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in its utter destruction, or an entire revolution in our social and political system. It is not possible that the great body of the community will patiently bear that the currency, which ought to be the most stable of all things, should be the most fluctuating and uncertain ; and that, too, in defiance of positive provisions in the constitution, which all acknowledge were intended to give it the greatest possible stability.
On the Bill to prevent the reissue and circulation of
the bills, notes, and securities of corporations created by Congress, whose charters have expired; made in the Senate, April 20th, 1838.
MR. CALHOUN said, that as the question was about to be put on the engrossment, he rose, not to discuss the subject at large, but simply to state the reasons which would govern his vote. The hour was late, and the Senate impatient to adjourn, and he would promise to detain them but a few minutes.
When the bill was taken up yesterday, he had never turned his attention seriously to the subject, and he listened attentively in order to make up his mind as to our power, and the expediency of passing the bill. The result was, that he found himself in precisely the same state of uncertainty in which the Senator from Virginia described himself to be, and was relieved when he (the Senator) moved an adjournment, with a view to obtain time for further deliberation. Had he been forced to vote then, it would have been against the bill, as it was an invariable rule with him, when he doubted on constitutional questions, to vote in the negative. Since then, he had calmly and deliberately investigated the subject, and the result was a thorough conviction that we possessed the power, and ought to exercise it, and he proposed now to assign his reasons.
He held that the right proposed to be exercised in this case, rested on the general power of legislation conferred on Congress, which embraces not only the power of making, but that of repealing laws. It was, in fact, a portion of the repealing power. No one could doubt the existence of the right to do either, and that the right of repealing extends as well to the unconstitutional as constitutional laws. The case as to the former was in fact stronger than the latter; for, whether a constitutional law should be repealed or not, was a question of expediency, which left us free to act according to our discretion : while in the case of an unconstitutional law, it was a matter of obligation and duty, leaving no option; and the more unconstitutional, the more imperious the obligation and duty. Thus far there could be no doubt nor diversity of opinion.
But there are many laws, the effects of which do not cease with their repeal or expiration, and which require some additional act on our part to arrest or undo them. Such, for instance, is the one in question. The charter of the late bank expired some time ago, but its notes are still in existence, freely circulating from hand to hand, and reissued and banked on by a bank chartered by the State of Pennsylvania, into whose possession the notes of the old bank have passed. In a word, our name and authority are used almost as freely for banking purposes as they were before the expiration of the charter of the late bank. Now he held that the right of arresting or undoing these after effects rested on the same principle as the right of repealing a law, and, like that, embraces unconstitutional as well as constitutional acts, superadding, in the case of the former, obligation and duty to right. We have an illustration of the truth of this principle in the case of the Alien and Sedition Acts, which. are now conceded on all sides to have been unconstitutional. Like the act incorporating the late bank, they expired by their own limitation ; and like it, also, their effects continued after the period of their expiration. Individuals had been tried, convicted, fined, and imprisoned under them ; but so far was their unconstitutionality from being regarded as an impediment to the right of arresting or undoing these effects, that Mr. Jefferson felt himself compelled, on that very account, to pardon those who had been convicted and fined under their provisions, and we have at this session passed, on the same grounds, an act to refund the money paid by one of the sufferers under them. The principle is too clear to require further illustration, and the difficulty which some have felt in voting for this bill, because they believe that the charter of the late bank was unconstitutional, and apprehended that the passage of the bill would indirectly recognize its constitutionality, would, he trusted, be entirely removed by what he had said. So far otherwise, it imposed a duty on us to act as far as we may have the power; and this brings up the question how far we have the right, in this case, to arrest or undo the consequences, still resulting from the charter of the late bank, notwithstanding its expiration.
Those on the opposite side, who believe that this Government has unlimited control over the actual currency of the country, whatever form it may assume, or under whatever authority issued, can have no difficulty in the decision of this question. According to their conception the Government has a right to act on the thing itself-to prohibit the circulation of the notes of the old bank, in whosesoever hands they may be, and to call them in, just in the same manner as they could any worn out or debased coin, the circulation of which they might choose to prohibit. But we, who think differently, must find some other ground to justify our support of the bill. If, then, we cannot act on the notes themselves, on what can we act ? Certainly not on the people at large, who are only subject to our jurisdiction in specified cases, of which the present is not one. It follows, if we can act at all, it must be on those who are personally subject to our jurisdiction, and this is precisely what the bill proposes to do. It is limited to those only who are the trustees, agents for winding up the concerns of the late bank; and it is those and those only, who are subject to the penalties of the bill for reissuing its notes. They are, pro tanto, our officers, and, to that extent, subject to our jurisdiction, and liable to have their acts controlled, as far as they relate to the trust or agency confided to them ; just as much so as receivers or collectors of the revenue would be. No one can doubt that we could prohibit them from passing off any description of paper currency that might come into their hands in their official character. Nor is the right less clear in reference to the persons who may be comprehended in this bill.
* Dr. Cooper.
Whether Mr. Biddle, or others connected with his bank, are, in fact, trustees, or agents within the meaning of the bill, is not a question for us to decide. They are not named, nor referred to by description. The bill is very properly drawn up in general terms, so as to comprehend all cases of the kind, and would include the banks of the district, should Congress refuse to recharter them. It is left to the court and jury to whom it properly belongs, to decide, when a case comes up, whether the party is, or is not, a trustee, or agentand, of course, whether he is, or is not included in the provisions of the bill. If he is, he will be subject to its penalties, but not otherwise ; and it cannot possibly affect the question of the constitutionality of the bill, whether Mr. Biddle, and others connected with him, are, or are not, comprehended in its provisions, and subject to its penalties.
It remains to be considered whether it is expedient to pass the bill. This point has been discussed with such ability by the Senators whọ preceded him on the same side, as to leave him but little to add. Congress has determined not to continue to exercise the power of authorizing banking, and permitted, accordingly, the charter of the late bank to expire ; but, notwithstanding, the function of banking was still continued under its name and authority, by those whose duty it was to wind up the business of the defunct institution. The notes of the old bank are issued as freely as if the institution was still in existence, to the great profit of those who have no right whatever to use them, and who are not responsible for their redemption, and at the hazard of the ultimate loss of the community, and especially of those who were stockholders in the old, but not the present institution. Such being the facts, the dignity of the Government, and a regard to its interests, as well as those of the community, clearly demand our interposition.
With these expressions, he was in favor of the passage of the bill, and never gave a vote with a clearer conviction, both of right and expediency, than he would give for its passage.
On the Bill to separate the Government from Banks,
delivered in the Senate, March 24th, 1838. ***
MR. CALHOUN said : Late as it was (near ten o'clock at night), and fatigued and exhausted as the Senate must be after sitting ten hours, he was compelled to intrude himself