Page images
PDF
EPUB

their limits. But this act, in disregard of the undoubted right of the states to prescribe such disqualifications, 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 privilege granted to aliens is not "necessary.to enable the bank to perform its public duties, nor in any sense proper," because it is vitally 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 notnecessaryto 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 millions 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 proper" to authorize the bank to locate branches where it pleases, to perform the public service, without consulting the government, and

[ocr errors]

or

contrary to its will. The 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 execution of the powers delegated to Congress.

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 necessaryto its character of a fiscal agent. The government does not tax its officers and agents for the privilege of serving it. The bonus of á 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" conferred 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 " necessaryto 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 constituticnal 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 the 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 power to such a bank, and therefore unconstitutional.

By its silence, considered in connection with the decis. ion 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 regards imports and exports. In relation to every other object within their jurisdiction, whether persons, property, business, or professions, it was secured

in as 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, wagons, 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 the public concerns or not, even if it be carried on by 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, by whomsoever instituted and carried on. Over this whole subject matter, it is just as absolute, unlimited, and uncontrollable, as if the constitution never had been adopted, because in the formation of that instrument, it was reserved without qualification.

The principle is conceded that the states cannot rightfully tax the operations of the general government. They cannot tax the money of the government deposited in the state banks, nor the agency of those banks in remitting it; but will any man maintain that their mere selection to perform this public service for the general government, would exempt the state banks and their ordinary business from state taxation? Had the United States, instead of establishing a bank at Philadelphia, employed a private banker to keep and transmit their funds, would it have deprived Pennsylvania of the right to tax his bank and his usual banking operations? It will not be pretended. Upon what principle, then, are the banking establishments of the Bank of the United States, and their usual banking operations, to be exempted from taxation? It is not their public agency or the deposits of the government which the states claim a right to tax, but their banks, and their bank-. ing powers, instituted and exercised within state jurisdiction for their private emclument, those powers and privileges for which they pay a bonus, and which the states tax

in their own banks. The exercise of these powers within a state, no matter by whom, or under what authority, whether by private citizens in their original right, by corporate bodies created by the states, by foreigners, or the agents of foreign governments located within their limits, forms a legitimate object of state taxation. From this and like sources, from the persons, property, and business that are found residing, located, or carried on under their jurisdiction, must the states, since the surrender of their right to raise a revenue from imports and exports, draw all the money necessary for the support of their governments and the maintenance of their independence. There is no more appropriate subject of taxation than banks, banking, and bank stocks, and none to which the states ought more pertinaciously to cling.

It cannot be necessaryto the character of the bank as a fiscal agent of the government, that its private business should be exempted from that taxation to which all state banks are liable; nor can I conceive it “ proper that the substantive and most essential powers reserved by the states shall be thus attacked and annihilated as a means of executing the powers delegated to the general government. It may be safely assumed that none of those sages who had an agency in forming or adopting our constitution, ever imagined that any portion of the taxing power of the states, not prohibited to them nor delegated to Congress, was to be swept away and annihilated, as a means of executing certain powers delegated to Congress.

If our power over means is so absolute that the Supreme Court will not call in question the constitutionality of an act of Congress, the subject of which " is not prohibited, and is really calculated to effect any of the objects intrusted to the government,' although, as in the case before

me,

it takes away powers expressly granted to Congress, and rights scrupulously reserved to the states, it becomes us to proceed in our legislation with the utmost caution. Though not directly, our own powers and the rights of the states may be indirectly legislated away in the use of means to execute substantive powers.

We may not enact that Congress shall not have the power of

« PreviousContinue »