Wednesday, July 27, 2011

Henry Clay and the First Bank: The Cow and the Turkey

In the early 1820s William Harris Crawford of Georgia would become a conservative, almost winning the presidency in 1824. But all that lay in the future. In February 1811, he was a staunch defender of the First Bank of the United States in the Senate, "deliver[ing] a brilliant speech is support of the bank, which even [Nathaniel] Macon called 'a better argument in favor of it on constitutional ground than ever has been made. . . .'"

In his February 15, 1811 Senate speech opposing the extension of the First Bank's charter, Henry Clay, having disposed of William Branch Giles, next turned to Sen. Crawford's complaint, as paraphrased by Clay, "that this has been made a party question." In fact, Clay pointed out, the original bank bill, passed in 1791, "was one of the causes of the political divisions of this country" and had spurred the formation of the Jeffersonian Republicans. It was Crawford, not opponents of the bank, who was playing politics and abandoning the Republican party:
And if, on this occasion, my worthy friend from Georgia has gone over over into the camp of the enemy, is it kind in him to look back upon his former friends, and rebuke them for the fidelity with which they adhere to their old principles?
Taking advantage of the fact that Crawford and other proponents had cited different provisions of the Constitution as the source of Congress's power to create the bank, Clay mocked their attempts to locate "some congenial spot" in which to locate "[t]his vagrant power":
This vagrant power to erect a bank, after having wandered throughout the whole Constitution in quest of some congenial spot whereupon to fasten, has been at length located by the gentleman from Georgia on that provision, which authorizes Congress to lay and collect taxes, &c. In 1791, the power is referred to one part of the instrument; in 1811, to another. Sometimes it is alleged to be deducible from the power to regulate commerce. Hard pressed here, it disappears, and shows itself under the grant to coin money.
Clay's arguments had to this point been largely playful. But now he became more serious. The Constitution granted Congress limited and defined powers. "The power to charter companies is not specified in the grant." And while the Necessary and Proper Clause may effectively grant implied powers, those powers "must be necessary, and obviously flow from the enumerated power with which it is allied."
What is the nature of this Government? It is emphatically federal, vested with an aggregate of specified powers for general purposes, conceded by existing sovereignties, who have themselves retained what is not so conceded. It is said that there are cases in which it must act on implied powers. This is not controverted, but the implications must be necessary, and obviously flow from the enumerated power with which it is allied.
Emphasizing the fearsome powers of corporations, Clay denied that the power to charter companies could be created by mere implication:
The power to charter companies is not specified in the grant, and I contend is of a nature not transferable by mere implication. It is one of the most exalted attributes of sovereignty. In the exercise of this gigantic power we have seen an East India Company created, which has carried dismay, desolation, and death throughout one of the largest portions of the habitable world. A company which is, in itself, a sovereignty - which has subverted empires and set up new dynasties - and has not only made war, but war against its legitimate sovereign!
Examples of implied powers cited by supporters - such as "the power 'to make rules and regulations for the government of the land and naval forces,' which, it is said, is incidental to the power to raise armies and provide a navy" - only proved Clay's point, for they demonstrated "[h]ow extremely cautious the Convention were to leave as little as possible to implication."
In all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a common nature. The incidental power ought to be strictly subordinate and limited to the end proposed to be attained by the specified power. In other words, under the name of accomplishing one object which is specified, the power implied ought not to be made to embrace other objects, which are not specified in the Constitution.
Applying these principals might permit the creation of a bank of limited powers. But the First Bank had, and was proposed to have, powers that extended far beyond any enumerated end:
If then you could establish a bank to collect and distribute the revenue, it ought to be expressly restricted to the purpose of such collection and distribution. It is a mockery, worse than usurpation, to establish it for a lawful object, and then extend it to other objects which are not lawful. In deducing the power to create corporations, such as I have described it, from the power to collect taxes, the relation and condition of principal and incident are prostrated and destroyed. The accessory is exalted above the principal. As well might it be said that the great luminary of day is an accessory, a sattelite [sic] to the humblest star that twinkles forth its feeble light in the firmament of the heavens!
In order to illustrate his point Clay resorted to an analogy. I'm not sure it works, but who can resist a story about a cow and a turkey?
Like the Virginia justice, you tell the man, whose turkey had been stolen, that your book of precedents furnishes no form for his case, but then you will grant him a precept to search for a cow, and when looking for that he may possibly find his turkey! You say to this corporation, we cannot authorize you to discount - to emit paper - to regulate commerce, &c. No! Our book has no precedents of that kind. But then we can authorize you to collect the revenue, and, while occupied with that, you may do whatever else you please!
About the illustration, entitled A Foot-Race (1824):
A figurative portrayal of the presidential race of 1824. A crowd of cheering citizens watch as candidates (left to right) John Quincy Adams, William Crawford, and Andrew Jackson stride toward the finish. Henry Clay has dropped from the race and stands, hand on head, on the far right saying, "D--n it I cant save my distance--so I may as well "draw up."" He is consoled by a man in riding clothes, "Well dont distress yourself--there'll be some scrubbing by & by & then you'll have a chance." Assorted comments come from the crowd, reflecting various sectional and partisan views. A Westerner with stovepipe hat and powder horn: "Hurra for our Jacks-"son."" Former President John Adams: "Hurra for our son "Jack."" Two men in coachmen's livery: "That inne-track fellow [Crawford] goes so well; that I think he must have got the better of the bots [boss?]." and "Like enough; but betwixt you & I--I dont think he'll ever get the better of the "Quinsy."" A ragged Irishman: "Blast my eyes if I dont "venter" a "small" horn of rotgut on that "bald filly" in the middle [Adams]." A Frenchman: "Ah hah! Mon's Neddy I tink dat kick on de "back of you side" is worse den have no dinner de fourt of july." In the left background is a platform and an inaugural scene, the "Presidential Chair" with a purse "

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