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itself by contract? Whether as a government or as an individual, that being is fettered and restrained which is not capable of binding itself by ordinary obligation. Every legislature binds itself, whenever it makes a grant, enters into a contract, bestows an office, or does any other act or thing which is in its nature irrepealable. And this, instead of detracting from its legislative power, is one of the modes of exercising that power. The legislative power of Congress over the District of Columbia would not be full and complete, if it might not make just such a stipulation as the bank charter contains.
As to the taxing power of the States, about which the mes. sage says so much, the proper answer to all it says is, that the States possess no power to tax any instrument of the government of the United States. It was no part of their power before the Constitution, and they derive no such power from any of its provisions. It is nowhere given to them. Could a State tax the coin of the United States at the mint? Could a State lay a stamp tax on the process of the courts of the United States, and on custom-house papers ? Could it tax the transportation of the mail, or the ships of war, or the ordnance, or the muniments of war, of the United States? The reason that these cannot be taxed by a State is, that they are means and instruments of the government of the United States. The establishment of a bank exempt from State taxation takes away no existing right in a State. It leaves it all it ever possessed. But the complaint is, that the bank charter does not confer the power of taxation. This, certainly, though not a new (for the same argument was urged here), appears to me to be a strange mode of asserting and maintaining State rights. The power of taxation is a sovereign power; and the President and those who think with him are of opinion, in a given case, that this sovereign power should be conferred on the States by an act of Congress. There is, if I mistake not, Sir, as little compliment to State sovereignty in this idea, as there is of sound constitutional doctrine. Sovereign rights held under the grant of an act of Congress present a proposition quite new in constitutional law.
The President himself even admits that an instrument of the government of the United States ought not, as such, to be taxed by the States; yet he contends for such a power of taxing prop
erty connected with this instrument, and essential to its very being, as places its whole existence in the pleasure of the States. It is not enough that the States may tax all the property of all their own citizens, wherever invested or however employed. The complaint is, that the power of State taxation does not reach so far as to take cognizance over persons out of the State, and to tax them for a franchise lawfully exercised under the authority of the United States. Sir, when did the power of the States, or indeed of any government, go to such an extent as that? Clearly never. The taxing power of all communities is necessarily and justly limited to the property of its own citizens, and to the property of others, having a distinct local existence as property, within its jurisdiction; it does not extend to rights and franchises, rightly exercised, under the authority of other governments, nor to persons beyond its jurisdiction. As the Constitution has left the taxing power of the States, so the bank charter leaves it. Congress has not undertaken either to take away, or to confer, a taxing power; nor to enlarge, or to restrain it; if it were to do either, I hardly know which of the two would be the least excusable.
I beg leave to repeat, Mr. President, that what I have now been considering are the President's objections, not to the policy or expediency, but to the constitutionality of the bank; and not to the constitutionality of any new or proposed bank, but of the bank as it now is, and as it has long existed. If the President had declined to approve this bill because he thought the original charter unwisely granted, and the bank, in point of policy and expediency, objectionable or mischievous, and in that view only had suggested the reasons now urged by him, his argument, however inconclusive, would have been intelligible, and not, in its whole frame and scope, inconsistent with all wellestablished first principles. His rejection of the bill, in that case, would have been, no doubt, an extraordinary exercise of power; but it would have been, nevertheless, the exercise of a power belonging to his office, and trusted by the Constitution to his discretion. But when he puts forth an array of arguments such as the message employs, not against the expediency of the bank, but against its constitutional existence, he confounds all distinctions, mixes questions of policy and questions of right together, and turns all constitutional restraints into mere matters of opin
ion. As far as its power extends, either in its direct effects or as a precedent, the message not only unsettles every thing which has been settled under the Constitution, but would show, also, that the Constitution itself is utterly incapable of any fixed con struction or definite interpretation, and that there is no possibility of establishing, by its authority, any practical limitations on the powers of the respective branches of the government.
When the message denies, as it does, the authority of the Supreme Court to decide on constitutional questions, it effects, so far as the opinion of the President and his authority can effect it, a complete change in our government. It does two things; first, it converts constitutional limitations of power into mere matters of opinion, and then it strikes the judicial department, as an efficient department, out of our system. But the message by no means stops even at this point. Having denied to Congress the authority of judging what powers may be constitutionally conferred on a bank, and having erected the judgment of the
President himself into a standard by which to try the constitu' tional character of such powers, and having denounced the au
thority of the Supreme Court to decide finally on constitutional questions, the message proceeds to claim for the President, not the power of approval, but the primary power, the power of originating laws. The President informs Congress, that he would have sent them such a charter, if it had been properly asked for, as they ought to confer. He very plainly intimates, that, in bis opinion, the establishment of all laws, of this nature at least, belongs to the functions of the executive government; and that Congress ought to have waited for the manifestation of the ex. ecutive will, before it presumed to touch the subject. Such, Mr. President, stripped of their disguises, are the real pretences set up in behalf of the executive power in this most extraordinary paper.
Mr. President, we have arrived at a new epoch. We are entering on experiments, with the government and the Constitution of the country, hitherto untried, and of fearful and appalling aspect. This message calls us to the contemplation of a future which little resembles the past. Its principles are at war with all that public opinion has sustained, and all which the experience of the government has sanctioned. It denies first principles; it contradicts truths, heretofore received as indisputable. It denies to the judiciary the interpretation of law, and claims to divide with Congress the power of originating statutes. It extends the grasp of executive pretension over every power of the government. But this is not all. It presents the chief magistrate of the Union in the attitude of arguing away the powers of that government over which he has been chosen to preside; and adopting for this purpose modes of reasoning which, even under the influence of all proper feeling towards high official station, it is difficult to regard as respectable. It appeals to every prejudice which may betray men into a mistaken view of their own interests, and to every passion which may lead them to disobey the impulses of their understanding. It urges all the specious topics of State rights and national encroachment against that which a great majority of the States have affirmed to be rightful, and in which all of them have acquiesced. It sows, in an unsparing manner, the seeds of jealousy and ill-will against that government of which its author is the official head. It raises a cry, that liberty is in danger, at the very moment when it puts forth claims to powers heretofore unknown and unheard of. It affects alarm for the public freedom, when nothing endangers that freedom so much as its own unparalleled pretences. This, even, is not all. It manifestly seeks to inflame the poor against the rich; it wantonly attacks whole classes of the people, for the purpose of turning against them the prejudices and the resentments of other classes. It is a state paper which finds no topic too exciting for its use, no passion too inflammable for its address and its solicitation.
Such is this message. It remains now for the people of the United States to choose between the principles here avowed and their government. These cannot subsist together. The one or the other must be rejected. If the sentiments of the message shall receive general approbation, the Constitution will have perished even earlier than the moment which its enemies originally allowed for the termination of its existence. It will not have survived to its fiftieth year.
THE CONSTITUTION NOT A COMPACT BE
TWEEN SOVEREIGN STATES.*
On the 21st of January, 1833, Mr. Wilkins, chairman of the Judiciary Committee of the Senate, introduced the bill further to provide for the collection of duties. On the 22d day of the same month, Mr. Calhoun submitted the following resolutions :
“Resolved, That the people of the several States composing these United States are united as parties to a constitutional compact, to which the people of each State acceded as a separate sovereign community, each binding itself by its own particular ratification; and that the union, of which the said compact is the bond, is a union between the States ratifying the same.
“ Resolved, That the people of the several States thus united by the constitutional compact, in forming that instrument, and in creating a general government to carry into effect the objects for which they were formed, delegated to that government, for that purpose, certain definite powers, to be exercised jointly, reserving, at the same time, each State to itself, the residuary mass of powers, to be exercised by its own separate government; and that whenever the general government assumes the exercise of powers not delegated by the compact, its acts are unauthorized, and are of no effect; and that the same government is not made the final judge of the powers delegated to it, since that would make its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among sovereign parties, without any common judge, each has an equal right to judge for itself, as well of the infraction as of the mode and measure of redress.
“ Resolved, That the assertions, that the people of these United States, taken collectively as individuals, are now, or ever have been, united on the principle of the social compact, and, as such, are now formed into one nation or people, or that they have ever been so united in any one
* A Speech delivered in the Senate of the United States, on the 16th of February, 1833, in reply to Mr. Calhoun's Speech, on the Bill“ further to provide for the Collection of Duties on Imports.”