From George Washington
Philadelphia Feby. 16th: 1791
“An Act to incorporate the Subscribers to the Bank of the United States”1 is now before me for consideration.
The constitutionality of it is objected to. It therefore becomes more particularly my duty to examine the ground on wch. the objection is built. As a mean of investigation I have called upon the Attorney General of the United States in whose line it seemed more particularly to be for his official examination and opinion.2 His report3 is, that the Constitution does not warrant the Act. I then applied to the Secretary of State for his sentiments on this subject.4 These coincide with the Attorney General’s; and the reasons for their opinions having been submitted in writing, I now require, in like manner, yours on the validity & propriety of the above recited Act: and that you may know the points on which the Secretary of State and the Attorney-General dispute the constitutionality of the Act; and that I may be fully possessed of the Arguments for and against the measure before I express any opinion of my own, I give you an opportunity of examining & answering the objections contained in the enclosed papers. I require the return of them when your own sentiments are handed to me (which I wish may be as soon as is convenient); and further, that no copies of them be taken, as it is for my own satisfaction they have been called for.
The Secretary of the Treasury.
ALS, Connecticut Historical Society, Hartford; LC, George Washington Papers, Library of Congress.
2. Although Congress sent the bill to Washington on February 14, the President had acted beforehand on the question of the statute’s constitutionality. Edmund Randolph replied to Washington’s request on February 12. Washington, therefore, had received his first legal advice on the bill two days before Congress had sent it to him.
3. Randolph to Washington, February 12, 1791 (LC, George Washington Papers, Library of Congress). In this letter, Randolph enclosed two documents, neither of which has a title. The first was Randolph’s opinion on the constitutionality of the bank. The second consists of additional considerations which Randolph in an introductory paragraph describes as “several topics, which have more or less influenced the friends & enemies of the bank-bill.” These two documents can be found in Washington’s letter book, George Washington Papers, Library of Congress. See also “Notes on Edmund Randolph’s Opinion on the Constitutionality of an Act to Establish a Bank,” February 16–21, 1791.
4. ADS, letterpress copy, Thomas Jefferson Papers, Library of Congress; LC, George Washington Papers, Library of Congress.
Jefferson’s opinion on the constitutionality of the bank is available in any of the multivolumed editions of his works.