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not stop in the Eastern States, but passes on to Europe, to pay the dividends of the foreign stockholders. In the principle of taxation recognized by this act, the Western States find no adequate compensation for this perpetual burden on their industry, and drain of their carrency. The branch bank at Mobile made, last year, $95,140; yet, under the provisions of this act, the state of Alabama can raise no revenue from these profitable operations, because not a share of the stock is held by any of her citizens. Mississippi and Missouri are in the same condition, in relation to the branches at Natchez and St. Louis; and such, in a greater or less degree, is the condition of every Western state. The tendency of the plan of taxation which this act proposes, will be to place the whole United States in the same relation to foreign countries which the Western States now bear to the Eastern. When, by a tax on resident stockholders, the stock of this bank is made worth ten or fifteen per cent. more to foreigners than to residents, most of it will inevitably leave the country,
Thus will this provision, in its practical effect, deprive the Eastern as well as the Southern and Western States, of the means of raising a revenue from the extension of business and great profits of the institution. It will make the American people debtors to aliens, in nearly the whole amount due to this bank, and send across the Atlantic from two to five millions of specie every year to pay the bank dividends.
In another of its bearings this provision is fraught with danger. Of the twenty-five directors of this bank, five are chosen by the government, and twenty by the citizen stockholders. From all voice in these elections, the foreign stockholders are excluded by the charter. In proportion, therefore, as the stock is transferred to foreign holders, the extent of suffrage in the choice of directors is curtailed.
Already is almost a third of the stock in foreign hands, and not represented in elections. It is constantly passing out of the country; and this act will accelerate its departure. The entire control of the institution would necessarily fall into the hands of a few citizen stockholders; and the ease with which the object would be
accomplished, would be a temptation to designing men to secure that control in their own hands, by monopolizing the remaining stock. There is danger that a president and directors would then be able to elect themselves from year to year, and, without responsibility or control, manage the whole concerns of the bank during the existence of its charter. It is easy to conceive that great evils to our country and its institutions might flow from such a concentration of power in the hands of a few men, irresponsible to the people,
Is there no danger to our liberty and independence in a bank, that in its nature has so little to bind it to our country? The president of the bank has told us that most of the state banks exist by its forbearance. Should its influence become concentred, as it may under the operation of such an act as this, in the hands of a selfelected directory, whose interests are identified with those of the foreign stockholder, will there not be cause to tremble for the purity of our elections in peace, and for the independence of our country in war? Their power
would be great whenever they might choose to exert it; but if this monopoly were regularly renewed every fifteen or twenty years, on terms proposed by themselves, they might seldom in peace put forth their strength to influence elections or control the affairs of the nation. But if
any private citizen or public functionary should interpose to curtail its powers, or prevent a renewal of its privileges, it cannot be doubted that he would be made to feel its influence.
Should the stock of the bank principally pass into the hands of the subjects of a foreign country, and we should unfortunately become involved in a war with that country, what would be our condition ?. Of the course which would be pursued by a bank almost wholly owned by the subjects of a foreign power, and managed by those whose interests, if not affections, would run in the same direction, there can be no doubt. All its operations within, would be in aid of the hostile fleets and armies without. Controlling our currency, receiving our public moneys, and holding thousands of our citizens in dependence, it would
be more formidable and dangerous than the naval and military power of the enemy.
If we must have a bank with private stockholders, every consideration of sound policy, and every impulse of American feeling, admonishes that it should be purely American. Its stockholders should be composed exclusively of our own citizens, who at least ought to be friendly to our government, and willing to support it in times of difficulty and danger. So 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
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 coördinate 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 may 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.
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 is an appropriate means for 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, and essential instrument in the prosecution of the government's “ fiscal operations,” they conclude that “ to use one must be in 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 intrusted 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 attirmed is, that the “ degree of its necessity,” involving 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 improper, 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 incorporation, section 21st, 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 3d of March, 1836.