Let us now compare the different modes of reasoning on this subject, and determine which is right, for both cannot be.
The gentleman from Virginia (Mr. Madison) has urged the dangerous tendency of a liberal construction; but which is most dangerous, a liberal or a destructive interpretation? The liberty we have taken in interpreting the constitution, we conceive to be necessary, and it cannot be denied to be useful in attaining the objects of it; but whilst he denies us this liberty, he grants to himself a right to annul a part, and a very important part of the constitution. The same principle that will authorize a destruction of part, will authorize the destruction of the whole of the constitution; and if gentlemen have a right to make such rules, they have an equal right to make others for enlarging the powers of the constitution, and indeed of forming a despotism. Thus, if we take the gentleman for our pilot, we shall be wrecked on the reef which he cautions us to avoid.
The gentleman has referred us to the last article of the amendments proposed to the constitution by Congress, which provides that the powers not delegated to Congress, or prohibited to the States, shall rest in them or the people; and the question is, what powers are delegated? Does the gentleman conceive that such only are delegated as are expressed? If so, he must admit that our whole code of laws is unconstitutional. This he disavows, and yields to the necessity of interpretation, which, by a fair and candid application of established rules of construction to the constitution, authorizes, as has been shown, the measure under consideration.
The usage of Congress has also been referred to; and if we look at their acts under the existing constitution, we shall find they are generally the result of a liberal construction. I will mention but two. The first relates to the establishment of the Executive Departments, and gives to the President the power of removing officers. As the constitution is silent on this subject, the power mentioned, by the gentleman's own reasoning, is vested in the States or the people; he, however, contended for an assumption of the power, and when assumed, urged that it should be vested in the President, although, like the power of appointment, it was by a respectable minority in both Houses conceived that it should have been vested in the President and Senate. His rule of interpretation then was therefore more liberal than it is now. In the other case, Congress determined by law, with the sanction of the President, when and where they should hold their next session, although the constitution provides that this power should rest solely in the two Houses. The gentleman also advocated this measure, and yet appears to be apprehensive of the consequences that may result from a construction of the constitution which admits of a National Bank. But from which of these measures is danger to be apprehended? The only danger from our interpretation would be the exercise by Congress of a general power to form corporations; but the dangers resulting from the gentleman's interpretations, in the cases alluded to, are very different; for what may we not apprehend from the precedent of having assumed a power on which the constitution was silent, and from having annexed it to the Supreme Executive? If we have this right in one instance, we may extend it to others, and make him a despot. And here I think it necessary to declare, that such is my confidence in the wisdom, integrity, and justice of the Chief Magistrate, as that I should be at ease, if my life, liberty, and property were at his disposal; but this is a trust which I am not authorized to make for my constituents; and as his successors in office will possess equal powers, but may not possess equal virtues, caution with respect to them is necessary. Again, what may be the result of the precedent relating to the session of Congress? If we had a right by law to determine where the next Congress should hold their session, one Congress may oblige another to sit in Kentucky, or in the intended State Yazoo, under the protection of a Choctaw chief, or his Excellency, Governor Tallan. It must therefore be evident that the usage of Congress in both instances is against the gentleman, and that the dangers from the precedent of establishing a bank are comparatively small to those resulting from the other measures referred to.
The gentleman from Virginia has endeavored to support his interpretation of the constitution by the sense of the Federal Convention; but how is this to be obtained? By applying proper rules of interpretation? If so, the sense of the Convention is in favor of the bill; or are we to depend on the memory of the gentleman for a history of their debates, and from thence to collect their sense? This would be improper, because the memories of different gentlemen would probably vary, as they had already done, with respect to those facts; and if not, the opinions of the individual members who debated are not to be considered as the opinions of the Convention. Indeed, if they were, no motion was made in that Convention, and therefore none could be rejected for establishing a National Bank; and the measure which the gentleman has referred to was a proposition merely to enable Congress to erect commercial corporations, which was, and always ought to be, negatived.
The gentleman's arguments respecting the sense of the State Conventions have as little force as those relating to the Federal Convention. The debates of the State Conventions, as published by the short-hand writers, were generally partial and mutilated; in this, if the publications are to be relied on, the arguments were all on one side of the question; for there is not in the record, which is said to contain the Pennsylvania debates, a word against the ratification of the constitution; although we all know that arguments were warmly urged on both sides.
The gentleman has quoted the opinions, as recorded in the debates of this State and North Carolina, of two of our learned judges; but the speech of one member is not to be considered as expressing the sense of a convention; and if it was, we have no record which can be depended on of such speeches. Indeed, had even this been the case, the Union was at that time divided into two great parties, one of which feared the loss of the Union if the constitution was not ratified unconditionally, and the other the loss of our liberties if it was. The object on either side was so important as perhaps to induce the parties to depart from candor, and to call in the aid of art, flattery, professions of friendship, promises of office, and even good cheer; and when these failed, the Federal Bull was published, denouncing political death and destruction to anti-federal infidels. Under such circumstances, the opinions of great men ought not to be considered as authorities, and in many instances could not be recognized by themselves.
Mr. G. then observing that the sense of the States respecting a bank would be best ascertained by their legislative acts, showed, from the journals of Congress, that when restrained by the Confederation from exercising any powers but what were expressly delegated, Congress had, without any authority, established a bank whose capital might extend to ten millions of dollars; and had not only pledged the faith of the Union not to erect any other, but had recommended it to the States to prohibit any State establishment of the kind, and had also determined that the bank bills should be receivable in the taxes and duties of every State. That the States did not remonstrate against, or tacitly acquiesce in, but actually supported the measures of Congress relative to the bank, whilst the war continued, and after the peace. That this was the strongest evidence the States could give that they thought the measure salutary, and had no objection to it on the ground of its being unconstitutional. He then urged, that if the States and the people at large had no objection to a bank in that case, they could not in this; and inquired whether there was any evidence of their disapprobation of such an institution in the debates of their Conventions or propositions for amendments? To this he answered in the negative, and urged, that whilst the Conventions were silent on the subject, and had no objections to such a measure, several of them had proposed amendments to the constitution for restraining Congress from establishing commercial corporations; which evinced their disapprobation of such institutions, and admitted at the same time, in some degree, the power of Congress, under the existing constitution, to form them.
Mr. G. then showed, that as a monopoly had been urged as an objection to the bill, no such consequence could result from it; for the bill does not restrain State or private banks, or even individuals, from negotiations of a similar nature with those permitted to the stockholders; nor does it restrain the States from forming similar corporations. This plan has not a feature of monopoly, and the gentlemen who oppose it contend for a bank which, according to its original institution, was founded in monopoly.
He then answered the arguments urged against the authority of Congress to enable corporations to hold lands, when they had no power themselves of purchasing and holding land; and showed, that although Congress are restrained from purchasing lands, (except in certain cases,) and from exercising over the same exclusive legislation, yet that they may hold lands obtained by execution, conquest, and by other means as well as by those clauses of the constitution which relate to lands now belonging to the Union; and that Congress had often invested others with powers which they themselves could not exercise.