ers.

It follows that the government would have the most decisive and complete control over those that would control all others; and, by lending their powerful aid and influence to maintain their control, would, in reality, control the whole banking system; thus making, in effect, the banks at the favoured points the National Bank, and the rest virtually but branches. If to this we add the control which it would give over the other and powerful corporations enumerated in the amendment, it may be safely asserted that the measure, if adopted, would do more to increase the power of this government, and diminish that of the states-to strengthen the cause of consolidation, and weaken that of state rights-than any which has ever been assumed by Congress.

Having pointed out the consequences, I now demand, in the name of the Constitution, what right has Congress to extend a bankrupt act over the incorporated institutions of the states, and thereby seize on this immense power? The burden of proof is on those who claim the right, and not on us, who oppose it. I repeat, ours is a government of limited powers; and those who claim to exercise a power must show the grant-a clear and certain grant, in case of a power so pregnant with consequences as this.

I ask, then, those who claim this power, On what grounds do they place it? Do they rest it on the nature of the power, as being peculiarly applicable to banks, and the other corporations proposed to be embraced? If so, frail is the foundation. Never was power more unsuited to its object-so much so, that language itself has to be forced and perverted to make it applicable. Taking corporations in their proper sense, as bodies politic, and there is scarcely a single portion of the whole process, beginning with the acts of bankruptcy, and extending to the final discharge, applicable to them. What one of the numerous acts of bankruptcy can they commit? Can they depart from the state, or be arrested, or be imprisoned, or escape from prison, or, in a word, commit any one of the acts without which an individual cannot be made a bankrupt? No; but they may stop payment, and thereby subject themselves to the act. True; but how is the process to be carried through? The provision requires the bankrupt to be sworn: can you swear corporations? It requires divers acts to be done by the bankrupt, under the penalty of imprisonment: can you imprison a corporation? It directs a discharge to be given to the bankrupt, which exempts his person and future acquisitions: can a corporation receive the benefit of such discharge? No: the process itself is the dissolution, the death of the corporation. It is thus that language is forced, strained, and distorted, in order to bring a power so inapplicable to the subject to bear on corporations. It would be just as rational to include corporations in insolvent laws, which none has been, as yet, so absurd as to think of doing.

The right, then, cannot be inferred from the nature of the power. On what, then, can it stand? On precedents? I admit that if, at the period of the adoption of the Constitution, it was the practice to include corporations in acts of bankruptcy, it would go far to establish that it was intended by the Constitution to include them. But the reverse is the fact. As long as the system has been in operation, there is not a case where a corporation was ever included, either in England, this country, or any other, as far as can be ascertained, nor ever proposed to be. The attempt in this case is a perfect novelty, without precedent or example; and all the force which it is acknowledged the practice of including them would have given in favour of the right, is thus thrown with a weight equally decisive against it.

But we have not yet approached the real difficulty. If the power was ever so appropriate, and the only one that was-if precedents were innumerable-it would only prove that this government would have the right of applying the power to incorporations of its own creating. It could not go an inch beyond, and would leave the great difficulty untouched-the right of Congress to include state corporations in an act of bankruptcy passed by its authority! Where

is such a power to be found in the Constitution? It seems to be forgotten that this and the state governments are co-ordinate governments, emanating from the same authority, and making together one complex, but harmonious and beautiful system, in which each, within its allotted sphere, is independent and coequal with the other. If one has a right to create, the other cannot have the right to destroy. The principle has been carried so far, that in the case of the State of Maryland and M'Colough, the Supreme Court, after elaborate argument, decided that a state, in the exercise of its undoubted right of taxing, could not tax a Branch Bank of the United States, located in its limits, on the ground that the right of taxing, in such case, involved the right of destroying. Admit, then, Congress had the right to include corporations of its own creation, still, according to the principle thus recognised, it could not include those created by the states, unless, indeed, the fundamental principle of our system, admitted even⚫ by the extreme consolidation school of politics, that each government is coequal and independent within its sphere, should be denied, and the absolute sovereignty of this government be assumed. If, then, the states have a right to create banks, and other corporations enumerated in the amendment, it follows that Congress has not the right to destroy them; nor, of course, to include them in an act of bankruptcy, the very operation of which, when applied to corporations, is to destroy. But whether they have or have not the right, belongs not to Congress to decide. The right of the separate legislatures of the states to decide on their reserved powers is as perfect as that of Congress to decide on the delegated. Each must judge for itself in carrying out its powers. To deny this, would be virtually to give a veto to Congress over the acts of the state legislatures-a power directly refused by the Convention, though anxious ly pressed by the national party in that body.

Such and so conclusive is the argument against the right; and how has it been met? We are told that the states have greatly abused the power of incorporation. I admit it. The power has been sadly and dangerously abused. I stand not here to defend banks or other incorporations, or to justify the states in granting charters. No: my object is far different. I have risen to defend the Constitution, and to resist the inroads on the rights of the states. In the discharge of that duty, I ask, Can the abuse of the right of granting bank or other charters give you the right to destroy or regulate them? Are you ready to admit the same rule, as applied to your own powers? Have the state legislatures abused their powers more than Congress has its powers? Has it not abused, and grossly abused, its powers of laying taxes and appropriating money? And what assurance is there, with these examples before us, that Congress would not equally abuse the right of controlling state corporations, which is so eagerly sought to be vested in it by some ? But we are also told that bank paper-worthless, irredeemable bank paper-has deranged the currency, and ought to be suppressed. I admit the fact. I acknowledge the mischief, but object to the remedy, and the right of applying it. I go farther. If the evil could give us the right to apply any of our powers to remedy it, regardless of the Constitution, the taxing power would be far more simple, efficient, and less mischievous in its application. It would be applied to the specific evil. That which has deranged the currency, and defeated the object of the Constitution in relation to it, is the circulation of bank-notes. There lies the evil, and to divest the banks of the right of circulation is to eradicate it. For that purpose, what remedy could be more simple, safe, and efficacious than the taxing power, were it constitutional? By its means, bank-noses might be gradually and quietly suppressed, and the banks left in full possession of all their other functions unimpaired. There is but one objection to it, but that a decisive one-its unconstitutionality. It would be a perversion of the taxing power, given to raise revenue. To apply it to suppress or regulate the circulation of bank-notes would be to CHANGE ITS NATURE ENTIRELY, from a TAXING to a PENAL power, and is EEE

therefore unconstitutional; but not more so than to include banks and other corporations in an act of bankruptcy, as proposed by the amendment, while in every other respect it would be greatly preferable.

One other ground still remains to be considered. The authority of influential names has been resorted to, in order to supply the defect of argument. The names of two distinguished individuals, who formerly filled the treasury department, have been introduced-Mr. Dallas and Mr. Crawford-in favour of the right of including banks. If this was a question to be decided by authority, it would be easy to show that their opinions, as able as they were, would be entitled to little weight in this case. It was casually and incidentally given in a report on another subject, and that calculated to lead them to an erroneous view in reference to this power. Such an opinion, given under such circumstances, by the ablest judge, would have little weight in a private case, even in a court of justice, and ought to have none in this body on a great constitutional question. Besides, it is well known that the opinion of both was in favour of the constitutionality of a National Bank, and that, too, after a full and deliberate consideration of the subject. Now, sir, I put the question to the senators who have quoted their casual opinion in favour of the constitutionality of including banks in a bankrupt law, Are they willing to adopt their well-considered and solemnly delivered opinion in favour of the right to incorporate a bank? And if not, how, on the ground of precedent, can they adopt the one and reject the other? The names of other distinguished individuals have been quoted-Randolph, Macon, White, Smith, and others-but, in my opinion, unfairly quoted. It is true, they voted in 1827, when the Bankrupt Bill was then before the Senate, in favour of an amendment to include the banks; but it is equally so, that the amendment was moved at the end of a long debate, when the Senate was exhausted, and that it was but slightly discussed. But, what is of more importance, they were opposed to the bill; and, as the amendment came from a hostile quarter, and was clearly intended to embarrass the bill, it is not improbable that it received the votes of many with the view of destroying the bill, without thinking whether it was constitutional or not; just as some, no doubt, will vote against the opposite amendment, to strike the banks out, now under consideration, from the belief that it is the most effectual means of destroying this bill. But if the question is to be decided by weight of names, and the vote on the occasion to be the test, the weight is clearly on the opposite side. The vote stood 12 to include the banks, and 35 against; and among the latter will be found names not less influential- that of Tazewell, Rowan, Hayne, Berrien, the present Secretary of the Treasury, and, finally, that of the present chief magistrate. But why attempt to decide this question by the weight of names, however distinguished? Do we not know that all those referred to belonged to the political school which utterly repudiates the authority of precedents in construing the Constitution, and who, if they were now all alive, and here present as members of the Senate, would not regard the name of any man in deciding this important constitutional question?

I have now presented the result of my reflections on this important measure. To sum up the whole in a few words, I am of the opinion that the whole project, including the bill and the amendment, is unconstitutional, except the provisions embracing compulsory bankruptcy, as it is called, as far as it relates to individuals; and that, under existing circumstances, to be highly inexpedient. Thus thinking, I shall vote, in the first instance, against striking out the bill and inserting the amendment; and, if that succeeds, against the bill itself.

XXVII.

SPEECH ON THE PROSPECTIVE PRE-EMPTION BILL, JANUARY 12, 1841.

THE bill to establish a permanent prospective pre-emption system in favour of settlers on the public lands, who shall inhabit and cultivate the same, and raise a log cabin thereon, being the special order of the day, was taken up, the question being on the proposition by Mr. Crittenden to recommit the bill, with instructions to report a bill to distribute the proceeds of the sales of the public lands among the states; which Mr. Calhoun offered to amend, by substituting a bill to cede the public lands to the states in which they lie, upon certain conditions.

Mr. Calhoun said: I regard the question of the public lands, next to that of the currency, the most dangerous and difficult of all which demand the attention of the country and the government at this important juncture of our affairs. I do not except a protective tariff, for I cannot believe, after what we have experienced, that a measure can again be adopted which has done more to corrupt the morals of the country, public and private, to disorder its currency, derange its business, and to weaken and endanger its free institutions, than any other except the paper system, with which it is so intimately allied.

In offering the amendment I propose, I do not intend to controvert the justice of the eulogium which has been so often pronounced on our land system in the course of this discussion. On the contrary, I believe that it was admirably adjusted to effect its object, when first adopted; but it must be borne in mind that a measure, to be perfect, must be adapted to circumstances, and that great changes have taken place, in the lapse of fifty years, since the adoption of our land system. At that time, the vast region now covered by the new states, which have grown up on the public domain, belonged to foreign powers, or was occupied by numerous Indian tribes, with the exception of a few sparse settlements on the inconsiderable tracts to which the title of the Indians was at that time extinguished. Since then a mighty change has taken place. Nine states have sprung up as if by magic, with a population not less, probably, than two fifths of the old states, and destined to surpass them in a few years in numbers, power, and influence. That a change so mighty should so derange a system intended for an entirely different condition of things as to render important changes necessary to adapt it to present circumstances, is no more than might have been anticipated. It would, indeed, have been a miracle had it been otherwise; and we ought not, therefore, to be surprised that the operation of the system should afford daily evidence that it not only deranged, but deeply deranged, and that its derangement is followed by a train of evils that threaten disaster, unless a timely and efficient remedy should be applied. I would ask those who think differently, and who believe the system still continues to work well, Was it no evil, that session after session, for the last ten or twelve years, Congress should be engaged in angry and deeply agitating discussions, growing out of the public lands, in which one side should be denounced as the friends, and the other as the enemies, of the new states? Was the increasing violence of this agitation from year to year, and threatening ultimately, not only the loss of the public domain, but the tranquillity and peace of the country, no evil? Is it well that one third of the time of Congress should be consumed in legislating on subjects directly or indirectly connected with the public lands, thereby prolonging the sessions propor tionally, and adding to the expense upward of $200,000 annually? Is

no evil that the government should own half the lands within the limits of nine members of this Union, and over which they can exercise no authority or control? Is it nothing that the domain of so many states should be under the exclusive legislation and guardianship of this government, contrary to the genius of the Constitution, which, intending to leave to each state the regulation of its local and peculiar concerns, delegated to the Union those only in which all had a common interest? If to all these be added the vast amount of patronage exercised by this government through the medium of the public lands over the new states, and through them over the whole Union, and the pernicious influence thereby brought to bear on all other subjects of legislation, can it be denied that many and great evils result from the system as it now operates, which call aloud for some speedy and efficient remedy?

But why should I look beyond the question before us to prove, by the confession of all, that there is some deep disorder in the system? There are now three measures before the Senate, each proposing important changes, and the one or the other receiving the support of every member of the body; even of those who cry out against changes. It is too late, then, to deny the disordered state of the system. The disease is admitted, and the only question is, What remedy shall be applied?

I object both to the bill and the amendment proposed by the senator from Kentucky (Mr. Crittenden), because, regarded as remedial measures, they are both inappropriate and inadequate. Neither pre-emption, nor distribution of the revenue received from the public lands, can have any possible effect in correcting the disordered action of the system. I put the question, Would one or the other contribute in the smallest degree to diminish the patronage of the government, or the time consumed on questions growing out of the public lands, or shorten the duration of the sessions, or withdraw the action of the government over so large a part of the domain of the new states, and place them and their representatives here on the same independent footing with the old states and their representatives, or arrest the angry and agitating discussions which year after year distract our councils, and threaten so much mischief to the country? Far otherwise would be the effect. It would but increase the evil, by bringing into more decided conflict the interests of the new and old states. Of all the ills that could befall them, the former would regard the distribution as the greatest, while the latter would look on the pre-emption system, proposed by the bill, as little short of an open system of plunder, if we may judge from the declarations which we have heard in the course of the debate.

As, then, neither can correct the disease, the question is, What remedy can I have given to this question the most deliberate and careful examination, and have come to the conclusion that there is, and can be, no remedy short of cession-cession to the states respectively within which the lands are situated. The disease lies in ownership and administration, and nothing short of parting with both can reach it. Part with them, and you will at once take away one third of the business of Congress; shorten its sessions in the same proportion, with a corresponding saving of expense; lop off a large and most dangerous portion of the patronage of the government; arrest these angry and agitating discussions, which do so much to alienate the good feelings of the different portions of the Union, and disturb the general course of legislation, and endanger, ultimately, the loss of the public domain. Retain them, and they must continue, almost without mitigation, apply what palliatives you may. It is the all-sufficient and only remedy.

Thus far would seem clear. I do not see how it is possible for any