ARGUMENT ON THE RIGHT OF THE STATES TO TAX THE NATIONAL BANK.

After the exordium, which the reader will find in the First Part of this work, Mr. Pinkney proceeded to inquire whether the act of Congress establishing the Bank was repugnant to the Constitution. In order to determine this question, he contrasted the nature and organization of the old Confederation and the na tional constitution by which it had been superseded. The former was a mere federative league; nothing more than a species of alliance offensive and defensive between the States, such as there had been many examples of in the history of the world. It had no power of coercion but by arms. Its fundamental principle was a scheme of legislation for states or communities in their political capacities. This was its great and radical vice, which the new constitution was intended to reform. This last was a project of general discretionary superintendence. It was formed upon the reverse of the principle of the Confederacy. It carried its agency to the persons of the citizens: it provided for direct legislation upon the people, precisely as in the State governments. But the change intended to be produced by the new constitution consisted much less in the addition of new powers to the Union, than in the invigoration of the original powers. The power of regulating commerce was, indeed, a new power. But the powers relating to war and peace, fleets and armies, treaties and finance, with the other more considerable powers, were all

vested in Congress by the articles of confederation. The proposed change only substituted a more effectual mode of administering them.

Under the constitution, the powers belonging to the federal government, whatever may be their extent, are just as sovereign as those of the States. The State governments are not the authors and creators of the national constitution. It does not derive its powers from them. They are preceding in point of time to the national sovereignty, but are postponed to it in point of supremacy by the will of the people. The powers of the national government are the great imperial powers by which nations are known to one another. It acts upon the people as the State governments act upon them. Its powers are given by the people, as those of the State governments are given. The national constitution was framed in the name of the people, and was ratified by the people as the State constitutions were. If the respective powers of these two governments interfere, those of the States must yield.

But it is said that the powers of the national government are limited in number and extent, and that this want of universality shows that they are not sovereign powers. But the State governments are not unlimited in the number, or unrestrained in the exercise of their powers. They are limited by the declarations of rights contained in the State constitutions; by the nature and ends of all government; and by the restraints upon state legislation contained in the constitution of the United States.

It is said, too, that the powers of the State governments are original, and therefore more emphatically sovereign than those of the national government. But the State powers are no more original than those belonging to the Union. There is no original power but in the people, who are the fountain and source of all political power.

The means of giving efficacy to the sovereign authorities vested by the people in the national government, are those adapted to the end; fitted to promote, and having a natural relation and connexion with, the objects of that government. The constitution by which these authorities and the means of executing them are given, and the laws made in pursuance of it, are declared to

incorporating the former and the present Bank, but in the various incidental statutes subsequently enacted on the same subject. On all these occasions, the question of constitutionality was equally open to debate.

There can be little danger in the Court receiving the decisions of Congress as strong, though not conclusive evidence, of the extent of its own constitutional powers. Experience has shown, what wisdom had anticipated, that its inclination is to abstain from the exercise of doubtful powers. Many of its express and unquestionable authorities it has omitted to exercise. In trespassing upon State rights, or those of the people, its responsibility is strong and direct. All its own prejudices and attachments are so many pledges of its virtue in this respect. But, surely, as to the question of necessity, (which relates to political economy,) the repeated decisions of Congress and the executive government are entitled to peculiar consideration, as the general question of constitutionality is mixed and complicated with the other question, whether the establishment of a Bank is a natural means of carrying into effect other powers expressly given.

The abstract question then reverts, has Congress authority to erect any corporation?

It has been already shown that the powers of the national government are sovereign powers for sovereign objects. These objects are generalized in the preamble to the constitution, and are afterwards more specifically enumerated. A more perfect union is to be formed; justice established; domestic tranquillity insured; the common defence provided for; the general welfare promoted; the blessings of liberty secured to the present generation and to posterity. The powers are suited to those ends. For the attainment of these vast objects, the government is armed with powers and faculties corresponding in magnitude. The means were intended to be commensurate with the ends, or the constitution was not intended to accomplish its own purposes-which is an inadmissible supposition. The security against abuse was provided by the structure of the government. All power entrusted for salutary ends, may be abused; but if the government is well constituted, the abuse cannot be permanent. The people will redress it.

To deal more in detail. The objects of the powers of the national government were,

1st. Security against foreign danger.

2d. Regulation of the intercourse, of every kind (diplomatic

and commercial) with foreign nations.

3d. The maintenance of harmony, and free and friendly intercourse among the states.

4th. Certain miscellaneous objects of general utility.

5th. Restraint of the States from certain injurious acts.

6th. An express provision for giving efficacy to all these powers.

1. Security against foreign danger is one of the primitive objects of civil society, and an avowed and essential object of the Union. The powers requisite for attaining it must be effectually confided to the federal councils. They can have no other limit than the necessity of their employment, and their adaptation to promote the end. Thus the powers of making war and peace, of raising and supporting armies, and of providing and maintaining a navy, are given without stint or measure. They are indefinite, unlimited, and absolutely sovereign. So also the powers of laying and collecting taxes and duties, imposts and excises, of paying the debts of the nation, and of borrowing money on its credit, have no other limit (except as to export duties) than the objects for which they are conferred.

2. Intercourse with foreign nations is one of the most important objects of all national government, and was a principal motive for the formation of the new constitution. The power over this too is given without limit. It includes, besides the authority of regulating commerce, and forming treaties of commerce and other conventions with foreign States, that of sending and receiving ambassadors, and of defining and punishing offences against the law of nations. The States are prohibited from interfering with the exercise of those authorities.

3. For the maintenance of harmony and of friendly intercourse among the different States of the Union, are given the power of establishing uniform naturalization and bankrupt laws; to coin money, and regulate the circulating medium, and the standard of weights and measures; to regulate commerce among the States ; incorporating the former and the present Bank, but in the various incidental statutes subsequently enacted on the same subject. On all these occasions, the question of constitutionality was equally open to debate.

There can be little danger in the Court receiving the decisions of Congress as strong, though not conclusive evidence, of the extent of its own constitutional powers. Experience has shown, what wisdom had anticipated, that its inclination is to abstain from the exercise of doubtful powers. Many of its express and unquestionable authorities it has omitted to exercise. In trespassing upon State rights, or those of the people, its responsibility is strong and direct. All its own prejudices and attachments are so many pledges of its virtue in this respect. But, surely, as to the question of necessity, (which relates to political economy,) the repeated decisions of Congress and the executive government are entitled to peculiar consideration, as the general question of constitutionality is mixed and complicated with the other question, whether the establishment of a Bank is a natural means of carrying into effect other powers expressly given.

The abstract question then reverts, has Congress authority to erect any corporation?

It has been already shown that the powers of the national government are sovereign powers for sovereign objects. These objects are generalized in the preamble to the constitution, and are afterwards more specifically enumerated. A more perfect union is to be formed; justice established; domestic tranquillity insured; the common defence provided for; the general welfare promoted; the blessings of liberty secured to the present generation and to posterity. The powers are suited to those ends. For the attainment of these vast objects, the government is armed with powers and faculties corresponding in magnitude. The means were intended to be commensurate with the ends, or the constitution was not intended to accomplish its own purposes-which is an inadmissible supposition. The security against abuse was provided by the structure of the government. All power entrusted for salutary ends, may be abused; but if the government is well constituted, the abuse cannot be permanent. The people will redress it.