abundant is domestic capital, that competition, in subscribing for the stock of local banks, has recently led almost to riots. To a bank, exclusively of American stockholders, possessing the powers and privileges granted by this act, subscriptions for two hundred millions of dollars could be readily obtained. Instead of sending abroad the stock of the bank, in which the government must deposit its funds, and on which it must rely to sustain its credit in times of emergency, it would rather seem to be expedient to prohibit its sale to aliens under penalty of absolute forfeiture.

It is maintained by the advocates of the bank, that its constitutionality, in all its features, ought to be considered as settled by precedent, and by the decision of the supreme court. To this conclusion I cannot assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power, except where the acquiescence of the people and the states can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor. of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its favor. Prior to the present Congress, therefore, the precedents drawn from that source were equal. If we resort to the states, the expressions of legislative, judicial, and executive opinions against the bank have been probably to those in its favor as four to one. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me.

If the opinion of the supreme court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this government. The congress, the executive, and the court, must each for itself be guided by its own opinion of the constitution. Each public officer, who takes an oath to support the constitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the supreme judges when it be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and, on that point, the president is independent of both. The authority of the supreme court must not, therefore, be permitted to control the congress or the executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

may

But in the case relied upon, the supreme court have not decided that all the features of this corporation are compatible with the constitution. It is true that the court have said that the law incorporating the bank is a constitutional exercise of power by Congress. But, taking into view the whole opinion of the court, and the reasoning by which they have come to that conclusion, I understand them to have decided that, inasmuch as a bank appropriate means of carrying into effect the enumerated powers of the general government, therefore the law incorporating it is in accordance with that provision of the constitution which declares that Congress shall have power "to make all laws which shall be necessary and proper for carrying those powers into execution." Having satisfied themselves that the word "necessary," in the constitution, means "needful," "requisite," essential," "conducive to," and that "a bank" is a convenient, a useful,

is an

and essential instrument in the prosecution of the government's "fiscal operations," they conclude that "o use one must be within the discretion of Congress," and that "the act to incorporate the Bank of the United States is a law made in pursuance of the constitution; "but," say they, "where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground."

The principle here affirmed is, that the "degree of its necessity," invol ving all the details of a banking institution, is a question exclusively for legislative consideration. A bank is constitutional; but it is the province of the legislature to determine whether this or that particular power, privilege, or exemption," is necessary and proper" to enable the bank to discharge its duties to the government; and from their decision there is no appeal to the courts of justice. Under the decision of the supreme court, therefore, it is the exclusive province of Congress and the president to decide whether the particular features of this act are necessary and proper, in order to enable the bank to perform conveniently and efficiently the public duties assigned to it as a fiscal agent, and therefore constitutional; or unnecessary and im proper, and therefore unconstitutional.

Without commenting on the general principle affirmed by the supreme court, let us examine the details of this act in accordance with the rule of legislative action which they have laid down. It will be found that many of the powers and privileges conferred on it, cannot be supposed necessary for the purpose for which it is proposed to be created, and are not, therefore, means necessary to attain the end in view, and consequently not justified by the constitution.

The original act of corporation, section twenty-first, enacts "that no other bank shall be established by any future law of the United States during the continuance of the corporation hereby created, for which the faith of the United States is hereby pledged, Provided, Congress may renew existing charters for banks within the District of Columbia, not increasing the capital thereof, and may also establish any other bank or banks in said district, with capitals not exceeding, in the whole, six millions of dollars, if they shall deem it expedient." This provision is continued in force by the act before me, fifteen years from the third of March, 1836.

If Congress possessed the power to establish one bank, they had power to establish more than one, if in their opinion, two or more banks had been "necessary" to facilitate the execution of the powers delegated to them in the constitution. If they possess the power to establish a second bank, it was a power derived from the constitution, to be exercised from time to time, and at any time when the interests of the country, or the emergencies of the government might make it expedient. It was possessed by one Congress as well as another, and by all Congresses alike, and alike at every session. But the Congress of 1816 have taken it away from their succes sors for twenty years, and the Congress of 1832 proposed to abolish it for fifteen years more. It cannot be "necessary" or "proper" for Congress to barter away, or divest themselves of any of the powers vested in them by the constitution to be exercised for the public good. It is not "necessary" to the efficiency of the bank, nor is it "proper" in relation to themselves and their successors. They may "properly" use the discretion vested in them; but they may not limit the discretion of their successors.

This restriction on themselves, and grant of a monopoly to the bank, is therefore unconstitutional.

In another point of view, this provision is a palpable attempt to amend the constitution by an act of legislation. The constitution declares that "the Congress shall have power to exercise exclusive legislation, in all cases whatsoever," over the District of Columbia. Its constitutional power, therefore, to establish banks in the District of Columbia, and increase their capital at will, is unlimited and uncontrollable by any other power than that which gave authority to the constitution. Yet this act declares that Congress shall not increase the capital of existing banks, nor create other banks with capitals exceeding in the whole six millions of dollars. The constitution declares that Congress shall have power to exercise exclusive legislation over this district "in all cases whatsoever;" and this act declares they shall not. Which is the supreme law of the land? This provision cannot be "necessary," or "proper," or "constitutional," unless the absurdity be admitted, that, whenever it be "necessary and proper," in the opinion of Congress, they have a right to barter away one portion of the powers vested in them by the constitution, as a means of executing the rest. On two subjects only does the constitution recognise in Congress the power to grant exclusive privileges or monopolies. It declares that "Congress shall have power to promote the progress of science and useful arts by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries."

Out of this express delegation of power, have grown our laws of patents and copy rights. As the constitution expressly delegates to Congress the power to grant exclusive privileges, in these cases, as the means of executing the substantive power "to promote the progress of science and useful arts," it is consistent with the fair rules of construction, to conclude that such a power was not intended to be granted as a means of accomplishing any other end. On every other subject which comes within the scope of Congressional power, there is an ever-living discretion in the use of proper means, which cannot be restricted or abolished without an amendment of the constitution. Every act of Congress, therefore, which attempts by grants of monopolies, or sale of exclusive privileges for a limited time, or a time without limit, to restrict or extinguish its own discretion in the choice of means to execute its delegated powers, is equivalent to a legislative amendment of the constitution, and palpably unconstitutional.

This act authorizes and encourages transfers of its stock to foreigners, and grants them an exemption from all state and national taxation. So far from being "necessary and proper" that the bank should possess this power to make it a safe and efficient agent of the government in its fiscal operations, it is calculated to convert the bank of the United States into a foreign bank, to impoverish our people in time of peace, to disseminate a foreign influence through every section of the republic, and, in war, to endanger our independence.

The several states reserved the power, at the formation of the constitution, to regulate and control titles and transfers of real property; and most, if not all of them, have laws disqualifying aliens from acquiring or holding lands within their limits. But this act, in disregard of the undoubted right of the states to prescribe such qualifications, gives to aliens, stockholders in this bank, an interest and title as members of the corporation, to all the real property it may acquire within any of the states of this Union. This pri

vilege granted to aliens is not "necessary" to enable the bank to perform its public duties, nor in any sense "proper," because it is virtually subversive of the rights of the states.

The government of the United States have no constitutional power to purchase lands within the states, except " for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings;" and even for these objects, only "by the consent of the legislature of the state in which the same shall be." By making themselves stockholders in the bank, and granting to the corporation the power to purchase lands for other purposes, they assume a power not granted in the constitution, and grant to others what they do not themselves possess. It is not necessary to the receiving, safe keeping, or transmission of the funds of the government, that the bank should possess this power; and it is not proper that Congress should thus enlarge the powers delegated to them in the constitution.

The old bank of the United States possessed a capital of only eleven mil lions of dollars, which was found fully sufficient to enable it, with despatch and safety, to perform all the functions required of it by the government. The capital of the present bank is thirty-five millions of dollars, at least twenty-four more than experience has proved to be necessary to enable a bank to perform its public functions. The public debt which existed during the period of the old bank, and on the establishment of the new, has been nearly paid off, and our revenue will soon be reduced. This increase of capital is, therefore, not for public but for private purposes. The government is the only "proper" judge where its agents should reside and keep their offices, because it best knows where their presence will be "necessary." It cannot, therefore, be "necessary" or "proper" to authorize the bank to locate branches where it pleases, to perform the public service, without consulting the government, and contrary to its will. principle laid down by the Supreme Court concedes that Congress cannot establish a bank for purposes of private speculation and gain, but only as a - means of executing the delegated powers of the general government. By the same principle, a branch bank cannot constitutionally be established for other than public purposes. The power which this act gives to establish two branches in any state, without the injunction or request of the government, and for other than public purposes, is not "necessary" to the due exe cution of the powers delegated to Congress.

The

The bonus which is exacted from the bank is a confession, upon the face of the act, that the powers granted by it are greater than are "necessary" to its character of a fiscal agent. The government does not tax its officers and agents for the privilege of serving it. The bonus of a million and a half required by the original charter, and that of three millions proposed by this act, are not exacted for the privilege of giving "the necessary facilities for transferring the public funds from place to place, within the United States or the territories thereof, and for distributing the same in payment of the public creditors, without charging commission or claiming allowance on account of the difference of exchange," as required by the act of incorporation, but for something more beneficial to the stockholders. The original act declares, that it (the bonus) is granted "in consideration of the exclusive privileges and benefits conferred by this act upon the said bank," and the act before me declares it to be " in consideration of the exclusive benefits and privileges continued by this act to the said corporation for fifteen years as aforesaid." It is, therefore, for "exclusive privileges and benefits," confer

red for their own use and emolument, and not for the advantage of the government, that a bonus is exacted. These surplus powers, for which the bank is required to pay, cannot surely be "necessary" to make it the fiscal agent of the treasury. If they were, the exaction of a bonus for them would not be" proper."

It is maintained by some that the bank is a means of executing the constitutional power "to coin money, and regulate the value thereof." Congress have established a mint to coin money, and passed laws to regulate the value thereof. The money so coined, with its value so regulated, and such foreign coins as Congress may adopt, are the only currency known to the constitution. But if they have other power to regulate the currency, it was conferred to be exercised by themselves, and not to be transferred to a corporation. If the bank be established for that purpose, with a charter unalterable without its consent, Congress have parted with their power for a term of years, during which the constitution is a dead letter. It is neither necessary nor proper to transfer its legislative powers to such a bank, and therefore unconstitutional.

By its silence, considered in connection with the decision of the Supreme Court, in the case of McCulloch against the state of Maryland, this act takes from the states the power to tax a portion of the banking business carried on within their limits, in subversion of one of the strongest barriers which secured them against federal encroachments. Banking, like farming, manufacturing, or any other occupation or profession, is a business, the right to follow which is not originally derived from the laws. Every citizen, and every company of citizens, in all of our states, possessed the right, until the state legislatures deemed it good policy to prohibit private banking by law. If the prohibitory state laws were now repealed, every citizen would again possess the right. The state banks are a qualified restoration of the right which has been taken away by the laws against banking, guarded by such provisions and limitations as in the opinion of the state legislatures the public interest requires. These corporations, unless there be an exemption in their charter, are, like private bankers and banking companies, subject to state taxation. The manner in which these taxes shall be laid, depends wholly on legislative discretion. It may be upon the bank, upon the stock, upon the profits, or in any other mode which the Sovereign power shall will.

Upon the formation of the constitution the states guarded their taxing power with peculiar jealousy. They surrendered it only as it regards imports and exports. In relation to every other subject within their jurisdiction, whether persons, property, business, or professions, it was secured in a3 ample a manner as it was before possessed. All persons, though United States officers, are liable to a poll tax by the states within which they reside. The lands of the United States are liable to the usual land tax, except in the new states, from whom agreements, that they will not tax unsold lands, are exacted when they are admitted into the Union: horses, waggons, any beasts or vehicles, tools or property belonging to private citizens, though employed in the service of the United States, are subject to state taxation. Every private business whether carried on by an officer of the general government or not, whether it be mixed with public concerns or not, even if it be carried on by the government of the United States itself, separately or in partnership, falls within the scope of the taxing power of the state. Nothing comes more fully within it than banks, and the business of banking,