library from destruction; that Mr. Burch could not do any thing for their preservation until Monday, the 22d, nor could Colonel Magruder, without deserting his duties in the field.

On the 22d Mr. Burch and Mr. Frost did commence the removal of the office, not in the afternoon, as is stated in the report of the committee, but actually in the forenoon. The means of transportation were limited for three days previous, and on that day the committee have admitted it was almost impossible to procure it at all.

The evidence which the committee have procured from the Departments, of the facility which they found in removing their papers, can have no bearing on the present case, as these Departments began to pack up on the 18th or 19th of the month, and, in fact, removed before the afternoon of the 22d; and, consequently, had all their means of transportation in readiness previous to the time it became so difficult to procure it.

The Clerk begs leave further to observe, that the Heads of Departments, being in the confidence of the Government, had much better means of procuring correct information of the movements of the enemy than the clerks in his office, whose only sources of information were the common reports to be heard in the streets; and it is notorious, that the public mind was in darkness and ignorance upon the subject of the strength and movements of the enemy; that the Heads of Departments gave orders to pack up their papers, as has been observed before, some on the 19th, and one even on the 18th of the month; and that, as many, if not a majority, of their clerks were over the age of forty-five years, they were not compelled to leave the offices. This accounts for their ability to pack up their papers, and, in some cases, actually to remove them, before it was in the power of my clerks to commence the business.

The Clerk must, therefore, be permitted to say, and he says it with confidence, that those in his employ were not guilty of negligence, or inattention in the preservation of the office, unless, indeed, the committee will prove that they were not in the military service; that they remained during the whole time in the city; and that they took no part or interest in its preservation.

With respect to the Library, he asks the House to refer to the letter of Mr. Frost, marked No. 5. This gentleman acted as under-librarian; the rest of the clerks in my office had no authority or control in that department.

The

In regard to the contingent expenses of the House, the vouchers for which were destroyed, the undersigned begs leave to state, that the Committee of Accounts have always had the sole control of the disbursements of the funds appropriated for this object, and have sanctioned all the payments which have been made out of it. Being, from the nature of the other duties of his office, unable to attend to this branch of the business, it was confided by the Clerk to Mr. George Magruder, his principal clerk. amounts drawn at different times from the Treasury have always been so drawn under the direction of the Committee of Accounts, after they had received satisfactory information that the funds already drawn were expended. The Committee of Accounts have always kept a record of their accounts, as well as their chief clerk, and acted as a check upon him; the undersigned has had no further agency in the same, than to affix his signature to them when the forms

[DECEMBER, 1814.

of office required it. This is not a novel practice, but is, he believes, pursued in regard to the contingent expenses of every office under the Government of any extent; the chief clerks always disbursing the contingent fund, though the principal is responsible for the same. It is not, therefore, so very extraordinary, the undersigned would respectfully suggest, that he was not able to afford to the committee of inquiry a specification of expenditures, of which all the accounts and vouchers were so unfortunately destroyed. He greatly regrets that the chief clerk had kept no duplicate book or memorandum of the accounts paid, which could supply the deficiency of that destroyed, in consequence entirely of his absence on duty in the field of battle. Could the event of that day have been foreseen six hours before it happened, those papers had probably escaped the flames.

PATRICK MAGRUDER.

Hon. SPEAKER of the House.

Tax on Personal Property.

An engrossed bill to provide additional revenues for defraying the expenses of Government, and maintaining the public credit, by laying duties on household furniture, or horses kept exclusively for the saddle or carriage, and on gold and silver watches, was read the third time; and on the question that the same do pass? it passed in the affirmative-yeas 102, nays 46.

TUESDAY, December 20.

The bill from the Senate, "authorizing payment to the widow of ELBRIDGE GERRY, deceased, late Vice President of the United States, of such salary as would have been payable to him during the residue of the term for which he was elected, had he so long lived," was read twice and committed to a Čommittee of the Whole.

Direct Tax.

The House resumed the consideration of the report of the Committee of the whole House on the bill to provide additional revenues for defraying the expenses of Government, and maintaining the public credit, by laying a direct tax upon the United States, and providing for assessing and collecting the same; and the amendments reported by the Committee of the whole House being read, were, in part, concurred in, and in part disagreed to, by the House.

The said bill was further amended. ther to amend the said bill by striking the words And a motion was made by Mr. SHARPE fur"annually" out of the following clause: "That a direct tax of six millions of dollars be hereby annually laid upon the United States."

And the question being taken, it was determined in the negative-yeas 50, nays 102.

WEDNESDAY, December 21.
Direct Tax.

The House resumed the consideration of the bill for laying a direct tax of six millions of dollars upon the United States.

The bill was then ordered to be engrossed, and read the third time to-morrow.

DECEMBER, 1814.]

THURSDAY, December 22.

FRIDAY, December 23.
Bank of the United States.

On motion of Mr. FISK, of New York, the House resolved itself into a Committee of the Whole, on the bill from the Senate to incorporate the subscribers to the Bank of the United States of America.

The first section of the bill contains the leading principles of the bill, substantially as follows: The capital to consist of fifty millions of dollars, to be divived into a hundred thousand shares of five hundred dollars each; subscriptions for forty millions wheroof to be opened on the third Monday in January next, at Boston, New York, Philadelphia, Richmond, Charleston, and Pittsburg. [The amendments proposed to this section by the Committee of Ways and Means contemplate an extension of the number of places of subscription, &c.] Before the question was stated on these amendments

Mr. CLOPTON, of Virginia, moved to strike out the first section of the bill.

I have made this motion, Mr. Chairman, (said Mr. CLOPTON,) at this stage of the discussion, as being at the most proper time to try the general principle of the bill; because I cannot, under my present convictions, vote for this or any other bill to establish a bank, and therefore wish to state to this committee the ground of constitutional objection which I have to it. The objection is not one which admits a right to legislate on the subject proposed, but would prescribe the precise extent to which it might be exercised, and beyond which it ought not to be exercised; but it is an objection grounded on a thorough belief, the result of deliberate examination of the constitution and reflection thereon, that there does not exist in this body any manner of right to legislate on the subject at all; that no sort of authority to do so is vested in it, either by express grant, or as incidental to any express grant.

I should, indeed, have been glad if some gentleman who patronizes this scheme would have presented to us his views of the authority which he conceives the constitution has given to pass such a bill as this; that, if I had been convinced of having been heretofore in error, I might have been left free to decide upon the measure, accordingly as it should appear to be expedient or VOL. V.-26

[H. OF R.

otherwise; but, no gentleman having done so in the course of a long discussion of the bill on the same subject, which was before this body some time ago, when I was in a very low state of health, and expecting that the same silence in that respect will be observed upon this bill, I am left to presume altogether as to the ground on which the friends of the scheme rest for their authority; and, being left so to presume, I cannot conceive of any part of the constitution on which they can rely for authority, other than the concluding clause of the eighth section of the first article of the constitution, commonly called the sweeping clause, in the following words: "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers," &c. Because there is no other part of the constitution, that I know of, which can afford even a shadow of pretext for exercising such a power as is now proposed to be exercised by the bill before you. Because, upon every occasion which has heretofore occurred, when a right has been claimed to exercise a distinct power or powers, not expressly granted, for the avowed purpose of carrying into execution other powers that are so granted, that clause has been always resorted to; and, more especially, because the Secretary of the Treasury, the original parent of this scheme, in his letter to the chairman of the Committee of Ways and Means of the 17th of October last, after modestly suggesting the propriety of a change of opinion respecting the constitution, to suit the "difference of times and circumstances," wound up his recommendation of the scheme with a declaration of his "opinion, that in these times it will not only be useful in promoting the general welfare, but that it is necessary and proper for carrying into execution some of the most important powers constitutionally vested in the Government;" thus using the most operative words of that clause, the words "necessary and proper for carrying into execution," &c., and evidently thereby inviting the attention of the members of this body to the clause, as being of singular importance in guiding their deliberations on the subject.

66

It would seem, sir, nevertheless, that even in the mind of the Secretary himself, there existed at least some doubt whether a power to establish the proposed bank is itself constitutionally vested in Congress; for he does not say that it is, but only that in his opinion the establishment of a National Bank is necessary and proper for carrying into execution" some powers that are constitutionally vested in the Government, as if he intended to confine the actual constitutional investiture to powers expressly granted. If he did intend so to confine it, he was thus far correct; for no power whatever is constitutionally vested in this body that is not expressly granted to it.

Let the opinion of the Secretary on this point be what it may, his letter will not, cannot, induce me to participate in the exercise of a power which, I verily believe, is not in any manner

whatever vested in this body. Even if the measure proposed should seem ever so expedient, which, however, is far from appearing to me to bo the case with respect to the proposed institution; but, on the contrary, should it be established, I fear it may ultimately turn out to be a dangerous, a very dangerous political machine to this country, even if some temporary advantages should be derived from it; if some of the difficulties under which the Government is said to labor should, for the present, be obviated difficulties, I am constrained to say, which might have been prevented by timely provisions, by other means not in any way conflicting with the constitution-which might have precluded that great necessity, as it is represented to be, and now spoken of by some gentlemen, as in their opinion so imperiously calling for such an institution as the one proposed. But, sir, I am not prepared, nor am I willing, to admit that the Government is in such a desperate situation as to render the proposed bank necessary for its relief or accommodation, even if the right to establish the institution was unquestionable. I deny that such necessity does exist. On this occasion, therefore, as on others, I take the liberty to decide according to the dictates of my own judgment. If in this instance I judge upon mere visionary speculation in respect to the constitution, let the observations I am about to offer to the committee determine.

In tracing the features of the Federal Constitution, Mr. Chairman, I have always found that they present themselves to my mind as being rooted in one great fundamental principle, which is, that all the powers at the command of this Government are those only which are delegated to it. This principle is expressly recognized by an amendment to the constitution, adopted at a very early period after the constitution was carried into operation. The term "delegated," as used in that amendment, I consider to be a peculiar phrase of special, distinct, definite meaning, and, when applied to any particular power, not fairly susceptible of implication or involution of any distinct power, other than the power to which it is immediately and directly applied. In other words, sir, I understand the term to mean that the powers "delegated," are those only which are specifically designated by express grants. The delegation of the powers of this Government comprehends, then, no more than what are distinctly expressed in the delegation or series of positive grants.

A sort of powers, however, has been much and often spoken of, the true nature and extent of which, perhaps, have not been always distinctly and clearly understood-if, indeed, the existence of any powers at all under that denomination ought to be admitted. I allude to what are called incidental powers. The broadest latitudinarians, in relation to the powers of this body, have never, that I know of, extended their notions of its powers farther than to these two species-the powers strictly denominated "delegated" powers, or powers "expressly

[DECEMBER, 1814.

granted," and what they call "incidental" powers. This notion of incidental powers is deduced altogether from the same concluding clause of the 8th section of the first article of the constitution as being "necessary and proper" for carrying into execution the express powers specified in the preceding clauses of that section; and very much, if not the whole, of the diversity of opinion which has prevailed in relation to the powers constitutionally vested in Congress, has proceeded, perhaps, from the difference between the construction given to that clause by some, and the construction given to it by others.

According to my understanding of the word "incidental," I take it to be an adjective not only in point of grammar strictly, but that, if it can properly be applied to any power at all, it can be applied only to a power which is itself but the adjective or adjunct of another power to which it belongs, and has no existence separate from that power. In my opinion, then, what is commonly called incidental powers are not real, distinct powers, but rather modes of exercising the express powers to which they belong or are incident. Whence, sir, I consider myself perfectly justifiable in the declaration that the clause in the constitution which has been mentioned, and by which alone it is generally thought the exercise of those supposed incidental powers is authorized, does not embrace any distinct substantive power at all. The power now proposed to be exercised in passing the bill before you, I consider to be a distinct substantive power, as clearly as any power can be, and therefore not embraced in that clause. It is not expressly granted, as must be admitted by everybody; whence it is evident to my mind, that it is not in any manner whatever vested in this body, and therefore cannot be constitutionally exercised by this body.

Firmly, then, as the Secretary of the Treasury or other advocates of this bill may conceive the doctrine they entertain in favor of it, to be supported by the clause in the constitution which has been mentioned, I must beg leave to differ from them entirely in opinion. I consider it affording no solid, no substantial support at all to such a doctrine; and never in my opinion was an appellation more improperly bestowed upon any thing than the appellation which has been bestowed upon that clause. On account, then, of the very extensive latitude of construction given to the clause, ascribing to it abundantly more force than it actually possesses, I have been inclined to think that it might have been better, perhaps, if the clause had never been inserted in the constitution; or, at least, that part of it which relates to the several grants of power specified in the preceding clauses of the section. For, so far from sweeping, by which it would seem, is meant (if indeed the appellation is designed to mean any thing) a carrying along with it powers not specified in the enumeration of grants immediately preced