common-sense will admit, that despotism may not be opposed by us, because our fathers submitted to it fifty years ago. On a constitutional question, it is not the legislature or the judges that have the right or the power of making a precedent; these are subordinate, derivative authorities; it must emanate from higher, to wit, from constitutional authority; the States must construe the disputed clause which the States enacted, and set the precedent for themselves, by an amendment, if needed. So says our Constitution. Where that Constitution has not expressly given the right and power of construction, it is usurpation to assume it.

These considerations will bear also on the fourth argument by Mr. Gallatin. The legislative and judicial decisions cannot, and still less will the authority of great names, settle a controversy, which the States of the confederacy are alone competent to decide. What right has Congress or the Federal Judiciary to usurp the powers of a Convention?

But Mr. Gallatin's argument is opposed to every American and every republican maxim. Hitherto, we have considered it as characteristic of our American Republics, that the people, by written Constitutions, have limited and controlled their legislatures in the exercise of intrusted power. They have protected the rights of a minority by these documents, from the allabsorbing despotism of an uncontrolled majority. They have done this for the people, in language sufficiently intelligible to the people. We acknowledge, imperfections of expression and room for doubt and dispute will occasionally occur in every written instrument; and some, not many, are to be found in the Constitution of the United States. From hence, Mr. Gallatin argues, that doubt and uncertainty so necessarily attend all such attempts, that Constitutions are nearly, if not quite, useless; unless you permit judges and legislators to put their own construction, binding forever on the people, on the disputed claims. That is, taking the business of Constitution-making out of the hands of the people and the States, and depositing it under the safer control of judges nominated by the executive, and legislators often appointed by party men for party purposes, and controlled by a lobby legislation. Look at the Bank legislation in New-York State, and the domestic legislation by the Committees of the United States, when Judge Baldwin was the Chairman of the one, and Judge Todd of the other. Those who know the history of speculation in soldier's certificates, can easily account for the passage of the first Bank charter.

Such are the legitimate conclusions from Mr. Gallatin's argument; and we leave him in full possession of its legitimate

effect on the American public. Nothing more to the purpose could be urged against constitutional Governments, by the advocates of European legitimacy.

But there are constitutional objections to the Bank of the United States, that have not, as yet, received any reply. Most of them are very strongly put in Judge Clayton's pamphlet.

It is absolutely necessary we should bear in mind also, that neither at the period when the first Bank charter was applied for, nor in 1816, when the present one was granted, was the public in possession of the historical facts so indispensable to form a just opinion of the question. Yates' Secret Debates and Proceedings of the Convention, and the Journal of the Acts and Proceedings of that body had not then been published. The first was given to the public in 1821, the second in 1819; nor did we know till then, what were the proposed and rejected questions in the Convention; nor had we any light thrown on the reasons of their rejection, by Luther Martin's speech to his constituents, or Mr. Jefferson's posthumous works. These important commentaries on the Constitution, which every man who wishes for accurate information on constitutional questions must carefully peruse, have placed us at this day in a far more favourable situation for forming a correct judgment, than the legislators of 1816. The absence of these documents at that day, will account for so many honest and able patriots being led into the dangerous path of construction, and a reluctant sacrifice of constitutionality to expediency, for which there is now no excuse. The public is now too well informed, to accept of the authority of great names, obiter dicta of men of eminence, or even legislative constructions, or judicial decisions on great constitutional questions, when they see that the Convention has no where referred them to these tribunals, unless in specified and enumerated cases; cases of law and equity. A constitutional doubt can only be decided satisfactorily by the like authority that enacted the Constitution; and so says the Constitution itself, expressly, by the fifth article of that instrument.

The members of the Convention forbad all copies of their proceedings to be taken; no wonder therefore, during the formation of the Constitution, they were unknown even to many of the prominent politicians of the day. Hence, the mistakes of passing an act for the protection of manufactures, the Bank bill, &c. Mr. McDuffie's first head of argument in the first page of his report, is a very formidable weapon against himself in the hands of the tariff monopolists, and we wonder he was not aware of it.

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But let the truth be told history must not be falsified out of respect to great names. We are, in this country, too apt to talk in strains of hyperbolical panegyric, and to become man-worshippers without due regard to truth or common-sense. We have no right to expect or to assert that any man or set of men are absolutely perfect in wisdom or in virtue. For some years after the close of the Convention, and the general acceptance of the Constitution, that instrument appears neither to have been studied nor understood even by those who ought to have meditated on its clauses profoundly.

The early act passed for the protection of manufactures, a measure, at that time, countenanced by General Washington and Mr. Jefferson, after the British notions of Mr. John Adams, Colonel Hamilton, the two Morrisses, &c. was directly opposed to the tenth section of the first article, wherein it appears that after due consideration, the Convention did give the qualified power of laying protecting duties to such States as wished to exercise it, and did not give it to the National Legislature.

General Washington's proposal of a National University, after the Convention had three times rejected that measure, appears passing strange at this day, in his case, who must have known, but had forgotten the fact. His well known reluctance to pass the first Bank bill, can only be accounted for, by the influence of the Federal party over his better judgment.

The twenty-fifth section of the judiciary act, the carriage tax, the alien and sedition laws, &c. can only be attributed to some strange negleet of looking into the Constitution, and some vague preference of temporary expedience to constitutionality. It is on this principle we must account for the support given by Mr. Madison, Mr. Dallas, Mr. Crawford, Mr. Calhoun, &c. to the present Bank bill. The imbecility of the then administration in all its war-measures—an administration well intentioned, but not energetic-introduced a financial panic that tempted such men as these, to give up the constitutional question to what they then deemed financial necessity. They were mistaken; and the more wholesome turn of thinking of the public mind, at present, will, we trust, correct the mistakes of these truly honest and able men.

The powers of Congress are general; given for general purposes, for the general welfare; they relate to the whole people, to the public. Congress has no right to legislate in favour of or against any individual, or section, or class of individuals, or to confer privileges or monopolies, in which the whole community does not partake. It seems unnecessary to do more than

state this position, as evident in itself, as any mode of proof can make it.

The charter of the Bank of the United States erects a money-dealing, money-speculating monopoly, consisting of certain subscribers to the Bank, and shareholders therein, who trade conjointly with the Government of the United States; the latter, holding and subscribing seventy thousand shares of one hundred dollars each, and any other individuals, companies, or corporations, two hundred and eighty thousand such shares, amounting to thirty-five millions of dollars altogether.

So far as the holders of these two hundred and eighty thousand shares are concerned, this is not a general, but a special act; conferring exclusive rights and privileges on individuals, and establishing a money-dealing monopoly, irrevocable for twenty years. Where is the power of doing this, to be found in the Constitution?

This Bank is not simply a corporation, instituted as a means to effect a public purpose; it has a double aspect; it is a corporation for the use of the public, coupled with a corporation for the benefit of individuals. In this way, the refusal by the Convention to grant powers of incorporation amounts to nothing; for a public corporation, it is said, may be instituted, not indeed as an end, but as a means to carry into effect an express power, and it may be coupled with a private corporation of monopoly and privileges, granted to individuals! The rule of law is, you shall not be permitted to do indirectly, what you are forbidden to do directly. This double-dealing Bank charter, appears to me, a manifest fraud on the Constitution, which the acute but honest intellect of the Chairman of the Committee will feel reluctant to defend. Even if it were conceded to him, that a corporation might be set up as a means to an end-as the incidental power necessary and proper to carry into effect the enumerated power-still he must, on his part, concede also, that the means and the end must be coextensive; the means must not extend beyond the purposes for which they are adopted. A Bank may distribute funds of the treasury; but is it necessary and proper that for this purpose they should deal in bills of exchange; or lend money on lands; or on pledges; or hold estates in mortmain; or supersede the laws of escheat; or set aside the execution laws of particular States; or protect the property of the shareholders from State taxation; or force their branch banks into States who object to their introduction? Nor is it necessary that they should be invested with the enormous and alarming power of crushing at any moment any State bank in existence. A tyrant may use despotic power mildly,

but that does not take away from his power, the inherent despotism that characterizes it.

Again. Whatever incidental means are employed by Congress as necessary to carry into execution an express power, they must refer in the act of Congress to the power in whose aid they are employed; they must be placed also under the superintendence of a person or persons paid by, and subject to the control of the United States; removable, if it should be necessary to remove; and the means themselves, should be within the power of the legislature at any time to annul, to modify or to change, as the public interest may require. Else, what may seem at first necessary and proper, may be continued when it is unnecessary and improper. Every requisite thus necessary, has been abandoned in the Bank charter. It has no reference to any powers it is employed to execute; it is in no respect under the control of the Government, but of the stockholders; it is not a Government corporation acting for the public interest, so much as it is a private corporation, acting for the private interest of the shareholders, of whom the Government of the United States constitutes in power and in interest but one-fifth part; and can be at any time controlled and overruled by the majority of four-fifths.

Again. It is right and proper that the persons employed by the Federal Government should be of known standing and character in society, responsible for the due performance of their duties, and a power should constantly remain in the Government to check malversation, and dismiss them if it should be proper so to do. But the shareholders and their directors may be any body, of any character, natives or aliens. They embark in this money-making scheme, not to carry into effect the public purposes of the institution, but to make money. They have opportunities of misconduct, beyond the control of Government; and those opportunities were extensively exercised in the first years of the Bank; which, but for the exertions of Mr. Cheves, would probably have stopped payment fraudulently and disgracefully. What has been, may be. Nicholas Biddle will not live forever; and if the interest of the Bank and the interest of the Government should clash (no improbable occurrence) can there be a doubt to which side even Nicholas Biddle would lean? With these mischiefs inherent in the very vital frame of the Bank, how can it be defended as an incidental power to be relied on, even if it were constitutional? But who can say that these means, so manifestly objectionable, are the means necessary and proper to execute an enumerated constitutional power? This institution as to four-fifths of the power