have been taught to consider this as a Federal, not as a consolidated Government, and am not prepared or disposed at present to relinquish that idea. A gentleman from New York (Mr. Lawrence) has remarked, that the Government is consolidated quo ad the powers granted, and of course quo ad their incidents; but he should first have shown that the authority contended for is one of those granted, or incidental to some one of them, before the application can be made. The observation can have no tendency to establish either of those positions. What effect would this doctrine, if admitted, have upon the State governments? And how would it be relished by them? Their dignity and consequence will not only be prostrated by it, but their very existence radically subverted. A third resource of deducing this constitutional authority is resorted to—the expediency of the proposed measure itself. I presume the great object of the constitution was to distribute all governmental rights between the several State Governments and the Government of the United States; the expediency, therefore, of the exercise of all constitutional rights, as they relate to State or General Governments, is properly contemplated and decided by the constitution, and not by the Governments among which the distribution is made. A gentleman from South Carolina (Mr. Smith) has said, that the expediency and constitutionality of the proposed measure cannot be considered separately, because the constitutionality grows out of the expediency. This is but candidly unveiling the subject of that sophistical mask which has been ingeniously thrown over it by some gentlemen; for all the arguments adduced in favor of the measure, from whatever source they arise, if pursued, will be found to rush into the great one of expediency, to bear down all constitutional provisions, and to end themselves in the unlimited ocean of despotism.
Several gentlemen have said, that this authority may be safely exercised, since it does not interfere with the rights of States or individuals. I think this assertion not very correct; if the States be constitutionally entitled to the exercise of this authority, it is an intrusion on their rights to do an act which would eventually destroy or impede the freest exercise of that authority; for it is totally immaterial whether the effect be produced by the operation of this, or by an inhibition in express terms. The States may not only incorporate banks, but may of right prohibit the circulation of bank paper within their respective limits; the act, therefore, if it be intended to have an effectual operation, will certainly infringe this right, or exist at the mercy of the State governments. This reasoning, however, places the subject in another point of view a little singular. It contemplates the authority contended for as vacant ground, and justifies the tenure by the mere title of occupancy. In almost all the remarks in favor of the measure, gentlemen seem to have forgotten the peculiar nature of this Government. It being composed of mere chartered authorities, all authority not contained within that charter would, from the nature of the grant, have been retained to the granting party; and I will venture to assert, that this opinion was the sine qua non of the adoption and existence of this Government; but if this opinion had been doubtful, Congress themselves have made an express declaration in favor of this construction to the proposed amendments to the constitution. Gentlemen have inferred a constitutional right to exercise the authority contended for from a fourth resource—the former usages and habits of Congress. In affirmance of this argument, several acts of Congress have been referred to—the power of removal from office, the government of the Western Territory, the cession from North Carolina, the purchase of West Point, &c. I shall not examine into the propriety of these several acts, though I conceive it would not be difficult to show, that they differ materially, upon constitutional grounds, from the one now proposed. I shall only remark, that, if Congress have heretofore been in the usage and habit of disregarding and violating the constitution, it is high time that that habit and usage be corrected. I hope and trust that the people of the United States will not tamely see the only security of their rights and liberties invaded and violated, but also see one violation of it with impunity boldly urged as an argument to justify another.
An instance of a similar exercise of authority by the Congress which existed under the former Confederation, has been mentioned in favor of its exercise by the present Congress. The argument has been, that as the powers of the present Congress are greater than those of the former Congress, and the former were competent to the exercise of this right, the present must be more so. It is to be remarked, that that act was the child of necessity, and that Congress doubted its legitimacy, and the act itself was never confirmed by a judicial decision; and it should be also remarked, that the same Congress did not pretend to possess the right to punish those who should counterfeit the paper of the Bank, and recommended it to the States to confirm the act which they had done, and to pass laws for the purpose of punishing those who should counterfeit the paper, and it is a little remarkable that this circumstance, which is one of the most essential to the existence and operation of this act, is withheld from our view. But as I think arguments drawn from this source wholly foreign to the subject, I shall make no further remark upon them.
I shall now suggest a few observations respecting the expediency of the proposed measure. In doing this, I shall not say any thing as to the utility of banks in general, nor as to the effects of the banks of England, Scotland, Holland, &c. I possess not sufficient practical or theoretical knowledge to justify the inquiry; I shall only point out a few circumstances, which are peculiarly attached to the government we are now administering, which might vary the application of general rules, drawn from governments of a different nature, and which possess the unquestioned right of granting charters of incorporation.