argument, the whole force of which must redound to the federal government; but yet I shall proceed to controvert it.

The mother bank of the United States, I suppose (for I have not the law before me,) may, or may not, estabish or abolish branch banks at its own pleasure. If so, it may, or it may not, at its own will, transmit publick money from one place excepted. I do not know whether the bank is compelled by the law, under a penalty to receive and transmit publick money, wherever it may establish branches; or whether the law is merely preceptive as to the point; but I suppose, that it can only be required to transmit what it receives, and that it is not bound to receive where it has no branch. If this should be the case, this compensation to be paid by the bank, as justifying its incorporation, may be extended or diminished at its own pleasure. It is true, that the profit arising from deposites of publick money, inspired a very reasonable hope, that the bank would send out branches to those places where most of it was to be received, and from whence it could most easily be transmitted; but hope is eventual, and the constitutionality of a law ought to be positive and not fortuitous, at the time it is passed; not now constitutional and then unconstitutional, as the bank should choose to hook it to, or unhook it from fiscal operations; and not constitutional in one state, or at one place, where the bank might choose to have a branch to aid those operations, and unconstitutional in another, where it might choose to have none. However this may be, it must be admitted, that the size of the convenience can have nothing to do with its power to invest congress with the right of creating corporations, and that the transmission of a cent would be a convenience, as effectual to constitutionalize an incorporating law, as the transmission of a million. The constitution does not confine the virtue of this power-amplifying principle to conveniencies, or means of any specified degrees of magnitude, and each, however small, like every magnet, contains the power of attraction. The least convenience, therefore, in the exercise of every delegated power, will justify congress in granting individual or corporate privileges; and those who will transmit federal horses, arms or victuals, (so much more cumbersome than money,) have a better right to them than the money-changers themselves. In short, if the argument of convenience be sufficient to establish

the constitutionality of the law in the case of the banks, every power whatsoever, delegated to congress, may reward its coadjutors with exclusive privileges, and embrace within its means, monopolies of every description.

It would be a subject worthy of mature consideration, whether a bank currency, such as we are suffering under, does not bear a strong analogy in its effects, to the monopoly of the colonial trade long held by the English, and which we supposed we had happily abolished by a long war. But it is too copious for the limits I must observe, and I only suggest it to the reader, that he may compare in his own mind, both the extent of the two monopolies, and the cost of getting rid of them.

A phalanx of words have been enlisted to assail the plainest provisions of the federal constitution; but only one more shall be adverted to. The word "national," is often made an auxiliary of "sovereign, supreme, necessary and convenient," towards destroying or relaxing the restrictions imposed upon congress by the union. It is contended, that congress may exercise national powers. Where is this nation, of which gentlemen speak? Is it composed of twenty-three individuals only? If so, if the states made the union, and if congress possess no powers, except those bestowed by the union, then the term is only an expedient, like that in using the words sovereign, supreme, convenient and necessary, to convey to the federal government recondite, in the place of defined powers. All these words being equally sufficient to convey indefinite, instead of the limited powers really delegated to congress, why should we be led round the radii of a circle to get at its centre, omnipotence? The premises being settled, the argument would terminate in a syllogism, and put us out of our pain. As thus: Such a thing is an act of power, congress is omnipotent, therefore it is within the sphere of congress. Is it not the same sort of reasoning to say, such a thing is an act of sovereignty, or of supremacy, or necessary, or convenient, or national; congress may do what is sovereign, supreme, necessary, convenient, or national, therefore it is within the sphere of congress ?

SECTION 11.

THE BANK DECISION. PRECEDENTS.

I shall conclude this subject, by an examination of an argument with which the court began. It remarks, that "banking "was introduced at a very early period of our history, has been " recognized by many successive legislatures, and has been " acted upon by the judicial department in cases of peculiar delicacy, as a law of undoubted obligation." This remark must either furnish the conclusion, that precedents may change the federal constitution, or it has no weight. As it was intended to have weight, it deserves an attentive consideration.

દ

In consolidated societies, subject to one sovereign government, having but one legislature, and but one judicial power, where law is omnipotent, the omnipotence of precedents is a component part of the form of the government; but in a federal republick, having two co-ordinate and distinct legislatures, and two judicial powers, where law is not omnipotent, and where the governments, instead of being sovereigns, are only invested with limited powers, it would be an incongruity with the form of government, to allow to precedents the same force. The constitution does not invest either the state or federal governments with an exclusive power of changing its principles by precedents, because it would destroy their co-ordinacy, disorder the division of powers, and subject one to the other. Nor can such a power be common to all these governments, because the different precedents, which would thence arise, must soon make as many federal constitutions as we have governments. In countries where the unity and sovereignty of the government is the primary political principle, these objections to precedents would have no weight; but here, where neither this unity nor sovereignty is to be found, they would, if used as they are used under those governments, destroy our existing system; because, a right to make precedents in any one of our

departments is an acknowledgment of a sovereignty in that department. The reader will remark, that I am speaking of political precedents, which ought not to be confounded in any degree with municipal or forensick, established for ascertaining private rights, because we did not intend by constitutions to subject the national liberty to so uncertain a tenure.

If, however, we should even be governed in relation to charters, by the precedents of other nations, and other forms of government, they would furnish us with a volume of authorities, subversive of their sufficiency to sustain our banking corporations. In England, the granting of charters was an executive, not a legislative act; and as the English king, (the grantor) never dies, so his act could never be revoked. But all our legislatures die regularly, and the precedents of repealing laws are numerous enough, if the right of repeal depends upon precedents to establish it beyond a doubt. In England, it never was even contended, that the parliament could not annul charters, and therefore charters cannot have drawn from that country a sanctity for precedents, with the help of which they may annul constitutions.

It would be tedious to collect the changes made by laws in the English magna charta. This charter itself has been so entirely obliterated by laws, as to have become useless, and to deserve a very opprobious appellation bestowed upon it by an English judge, but yet so appropriate as to have been long commemorated. The commercial charters granted by queen Elizabeth, and other English monarchs, were often annulled or revoked by law; and even by the kings themselves, in spite of their legal immortality. The south sea charter was annulled, and remedies applied by the guardians of the publick good, to the evils of chartered frauds. Precedents therefore pronounce, that legislative power is not prohibited by corporation fictions, not even by the ancient fiction that the king never dies, “intro“duced at a very early period of our history, recognized by many "successive legislatures, and acted upon by the judicial depart"ment, in cases of peculiar delicacy, as a law of undoubted "obligation," from shielding nations against any calamities produced by charters. The mischiefs of having south sea directors in the English parliament were so apparent, as to have suggested a law prohibiting the officers of revenue from