The organized populism of late-nineteenth-century America was predominantly an outgrowth of southern and midwestern agrarian movements during the 1870s and 1880s. Cooperative alliances emerged claiming to defend the interests of farmers in the face of railroad expansion, exploitative banking practices, and diminishing crop prices. Of key importance were groups such as the Farmers鈥� Alliance, the Agricultural Wheel, and the Grange. In the early 1890s, the Farmers鈥� Alliance and other groups reached out to northeastern labor to form the relatively short-lived Populist (or People鈥檚) Party. Among other things, the new party advocated the regulation and possible public ownership of the railroads, the abolition of national banking, the graduated income tax, reduced tariffs, abandoning the gold standard and embracing free silver, the initiative and referendum, the direct election of U.S. senators, and the eight-hour workday.

The Populist Party reached its zenith when it joined with the Democrats to nominate William Jennings Bryan for president in 1896. While the Democratic Party absorbed Jennings鈥� defeat and survived, the smaller Populist Party could not, especially when Bryan lost again in 1900. The Populist Party collapsed soon afterward. Various strands of the party were absorbed into other elements of the political landscape, among them an emerging movement we now call progressivism.

The American progressive movement lasted roughly from the early 1890s to the early 1920s, encompassing much more than the political party that sprang up around Theodore Roosevelt in 1912. Yet, as with many such 鈥渕ovements,鈥� it 聽is difficult to reduce progressivism to a single defining concept or motivation. Among turn-of-the century progressives we find a hodgepodge of political and intellectual strains. Under the tent of progressivism one could find the remnants of the populist agrarians, a variety of Christian social activists, temperance advocates and suffragists, labor and industrial reformers, and university Ph.D.s in philosophy and the new behavioral and social sciences, just to name a few. Nevertheless, we might see in the movement some common themes, perhaps the most significant of which resides in the name attached to it鈥斺�減rogressivism.鈥� It might seem obvious, but one key element uniting many of these reformers, politicians, and intellectuals was their shared embrace of the doctrine of Progress with a capital 鈥淧.鈥� The particular engine of that progress, be it the internal dynamics of history itself or some notion of biological or social evolution, varied among thinkers. We might say, however, that a progressive is someone who likely adheres to some notion that the human condition, and the human being, are improving, developing, or evolving over time. Through social, political, and economic reform, we not only participate in that progress but might help speed it along. As the 鈥渋sm鈥� in the name suggests, progressivism is an ideology of progress. Distinguished from philosophy, which contemplates truth for its own sake, ideology tends to investigate and employ ideas for the expressed purpose of practical, political action, be it preservation or change. Whatever particular concerns might separate the various elements of the progressive movement, they were united in their dedication to changing American life in the name of progress.

In general, the progressives sought to reinterpret the American political order by giving the people more direct power over legislation and elected politicians, and in turn, giving administrative experts in state and federal agencies more power to regulate social and economic life. Progressive political scientists such as Woodrow Wilson and Frank Goodnow distinguished politics from administration. Politics might determine the broad ends or purposes of government, but administration, they argued, deals with detailed policy and the particular, technical means by which we secure those ends. Many progressives argued that enlightened administration could be released from the restraints of elections, separation of powers, and checks and balances to help solve political and economic problems. This progressive vision was perhaps best realized a few years later in the form of Franklin Roosevelt鈥檚 New Deal. Political scientists sometimes refer to this as the rise of the 鈥渁dministrative state.鈥�

Key to the progressive project was the attempt to regulate certain sectors of the economy and redistribute wealth and private property in the name of 聽鈥渟ocial and industrial justice.鈥� But these policies, many progressives argued, would not be enacted as long as the political process was dominated by powerful special interests and as long as the Constitution presented supposedly antidemocratic obstacles to progressive reform (e.g., representation, a difficult method of constitutional amendment, federalism, separation of powers and checks and balances, and a cumbersome legislative process).

For many, the progressive project required an explicit, direct criticism of the principles of the Declaration of Independence and the U.S. Constitution. Progressive thinkers understood that the natural rights and social contract thinking that informed the Declaration of Independence provided the basis for a limited government constitutionalism that often seemed to frustrate contemporary progressive reform. They often claimed that these founding principles had been swept aside in the march of progressive history or by the evolutionary science of Darwinism. Educated men, they asserted, now knew that there were no transhistorical truths or natural rights that applied to all human beings everywhere and always. Liberty ought not to be seen as natural to man, but as a product of history, a convention, or a dispensation of government. Moreover, if human nature and political wisdom can be improved through historical and scientific progress, perhaps limitations on government were no longer necessary. These admittedly abstract ideas had very practical consequences for America鈥檚 political development.

This document volume deviates from more common 鈥渢extbook鈥� approaches to the study of populism and progressivism in American history, not only because it focuses on primary sources but because it takes ideas seriously. Indeed, the leaders in these movements asked Americans to think about the proper ends and means of American democracy. This is especially true of the progressive movement. Insofar as it is a reaction to the founding, any real understanding of progressivism requires that we place its ideas and institutions in conversation with those of the Founders. We must weigh, balance, and ultimately judge what among their opinions is most reasonable. Necessarily limited in its scope, the present volume can only contribute to part of that dialogue. The reader might begin to construct that dialogue, however, by pairing this volume with others in the Core Documents series, perhaps those on the American Founding and the Constitutional Convention.

I thank David Tucker for editorial advice and assistance. I am also grateful for the advice provided by two anonymous readers. In closing, I should also note that this volume is in part the result of a progressivism course I sometimes teach as a visiting faculty member in Ashland University鈥檚 MAHG program (Master of Arts in American History and Government). I wish to thank the students in those classes鈥攎ost of them teachers鈥攆or their conversation, insights, questions, and dedication to learning through primary source documents. I have also benefitted much from other faculty who have taught the course, among them Christopher Burkett, David Alvis, Ronald J. Pestritto, and William Atto. Pestritto and Atto鈥檚 excellent and frequently assigned reader on American progressivism originated in their iteration of the course. That volume should be required reading for anyone interested in the principles of American progressivism and is listed among the suggested readings in Appendix C.

Jason R. Jividen

Saint Vincent College

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The chief modern industrial problem is often stated to be the distribution of property. What is wanted is widely diffused property, and it is desired to bring about this wide diffusion without injustice, and without injury to the springs of economic activity.

Many proposals are brought forward which aim to produce a more general prosperity. Two of the best known are the single tax and socialism.^[1] These, however, apart from all other considerations, encounter the strongest obstacles to their introduction because they are so averse to powerful private interests. Wise social reform will always seek for the line of least resistance. It is granted that the end proposed by socialism and the single tax is desirable in so far as it contemplates a wide distribution of wealth; but before committing ourselves to any extreme doctrines it is well to ask, What can be done without radical change?鈥攊n other words, what can we accomplish in order to ameliorate the condition of the masses without departure from the fundamental principles of the existing social order? When we reflect upon it, we find that there are many things, and that these are quite sufficient to occupy the thoughts and energies of well-wishers of their kind for a long time to come. At the present time I feel inclined to classify the chief things required to bring about an improved condition of society in the United States under three heads, namely:

First鈥擡ducation in its broadest sense, including kindergartens, manual training, technical schools, colleges, and universities.

Second鈥擳he abolition of private monopoly, and the substitution therefor of public ownership and management of all those enterprises which are by nature monopolies, like railways, gas and electric-lighting businesses, telegraphs, telephones, etc.

Third鈥擜 reform of the laws of inheritance.

What can be done by a regulation of inheritance to change the distribution of property, and consequently of the opportunities and income which property yields? Once in a generation nearly all property changes owners, and that gives opportunity for bringing about the greatest changes within half a century. There is a perpetual flow of property from the dead to the living, and it is possible by means of law to exercise much influence over this current. When we attempt to bring about reform and improvement by a wise regulation of inheritance, we have a solid basis of experience to help us. One part of such legislation which naturally suggests itself is the taxation of the estates of decedents, and such estates are taxed to a greater or less extent in nearly all鈥攑erhaps in all鈥攇reat modern nations. We may mention England, Australia, New Zealand, and Switzerland as countries with particularly instructive experience in the taxation of inheritances. Pennsylvania, New York, and Maryland in the United States have experience which is valuable as far as it goes. Three of the countries named, Australia, New Zealand, and Switzerland, have taxation of inheritances, which amounts to a conscious attempt to influence the distribution of property.

Someone may interrupt at this point with the objection, 鈥淵ou are proposing measures which impair the rights of private property.鈥� The objection is not valid. The right of inheritance is one right, and the right of private property is another and a distinct right. He has made but little progress in the fundamental principles of jurisprudence who does not see how clearly separated are these two rights. The right of property means an exclusive right of control over a thing, but the right of inheritance means the transfer of this right in one manner or another. If there is no will, it means the right of someone to succeed to property, and this right is a product of positive law. If a will is made, the right of inheritance means not an exclusive right of control vested in a person, but the right of a person to say who shall exercise the right of property over things which were his while he was living, after he is dead, and, consequently, after he has lost all rights of property, because the dead have no proprietary rights whatever. Blackstone in his Commentaries on the Laws of England clearly discriminates between the rights of property and the rights which we lump together under the designation 鈥渋nheritance.鈥� He says:

Naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else if he had a right to dispose of his acquisitions one moment beyond his life he would also have a right to direct their disposal for a million of ages after him, which would be highly absurd and inconvenient. All property must, therefore, cease upon death, considering men as absolute individuals unconnected with civil society. . . . Wills, therefore, and testaments, rights of inheritance and succession, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having distinct ceremonies and requisites to make a testament completely valid; neither does anything vary more than the right of inheritance under different national establishments.^[2]

Blackstone says it is an erroneous principle to suppose that 鈥渢he son has by nature a right to succeed to his father’s lands,鈥� or that the owner 鈥渋s by nature entitled to direct the succession of his property after his own decease.鈥�^[3]

The right of property in itself is not an unlimited one, but is limited and regulated to an increasing extent by all modern nations. . . . But when we come to the claim that my right of disposing of property by last will and testament is practically unlimited, it means not only my right to regulate the use of certain portions of the earth鈥檚 surface, or claims to certain portions of other valuable things in this earth, during my lifetime, but for all future time. There are those, indeed, who go so far as to hold that a man may establish certain regulations for the use of property after he is dead and gone, and that these regulations must be binding upon all future generations. Could any claim be more monstrous? It is in itself the extremest radicalism. We may say, in fact, that it is the furthest reach which radicalism has yet attained. . . .

When no will is made, the rule according to which property is divided among wife and children in this country is, perhaps, tolerably satisfactory; but suppose a man dies making no will, and has only collateral relatives: what should be their legal claim upon the estate? The modern laws which provide that even distant relatives may inherit the property of intestates are survivals of an earlier period, when large family groups lived together and formed a kind of a family partnership under the authority of the patriarch. When a man died under such circumstances, it was only natural that his property should pass to the family or the clan, itself but a larger family, for all were united together by the ties of interest and affection. There was a correspondence between rights and duties. But what is the case at the present time? The peculiar ties which bind together distant relatives are practically unworthy of consideration. Rights and duties ought to be coordinate, but distant relatives recognize no special duties toward one another, and do not think about their common relationship unless there is some property to be inherited from a distant rich relative, for whom they care nothing. In the absence of a will, there is positively no reason whatever why anyone should inherit from a third cousin. The family reason does not cover the case, because family feeling does not in our day extend so far, and, indeed, there is no reason why it should. . . .

All inheritances of every sort should be taxed, provided the share of an heir exceeds a certain amount. The state or the local political unit鈥攁s town or city鈥攎ust be recognized as a co-heir entitled to a share in all inheritances. A man is made what he is by family, by town, or the local political circle which surrounds him, and by the state in which he lives, and all have claims which ought to be recognized. Taxation of inheritance is the means whereby this claim of the state and town may secure recognition. It should, however, be borne in mind that it is a peculiar tax, and rests upon a different basis from the ordinary tax. The justification which appeals to me most strongly is that the political organisms are co-heirs. There are, however, many different standpoints from which the taxation of inheritances can be justified. Property which comes by inheritance is an income received without toil. It is for the one receiving it an unearned increment of property, and on this account may properly be taxed. The most satisfactory basis upon which property can rest is personal toil and exertion of some kind, and when property comes otherwise than as a return for social service, a special tax finds a good solid basis in justice.

It generally happens, perhaps universally, that a large property does not pay its fair share of taxes during the lifetime of its owner, and the tax upon estates when their owners die may be regarded鈥攊f it is not too large鈥攁s a payment of back taxes. It is notorious with us that personal property bears relatively a very small proportion of the burdens of government, and it has been proposed that the ordinary property tax on personal property should be abolished, and that in the place thereof there should be substituted a tax on all estates of decedents in so far as they consist of personal property. These, however, are grounds only for a limited tax, which in the case of personal property ought to be added to the regular inheritance tax, if personal property is otherwise exempted from taxation.

The taxation of inheritances should be graduated, the tax increasing as the relationship becomes more distant, and as the property becomes larger. This is in the line of the present development of taxation of inheritances. . . .

The use to be made of the funds acquired by the taxation of inheritances, and by establishing the co-heirship of town and state, must vary according to time and place. . . . In cases of cities, towns, and states weighed down with debt, the payment of bonds would be an excellent employment of the funds. In case taxes are extraordinarily high and are weighing down industry, the tax rate might be reduced. I think, however, that there are very few places in the United States where a properly developed tax system would not provide for all present expenditures of government without overburdening anyone. But there are great improvements which it is desirable to carry out, and these funds could be used to effect improvements which cost too much to be defrayed out of the ordinary taxation.

The states of the Union, and many of the towns, ought to go into forestry, purchasing large tracts of land, especially on mountains and along river courses, and covering these with trees. States and cities have allowed the ownership of valuable public works to slip away from them into the hands of private corporations. Waterworks, gasworks, streetcar lines, and the like might be purchased and operated at cost. All great cities require a larger number of parks, especially of small parks in the crowded sections. Sanitary measures may be mentioned, and some of these are expensive. They, however, lower the death rate and improve the health of the community. There are many cities which ought to buy slums and tear down the houses in them. The city of Manchester, England, bought quite a large tract of land in the center of the city, which was the worst slum region in it, and tore down all the houses. It then leased the land for a limited term of years, to be built up with houses according to plans and specifications laid down. The result has been a remarkable improvement in Manchester, and it is said that, when these leases fall in, Manchester will be one of the richest, if not the richest, municipal corporation in the world. London has recently decided to undertake a similar improvement, but it is stated that in the case of London this will involve great expense.

School funds ought to be increased until they become great enough, with the aid of current taxation, to provide the entire population with the best educational facilities of every sort, including manual training, kindergartens, public libraries, universities, industrial museums, art galleries, and the like. It would be especially desirable to improve the schools in the rural communities, establishing good high schools wherever the population is sufficient to furnish them with pupils. Good schools in the country districts would tend to keep people in the country, for now many leave the country and go to the cities purposely to educate their children. It is on every account desirable to make the country pleasanter and more attractive as a place of abode. Another fund may be suggested as suitable to be accumulated out of property inherited by the state and town, and that would be a highway fund, designed to help to improve the streets and roads of the state. The income of this fund could be distributed to towns and counties in such a manner as to encourage them in the improvement of roads and streets. It might be provided, for example, that for every two or three dollars expended by the local political unit one should be granted from the fund.

I believe the line of reform proposed in this article will stand every test which can be applied to it. It is, as already mentioned, a reform which meets with approval wherever tried, and with increasing approval the longer it is tried. It is a reform especially in keeping with democratic institutions, and it has succeeded best in democratic countries. So perfectly is it in keeping with true democracy that the purer, the more complete, and the more cultured the democratic countries have become in which this reform has been tried, the more they are inclined to move further along the same line. It is entirely compatible with the fundamental principles of the existing social order, and does not interfere with its normal and peaceful evolution. It antagonizes no other line of progress, but helps forward every other true reform. It provides ample public funds when accompanied by a rational system of taxation, and yet lays a burden heavy to be borne on no one.

We may examine this reform of the laws of inheritance with respect to the family, and we find that it tends to the development of the family as an institution far better than the existing laws in the United States. It recognizes the solidarity of the family. The husband is responsible to the wife and the wife to the husband, and both are responsible for the children they have brought into the world. It coordinates rights and duties. It may be stated, however, in this connection that duty should be extended among the various members of a family; in particular the reciprocal duties of parents and children should be sharpened and strengthened. The duty of support鈥攁nd adequate support in proportion to means鈥攕hould apply both to parents and to children, parents supporting the children in their youth, and children the parents in their old age. The various members of the family organism should be drawn together by an extension of duties. It may be questioned whether anyone should have the right to inherit from a person provided he may not under any circumstances be called upon to minister to his support. As Emerson and the other great thinkers have long been saying, it is time now to stop talking so much about rights, and to begin to emphasize duties.^[4]

If we look at this reform from the standpoint of society, we find that it stands every test to which it can be subjected. It diffuses property widely and results in a great number of families with an ample competence, and tends to prevent the growth of plutocracy. It is these families with a competence lifting them above a severe struggle for bare physical necessities that carry forward the world鈥檚 civilization. It is from these families that the great leaders of men come, and not from either of the two extremes of society, the very rich or the very poor, both of which extremes we wish to abolish. Excessive wealth discourages exertion, but a suitable reform of the laws of inheritance will remove from us many idle persons who consume annually immense quantities of wealth but contribute nothing to the support of the race; and who, leading idle lives, cultivate bad ideals and disseminate social poison. For the sake of the sons of the rich, as well as for the sake of the sons of the poor, we need a reform of the laws of inheritance.

A reform of the laws of inheritance of property will help us to approach that ideal condition in which the man who does not work shall not eat, and it will also tend to an equalization of opportunities so as to give all a fairer start in life, allowing each one to make such use of his opportunities as his capacity and diligence permit, and thus rendering inequalities, economic and social, less odious and injurious, more stimulating and helpful. This reform tends to make income a reward for service, thus realizing in a higher degree than at present the demands of justice. It must tend indirectly to discourage idleness and to encourage industry, and to repress that gambling, speculative spirit which desires something for nothing and wants to get a living without rendering an honest return of some kind.

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Assembled upon the 116th anniversary of the Declaration of Independence, the People’s Party of America, in their first national convention, invoking upon their action the blessing of Almighty God, put forth in the name and on behalf of the people of this country, the following preamble and declaration of principles:

Preamble

The conditions which surround us best justify our cooperation; we meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot box, the legislatures, the Congress, and touches even the ermine of the bench.^[1] The people are demoralized; most of the states have been compelled to isolate the voters at the polling places to prevent universal intimidation and bribery. The newspapers are largely subsidized or muzzled, public opinion silenced, business prostrated, homes covered with mortgages, labor impoverished, and the land concentrating in the hands of capitalists. The urban workmen are denied the right to organize for self-protection; imported pauperized labor beats down their wages, a hireling standing army, unrecognized by our laws, is established to shoot them down, and they are rapidly degenerating into European conditions. The fruits of the toil of millions are boldly stolen to build up colossal fortunes for a few, unprecedented in the history of mankind; and the possessors of those, in turn, despise the Republic and endanger liberty. From the same prolific womb of governmental injustice, we breed the two great classes—tramps and millionaires.

The national power to create money is appropriated to enrich bondholders; a vast public debt payable in legal tender currency has been funded into gold-bearing bonds, thereby adding millions to the burdens of the people.

Silver, which has been accepted as coin since the dawn of history, has been demonetized to add to the purchasing power of gold by decreasing the value of all forms of property as well as human labor, and the supply of currency is purposely abridged to fatten usurers, bankrupt enterprise, and enslave industry. A vast conspiracy against mankind has been organized on two continents, and it is rapidly taking possession of the world. If not met and overthrown at once it forebodes terrible social convulsions, the destruction of civilization, or the establishment of an absolute despotism.

We have witnessed for more than a quarter of a century the struggles of the two great political parties for power and plunder, while grievous wrongs have been inflicted upon the suffering people. We charge that the controlling influences dominating both these parties have permitted the existing dreadful conditions to develop without serious effort to prevent or restrain them. Neither do they now promise us any substantial reform. They have agreed together to ignore, in the coming campaign, every issue but one. They propose to drown the outcries of a plundered people with the uproar of a sham battle over the tariff, so that capitalists, corporations, national banks, rings, trusts, watered stock, the demonetization of silver, and the oppressions of the usurers may all be lost sight of.^[2] They propose to sacrifice our homes, lives, and children on the altar of mammon; to destroy the multitude in order to secure corruption funds from the millionaires.^[3]

Assembled on the anniversary of the birthday of the nation, and filled with the spirit of the grand general and chief who established our independence, we seek to restore the government of the Republic to the hands of “the plain people,” with which class it originated. We assert our purposes to be identical with the purposes of the national Constitution; to form a more perfect union and establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty for ourselves and our posterity.

We declare that this Republic can only endure as a free government while built upon the love of the whole people for each other and for the nation; that it cannot be pinned together by bayonets; that the civil war is over, and that every passion and resentment which grew out of it must die with it, and that we must be in fact, as we are in name, one united brotherhood of freemen.

Our country finds itself confronted by conditions for which there is no precedent in the history of the world; our annual agricultural productions amount to billions of dollars in value, which must, within a few weeks or months, be exchanged for billions of dollars’ worth of commodities consumed in their production; the existing currency supply is wholly inadequate to make this exchange; the results are falling prices, the formation of combines and rings, the impoverishment of the producing class. We pledge ourselves that if given power we will labor to correct these evils by wise and reasonable legislation, in accordance with the terms of our platform.

We believe that the power of government—in other words, of the people—should be expanded (as in the case of the postal service) as rapidly and as far as the good sense of an intelligent people and the teachings of experience shall justify, to the end that oppression, injustice, and poverty shall eventually cease in the land.

While our sympathies as a party of reform are naturally upon the side of every proposition which will tend to make men intelligent, virtuous, and temperate, we nevertheless regard these questions, important as they are, as secondary to the great issues now pressing for solution, and upon which not only our individual prosperity but the very existence of free institutions depend; and we ask all men to first help us to determine whether we are to have a republic to administer before we differ as to the conditions upon which it is to be administered, believing that the forces of reform this day organized will never cease to move forward until every wrong is remedied and equal rights and equal privileges securely established for all the men and women of this country.

Platform

We declare, therefore,

First—That the union of the labor forces of the United States this day consummated shall be permanent and perpetual; may its spirit enter into all hearts for the salvation of the Republic and the uplifting of mankind.

Second—Wealth belongs to him who creates it, and every dollar taken from industry without an equivalent is robbery. “If any will not work, neither shall he eat.”^[4] The interests of rural and civic labor are the same; their enemies are identical.

Third—We believe that the time has come when the railroad corporations will either own the people or the people must own the railroads, and should the government enter upon the work of owning and managing all railroads, we should favor an amendment to the Constitution by which all persons engaged in the government service shall be placed under a civil-service regulation of the most rigid character, so as to prevent the increase of the power of the national administration by the use of such additional government employees.

Finance—We demand a national currency, safe, sound, and flexible, issued by the general government only, a full legal tender for all debts, public and private, and that without the use of banking corporations, a just, equitable, and efficient means of distribution direct to the people, at a tax not to exceed 2 percent per annum, to be provided as set forth in the sub-treasury plan of the Farmers’ Alliance, or a better system; also by payments in discharge of its obligations for public improvements.

1. We demand free and unlimited coinage of silver and gold at the present legal ratio of 16 to 1.
2. We demand that the amount of circulating medium be speedily increased to not less than $50 per capita.
3. We demand a graduated income tax.
4. We believe that the money of the country should be kept as much as possible in the hands of the people, and hence we demand that all state and national revenues shall be limited to the necessary expenses of the government, economically and honestly administered.
5. We demand that postal savings banks be established by the government for the safe deposit of the earnings of the people and to facilitate exchange.

Transportation—Transportation being a means of exchange and a public necessity, the government should own and operate the railroads in the interest of the people. The telegraph, telephone, like the post-office system, being a necessity for the transmission of news, should be owned and operated by the government in the interest of the people.

Land—The land, including all the natural sources of wealth, is the heritage of the people, and should not be monopolized for speculative purposes, and alien ownership of land should be prohibited. All land now held by railroads and other corporations in excess of their actual needs, and all lands now owned by aliens should be reclaimed by the government and held for actual settlers only.

Expression of Sentiments

Your Committee on Platform and Resolutions beg leave unanimously to report the following: Whereas, other questions have been presented for our consideration, we hereby submit the following, not as a part of the Platform of the People’s Party, but as resolutions expressive of the sentiment of this Convention.

1. RESOLVED, That we demand a free ballot and a fair count in all elections and pledge ourselves to secure it to every legal voter without federal intervention, through the adoption by the states of the unperverted Australian or secret ballot system.
2. RESOLVED, That the revenue derived from a graduated income tax should be applied to the reduction of the burden of taxation now levied upon the domestic industries of this country.
3. RESOLVED, That we pledge our support to fair and liberal pensions to ex-Union soldiers and sailors.
4. RESOLVED, That we condemn the fallacy of protecting American labor under the present system, which opens our ports to the pauper and criminal classes of the world and crowds out our wage-earners; and we denounce the present ineffective laws against contract labor, and demand the further restriction of undesirable emigration.
5. RESOLVED, That we cordially sympathize with the efforts of organized workingmen to shorten the hours of labor, and demand a rigid enforcement of the existing eight-hour law on government work, and ask that a penalty clause be added to the said law.
6. RESOLVED, That we regard the maintenance of a large standing army of mercenaries, known as the Pinkerton system, as a menace to our liberties, and we demand its abolition.^[5] . . .
7. RESOLVED, That we commend to the favorable consideration of the people and the reform press the legislative system known as the initiative and referendum.
8. RESOLVED, That we favor a constitutional provision limiting the office of president and vice president to one term, and providing for the election of senators of the United States by a direct vote of the people.
9. RESOLVED, That we oppose any subsidy or national aid to any private corporation for any purpose.
10. RESOLVED, That this convention sympathizes with the Knights of Labor and their righteous contest with the tyrannical combine of clothing manufacturers of Rochester, and declare it to be a duty of all who hate tyranny and oppression to refuse to purchase the goods made by the said manufacturers, or to patronize any merchants who sell such goods.^[6]

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No one knows who first pulled a trigger, but no one disputes that eight of the nearly eighty Lexington militiamen鈥攙astly outnumbered by several hundred British regulars鈥攍ost their lives that morning. Conflict at Concord a few hours later yielded a different outcome. The king鈥檚 soldiers found few of the military supplies that had been their objective. Forced into retreat at the Old North Bridge, they began a perilous seventeen-mile journey back to Boston. As thousands of Massachusetts militiamen descended on their route, British casualties mounted. At Menotomy, Massachusetts, 80-year-old Samuel Whittemore stood ready to avenge British aggression with a musket, a pair of pistols, and a sword. As Redcoats marched along the road near his home, he took aim. He downed one British soldier and then another. Dropping his musket, he drew his pistols. He had shot a third Redcoat by the time a detachment of the regulars descended upon him, stabbing him thirteen times with their bayonets and shooting him in the face. As he flailed about with his sword they left him for dead. But Whittemore didn鈥檛 die. He lived鈥攆or another 18 years. In 1793, he took his last breath as a 98-year-old citizen of the free and independent United States.

Parker鈥檚 famous words鈥斺�渋f they mean to have a war, let it begin here鈥濃�攈elped mark the start of what eventually came to be known as the War for Independence. But people have long taken pains to distinguish this war, which concluded with the signing of the 1783 Treaty of Paris, from the less well-defined and potentially farther-reaching American Revolution. As John Adams wrote to Thomas Jefferson in 1815, 鈥淲hat do we mean by the Revolution? The war? That was no part of the Revolution. It was only an effect and consequence of it. The Revolution was in the minds of the people, and this,鈥� Adams insisted, took place 鈥渇rom 1760 to 1775, in the course of fifteen years before a drop of blood was drawn at Lexington.鈥� Although Adams believed that the real revolution had taken place before the war, Philadelphia physician Benjamin Rush, a fellow member of the Continental Congress, insisted that it would continue for years after the fighting had ended. 鈥淭here is nothing more common,鈥� Rush wrote in 1787, 鈥渢han to confound the terms of American Revolution with those of the late American war.鈥� But the war and the Revolution were not the same thing. 鈥淚t remains yet to establish and perfect our new forms of government,鈥� Rush observed, 鈥渁nd to prepare the principles, morals, and manners of our citizens, for those forms of government after they are established and brought to perfection.鈥� This, the real revolution, had only just begun.

This volume features a selection of primary sources spanning 1760 to 1783. Some of these documents give voice to the sometimes competing philosophies of the Revolutionary generation. Others exemplify them. All originate from either the years of the war or the crucial period preceding the conflict, when 鈥渢he minds of the people,鈥� as Adams wrote, took a decisive turn. Whittemore, a veteran of King George鈥檚 War (1744鈥�48) and the French and Indian War (1754鈥�63), before taking aim at Redcoats had risked his life fighting alongside them. Similarly, the vast majority of Americans prior to 1760 felt proud of their British heritage. In the minds of American colonists, what made Britain the richest and most powerful of the world鈥檚 nations was the fact that it was also the freest. This, for them, endured as the source of their British patriotism. As philosopher John Locke had explained when justifying the Glorious Revolution of 1688鈥�89, only a government that protected the people鈥檚 rights to life, liberty, and property could consider itself legitimate. Soon after the French and Indian War, however, Parliament approved a series of measures that jeopardized colonists鈥� rights. Americans who resisted Britain鈥檚 鈥渓ong train of abuses and usurpations,鈥� as Jefferson鈥檚 Declaration of Independence described it, had struggled to hold their government true to its own avowed principles. Only gradually and reluctantly did the belief that Britain had no intention of keeping its promises push Americans to secure these commitments independent of the British government鈥檚 interference. In this sense the American revolutionaries were better Englishmen than their cousins across the Atlantic.

The conflict that commenced when Parker and his men stood their ground at Lexington tested the principles valued most by these once-loyal Britons. How to deal with those who remained loyal to the king? How best to bear the monetary costs? How to recruit and retain for the army men willing not only to defend, at a minute鈥檚 notice, their homes and hometowns but also, for multiple years, distant parts of the new United States? Given their love of liberty and the revulsion they felt toward acts of coercion, the War for Independence posed a significant problem. Wars, which necessitate the concentration of force, require the centralization of power. How to defeat (or at least outlast) the world鈥檚 most formidable military without creating an army posing a threat to the freedom it aimed to defend?

George Washington probably never wrote that government, 鈥渓ike fire, is a dangerous servant, and a fearsome master,鈥� but the fact that so many have never questioned this quotation鈥檚 frequent attribution to him helps to explain his selection as commander of the Continental Army. The members of the Continental Congress recognized in him a multitude of qualifications. He had gained experience as a colonel in the French and Indian War. He possessed relative youth as well as social and physical stature. As a Virginian, he seemed well positioned to transform an army of New Englanders into a truly continental force. Maybe most important, since 1758 he had served in the House of Burgesses. Like them, he was a civilian legislator who understood the importance of civilian control of military power, which, if not properly directed, possessed the greatest potential to consume the people鈥檚 liberty. He demonstrated respect for civilian leaders and urged his army鈥檚 restraint when dealing with common citizens. Throughout the war, Washington addressed Congress in the most deferential terms. Near the end, he extinguished his officers鈥� threatened insubordination against this legislative body and the states on whose authority it acted. After the conclusion of peace, Washington鈥檚 decision to relinquish power, resign as commander-in-chief, and return to Mount Vernon as a private citizen reportedly prompted even George III to describe him as 鈥渢he most distinguished of any man living鈥� and 鈥渢he greatest character of the age.鈥�

It was not just Washington鈥檚 willingness to give up power that made the American Revolution a successful struggle for liberty. In addition to exhausting the will of Great Britain to wage war against them, the American revolutionaries transitioned from monarchy and aristocracy to republican government and an emerging spirit of democracy. Embracing representative governments within and among the states, they coalesced around the principles that the people are sovereign and that popular consent is a precondition of political legitimacy. They had also internalized the rich lexicon of individual rights that had formed the basis of both their opposition to British imperial policy and their claim on independence. Yet if the 鈥渟elf-evident鈥� 鈥渢ruths鈥� that 鈥渁ll men are created equal, with certain unalienable rights鈥� bolstered their confidence, at the same time, they troubled their collective conscience. What about women, African Americans, members of religious minorities, and other individuals denied their natural rights to life, liberty, and property? What about people denied civil rights bestowing equality under the law?

It is no coincidence that during the years of the War for Independence, people began to question why rights that were said to belong to all mankind were not recognized as the inheritance of all Americans. But it is also no surprise that the Founders鈥� generation鈥攖he first to notice the conflict between their newly-expanded principles and their practices reflecting deeply-entrenched prejudices鈥攚as not the last to struggle to keep the promises of the Declaration of Independence. Even before the war鈥檚 conclusion, northern states began either to abolish slavery or to enact plans for gradual emancipation. Soon after, Congress halted the expansion of slavery to parts of the West, and Jefferson, as president in 1807, championed and signed a bill outlawing US participation in the international slave trade.

In the decades to follow, the issue of slavery became even more central. So did the rights of women, and the voting rights of men who did not own land. Even today, in the United States and around the world, oppressed groups and individuals invoke the philosophies of the American Revolution. As Benjamin Rush predicted in 1787, 鈥渢he American war is over, but this is far from being the case with the American Revolution. On the contrary, nothing but the first act of the great drama is closed.鈥�

In some ways the Revolution would extend far beyond the conclusion of the War for Independence. A few days prior to the fiftieth anniversary of the adoption of his Declaration, Thomas Jefferson observed that 鈥渁ll eyes are opened, or opening, to the rights of man.鈥� He expressed his faith that the decision of the Continental Congress to separate from Great Britain would continue to inspire people 鈥渢o burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government.鈥� Awakening the world to the proposition that 鈥渢he mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them, legitimately, by the grace of God,鈥� the ideas of the American Revolution could eventually bring liberty to everyone, everywhere, not only in the United States but also around the globe. The freedom for which Americans had stood their ground would come 鈥渢o some parts sooner鈥� and 鈥渢o others later.鈥� But eventually, Jefferson predicted, real liberty would one day be enjoyed by all.

Acknowledgements: A number of friends either suggested documents included in this collection or tracked down information helping me to contextualize them. I am grateful for the assistance of Jeremy Bailey, Veronica Burchard, Benjamin Carp, Mickey Craig, Joe Dooley, Todd Estes, Mary-Jo Kline, Stuart Leibiger, Melanie Miller, Rob Parkinson, Richard Samuelson, and Brian Steele. Sean Sculley performed both these tasks and also reviewed all of the documents鈥� introductions. Sarah Morgan Smith, who served as series editor, lent her considerable expertise to the selection of documents and execution of the finished product. Caleb Cage helped to deepen my appreciation for people who, in the midst of war, share their stories for the benefit of others, present and future. Jefferson McDonald and Grace McDonald helped select illustrations. Christine Coalwell McDonald, a historian in her own right, offered unfailing encouragement and assisted in every way possible.

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LETTER I.

It has from the first establishment of your present constitution been predicted, that every occasion of serious embarrassment which should occur in the affairs of the government 鈥� every misfortune which it should experience, whether produced from its own faults or mistakes, or from other causes, would be the signal of an attempt to overthrow it, or to lay the foundation of its overthrow, by defeating the exercise of constitutional and necessary authorities. The disturbances which have recently broken out in the western counties of Pennsylvania furnish an occasion of this sort. It remains to see聽whether the prediction which has been quoted, proceeded from an unfounded jealousy excited by partial differences of opinion, or was a just inference from causes inherent in the structure of our political institutions. . . .

LETTER II.

. . . The Constitution you have ordained for yourselves and your posterity contains this express clause, 鈥淭he Congress shall have power to lay and collect taxes, duties, imposts, and Excises, to pay the debts, and provide for the common defence and general welfare of the United States.鈥� You have then, by a solemn and deliberate act, the most important and sacred that a nation can perform, pronounced and decreed, that your Representatives in Congress shall have power to lay Excises. You have done nothing since to reverse or impair that decree.

. . . But the four western counties of Pennsylvania, undertake to rejudge and reverse your decrees[. Y]ou have said, 鈥淭he Congress shall have power to lay Excises.鈥� They say, 鈥淭he Congress shall not have this power.鈥� Or what is equivalent 鈥� they shall not exercise it: 鈥� for a power that may not be exercised is a nullity. Your Representatives have said, and four times repeated it, 鈥渁n excise on distilled spirits shall be collected.鈥� They say it shall not be collected. We will punish, expel, and banish the officers who shall attempt the collection. We will do the same by every other person who shall dare to comply with your decree expressed in the Constitutional character; and with that of your Representative expressed in the Laws. The sovereignty shall not reside with you, but with us. If you presume to dispute the point by force 鈥� we are ready to measure swords with you. . . .

If there is a man among us who shall . . . inculcate directly, or indirectly, that force ought not to be employed to compel the Insurgents to a submission to the laws, if the pending experiment to bring them to reason (an experiment which will immortalize the moderation of the government) shall fail; such a man is not a good Citizen; such a man however he may prate and babble republicanism, is not a republican; he attempts to set up the will of a part against the will of the whole, the will of a faction, against the will of nation, the pleasure of a few against your pleasure; the violence of a lawless combination against the sacred authority of laws pronounced under your indisputable commission.

Mark such a man, if such there be. The occasion may enable you to discriminate the true from pretended Republicans; your friends from the friends of faction. 鈥楾is in vain that the latter shall attempt to conceal their pernicious principles under a crowd of odious invectives against the laws. Your answer is this: 鈥�We have already in the Constitutional act decided the point against you, and against those for whom you apologize. We have pronounced that excises may be laid and consequently that they are not as you say inconsistent with Liberty. Let our will be first obeyed and then we shall be ready to consider the reason which can be afforded to prove our judgement has been erroneous. . . . We have not neglected the means of amending in a regular course the Constitutional act. . . . In a full respect for the laws we discern the reality of our power and the means of providing for our welfare as occasion may require; in the contempt of the laws we see the annihilation of our power; the possibility, and the danger of its being usurped by others & of the despotism of individuals succeeding to the regular authority of the nation.鈥�

That a fate like this may never await you, let it be deeply imprinted in your minds and handed down to your latest posterity, that there is no road to despotism more sure or more to be dreaded than that which begins at anarchy.

LETTER III.

If it were to be asked, What is the most sacred duty and the greatest source of security in a Republic? the answer would be, An inviolable respect for the Constitution and Laws 鈥� the first growing out of the last. It is by this, in a great degree, that the rich and powerful are to be restrained from enterprises against the common liberty 鈥� operated upon by the influence of a general sentiment, by their interest in the principle, and by the obstacles which the habit it produces erects against innovation and encroachment. It is by this, in a still greater degree, that caballers, intriguers, and demagogues are prevented from climbing on the shoulders of faction to the tempting seats of usurpation and tyranny.

. . . Government is frequently and aptly classed under two descriptions, a government of聽force聽and a government of聽laws; the first is the definition of despotism 鈥� the last, of liberty. But how can a government of laws exist where the laws are disrespected and disobeyed? Government supposes controul. It is the power by which individuals in society are kept from doing injury to each other and are bro鈥檛 to co-operate to a common end. The instruments by which it must act are either the聽authority聽of the Laws or聽force. If the first be destroyed, the last must be substituted; and where this becomes the ordinary instrument of government there is an end to liberty.

Those, therefore, who preach doctrines, or set examples, which undermine or subvert the authority of the laws, lead us from freedom to slavery; they incapacitate us for a government of laws, and consequently prepare the way for one of force, for mankind聽must have government of one sort or another.

There are indeed great and urgent cases where the bounds of the constitution are manifestly transgressed, or its constitutional authorities so exercised as to produce unequivocal oppression on the community, and to render resistance justifiable. But such cases can give no color to the resistance by a comparatively inconsiderable part of a community, of constitutional laws distinguished by no extraordinary features of rigor or oppression, and acquiesced in by the聽body of the community.

Such a resistance is treason against society, against liberty, against everything that ought to be dear to a free, enlightened, and prudent people. To tolerate were to abandon your most precious interests. Not to subdue it, were to tolerate it. . . .

LETTER IV.

. . . Fellow Citizens 鈥� You are told, that it will be intemperate to urge the execution of the laws which are resisted 鈥� what? will it be indeed intemperate in your Chief Magistrate, sworn to maintain the Constitution, charged faithfully to execute the Laws, and authorized to employ for that purpose force when the ordinary means fail 鈥� will it be intemperate in him to exert that force, when the constitution and the laws are opposed by force? Can he answer it to his conscience, to you not to exert it?

Yes, it is said; because the execution of it will produce civil war, the consummation of human evil.

Fellow-Citizens 鈥� Civil War is undoubtedly a great evil. It is one聽that every good man would wish to avoid, and will deplore if inevitable. But it is incomparably a less evil than the destruction of Government. The first brings with it serious but temporary and partial ills 鈥� the last undermines the foundations of our security and happiness 鈥� where should we be if it were once to grow into a maxim, that force is not to be used against the seditious combinations of parts of the community to resist the laws? . . . The Hydra Anarchy would rear its head in every quarter. The goodly fabric you have established would be rent assunder, and precipitated into the dust. . . . You know that the power of the majority and聽liberty聽are inseparable 鈥� destroy that, and this perishes. . . .

Tully.

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Sir,

The disagreeable crisis at which matters have lately arrived in some of the western counties of Pennsylvania, with regard to the laws laying duties on spirits distilled within the United States and on stills, seems to render proper a review of the circumstances which have attended those laws in that scene, from their commencement to the present time 鈥� and of the conduct which has hitherto been observed on the part of the government, its motives and effect; in order to a better judgement of the measures necessary to be pursued in the existing emergency.

The opposition to those laws in the four most western counties of Pennsylvania (Alleghany, Washington, Fayette and Westmoreland) commenced as early as they were known to have been passed. It has continued, with different degrees of violence, in the different counties, and at different periods. . . .

The opposition first manifested itself in the milder shape of the circulation of opinions unfavorable to the law 鈥� and calculated by the influence of public disesteem to discourage the accepting or holding of offices under it, or the complying with it by those who might be so disposed; to which was added the show of a discontinuance of the business of distilling.

These expedients were shortly after succeeded by private associations to forbear compliances with the law. But it was not long before these more negative modes of opposition were perceived to be likely to prove ineffectual. And in proportion as this was the case, and as the means of introducing the laws into operation were put into execution, the disposition to resistance became more turbulent and more inclined to adopt and practice violent expedients. The officers now began to experience marks of contempt and insult. Threats against them became frequent and loud; and after some time, these threats were ripened into acts of ill treatment and outrage.

These acts of violence were preceded by certain meetings of malcontent persons, who entered into resolutions calculated at once to confirm, inflame and systematize the spirit of opposition.

The first of these meetings was holden at a place called Red Stone Old Fort on the 27th of July 1791, where it was concerted, that county committees should be convened in the four counties at the respective seats of justice therein. On the 23d of August following, one of these committees assembled in the County of Washington. . . .

This meeting passed some intemperate resolutions, which were afterwards printed in the Pittsburgh Gazette, containing a strong censure on the law, declaring that any person who had accepted or might accept an office under congress in order to carry it into effect, should be considered as inimical to the interests of the country; and recommending to the citizens of Washington County to treat every person who had accepted or might thereafter accept any such office with contempt, and absolutely to refuse all kind of communication or intercourse with the officers, and to withhold from them all aid, support or comfort.

Not content with this vindictive proscription of those, who might esteem it their duty, in the capacity of officers, to aid in the execution of the constitutional laws of the land 鈥� The meeting proceeded to pass another resolution on a matter essentially foreign to the object which had brought them together, namely the salaries and compensations allowed by Congress to the officers of government generally, which they represent as enormous, manifesting by their zeal to accumulate topics of聽censure, that they were actuated, not merely by the dislike of a particular law, but by a disposition to render the government itself unpopular and odious.

This meeting, in further prosecution of their plan, deputed three of their members to meet delegates from the counties of Westmoreland, Fayette, and Alleghany on the first Tuesday of September following for the purpose of expressing the sense of the people of those Counties, in an address to the Legislature of the United States, upon the subject of the Excise Law and other grievancies. . . .

This meeting entered into resolutions more comprehensive in their objects & not less inflammatory in their tendency, than those which had before passed the meeting in Washington. Their resolutions contained severe censures not only on the law which was the immediate subject of objection; but upon what they termed the exorbitant salaries of Officers; the unreasonable interest of the public debt, the want of discrimination between original holders and transferees, and the institution of a National Bank. . . .

A representation to Congress and a remonstrance to the Legislature of Pennsylvania against the Law more particularly complained of were prepared by this meeting 鈥� published together with their other proceedings in the Pittsburgh Gazette & afterwards presented to the respective bodies to whom they were addressed.

These meetings composed of very influential individuals and conducted without moderation or prudence are justly chargeable with the excesses, which have been from time to time committed; serving to give consistency to an opposition which has at length matured to a point, that threatens the foundations of the government and of the Union, unless speedily & effectually subdued.

On the 6th of the same month of September, the opposition broke out in an act of violence upon the person and property of Robert Johnson Collector of the Revenue for the Counties of Alleghany and Washington.

A party of men armed and disguised way-laid him at a place on Pidgeon Creek in Washington County, seized, tarred and feathered him, cut off his hair, and deprived him of his horse, obliging him to travel on foot a considerable distance in that mortifying and painful situation. . . .

It seemed highly probable 鈥� that the ordinary course of civil process would be ineffectual for enforcing the execution of the law in the scene in question 鈥� and that a perseverance in this course might lead to a serious concussion. The law itself was still in the infancy of its operation and far from established in other important portions of the Union. Prejudices against it had been industriously disseminated 鈥� misrepresentations diffused, misconceptions fostered. The Legislature of the United States had not yet organized the means, by which the Executive could come in aid of the Judiciary, when found incompetent to the execution of the laws. If neither of these impediments to a decisive exertion had existed, it was desirable, especially in a republican government, to avoid what is in such cases the ultimate resort, 鈥榯ill all the milder means had been tried without success.

Under the United influence of these considerations, it appeared advisable to forbear urging coercive measures, till the laws had gone into more extensive operation, till further time for reflection and experience of its operation had served to correct false impressions and inspire greater moderation and till the Legislature had had an opportunity by a revision of the law to remove as far as possible objections and to reinforce the provisions for securing its execution.
. . .

Not long after a person of the name of Roseberry underwent the humiliating punishment of tarring and feathering with some aggravations; for having in conversation hazarded the very natural and just, but unpalatable remark, that the inhabitants of that country could not reasonably expect protection from a Government, whose laws they so strenuously opposed. . . .

In the session of Congress, which commenced in October 1791, the law laying a duty on distilled spirits and stills came under the revision of Congress as had been anticipated. By an Act passed May 8th 1792, during that session, material alterations were made in it 鈥� Among these the duty was reduced to a rate so moderate, as to have silenced complaint on that head 鈥� and a new and very favorable alternative was given to the distiller, that of paying a monthly, instead [of] a yearly rate, according to the capacity of his still, with liberty to take a license for the precise term, which he should intend to work it, & to renew that license for a further term or terms.

At the same time, another engine of opposition was in operation 鈥� Agreeable to a previous notification, there met at Pittsburgh on the 21st of August a number of persons styling themselves 鈥淎 meeting of sundry Inhabitants of the Western Counties of Pennsylvania鈥� who appointed John Canon Chairman and Albert Gallatin Clerk.

This Meeting entered into resolutions not less exceptionable than those of its predecessors 鈥� The preamble suggests that a tax on spirituous liquors is unjust in itself and oppressive upon the poor, that internal taxes upon consumption must in the end destroy the liberties of every Country in which they are introduced 鈥� that the law in question, from certain local circumstances which are specified, would bring immediate distress and ruin upon the Western Country, and concludes with the sentiment, that they think it their duty to persist in remonstrances to Congress, and in every other legal measure, that may obstruct the operation of the law.

The resolutions then proceed, first, to appoint a committee to prepare and cause to be presented to Congress an address stating objections to the Law, and praying for its repeal 鈥� Secondly to appoint committees of correspondence for Washington, Fayette and Alleghany, charged to correspond together and with such committee as should be appointed for the same purpose in the County of Westmoreland, or with any committees of a similar nature, that might be appointed in other parts of the United States; and also if found necessary to call together either general meetings of the people, in their respective counties, or conferences of the several committees; And lastly to declare, that they will in future consider those who hold offices for the collection of the duty as unworthy of their friendship, that they will have no intercourse nor dealings with them, will withdraw from them every assistance, withhold all the comforts of life which depend upon those duties, that as men and fellow citizens we owe to each other, and will upon all occasions treat them with contempt; earnestly recommending it to the people at large to follow the same line of Conduct towards them.

The idea of pursuing legal measures to obstruct the operation of a law needs little comment: legal measures may be pursued to procure the repeal of a law, but to obstruct its operation presents a contradiction in terms. The operation or what is the same thing, the execution of a law cannot be obstructed, after it has been constitutionally enacted, without illegality and crime. The expression quoted is one of those phrases which can only be used to conceal a disorderly & culpable intention under forms that may escape the hold of the law.

Neither was it difficult to perceive, that the Anathema pronounced against the officers of the revenue placed them in a聽state of virtual outlawry, and operated as a signal to all those who were bold enough to encounter the guilt and the danger to violate both their lives and their properties.

. . . In June following the Inspector of the Revenue was burnt in Effigy in Alleghany County at a place and on a day of some public election, with much display, in the presence of and without interruption from Magistrates and other public Officers.

. . . 澳门六合彩开奖直播 twelve persons armed & painted black, in the night of the 6th of June, broke into the house of John Lynn, where the office was kept, and after having treacherously seduced him to come downstairs and put himself in their power by a promise of safety to himself and his house 鈥� they seized and tied him, threatened to hang him 鈥� took him to a retired spot in the neighboring wood and there after cutting off his hair, tarring and feathering him, swore him never again聽to allow the use of his house for an office, never to disclose their names, and never again to have any sort of agency in aid of the excise 鈥� having done which, they bound him naked to a tree and left him in that situation, till morning, when he succeeded in extricating himself. Not content with this, the malcontents some days after made him another visit, pulled down part of his house 鈥� and put him in a situation to be obliged to become an exile from his own home and to find an asylum elsewhere.

The increasing energy of the opposition rendered it indispensable to meet the evil with proportional decision 鈥� The idea of giving time for the law to extend itself in Scenes where the dissatisfaction with it was the effect not of an improper spirit, but of causes which were of a nature to yield to reason, reflection, and experience (which had constantly weighed in the estimate of the measures proper to be pursued) had had its effect, in an extensive degree. The experiment too had been long enough tried to ascertain, that where resistance continued, the root of the evil lay deep; and required measures of greater efficacy than had been pursued. The laws had undergone repeated revisions of the Legislative representatives of the Union, and had virtually received their repeated sanction with none or very feeble attempts to effect their repeal; affording an evidence of the general sense of the community in their favor. Complaint began to be loud聽from complying quarters, against the impropriety and injustice of suffering the laws to remain unexecuted in others.

Under the united influence of these considerations, there was no choice but to try the efficiency of the laws in prosecuting with vigor delinquents and offenders. . . .

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All this while no supply was heard of, neither knew they when they might expect any. So they began to think how they might raise as much corn as they could, and obtain a better crop than they had done, that they might not still thus languish in misery. At length, after much debate of things, the Governor (with the advice of the chiefest amongst them) gave way that they should set corn every man for his own particular, and in that regard trust to themselves; in all other things to go on in the general way as before. And so assigned to every family a parcel of land, according to the proportion of their number, for that end, only for present use (but made no division for inheritance) and ranged all boys and youth under some family. This had very good success, for it made all hands very industrious, so as much more corn was planted than otherwise would have been by any means the Governor or any other could use, and saved him a great deal of trouble, and gave far better content. The women now went willingly into the field, and took their little ones with them to set corn; which before would allege weakness and inability; whom to have compelled would have been thought great tyranny and oppression.

The experience that was had in this common course and condition, tried sundry years and that amongst godly and sober men, may well evince the vanity of that conceit of Plato鈥檚 and other ancients applauded by some of later times; that the taking away of property and bringing in community into a commonwealth would make them happy and flourishing; as if they were wiser than God. For this community (so far as it was) was found to breed much confusion and discontent and retard much employment that would have been to their benefit and comfort. For the young men, that were most able and fit for labour and service, did repine that they should spend their time and strength to work for other men鈥檚 wives and children without any recompense. The strong, or man of parts, had no more in division of victuals and clothes than he that was weak and not able to do a quarter the other could; this was thought injustice. The aged and graver men to be ranked and equalized in labours and victuals, clothes, etc., with the meaner and younger sort, thought it some indignity and disrespect unto them. And for men鈥檚 wives to be commanded to do service for other men, as dressing their meat, washing their clothes, etc., they deemed it a kind of slavery, neither could many husbands well brook it. Upon the point all being to have alike, and all to do alike, they thought themselves in the like condition, and one as good as another; and so, if it did not cut off those relations that God hath set amongst men, yet it did at least much diminish and take off the mutual respects that should be preserved amongst them. And would have been worse if they had been men of another condition. Let none object this is men鈥檚 corruption, and nothing to the course itself. I answer, seeing all men have this corruption in them, God in His wisdom saw another course fitter for them.

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Resolved, That the people of the United States, have never, in any manner delegated to this Senate, the power of giving its legislative concurrence to any act for imposing taxes upon the inhabitants of Louisiana, without their consent.

Resolved, That by concurring in any act of legislation for imposing taxes upon the inhabitants of Louisiana without their consent, this Senate would assume a power, unwarranted by the constitution and dangerous to the liberties of the people of the United States.

Resolved, That the power of originating bills for raising revenue, being exclusively vested in the House of Representatives, these resolutions be carried to them by the Secretary of the Senate: that whenever they think proper they may adopt such measures as to their wisdom may appear necessary and expedient for raising and collecting a revenue from Louisiana.

Speech in Support of the Motion

When the resolution to appoint a committee for the purpose of preparing a form or forms of government for Louisiana was first before the Senate, I objected against it as premature. I did not think it possible that during the present session of Congress we should obtain the knowledge or information absolutely necessary to proceed advisedly in a career of such vast importance. It was my opinion that our first and most urgent care should be to obtain for Congress the powers indispensable for the performance of our own engagements, and that we should have ample leisure for the exertion of our power over the country we have newly acquired. To perform what we had promised was in my view of things the task of most immediate pressure before us, while we could not wield with too prudent and wary hand the rod of empire and dominion which we had assumed over a foreign people. On both these cardinal points of policy I had the misfortune to find myself in a very small minority. The principles adopted by the majority of the Senate were in both instances the reverse of those with which I concurred. It was said that my anxiety for the fulfilment of our national engagements was overweaning and premature. That it was better policy to follow the example which the union had exhibited under the old confederacy and break the treaty without scruple, until the power with whom we made it should call us to account for the breach. But on the other hand the ardor for legislating amply compensated for the coolness of punctuality, and, even before we knew whether peaceable possession of the country had been obtained, it was judged not too early to prepare forms of government for a people whose language we do not understand, whose manners opinions and prejudices are totally variant from our own, and of whom we know nothing more than could be collected from a couple of small pamphlets, compiled indeed with laudable industry and care from the little information our Executive government had been able in the course of three or four months to obtain, but sent to us with an express caution not to rely upon them as official.

In both these decisions of the Senate it was my duty to acquiesce. The Committee to prepare a form or forms of Government for Louisiana was appointed and their report is now the subject of consideration.

My first objection against this bill is derived from the principle upon which I opposed the appointment of the Committee. If ever there was an occasion upon which a legislative assembly ought to adopt as the basis of their measures the old and wholesome adage festina lente, it must surely be when they are about to undertake the task which the acquisition of Louisiana has imposed upon us. In order to impress our minds with the full conviction of this truth, let us seriously contemplate the extent and nature of that task. It is nothing less than to accomplish a total revolution, not only of government and laws, but of the principles upon which they are founded; over a people consisting of an hundred thousand souls; over a people of whom we may yet be said to know nothing, as they with still less exception know nothing of us; over a people whose subjection to our authority has been established without their previous consent, and whose liberty, property and religion, we are bound by solemn obligation to protect.

In order to effect this revolution without violence and oppression, it must be done by slow, gradual and well considered measures; and it is of primary importance to lay the foundations upon proper principles. The first step we should take, therefore, seems to be, that of legitimating our authority of acquiring the right to make laws for that people at all. By the treaty with France we have acquired all the rights of sovereignty over the inhabitants of Louisiana which France could impart; but as, to use the language of our declaration of independence, the just powers of a government can be derived only from the consent of the governed, the French Republic could not give us the right to make laws for the people of Louisiana, without their acquiescence in the transfer. I never considered this as an objection against the ratification of the treaty, because I did not deem it indispensable that this consent of the ceded people should precede the conclusion of the compact. That would indeed have been the most natural and most eligible course of proceeding, had it been practicable, and such was the opinion of our own executive before the negotiation of the treaty. But theoretic principles of government can never be carried into practice to their full extent. They must be modified and accommodated to the situations and circumstances of human events and human concerns. But between those allowances necessary to reconcile the rigor of principle with the resistance of practice, and the total sacrifice of all principle, there is a wide difference. If in the Louisiana negotiation our government had insisted on obtaining the consent of the people before the conclusion of the treaty, in all probability the treaty itself never could have been concluded. A momentary departure from the inflexible rigor of theory was, therefore, perfectly justifiable, and in concluding the treaty we acquired a power over the territory and over the inhabitants which requires, so far as relates to the latter, one thing more to make it a just and lawful power. I mean their own consent. For although the necessity of the case might excuse us for not having obtained this consent beforehand, it could not absolve us from the obligation to acquire it afterwards. And as nothing but necessity can justify even a momentary departure from those principles which we hold as the most sacred laws of nature and of nations, so nothing can justify extending the departure beyond the bounds of the necessity. From the instant when that ceases the principle returns in all its force, and every further violation of it is error and crime.

If any gentleman can controvert the principle that by the laws of nature, of nations and of God, no people has the right to make laws for another people without their consent unless it be by right of conquest, I shall be glad to hear him; and if he can furnish to my unbiassed reason an apology for lending my hand to make a single law for the people of Louisiana without their consent, expressed or implied, I will not only vote for any proper law that may be proposed, but confess myself under deep obligation to the gentleman who shall solve my scruples. As to the right of conquest it must be out of the question. We can have no right of conquest over a people who have never injured us. The law of conquest is a law of slavery, and the people of Louisiana whose liberty we are solemnly bound to protect are not slaves.

In support of this principle I have already quoted the highest possible authority for an American citizen; I mean, the Declaration of Independence. Is that not sufficient? What says the Constitution under which we act? “We the people, &c. for ourselves and our posterity 鈥� for the United States of America.” Not for the people of Louisiana nor for any other people. The people of the United States knew they had no right to exercise or to delegate the powers of legislation over another nation, and they expressly limited the operations of the Constitution to the United States of America, to themselves and their posterity.

The objections which I have urged hitherto against the passage of this bill have been either to particular details, or to points of expediency and considerations of justice and equity. Powerful as those are to my mind they are, however, of an order inferior to that which I now feel it my duty to make. I cannot prevail upon myself to vote for a law with a clear and undoubting conviction of my own mind that Congress have not the shadow of a right to pass it. Such is my conviction with regard to the act upon which we are now to decide. I long indulged the hope that the discussion of this question would have been avoided, that no alteration in the laws, and more especially no attempt to tax the people of Louisiana, would have been made, until in some shape or other their formal assent to our authority and acquiescence to our jurisdiction should have been obtained. I have been disappointed and we are now called upon at one and the same time to make a Constitution of government for a people who have never recognized our supremacy over them, and to tax for our own benefit a people of strangers, without admitting them to representation and without asking their consent. The act upon which we are now to vote is an act to tax and very heavily to tax the people of Louisiana without their consent. This I apprehend Congress have no right to do.

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It will naturally have been anticipated, that in performing this task, he would feel uncommon solicitude. Personal considerations alone, arising from the reflection that the measure originated with him, would be sufficient to produce it. The sense which he has manifested of the great importance of such an institution to the successful administration of the department under his particular care, and an expectation of serious ill consequences to result from a failure of the measure, do not permit him to be without anxiety on public accounts. But the chief solicitude arises from a firm persuasion, that principles of construction like those espoused by the Secretary of State and Attorney General, would be fatal to the just and indispensable authority of the United States.

In entering upon the argument, it ought to be premised that the objections of the Secretary of State and Attorney General are founded on a general denial of the authority of the United States to erect corporations. The latter, indeed, expressly admits, that if there be anything in the bill which is not warranted by the Constitution, it is the clause of incorporation.

Now it appears to the Secretary of the Treasury that this general principle is inherent in the very definition of government, and essential to every step of progress to be made by that of the United States, namely: That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.

This principle, in its application to government in general, would be admitted as an axiom; and it will be incumbent upon those who may incline to deny it, to prove a distinction, and to show that a rule which, in the general system of things, is essential to the preservation of the social order, is inapplicable to the United States.

The circumstance that the powers of sovereignty are in this country divided between the National and State governments, does not afford the distinction required. It does not follow from this, that each of the portion of powers delegated to the one or to the other, is not sovereign with regard to its proper objects. It will only follow from it, that each has sovereign power as to certain things, and not as to other things. To deny that the government of the United States has sovereign power, as to its declared purposes and trusts, because its power does not extend to all cases would be equally to deny that the State governments have sovereign power in any case, because their power does not extend to every case. The tenth section of the first article of the Constitution exhibits a long list of very important things which they may not do. And thus the United States would furnish the singular spectacle of a political society without sovereignty, or of a people governed, without government.

If it would be necessary to bring proof to a proposition so clear, as that which affirms that the powers of the federal government, as to its objects, were sovereign, there is a clause of its Constitution which would be decisive. It is that which declares that the Constitution, and the laws of the United States made in pursuance of it, and all treaties made, or which shall be made, under their authority, shall be the supreme law of the land. The power which can create the supreme law of the land in any case, is doubtless sovereign as to such case.

This general and indisputable principle puts at once an end to the abstract question, whether the United States have power to erect a corporation; that is to say, to give a legal or artificial capacity to one or more persons, distinct from the natural. For it is unquestionably incident to sovereign power to erect corporations, and consequently to that of the United States, in relation to the objects intrusted to the management of the government. The difference is this: where the authority of the government is general, it can create corporations in any cases, where it is confined to certain branches of legislation, it can create corporations only in those cases.

Here then, as far as concerns the reasonings of the Secretary of State and the Attorney General, the affirmative of the constitutionality of the bill might be permitted to rest. It will occur to the President, that the principle here advanced has been untouched by either of them.

For a more complete elucidation of the point, nevertheless, the arguments which they had used against the power of the government to erect corporations, however foreign they are to the great and fundamental rule which has been stated, shall be particularly examined. And after showing that they do not tend to impair its force, it shall also be shown that the power of incorporation, incident to the government in certain cases, does fairly extend to the particular case which is the object of the bill.

The first of these arguments is, that the foundation of the Constitution is laid on this ground: ” That all powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved for the States, or to the people.” Whence it is meant to be inferred, that Congress can in no case exercise any power not Included in those not enumerated in the Constitution. And it is affirmed, that the power of erecting a corporation is not included in any of the enumerated powers.

The main proposition here laid down, in its true signification is not to be questioned. It is nothing more than a consequence of this republican maxim, that all government is a delegation of power. But how much is delegated in each case, is a question of fact, to be made out by fair reasoning and construction, upon the particular provisions of the Constitution, taking as guides the general principles and general ends of governments.

It is not denied that there are implied as well as expressed powers, and that the former are as effectually delegated as the latter. And for the sake of accuracy it shall be mentioned, that there is another class of powers, which may be properly denominated resting powers. It will not be doubted, that if the United States should make a conquest of any of the territories of its neighbors, they would possess sovereign jurisdiction over the conquered territory. This would be rather a result, from the whole mass of the powers of the government, and from the nature of political society, than a consequence of either of the powers specially enumerated.

But be this as it may, it furnishes a striking illustration of the general doctrine contended for; it shows an extensive case in which a power of erecting corporations is either implied in or would result from, some or all of the powers vested in the national government. The jurisdiction acquired over such conquered country would certainly be competent to any species of legislation.

To return: It is conceded that implied powers are to be considered as delegated equally with express ones. Then it follows, that as a power of erecting a corporation may as well be implied as any other thing, it may as well be employed as an instrument or mean of carrying into execution any of the specified powers, as any other instrument or mean whatever. The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city. But one may be erected in relation to the collection of taxes, or to the trade with foreign countries, or to the trade between the States, or with the Indian tribes; because it is the province of the federal government to regulate those objects, and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage.

A strange fallacy seems to have crept into the manner of thinking and reasoning upon the subject. Imagination appears to have been unusually busy concerning it. An incorporation seems to have been regarded as some great independent substantive thing; as a political end of peculiar magnitude and moment; whereas it is truly to be considered as a quality, capacity, or mean to an end. Thus a mercantile company is formed, with a certain capital, for the purpose of carrying on a particular branch of business. Here the business to be prosecuted is the end. The association, in order to form the requisite capital, is the primary mean. Suppose that an incorporation were added to this, it would only be to add a new quality to that association, to give it an artificial capacity, by which it would be enabled to prosecute the business with more safety and convenience.

That the importance of the power of incorporation has been exaggerated, leading to erroneous conclusions, will further appear from tracing it to its origin. The Roman law is the source of it, according to which a voluntary association of individuals, at any tome, or for any purpose, was capable of producing it. In England, whence our notions of it are immediately borrowed, it forms part of the executive authority, and the exercise of it has been often delegated by that authority. Whence, therefore, the ground of the supposition that it lies beyond the reach of all those very important portions of sovereign power, legislative as well as executive, which belongs to the government of the United States.

To this mode of reasoning respecting the right of employing all the means requisite to the execution of the specified powers of the government, it is objected, that none but necessary and proper means are to be employed; and the Secretary of State maintains, that no means are to be considered as necessary but those without which the grant of the power would be nugatory. Nay, so far does he go in his restrictive interpretation of the word, as even to make the case of necessity which shall warrant the constitutional exercise of the power to depend on casual and temporary circumstances; an idea which alone refutes the construction. The expediency of exercising a particular power, at a particular time, must, indeed depend on circumstances, but the constitutional right of exercising it must be uniform and invariable, the same to-day as to-morrow.

All the arguments, therefore, against the constitutionality of the bill derived from the accidental existence of certain State banks, institutions which happen to exist to-day, and, for aught that concerns the government of the United States, may disappear tomorrow, must not only be rejected as fallacious, but must be viewed as demonstrative that there is a radical source of error in the reasoning.

It is essential to the being of the national government, that so erroneous a conception of the meaning of the word necessary should be exploded.

It is certain that neither the grammatical nor popular sense of the term requires that construction. According to both, necessary often means no more than needful, requisite, incidental, useful, or conducive to. It is a common mode of expression to say, that it is necessary for a government or a person to do this or that thing, when nothing more is intended or understood, than that the interests of the government or person require, or will be promoted by, the doing of this or that thing. The imagination can be at no loss for exemplifications of the use of the word in this sense. And it is the true one in which it is to be understood as used in the Constitution. The whole turn of the clause containing it indicates, that it was the intent of the Convention, by that clause, to give a liberal latitude to the exercise of the specified powers. The expressions have peculiar comprehensiveness. They are thought to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof.”

To understand the word as the Secretary of State does, would be to depart from its obvious and popular sense, and to give it a restrictive operation, an idea never before entertained. It would be to give it the same force as if the word absolutely or indispensably had been prefixed to it.

Such a construction would beget endless uncertainty and embarrassment. The cases must be palpable and extreme, in which it could be pronounced, with certainty, that a measure was absolutely necessary, or one, without which, the exercise of a given power would be nugatory. There are few measures of any government which would stand so severe a test. To insist upon it, would be to make the criterion of the exercise of any implied power, a case of extreme necessity; which is rather a rule to justify the overleaping of the bounds of constitutional authority, than to govern the ordinary exercise of it.

It may be truly said of every government, as well as of that of the United States, that it has only a right to pass such laws as are necessary and proper to accomplish the objects intrusted to it. For no government has a right to do merely what it pleases. Hence, by a process of reasoning similar to that of the Secretary of State, it might be proved that neither of the State governments has a right to incorporate a bank. It might be shown that all the public business of the state could be performed without a bank, and inferring thence that it was unnecessary, it might be argued that it could not be done, because it is against the rule which has been just mentioned. A like mode of reasoning would prove that there was no power to incorporate the inhabitants of a town, with a view to a more perfect police. For it is certain that an incorporation may be dispensed with, though it is better to have one. It is to be remembered that there is no express power in any State constitution to erect corporations.

The degree in which a measure is necessary, can never be a test of the legal right to adopt it; that must be a matter of opinion, and can only be a test of expediency. The relation between the measure and the end; between the nature of the mean employed toward the execution of a power, and the object of that power must be the criterion of constitutionality, not the more or less of necessity or utility.

The practice of the government is against the rule of construction advocated by the Secretary of State. Of this, the Act concerning lighthouses, beacons, buoys, and public piers, is a decisive example. This, doubtless, must be referred to the powers of regulating trade, and is fairly relative to it. But it cannot be affirmed that the exercise of that power in this instance was strictly necessity or that the power itself would be nugatory, with out that of regulating establishments of this nature.

This restrictive interpretation of the word necessary is also contrary to this sound maxim of construction, namely, that the powers contained in a constitution of government, especially those which concern the general administration of the affairs of a country, its finances, trade, defense, etc., ought to be construed liberally in advancement of the public good. This rule does not depend on the particular form of a government, or on the particular demarcation of the boundaries of its powers, but on the nature and object of government itself. The means by which national exigencies are to be provided for, national inconveniences obviated, national prosperity promoted, are of such infinite variety, extent, and complexity, that there must of necessity be great latitude of discretion in the selection and application of those means. Hence, consequently, the necessity and propriety of exercising the authorities intrusted to a government on principles of liberal construction.

The Attorney General admits the rule, but takes a distinction between a State and the Federal Constitution. The latter, he thinks, ought to be construed with greater strictness, because there is more danger of error in defining partial than General powers. But the reason of the rule forbids such a distinction. This reason is, the variety and extent of public exigencies, a far greater proportion of which, and of a far more critical kind, are objects of National than of State administration. The greater danger of error, as far as it is supposable, may be a prudential reason for caution in practice, but it cannot be a rule of restrictive interpretation.

In regard to the clause of the Constitution immediately under consideration, it is admitted by the Attorney General, that no restrictive effect can be ascribed to it. He defines the word necessary thus: “To be necessary is to be incidental, and may be denominated the natural means of executing a power.”

But while on the one hand the construction of the Secretary of State is deemed inadmissible, it will not be contended, on the other, that the clause in question gives any new or independent power. But it gives an explicit sanction to the doctrine of implied powers, and is equivalent to an admission of the proposition that the government, as to its specified powers and objects, has plenary and sovereign authority, in some cases paramount to the States; in others, co-ordinate with it. For such is the plain import of the declaration, that it may pass all laws necessary and proper to carry into execution those powers.

It is no valid objection to the doctrine to say, that it is calculated to extend the power of the government throughout the entire sphere of State legislation. The same thing has been said, and may be said, with regard to every exercise of power by implication or construction.

The moment the literal meaning is departed from, there is a chance of error and abuse. And yet an adherence to the letter of its powers would at once arrest the motions of government. It is not only agreed, on all hands, that the exercise of constructive powers is indispensable, but every act which has been passed, is more or less an exemplification of it. One has been already mentioned that relating to lighthouses, etc. that which declares the power of the President to remove officers at pleasure, acknowledges the same truth in another and a signal instance.

The truth is, that difficulties on this point are inherent in the nature of the Federal Constitution; they result inevitably from a division of the legislative power. The consequence of this division is, that there will be cases clearly within the power of the national government; others, clearly without its powers; and a third class, which will leave room for controversy and difference of opinion, and concerning which a reasonable latitude of judgment must be allowed.

But the doctrine which is contended for is not chargeable with the consequences imputed to it. It does not affirm that the national government is sovereign in all respects, but that it is sovereign to a certain extent; that is, to the extent of the objects of its specified powers.

It leaves, therefore, a criterion of what is constitutional, and of what is not so. This criterion is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion, which may materially assist the decision: Does the proposed measure abridge a pre-existing right of any State or of any individual? If it does not, there is a strong presumption in favor of its constitutionality, and slighter relations to any declared object of the Constitution may be permitted to turn the scale.

The general objections, which are to be inferred from the reasonings of the Secretary of State and Attorney General, to the doctrine which has been advanced, have been stated, and it is hoped satisfactorily answered, Those of a more particular nature shall now be examined.

The Secretary of State introduces his opinion with an observation, that the proposed incorporation undertakes to create certain capacities, properties, or attributes, which are against the laws of alienage, descents, escheat and forfeiture, distribution and monopoly, and to confer a power to make laws paramount to those of the States. And nothing, says he, in another place, but necessity, invincible by other means, can justify such a prostration of laws, which constitute the pillars of our whole system of jurisprudence, and are the foundation laws of the State governments. If these are truly the foundation laws of the several States, then have most of them subverted their own foundations. For there is scarcely one of them which has not, since the establishment of its particular constitution, made material alterations in some of those branches of its jurisprudence, especially the law of descents. But it is not conceived how anything can be called the fundamental law of a State government which is not established in its constitution unalterable by the ordinary legislature. And, with regard to the question of necessity, it has been shown that this can only constitute a question of expediency, not of right.

To erect a corporation, is to substitute a legal or artificial for a natural person, and where a number are concerned, to give them individuality. To that legal or artificial person, once created, the common law of every State, of itself, annexes all those incidents and attributes which are represented as a prostration of the main pillars of their jurisprudence.

It is certainly not accurate to say, that the erection of a corporation is against those different head鈥檚 of the State laws; because it is rather to create a kind of person or entity, to which they are inapplicable, and to which the general rule of those laws assign a different regimen. The laws of alienage cannot apply to an artificial person, because it can have no country; those of descent cannot apply to it, because it can have no heirs; those of escheat are foreign from it, for the same reason; those of forfeiture, because it cannot commit a crime; those of distribution, because, though it may be dissolved, it cannot die.

As truly might it be said, that the exercise of the power of prescribing the rule by which foreigners shall be naturalized, is against the law of alienage, while it is, in fact, only to put them in a situation to cease to be the subject of that law. To do a thing which Is against a law, is to do something which it forbids, or which is a violation of it.

But if it were even to be admitted that the erection of a corporation is a direct alteration of the state laws, in the enumerated particulars, it would do nothing toward proving that the measure was unconstitutional. If the government of the United States can do no act which amounts to an alteration of a State law, all its powers are nugatory; for almost every new law is an alteration, in same way or other, of an old law, either common or statute.

There are laws concerning bankruptcy in some States. Some States have laws regulating the values of foreign coins. Congress are empowered to establish uniform laws concerning bankruptcy throughout the United States, and to regulate the values of foreign coins. The exercise of either of these powers by Congress, necessarily involves an alteration of the laws of those States.

Again. Every person, by the common law of each State, may export his property to foreign countries, at pleasure.: But Congress, in pursuance of the power of regulating trade, may prohibit the exportation of commodities; in doing which, they would alter the common law of each State, in abridgment of individual right.

It can therefore never be good reasoning to say this or that act is unconstitutional, because it alters this or that law of a State. It must be shown that the act which makes the alteration is unconstitutional on other accounts, not because it makes the alteration.

There are two points in the suggestions of the Secretary of State, which have been noted, that are peculiarly incorrect. One is, that the proposed incorporation is against the laws of monopoly, because it stipulates an exclusive right of banking under the national authority; the other, that it gives power to the institution to make laws paramount to those of the States.

But, with regard to the first: The bill neither prohibits any State from erecting as many banks as they please, nor any number of individuals from associating to carry on the business, and consequently, is free from the charge of establishing a monopoly; for monopoly implies a legal impediment to the carrying on of the trade by others than those to whom it is granted.

And with regard to the second point, there is still less foundation. The by-laws of such an institution as a bank can operate only on its own members can only concern the disposition of its own property, and must essentially resemble the rules of a private mercantile partnership. They are expressly not to be contrary to law; and law must here mean the law of a State, as well as of the United States. There never can be a doubt, that a law of a corporation, if contrary to a law of a State, must be overruled as void unless the law of the State is contrary to that of the United States and then the question will not be between the law of the State and that of the corporation, but between the law of the State and that of the United States.

Another argument made use of by the Secretary of State is, the rejection of a proposition by the Convention to empower Congress to make corporations, either generally, or for some special purpose.

What was the precise nature or extent of this proposition, or what the reasons for refusing it, is not ascertained by any authentic document, or even by accurate recollection. As far as any such document exists, it specifies only canals. If this was the amount of it, it would, at most, only prove that it was thought inexpedient to give a power to incorporate for the purpose of opening canals, for which purpose a special power would have been necessary, except with regard to the western territory, there being nothing in any part of the Constitution respecting the regulation of canals. It must be confessed, however, that very different accounts are given of the import of the proposition, and of the motives for rejecting it. Some affirm, that it was confined to the opening of canals and obstructions in rivers, others, that it embraced banks; and others, that it extended to the power of incorporating generally. Some, again, allege, that it was disagreed to because it was thought improper to vest in Congress a power of erecting corporations. Others, because it was thought unnecessary to specify the power, and inexpedient to furnish an additional topic of objection to the Constitution. In this state of the matter, no inference whatever can be drawn from it.

But whatever may have been the nature of the proposition, or the reasons for rejecting it, nothing is included by it, that is the proposition, in respect to the real merits of the question. The Secretary of State will not deny, that, whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction. Nothing is more common than for laws to express and elect more or less than was intended. If, then, a power to erect a corporation in any case be deducible, by fair inference, from the whole or any part of the numerous provisions of the Constitution of the United States arguments drawn from extrinsic circumstances regarding the in tension of the Convention must be rejected.

Most of the arguments of the Secretary of State, which have not been considered in the foregoing remarks, are of a nature rather to apply to the expediency than to the constitutionality of the bill. They will, however, be noticed in the discussions which will be necessary in reference to the particular heads of the powers of the government which are involved in the question.

Those of the Attorney General will now properly come under view.

His first objection is, that the power of incorporation is not expressly given to Congress. This shall be conceded, but in this sense only, that it is not declared in express terms that Congress may erect a corporation. But this cannot mean, that there are not certain express powers which necessary include it. For instance Congress have express power to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased, by consent of the legislature of the State in which the same shall be for the erection of forts, arsenals, dock-yards, and other needful buildings. Here, then, is express power to exercise exclusive legislation, in all cases whatsoever, over certain Ices, that is to do, in respect to those places, all that any government whatsoever may do. For language does not afford a more complete designation of sovereign power than in those comprehensive terms. It is, in other words, a power to pass all laws whatsoever, and consequently, to pass laws for erecting corporations, as well as for any other purpose which is the proper object of law in a free govern meet.

Surely it can never be believed that Congress, with exclusive powers of legislation in all cases whatsoever, cannot erect a corporation within the district which shall become the seat of government, for the better regulation of its police. And yet there is an unqualified denial of the power to erect corporations in every case on the part both of the Secretary of State and of the Attorney General; the former, indeed, speaks of that power in these emphatical terms: That it is a right remaining exclusively with the States.

As far, then, as there is an express power to do any particular act of legislation, there is an express one to erect a corporation in the case above described. But, accurately speaking, no particular power is more than that implied in a, general one. Thus the power to lay a duty on a gallon of rum is only a particular implied in the general power to collect taxes, duties, imposts, and excises. This serves to explain in what sense it may be said that Congress have not an express power to make corporations.

This may not be an improper place to take notice of an argument which was used in debate in the House of Representatives. It was there argued, that if the Constitution intended to confer so important a power as that of erecting corporations, it would have been expressly mentioned. But the case which has been noticed is clearly one in which such a power exists, and yet without any specification of express grant of it, further than as every particular implied in a general power can be said to be so granted.

But the argument itself is founded upon an exaggerated and erroneous conception of the nature of the power. It has been shown that it is not of so transcendent a kind as the reasoning supposes, and that, viewed in a just light, it is a mean which ought to have been left to implication, rather than an end which ought to have been expressly granted.

Having observed that the power of erecting corporations is not expressly granted to Congress, the Attorney General proceeds thus:

” If it can be exercised by them, it must be

“1. Because the nature of the federal government implies it.

“2. Because it is involved in some of the specified powers of legislation.

” 3. Because it is necessary and proper to carry into execution some of the specified powers.”

To be implied in the nature of the federal government, says he, would beget a doctrine so indefinite as to grasp every power.

This proposition, it ought to be remarked, is not precisely, or even substantially, that which has been relied upon. The proposition relied upon is, that the specified powers of Congress are in their nature sovereign. That it is incident to sovereign power to erect corporations, and that therefore Congress have a right, within the sphere and in relation to the objects of their power, to erect corporations. It shall, however, be supposed that the Attorney General would consider the two propositions in the same light, and that the objection made to the one would be made to the other.

To this objection an answer has been already given. It is this, that the doctrine is stated with this express qualification, that the right to erect corporations does only extend to cases and objects within the sphere of the specified powers of the government. A general legislative authority implies a power to erect corporations in all cases. A particular legislative power implies authority to erect corporations in relation to cases arising under that power only. Hence the affirming that, as incident to sovereign power, Congress may erect a corporation in relation to the collection of their taxes, is no more to affirm that they may do whatever else they please, than the saying that they have a power to regulate trade, would be to affirm that they have a power to regulate religion; or than the maintaining that they have sovereign power as to taxation, would be to maintain that they have sovereign power as to everything else.

The Attorney General undertakes in the next place to show, that the power of erecting corporations is not involved in any of the specified powers of legislation confided to the national government. In order to this, he has attempted an enumeration of the particulars which he supposes to be comprehended under the several heads of the Covers to lay and collect taxes, &c.; to borrow money on the credit of the United States, to regulate commerce with sovereign nations; between the States, and with the Indian tribes, to dispose of and make all needful rules and regulations respecting the territory of other property belonging to the United States. The design of which enumeration is to show, what is included under those different heads of power, and negatively, that the power of erecting corporations is not included.

The truth of this inference or conclusion must depend on the accuracy of the enumeration. If it can be shown that the enumeration is defective, the inference is destroyed. To do this will be attended with no difficulty.

The heads of the power to lay and collect taxes are stated to be:

1. To stipulate the sum to be lent.

2. An interest or no interest to be paid.

3. The time and manner of repaying, unless the loan be placed on an irredeemable fund.

This enumeration is liable to a variety of objections. It omits in the first place, the pledging or mortgaging of a fund for the security of the money lent, an usual, and in most cases an essential ingredient.

The idea of a stipulation of an interest or no interest is too confined. It should rather have been said, to stipulate the consideration of the loan. Individuals often borrow on considerations other than the payment of interest, so may governments, and so they often find it necessary to do. Everyone recollects the lottery tickets and other douceurs often given in Great Britain as collateral inducements to the lending of money to the government. There are also frequently collateral conditions, which the enumeration does not contemplate. Every contract which has been made for moneys borrowed in Holland, induces stipulations that the sum due shall bedded from taxes, and from sequestration in time of war, and mortgages all the land and property of the United States for the reimbursement.

It is also known that a lottery is a common expedient for borrowing money, which certainly does not fall under either of the enumerated heads.

The heads of the power to regulate commerce with foreign nations, are stated to be:

1. To prohibit them or their commodities from our ports.

2. To impose duties on them, where none existed before, or to increase existing; duties on them.

3. To subject them to any species of custom-house regulation.

4. To grant them any exemptions or privileges which policy may suggest.

This enumeration is far more exceptionable than either of the former. It omits everything that relates to the citizens鈥� vessels, or commodities of the United States.

The following palpable omissions occur at once:

I Of the power to prohibit the exportation of commodities, which not only exists at all times, but which in time of war it would be necessary to exercise, particularly with relation to naval and warlike stores

i. Of the power to prescribe rules concerning the characteristics and privileges of an American bottom, how she shall be navigated, or whether by citizens or foreigners, or by a proportion of each

3. Of the power of regulating the manner of contracting with seamen; the police of ships on their voyages, &c., of which the Act for the government and regulation of seamen, in the merchants鈥� service, is a specimen.

That the three preceding articles are omissions, will not be doubted there is a long list of items in addition, which admit of little, if any question, of which a few samples shall be given.

1. The granting of bounties to certain kinds of vessels, and certain species of merchandise; of this nature, is the allowance on dried and pickled fish and salted provisions

2. The prescribing of rules concerning the inspection of commodities to be exported. Though the States individually are competent to this regulation, yet there is no reason, in point of authority at least, why a general system might not be adopted by the United States.

3. The regulation of policies of insurance; of salvage upon goods found at sea, and the disposition of such goods.

4. The regulation of pilots.

5. The regulation of bills of exchange drawn by a merchant of one State upon a merchant of another State. This last rather belongs to the regulation of trade between the States, but is equally omitted in the specifications under that head

The last enumeration relates to the power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States.

The heads of this power are said to be:

1. To exert an ownership over the territory of the United States which may be properly called the property of the United States, as in the western territory, and to institute a government therein, or

2. To exert an ownership over the other property of the United States.

The idea of exerting an ownership over the territory or other property of the United States, is particularly indefinite and vague. It does not at all satisfy the conception of what must have been intended by a power to make all needful rules and regulations, nor would there have been any use for a special clause, which authorized nothing more. For the right of exerting an ownership is implied in the very definition of property. It is admitted, that in regard to the western territory, something more is intended; even the institution of a government, that is, the creation of a body politic, or corporation of the highest nature; one which, in its maturity, will be able itself to create other corporations. Why, then, does not the same clause authorize the erection of a corporation, in respect to the regulation or disposal of any other of the property of the United States.

This idea will be enlarged upon in another place.

Hence it appears, that the enumerations which have been attempted by the Attorney General, are so imperfect, as to authorize no conclusion whatever; they, therefore, have no tendency to disprove that each and every of the powers, to which they relate, includes that of erecting corporations, which they certainly do, as the subsequent illustrations will snore and more evince.

It is presumed to have been satisfactorily shown in the course of the preceding observations:

1. That the power of the government, as to the objects intrusted to its management, is, in its nature, sovereign.

2. That the right of erecting corporations is one inherent in, and inseparable from, the idea of sovereign power.

3. That the position, that the government of the United States can exercise no power, but such as is delegated to it by its Constitution, does not militate against this principle.

4. That the word necessary, in the general clause, can have no restrictive operation derogating from the force of this principle indeed鈥� that the degree in which a measure is or is not necessary cannot be a test of constitutional right, but of expediency only.

5. That the power to erect corporations is not to be considered as an independent or substantive power, but as an incidental and auxiliary one, and was therefore more properly left to implication, than expressly granted.

6. That the principle in question does not extend the power of the government beyond the prescribed limits, because it only affirms a power to incorporate for purposes within the sphere of the specified powers.

And lastly, that the right to exercise such a power in certain cases is unequivocally granted in the most positive and comprehensive terms. To all which it only remains to be added, that such a power has actually been exercised in two very eminent instances; namely, in the erection of two governments, one northwest of the River Ohio, and the other southwest the last independent of any antecedent compact. And these result in a full and complete demonstration that the Secretary of State and the Attorney General are mistaken when they deny generally the power of the national government to erect corporations.

It shall now be endeavored to be shown that there is a power to erect one of the kind proposed by the bill. This will be done by tracing a natural and obvious relation between the institution of a bank and the objects of several of the enumerated powers of the government; and by showing that, politically speaking, it is necessary to the effectual execution of one or more of those powers.

In the course of this investigation, various instances will be stated, by way of illustration of a right to erect corporations under those powers.

Some preliminary observations may be proper.

The proposed bank is to consist of an association of persons, for the purpose of creating a joint capital, to be employed chiefly and essentially in loans. So far the object is not only lawful, but it is the mere exercise of a right which the law allows to every individual. The Bank of New York, which is not incorporated, is an example of such an association. The bill proposed an addition that the government shall become a joint proprietor in this undertaking, and that it shall permit the bills of the company, payable on demand, to be receivable in its revenues; and stipulates that it shall not grant privileges, similar to those which are to be allowed to this company, to any others. All this is incontrovertibly within the compass of the discretion of the government. The only question is, whether it has a right to incorporate this company, in order to enable it the more effectually to accomplish ends which are in themselves lawful.

To establish such a right, it remains to show the relation of such an institution to one or more of the specified powers of the government. Accordingly it is affirmed that it has a relation, more or less direct, to the power of collecting taxes, to that of borrowing money, to that of regulating trade between the States, and to those of raising and maintaining fleets and armies. To the two former the relation Nay be said to be immediate; and in the last place it will be argued, that it is clearly within the provision which authorizes the making of all needful rules and regulations concerning the property of the United States, as the same has been practiced upon by the government.

A bank relates to the collection of taxes in two ways indirectly, by increasing the quantity of circulating medium and quickening circulation, which facilitates the means of paying directly, by creating a convenient species of medium in which they are to be paid.

To designate or appoint the money or thing in which taxes are to be paid, is not only a proper, but a necessary exercise of the power of collecting them. Accordingly Congress, in the lava concerning the collection of the duties on imposts and tonnage, have provided that they shall be paid in gold and silver. But while it was an indispensable part of the work to say in what they should be paid, the choice of the specific thing was mere matter of discretion. The payment might have been required in the commodities themselves. Taxes in kind, however ill-judged, are not without precedents, even in the United States; or it Night have been in the paper money of the several States, or in the bills of the Bank of North America, New York and Massachusetts, all or either of them; or it might have been in bills issued under the authority of the United States.

No part of this can, it is presumed, be disputed. The appointment, then, of the money or thing in which the taxes are to be paid, is an incident to the power of collection. And among the expedients which may be adopted, is that of bills issued under the authority of the United States.

Now, the manner of issuing these bills is again matter of discretion. The government might doubtless proceed in the following manner:

It might provide that they should be issued under the direction of certain officers, payable on demand, and, in order to support their credit, and give them a ready circulation, it might, besides giving them a currency in its taxes, set apart, out of any moneys in its treasury, a given sum, and appropriate it, under the direction of those officers, as a fund for answering the bills, as presented for payment.

The constitutionality of all this would not admit of a question, and yet it would amount to the institution of a bank, with a view to the more convenient collection of taxes, For the simplest and most precise idea of a bank is, a deposit of coin, or other property, as a fund for circulating credit upon it, which is to answer the purpose of money. That such an arrangement would be equivalent to the establishment of a bank, would become obvious if the place where the fund to be set apart was kept should be made a receptacle of the moneys of all other persons who should incline to deposit them there for safe-keeping; and would become still more so, if the officers charged with the direction of the fund were authorized to make discounts at the usual rate of interest, upon good security. To deny the power of the government to add these ingredients to the plan, would be to refine away all government.

A further process will still more clearly illustrate the point. Suppose, when the species of bank which has been described was about to be instituted, it was to be urged that, in order to secure to it a due degree of confidence, the fund ought not only to be set apart and appropriated generally, but ought to be specifically vested in the officers who were to have the direction of it, and in their successors in office, to the end that it might acquire the character of private property, incapable of being resumed without a violation of the sanctions by which the rights of property are protected, and occasioning more serious and general alarm the apprehension of which might operate as a check upon the government. Such a proposition might be opposed by arguments against the expedience of it, or the solidity of the reason assigned for it, but it is not conceivable what could be urged against its constitutionality; and yet such a disposition of the thing would amount to the erection of a corporation; for the true definition of a corporation seems to be this: It is a legal person, or a person created by act of law, consisting of one or more natural persons authorized to hold property, or a franchise in succession, in a legal, as contradistinguished from natural, capacity.

Let the illustration proceed a step further.. Suppose a bank of the mature which has been described, with or without incorporation, had been instituted, and that experience had evinced as it probably would, that, being wholly under a public direction, it possessed not the confidence requisite to the credit of the bills. Suppose, also, that, by some of those adverse conjunctures which occasionally attend nations, there had been a very great drain of the specie of the country, so as not only to cause general distress for want of an adequate medium of circulation, but to produce, in consequence of that circumstance, considerable defalcations in the public revenues. Suppose, also, that there was no bank instituted in any State; in such a posture of things, would it not be most manifest, that the incorporation of a bank like that proposed by the bill would be a measure immediately relative to the effectual collection of the taxes, and completely within the province of the sovereign power of providing, by all laws necessary and proper, for that collection? If it be said, that such a state of things would render that necessary, and therefore constitutional, which is not so now, the answer to this, and a solid one it doubtless is, must still be that which has been already stated circumstances may affect the expediency of the measure, but they can neither add to nor diminish its constitutionality.

A bank has a direct relation to the power of borrowing money, because it is an usual, and in sudden emergencies an essential, instrument in the obtaining of loans to government.

A nation is threatened with a war, large sums are wanted on a sudden to make the requisite preparations. Taxes are laid for the purpose, but it requires time to obtain the benefit of them. Anticipation is indispensable. If there be a bank the supply can at once be had. If there be none, loans from individuals must be sought. The progress of these is often too slow for the exigency ill some situations they are not practicable at all. Frequently when they are, it is of great consequence to be able to anticipate the product of them by advance from a bank.

The essentiality of such an institution as an instrument of loans is exemplified at this very moment. An Indian expedition is to be prosecuted. The only fund, out of which the money can arise, consistently with the public engagements, is a tax, which only begins to be collected in July next. The preparations, however, are instantly to be made. The money must, therefore, be borrowed and of whom could it be borrowed if there were no public banks?

It happens that there are institutions of this kind, but if there were none, it would be indispensable to create one.

Let it then be supposed that the necessity existed, (as but for a casualty would be the case,) that proposals were made for obtaining a loan; that a number of individuals came forward and said, we are willing to accommodate the government with the money; with what we have in hand, and the credit we can raise upon it, we doubt not of being able to furnish the sum required; but in order to this, it is indispensable that we should be incorporated as a bank. This is essential toward putting it in our power to do what is desired, and we are obliged on that account to make it the consideration or condition of the loan.

Can it be believed that a compliance with this proposition would be unconstitutional? Does not this alone evince the contrary? It is a necessary part of a power to borrow, to be able to stipulate the consideration or conditions of a loan. It is efficient as has been remarked elsewhere, that this is not confined to the mere stipulation of a franchise. If it may, and it is not perceived why it may not, then the grant of a corporate capacity may be stipulated as a consideration of the loan. There seems to be nothing unfit or foreign from the nature of the thing in giving individuality, or a corporate capacity to a number of persons, who are willing to lend a sum of money to the government, the better to enable them to do it, and make them an ordinary instrument of loans in future emergencies of the state. But the more general view of the subject is still more satisfactory. The legislative power of borrowing money, and of making all laws necessary and proper for carrying into execution that power, seems obviously competent to the appointment of the organ, through which the abilities and wills of individuals may be roost efficaciously exerted for the accommodation of the government by loans.

The Attorney General opposes to this reasoning the following observation: “Borrowing money presupposes the accumulation of a fund to be lent, and is secondary to the creation of an ability to lend.” This is plausible in theory, but is not true in fact. In a great number of cases, a previous accumulation of a fund equal to the whole sum required does not exist. And nothing more can be actually presupposed, than that there exist resources, which, put into activity to the greatest advantage by the nature of the operation with the government, will be equal to the effect desired to be produced. All the provisions and operations of government must be presumed to contemplate things as they really are.

The institution of a bank has also a natural relation to the regulation of trade between the States, in so far as it is conducive to the creation of a convenient medium of exchange between them, and to the keeping up a full circulation, by preventing the frequent displacement of the metals in reciprocal remittances Money is the very hinge on which commerce turns. And this does not merely mean gold and silver; many other things have served the purpose, with different degrees of utility. Paper has been extensively employed.

It cannot, therefore, be admitted, with the Attorney General, that the regulation of trade between the States, as it concerns the medium of circulation and exchange, ought to be considered as confined to coin. It is even supposable that the whole or the greatest part, of the coin of the country might be carried out of it.

The Secretary of State objects to the relation here insisted upon by the following mode of reasoning: To erect a bank, says he, and to regulate commerce, are very different acts. He who creates a bank, creates a subject of commerce, so does he who snakes a bushel of wheat, or digs a dollar out of the Nines, yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling.

This making the regulation of commerce to consist in prescribing rules for buying and selling this, indeed, is a species of regulation of trade, but is one which falls more aptly within the province of the local jurisdictions than within that of the general government, whose care they must be presumed to have been intended to be directed to those general political arrangements concerning trade on which its aggregated interests depend, rather than to the details of buying and selling. Accordingly, such only are the regulations to be found in the laws of the United States whose objects are to give encouragement to the enterprise of our own merchants, and to advance our navigation and manufactures. And it is in reference to these general relations of commerce, that an establishment which furnishes facilities to circulation, and a convenient medium of exchange and alienation, is to be regarded as a regulation of trade.

The Secretary of State further argues, that if this was a regulation of commerce, it would be void, as extending as much to the internal commerce of every State as to its external. But what regulation of commerce does not extend to the internal commerce of every State? What are all the duties upon imported articles amounting to prohibitions, but so many bounties upon domestic manufactures, affecting the interests of different classes of citizens, in different ways? What are all the provisions in the Coasting Acts which relate to the trade between district and district of the same State? In short, what regulation of trade between the States but must affect the internal trade of each State? What can operate upon the whole, but must extend to every part?

The relation of a bank to the execution of the powers that concern the common defense has been anticipated. It has been noted, that, at this very moment, the aid of such an institution is essential to the measures to be pursued for the protection of our frontiers.

It now remains to show, that the incorporation of a bank is within the operation of the provision which authorizes Congress to make all needful rules and regulations concerning the property of the United States. But it is previously necessary to advert to a distinction which has been taken by the Attorney General.

He admits that the word property may signify personal property, however acquired, and yet asserts that it cannot signify money arising from the sources of revenue pointed out in the Constitution, ” because,” says he, ” the disposal and regulation of money is the final cause for raising it by taxes.”

But it would be more accurate to say that the object to which money is intended to be applied is thermal cause for raising it, than that the disposal and regulation of it is such.

The support of government – the support of troops for the common defense – the payment of the public debt, are the true final causes for raising money. The disposition and regulation of it, when raised, are the steps by which it is applied to tile ends for which it was raised, not the ends themselves. Hence, therefore, the money to be raised by taxes, as well as any other personal property, must be supposed to come within the meaning, as they certainly do within the letter, of authority to make all needful rules and regulations concerning the property of the United States.

A case will make this plainer. Suppose the public debt discharged, and the funds now pledged for it liberated. In some instances it would be found expedient to repeal tile taxes; in others, the repeal might injure our own industry, our agriculture and manufactures. In these cases they would, of course, be retained. Here, then, would be moneys arising from the authorized sources of revenue, which would not fall within the rule by which the Attorney General endeavors to except them from other personal property, and from the operation of the clause in question. The moneys being in the coffers of government, what is to hinder such a disposition to be made of them as is contemplated in the bill; or what an incorporation of the parties concerned, under the clause which has been cited?

It is admitted that with regard to the western territory they give a power to erect a corporation that is, to institute a government; and by what rule of construction can it be maintained, that the same words in a constitution of government will not have the same effect when applied to one species of property as to another as far as the subject is capable of it? Or that a legislative power to make all needful rules and regulations, or to pass all laws necessary and proper, concerning the public property, which is admitted to authorize an incorporation in one case, will not authorize it in another? will justify the institution of a government over the western territory, and will not justify the incorporation of a bank for the more useful management of the moneys of the United States? If it will do the last, as well as the first, then under this provision alone, the bill is constitutional, because it contemplates that the United States shall be joint proprietors of the stock of the bank.

There is an observation of the Secretary of State to this effect which may require notice in this place:-Congress, says he, are not to lay taxes ad libitum, for any purpose they please, but only to pay the debts or provide for the welfare of the Union. Certainly no inference can be drawn from this against the power of applying their money for the institution of a bank. It is true that they cannot without breach of trust lay taxes for any other purpose than the general welfare; but so neither can any other government. The welfare of the community is the only legitimate end for which money can be raised on the community. Congress can be considered as under only one restriction which does not apply to other governments, they cannot rightfully apply the money they raise to any purpose merely or purely local.

But, with this exception, they have as large a discretion in relation to the application of money as any legislature whatever. The constitutional test of a right application must always be, whether it be for a purpose of general or local nature. If the former, there can be no want of constitutional power. The quality of the object as how far it will really promote or not the welfare of the Union must be matter of conscientious discretion, and the arguments for or against a measure in this light must be arguments concerning expediency or inexpediency, not constitutional right. Whatever relates to the general order of the finances, to the general interests of trade, etc., being general objects, are constitutional ones for the Application of money.

A bank, then, whose bills are to circulate in all the revenues of the country, is evidently a general object, and, for that very reason, a constitutional one, as far as regards the appropriation of money to it. Whether it will really be a beneficial one or not, is worthy of careful examination, but is no more a constitutional point, in the particular referred to, than the question, whether the western lands shall be sold for twenty or thirty cents per acre.

A hope is entertained that it has, by this time, been made to appear, to the satisfaction of the President, that a bank has a natural relation to the power of collecting taxes-to that of regulating trade-to that of providing for the common defense and that, as the bill under consideration contemplates the government in the light of a joint proprietor of the stock of the bank, it brings the case within the provision of the clause of the Constitution which immediately respects the property of the United States.

Under a conviction that such a relation subsists, the Secretary of the Treasury, with all deference, conceives that it will result as a necessary consequence from the position that all the special powers of government are sovereign, as to the proper objects

that the incorporation of a bank is a constitutional measure, and that the objections taken to the bill, in this respect, are ill-founded.

But, from an earnest desire to give the utmost possible satisfaction to the mind of the President, on so delicate and important a subject, the Secretary of the Treasury will ask his indulgence, while he gives some additional illustrations of cases in which a power of erecting corporations may be exercised, under some of those heads of the specified powers of the government, which are alleged to include the right of incorporating a bank.

i. It does not appear susceptible of a doubt, that if Congress had thought proper to provide, in the collection laws, that the bonds to be given for the duties should be given to the collector of the district, A or B. as the case might require, to inure to him and his successors in office, in trust for the United States, that it would have been consistent with the Constitution to make such an arrangement; and yet this, it is conceived, would amount to an incorporation.

i. It is not an unusual expedient of taxation to farm particular branches of revenue-that is, to mortgage or sell the product of them for certain definite sums, leaving the collection to the parties to whom they are mortgaged or sold. There are even examples of this in the United States. Suppose that there was any particular branch of revenue which it was manifestly expedient to place on this footing, and there were a number of persons willing to engage with the government, upon condition that they should be incorporated, and the sums invested in them, as well for their greater safety, as for the more convenient recovery and management of the taxes. Is it supposable that there could be any constitutional obstacle to the measure? It is presumed that there could be none. It is certainly a mode of collection which it would be in the discretion of the government to adopt, though the circumstances must be very extraordinary that would induce the Secretary to think it expedient.

3. Suppose a new and unexplored branch of trade should present itself, with some foreign country. Suppose it was manifest that to undertake it with advantage required an union of the capitals of a number of individuals, and that those individuals would not be disposed to embark without an incorporation, as well to obviate that consequence of a private partnership which makes every individual liable in his whole estate for the debts of the company, to their utmost extent, as for the more convenient management of the business-what reason can there be to doubt that the national government would have a constitutional right to institute and incorporate such a company? None. They possess a general authority to regulate trade with foreign countries. This is a mean which has been practiced to that end, by all the principal commercial nations, who have trading companies to this day, which have subsisted for centuries. Why may not the United States, constitutionally, employ the means usual in other countries, for attaining the ends intrusted to them?

A power to make all needful rules and regulations concerning territory, has been construed to mean a power to erect a government. A power to regulate trade, is a power to make all needful rules and regulations concerning trade. Why may it not, then, include that of erecting a trading company, as well as, in other cases, to erect a government?

It is remarkable that the State conventions, who had proposed amendments in relation to this point, have most, if not all of them, expressed themselves nearly thus: Congress shall not grant monopolies, nor erect any company with exclusive advantages of commerce! Thus, at the same time, expressing their sense, that the power to erect trading companies or corporations was inherent in Congress, and objecting to it no further than as to the grant of exclusive privileges.

The Secretary entertains all the doubts which prevail concerning the utility of such companies, but he cannot fashion to his own mind a reason, to induce a doubt, that there is a constitutional authority in the United States to establish them. If such a reason were demanded, none could be given, unless it were this: That Congress cannot erect a corporation. Which would be no better than to say, they cannot do it, because they cannot do it-first presuming an inability, without reason, and then assigning that inability as the cause of itself. Illustrations of this kind might be multiplied without end. They shall, however, be pursued no further.

There is a sort of evidence on this point, arising from an aggregate view of the Constitution, which is of no inconsiderable weight: the very general power of laying and collecting taxes, and appropriating their proceeds–that of borrowing money indefinitely–that of coining money, and regulating foreign coins-that of making all needful rules and regulations respecting the property of the United States. These powers combined, as well as the reason and nature of the thing, speak strongly this language: that it is the manifest design and scope of the Constitution to vest in Congress all the powers requisite to the effectual administration of the finances of the United States. As far as concerns this object, there appears to be no parsimony of power.

To suppose, then. that the government is precluded from the employment of so usual and so important an instrument for the administration of its finances as that of a bank, is to suppose what does not coincide with the general tenor and complexion of the constitution, and what is not agreeable to impressions that any new spectator would entertain concerning it.

Little less than a prohibitory clause can destroy the strong presumptions which result from the general aspect of the government. Nothing but demonstration should exclude the idea that the power exists.

In all questions of this nature, the practice of mankind ought to have great weight against the theories of individuals.

The fact, for instance, that all the principal commercial nations have made use of trading corporations or companies, for the purpose of external commerce, is a satisfactory proof that the establishment of them is an incident to the regulation of the commerce.

This other fact, that banks are an usual engine in the administration of national finances, and an ordinary and the most effectual instrument of loan, and one which, in this country, has been found essential, pleads strongly against (he supposition that a government, clothed with most of the most important prerogatives of sovereignty in relation to its revenues, its debts, its credits, its defense, its trade, its intercourse with foreign nations, is forbidden to make use of that instrument as an appendage to its own authority.

It has been stated as an auxiliary test of constitutional authority to try whether it abridges any pre-existing right of any State, or any individual. The proposed investigation will stand the most severe examination on this point. Each State may still erect as many banks as it pleases. Every individual may still carry on the banking business to any extent he pleases.

Another criterion may be this. Whether the institution or thing has a more direct relation, as to its uses, to the objects of the reserved powers of the State governments than to those of the powers delegated by the United States. This, rule, indeed, is less precise than the former, but it may still serve as some guide. Surely a bank has more reference to the objects intrusted to the national government than to those left to the care of the State governments. The common defense is decisive in this comparison.

It is presumed that nothing of consequence in the observations of the Secretary of State, and Attorney General, has been left un-noticed.

There are, indeed, a variety of observations of the Secretary of State designed to show that the utilities ascribed to a bank, in relation to the collection of taxes, and to trade, could be obtained without it; to analyze which, would prolong the discussion beyond all bounds. It shall be forborne for two reasons. First, because the report concerning the bank, may speak for itself in this respect and secondly, because all those observations are grounded on the erroneous idea that the quantum of necessity or utility is the test of a constitutional exercise of power.

One or two remarks only shall be made. One is, that he has taken no notice of a very essential advantage to trade in general which is mentioned in the report, as peculiar to the existence of a bank circulation, equal in the public estimation to gold and silver. It is this that renders it unnecessary to lock up the money of the country, to accumulate for months successively, in order to the periodical payment of interest. The other is this: that his arguments to show that treasury orders and bills of exchange, from tint. course of trade, will prevent any considerable displacement of the metals, are founded on a particular view of the subject. A case will prove this. The sums collected in a State may be small in comparison with the debt due to it; the balance of its trade direct and circuitous with the seat of government, may be even, or nearly so; here, then, without bank bills, which in that State answer the purpose of coin, there must be a displacement of the coin, in proportion to the difference between the sum collected in the State, and that to be paid in it. With bank bills, no such displacement would take place, or as far as it did, it would be gradual and insensible. In many other ways, also, would there be at least a temporary and inconvenient displacement of the coin, even where the course of trade would eventually return it to its proper channel.

The difference of the two situations in point of convenience to the treasury, can only be appreciated by one, who experiences the embarrassments of making provision for the payment of the interest on a stock, continually changing place in thirteen different places.

One thing which has been omitted, just occurs, although it is not very material to the main argument. The Secretary of State affirms that the bill only contemplates a repayment, not a loan, to the government. But here he is certainly mistaken. It is true the government invests in the stock of the bank a sum equal to that which it receives on loan. But let it be remembered, that it does not, therefore, cease to be a proprietor of the stock, which would be the case, if the money received back were in the nature of a payment. It remains a proprietor still, and will share in the profit or loss of the institution, according as the dividend is more or less than the interest it is to pay on the sum borrowed. Hence that sum is manifestly, and in the strictest sense, a loan.

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