Notes on Edmund Randolph’s Opinion
on the Constitutionality of an Act
to Establish a Bank1
[Philadelphia, February 16–21, 1791]
|Power to lay & Collect taxes|
|ascertain subject of taxation|
|prescribe mode of Collection||This an infinite chapter|
|ordain the manner of accounting||creation of districts & ports|
|duties powers & capacities|
|what places to be paid at|
|☞ in what to be paid|
|Mode of recovery|
|☞ Farming Revenue|
|Power to borrow Money|
|1 Stipulate a sum to be lent|
|2 An interest or no interest to be paid||consideration to be paid or performed including collaterateral conditions & inducement. Lottery Tickets|
|3 The time & manner of repayt. unless irredeemable|
|No Dutch Loans|
|1 exemption from taxes|
|2 from sequestration in time of war|
|3 mortgage of all lands2|
|☞||Fund by way of security|
|this Fund may be vested in lenders & they may be made a Corporation|
|☞||Institute a lottery|
|Regulation of Trade
with foreign Country
|1 To prohibit foreigners or their commodity||prohibition of exports|
|2 to impose duties3||regulate the characteristics & privileges of American Vessels|
|3 to subject them to custom house Regulation or|
|4 To grant them any exemp~ or privileges which policy may suggest||The manner in which they shall be navigated|
|The inspection of our Com~ with a view to exportation|
|Between the States||Bounties upon ships or goods|
|1 to establish the forms of com~ Intercourse||Internal trans of foreign goods|
|2 to preserve the prohibitions in the constitution||policies of Insurance|
|bills of exchange from|
|f Coun & between states|
|light house pilots|
|☞ medium of exchange|
|With the Indians||☞ To erect trading Companies|
|1 To prohibit the Indians from coming into or trading with the U States|
|2 To admit them with or without restrictions|
|3 To prohibit Citizens from Trading with them or|
|4 To permit it with or without restrictions|
|Rules & Regulations concerning property|
|1 To exert an Owner over Territory & institute a Government therein|
|2 To exert ownership Over other property which may signify|
|3 1 personal property however acquired or|
|2 2 real property aptly denominated territory|
|But it cannot signify|
|1 Debts due from the U States|
|2 Nor money arising from the sources of Revenue. The disposal and regulation of money is the final cause for raising it|
ADf, Hamilton Papers, Library of Congress.
1. These notes were apparently part of a larger body of comments by H on the Attorney General’s opinion on the constitutionality of the act establishing the Bank of the United States. Randolph’s opinion had been enclosed in George Washington to H, February 16, 1791.
H placed Randolph’s points in the left-hand column and his own answers to them in the column on the right. The part or section of Randolph’s opinion with which H is dealing in this document reads as follows:
“We ask then, in the second place, whether upon any principle of fair construction, the specified powers of legislation involve the power of granting charters of incorporation? We say charters of incorporation, without confining the question to the Bank; because the admission of it in that instance, is an admission of it in every other, in which Congress may think the use of it equally expedient.
“There is a real difference between the rule of interpretation, applied to a law & a constitution. The one comprises a summary of matter, for the detail of which numberless Laws will be necessary; the other is the very detail. The one is therefore to be construed with a discreet liberality; the other with a closer adherence to the literal meaning.
“But when we compare the modes of construing a state, and the federal, constitution, we are admonished to be stricter with regard to the latter, because there is a greater danger of Error in defining partial than general powers.
“The rule therefore for interpreting the specified powers seems to be, that, as each of them includes those details which properly constitute the whole of the subject, to which the power relates, the details themselves must be fixed by reasoning. And the appeal may on this occasion be made to common sense & common language.
“Those powers, then, which bear any analogy to that of incorporation, shall be examined separately in their constituent parts; and afterwards in those traits, which are urged to have the strongest resemblance to the favorite power.
“1. Congress have power to lay & collect taxes &ca.—the heads of this power are,
1. to ascertain the subject of taxation &c.
2. to declare the quantum of taxation &c.
3. to prescribe the mode of collection; &
4. to ordain the manner of accounting for the Taxes &c:
“2dly. Congress have also power to borrow money on the credit of the United States—the heads of this power are,
1. to stipulate a sum to be lent
2. — “ an interest, or no interest to be paid, &
3. — “ the time & manner of repayment, unless the Loan be placed on an irredeemable fund.
“3. Congress have also power to regulate commerce with foreign Nations, among the several states, and with the Indian tribes.
“The heads of this power with respect to foreign nations, are;
1. to prohibit them or their commodities from our ports.
2. to impose duties on them, where none existed before, or to increase existing Duties on them.
3. to subject them to any species of Custom house regulations: or
4. to grant them any exemptions or privileges which policy may suggest.
“The heads of this power with respect to the several States, are little more, than to establish the forms of commercial intercourse between them, & to keep the prohibitions, which the Constitution imposes on that intercourse, undiminished in their operation: that is, to prevent taxes on imports or Exports; preferences to one port over another by any regulation of commerce or revenue; and duties upon the entering or clearing of the vessels of one State in the ports of another.
“The heads of this power with respect to the Indian Tribes are
1. to prohibit the Indians from coming into, or trading within, the United States.
2. to admit them with or without restrictions.
3. to prohibit citizens of the United States from trading with them; or
4. to permit [the trade] with or without restrictions.
“4. Congress have also power to dispose of, & make all needful rules and regulations, respecting the territory or other property belonging to the United States: the heads of this power are,
1. to exert an ownership over the territory of the United States, which may be properly called the property of the united States, as is the western Territory; and to institute a government therein; or
2. to exert an ownership over the other property of the United States. “This property may signify,
1. Personal property of the United States howsoever acquired; or
2. real property, not aptly denominated territory, acquired by cession or otherwise.
“It cannot signify.
1. Debts due from the United States.
2. Nor money, arising from the sources of revenue, pointed out in the Constitution. The disposal and regulation of money is the final cause for raising it by taxes &c.”
(LC, George Washington Papers, Library of Congress.)
H’s arguments in the right-hand column should be compared with both the draft and the final version of his “Opinion on the Constitutionality of an Act to Establish a Bank,” February 23, 1791.
2. At this point H wrote and crossed out the word “security.”
3. At this point H wrote and crossed out the words “or increase.”