making treaties, for example, been omitted, however necessary it might have been, the defect could only have been lamented, or supplied by an amendment of the constitution.

But the proposed bank could not even be called necessary to the Government; at most, it could be but convenient. Its uses to the Government could be supplied by keeping the taxes a little in advance; by loans from individuals; by the other banks over which the Government would have equal command, nay, greater, as it may grant or refuse to these the privilege, made a free and irrevocable gift to the proposed bank, of using their notes in the federal revenue.

He proceeded next to the contemporary expositions given to the constitution. The defence against the charge founded on the want of a bill of rights, presupposed, he said, that the powers not given, were retained; and that those given were not to be extended by remote implication. On any other supposition, the power of Congress to abridge the freedom of the press or the rights of conscience, &c. could not have been disproved.

The explanations in the State conventions all turned on the same fundamental principle, and on the principle, that the terms necessary and proper, gave no additional powers to those enumerated. [Here he read sundry passages, from the debates of the Pennsylvania, Virginia, and North Carolina conventions, showing the ground on which the constitution had been vindicated by its principal advocates against a dangerous latitude of its powers, charged on it by its opponents.] He did not undertake to vouch for the accuracy or authenticity of the publications which he quoted. He thought it probable that the sentiments delivered might, in many instances, have been mistaken, or imperfectly noted; but the complexion of the whole, with what he himself, and many others must recollect, fully justified the use he had made of them.

The explanatory declarations and amendments accompanying the ratifications of the several States, formed a striking evidence, wearing the same complexion. He referred those who might doubt, to the several acts of ratification.

The explanatory amendments, proposed by Congress themselves, at least, would be good authority with them; all these annunciations of power proceeded on a rule of construction excluding the latitude now contended for. These explanations were the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the States. He read several of the articles proposed, remarking particularly on the 11th and 12th; the former, as guarding against a latitude of interpretation—the latter as excluding every source of power not within the constitution itself.

With all this evidence of the sense in which the constitution was understood and adopted, will it not be said, if the bill should pass, that its adoption was brought about by one set of arguments, and that it is now administered under the influence of another set? And this reproach will have the keener sting, because it is applicable to so many individuals concerned in both the adoption and administration.

In fine, if the power were in the constitution, the immediate exercise of it cannot be essential; if not there, the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation, levelling all the barriers which limit the powers of the General Government and protect those of the State governments. If the point be doubtful only, respect for ourselves, who ought to shun the appearance of precipitancy and ambition; respect for our successors, who ought not lightly to be deprived of the opportunity of exercising the rights of legislation; respect for our constituents, who have had no opportunity of making known their sentiments, and who are themselves to be bound down to the measure for so long a period; all these considerations require that the irrevocable decision should at least be suspended until another

session.

It appeared, on the whole, he concluded, that the power exercised by the bill was condemned by the silence of the constitution; was condemned by the

rule of interpretation, arising out of the constitution; was condemned by its tendency to destroy the main characteristic of the constitution; was condemned by the expositions of the friends of the constitution, whilst depending before the public; was condemned by the apparent intentions of the parties, which ratified the constitution; was condemned by the explanatory amendments proposed by Congress themselves to the constitution; and he hoped it would receive its final condemnation by the vote of this House.

FEBRUARY 3, 1791.

A motion was made by Mr. WILLIAMSON, and seconded, that the first section of the said bill be recommitted to a Committee of the Whole House, "for the purpose of altering the time or manner of subscribing; so that the holders of State securities, assumed to be paid by the United States, may be on a footing with the holders of other securities, formerly called national securities." It passed in the negative. Ayes 21, noes 38.

Further debate arising on the main question,

MR. AMES said, little doubt remains with respect to the utility of banks. It seems to be conceded, within doors and without, that a public bank would be useful to trade, that it is almost essential to revenue, and that it is little short of indispensable necessity in time of public emergency. In countries whose forms of government left them free to choose, this institution has been adopted of choice; and in times of national danger and calamity, it has afforded such aid to Government as to make it appear, in the eyes of the People, a necessary means of self preservation. The subject, however intricate in its nature, is at least cleared from obscurity. It would not be difficult to establish its principles, and to deduce from its theory, such consequences, as would vindicate the policy of the measure. But why should we lose time to examine the theory, when it is in our power to resort to experience? After being tried by that test, the world has agreed in pronouncing the institution excellent. This new capital will invigorate trade and manufactures with new energy. It will furnish a medium for the collection of the revenues; and if Government should be pressed by a sudden necessity, it will afford seasonable and effectual aid. With all these, and many other pretensions, if it was now a question whether Congress should be vested with the power of establishing a bank, I trust that this House, and all America, would assent to the affirmative. This, however, is not a question of expediency, but of duty. We are not at liberty to examine which of several modes of acting is entitled to the preference. But we are solemnly warned against acting at all. We are told, that the constitution will not authorize Congress to incorporate the subscribers to the bank. Let us examine the constitution; and if that forbids our proceeding, we must reject the bill; though we shall do it with deep regret, that such an opportunity to serve our country must be suffered to escape, for the want of a constitutional power to improve it.

The gentleman from Virginia considers the opposers of the bill as suffering disadvantage, because it was not debated as bills usually are, in committee of the whole house. He has prepared us to pronounce an 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 had 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 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 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 they are the incidents to that power. The most familiar and undisputed acts of legislation will shew, 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, before hand, for all the contingencies that would happen. The constitution contains the principles which are to govern in making laws; but every law requires the 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 powers 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, by interpretation, by ex-temporaneous 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 dissected. We are obliged to decide the question according to truth. The negative, if false, is less safe than the affirma tive, 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, 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 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 powers 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.

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 and proper to carry them into execution. That construc tion may be maintained to be a safe one, which promotes the good of the 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 incident to the power, he would not pause to examine. That 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 may be made which may 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 of providing for it? Ten of the States have no banks; those who have, may abolish theirs, or 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 a 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 disputes between England and Spain furnish 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 violations 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 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 there not 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 the 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, he 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 individual should not be liable for the debts of the