Draft of an Opinion on the Constitutionality
of an Act
to Establish a Bank
The Secretary of the Treasury has perused with great attention the opinions of the Secretary of State and of the Attorney General concerning the constitutionality of the bill for establishing a National Bank and proceeds to execute the order of the President for submitting the reasons which have induced him to view the subject in a different light.
It will naturally have been
expected that in performing this task he must feel uncommon solicitude. Personal considerations alone, were sufficient to produce it. The sense which he has manifested of the great importance of the institution to the successful administration of the Finances, under more particularly hunder his charge the conviction, which he entertains that its failure will materially retard the appreciation of the public debt and the rise of public debt credit and will be an occasion would not permit him to be without anxiety on a public account. But his chief solicitude arises from a persuasion that if the principles of constitut construction which are insisted upon the foundations of the opinions of the Secretary of State and the Attorney General should prevail, the government of the United States must receive a serious wound. Its future operations must be fatally clogged. And of the government must be fatally clogged. And it must in the find itself incapable of answering the ends for which it has instituted. It was frequently under the confeder
It has often been regretted by the decided friends of an efficient national government that Congress in the early stages of the revolution exercised the powers entrusted to them with too sparing and
a feeble a hand. It is earnestly to be hoped, after so much has been done for retrieving the prostrate affairs of the Union, that no similar cause of regret may be furnished.
It may be laid down as an
indisputable truth, that all the powers contained in a constitution of Government, which concern the general administration of the affairs of a country its finances its trade its defence &c ought to be construed liberally, for the advancement of the general good. This maxim does not depend on the particular form of the government or on on the definition particular delineation or definition or boundaries of its powers but on the state of human society, on the nature and objects of all government . The means by which national exigencies are to be satisfied, national inconveniences obviated, national prosperity promoted are of such infinite variety and complexity, that there must of necessity be great latitude of discretion in those selecting and applying those means. It is necessary to the public good that the power of providing for it should be in these respects as little fettered as possible coextensive with the variety of circumstances by which it may be affected—and consequently that the authorities confided to the government should be exercised according to the rules of liberal construction. on principles of liberal considera construction. The only exception to this rule is of cases in which priva the security of private property and personal liberty is concerned.
The Attorney General admitting the rule here laid down takes a distinction between a state and the Fœderal constitution and thinks the latter ought to be construed with greater strictness because there is more danger of error in defining partial than general powers.
But if the reason of the rule is
resorted to it must be concluded that this distinction cannot be admitted. That reason is founded on the variety of national exigencies and public concerns, and public exigencies; comparing the objects of the Fœderal with those of a state government a much greater proportion of which and of a much more interesting kind are objects of National and of State administration. If therefore the supposition of greater danger of error be acceded to it could only operate as a motive to greater caution in administering the powers of the National government not as a principle of restrictive interpretation.
It will be shewn hereafter that the rule abovementioned has
prevailed in governed in a variety of cases the various acts of Congress which have received the Sanction of Congress the Chief Magistrate; and it is not to be doubted that every days experience will evince it to be indispensable to the con prosperous conduct of the affairs of the Union.
Another position equally incontrovertible is this—That though the Government of the
United States Union does not possess complete and intire sovereignty it nevertheless possesses a variety of sovereign powers in a variety of respects; and these of a high and transcendent nature. Such are the indefinite power of taxation Of these the most important are the powers of taxation, of regulating commerce with foreign nations, between the several states and with the indian tribes, of making war and as a incidents to this of raising supporting and governing armies and fleets, of making trea and that of making treaties. If government and sovereignty were not convertible terms; if the idea of sovereignty were not necessarily included in the powers which have been stated—if it were necess requisite to confirm the position which has been advanced by proof, there is a clause in the constitution w which would put the matter out of all doubt. It that which declares that the Constitution, and the laws of the United States made in pursuance of it and all treaties made or which shall be made under their authority shall be the Supreme Law of the Land. The power which can create the Supreme law of the land, in any case, is doubtless sovereign as far as it goes in relation to such case.
The inference to be drawn from this position is this, that in carrying into execution the powers vested in the national Government, it has a right to employ all the means which are
calcu fairly and truly calculated to effect the objects of those powers, in as full and ample a manner as can be done by any Government whatever; or in other words it can do, in relation to those objects every thing that is implied in the idea of Sovereign power authority; subject only to the limitations and exceptions which are specified in the constitution—or which is not in itself immoral or subversive of the personal rights or inconsistent with the ends of society.
This idea enters into the very definition of sovereignty or government; and though that
Government of the United States cannot do all that some other governments can do it can do all that any other government can do in relation to the objects entrusted to its management; except so far as these may be express specified restrictions.
If this be not the true rule there is then no rule at all. It must become impossible to determine what can or cannot be constitutionally done. The legality of the means to be made use of in each case must be a subject of vague and endless controversy;
and in which caprice and prejudice must have much greater sway than than reason or principle. To urge as an objection that “all powers not delegated to the US by the constitution, nor prohibitted by it to the states are reserved to the States or to the People” is to do nothi is to do nothing. This is only saying in another form that Congress possess no the United States possess no powers not delegated to them; a position equally alike applicable to all popular constitutions of Government and to that of each state equally with that of the United Union. It resolves itself into this fundamental maxim, of republican Gov liberty that all government is a delegation of power. How much is delegated in any case is always a question of fact to be made out from the particular tener provisi⟨ons⟩ of a constitution and by fair construction up⟨on⟩ those provisions.
It certainly will not be pretended that the proposition which has been quoted was designed to exclude the
use of doctrine of implied powers. There is nothing in the manner of expression which indicates such a meaning and it is known that it was not the intention of these the proposed amendment.
Hence no inference can be drawn it against the position which has been deduced from the nature of sovereign power.
To say that such things only
are to be done as are “necessary and proper” would amounts to nothing. This is in truth only to say that all requisite and fit means may be employed; which brings the matter precisely to the point issue of a right to do whatever is fairly and truly calculated to effect the objects of the powers vested in the government.
The Secretary of State has annexed a more strict sense to the word necessary which he considers as restricting the government to the employment of those means without which “the power would be nugatory.” In this however he is neither warranted by the grammatical nor popular
sense of the word, nor by considerations of political expediency nor by the obvious aspect of the clause which contains by the word nor by the practice of the Government upon it.
Not by the grammatical sense because this, in many, and in relation to political subjects in most cases
makes establishes the word necessary as equivalent to requisite or needful or conducive to a particular end. Thus if it should that it is necessary to France observed “that it is necessary to France to maintain her connection with Spain” this would only imply that connection is in a conseq to Great Britain to maintain a good understanding with Holland” this would only mean that the maintenance of that good understanding is useful to her or conducive to her interests. It would not signify it that it it is essential ly or indispensable or absolutely requisite; or a thing without which she could not exist or prosper as a nation.
the popular such a signification accord with the popular use of the term. It is often said for instance A man will often say for instance “It is necessary I should breakfast before I go to business.” This would not mean that he could not do business without having first breakfasted; but merely that his habits are such as to render it inconvenient to him to enter upon the business of the day before he has made that meal.
Considerations of political expediency do not favour such a construction; because it tends to create a disability in the government to pursue measures which though highly useful may not be
absolutely absolutely essential; and of course abriges its power of doing good even in respect to the objects which are particularly confided to it.
It must ever be a matter of infinite uncertainty when a measure is necessary in the sense in which the word is understood by the secretary of state Many very intelligent men have contended that all regulations of trade are
pericious. pernicious. There are many in this country who now maintain that all burthens extra burthens That construction does not consist with the obvious import of the clause in question containing the expression. Placed at the end No person who should read it without an eye to any particular question that might give a bypass but would infer that it was intended to give latitude to the enumerated powers than to confine their operation. Placed at the end of them it is couched in these comprehensive terms “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States or in any department or officer thereof.” The turn of the expressions as well as the familiar and popular sense of the forbids a restrictive interpretation.
If it were proper to go out of the instrument into what passed in the course of the debates in the Convention or even to resort to the minutes of that body ample confirmation would be found of the
reasonings sense here contended for. But a recourse of that kind is not admissible. Nor is it be at requisite. The clause itself speaks a language not easily to be mistaken. It is evidently inten designed to ena to place on an unequivocal footing the power of the government to employ all the means appertaining to the fairly relav relative to the execution of its specified powers and to the fulfilm most prosperous conduct of the affairs entrusted fulfilment of the objects entrusted to its direction.
☞ The Attorney General indeed
appears to concedes that no such restrictive effect ought to be ascribed to the clause; and defines the word necessary thus—“To be necessary is to be incidental or in other words may be denominated the natural means of executing a power.”
As on the one hand the sense put upon the clause by the Secretary of State cannot be admitted to be just1
The practice of the government has contradicted such an interpretation. The act for the establishment and support of light houses beacons buoys and public piers may be cited as an example. This doubtless must be
reported referred to the power which the regulation trade and it is certainly fairly relative to it. But it cannot be affirmed that it was absolutely necessary that provision should be made for this object by the National Government or that the interests of Trade would have essentially suffered if it had been left upon its foot former footing or that the power of regulating trade would be nugatory without that of regulating establishments of this nature. The states continue competent All that can be said is that as establis such establishments are useful to trade, were they were a proper object of the care of that authority which is charged with the trust of promoting its interests.
To affix the sense advocated by the Secretary of State to the word necessary would lead to infinite uncertainty. There are persons who maintain for instance that all regulations of Trade are pernicious.
It is notorious that There are others who are of opinion that measures privileges which have been granted to certain branches of trade and the restrictions which have been laid upon others are hurtful to the general interests of trade commerce. There exist are wide differences of opinion about the measures which are or are not necessary to the promote of our navigation of this country—How shall it be determined what is strictly necessary? because it seems nothing else is to be deemed to be included in the power to regulate trade.
Nothing can better shew the fallacy of the doctrine espoused by the Secretary of State than some of the arguments which he makes use of to enforce it. One of these is that there are existing banks in some of the states which may serve the purposes of a National Bank, and therefore render the establishment of one unnecessary. Here the constitutional right of exercising a power is made to depend on certain arrangements which happen to have been made by particular States and which
may ere long totally disappear cease . Surely the powers of a government cannot depend upon such adventitious and casual circumstances. Surely a right to establish a Bank cannot be less inherent in a Government which does not exist to day can because institutions of that kind in which the Government has had no agency happen to exist, will cannot be created to morrow by their disappearance. Surely therefore a principle which turns on such an argument cannot be well founded.2
The Attorney General indeed concedes that no restrictive operation is to be ascribed to the word necessary. He defines it thus “To be necessary is to be incidental and may be denominated the natural means of executing a power.”
But while on the one hand the construction of the Secretary of State cannot be allowed, it will not be contended on the other that the clause in question confers any new or substantive power. It is conceived to have only intended to obviate the embarrassments which had been experienced under the confederation from the clause declaring 3
and to give an express
recognition that sanction to the exercise of implied powers fairly incli incidental or relative to the declared ones. And This it is conceived, is equivalent to an admission that of the proposition that the Government as to its specified objects has sovereign and plenary authority, except so far as restrictions appear where no restrictions are annexed to them has sovereign and plenary authority; in some cases paramount to that of the states in others coordinate with it. Indeed as has been remarked this principle seems inseparable from the idea of a legislative or sovereign power. If this principle be a just one
It is no valid objection to this principle to say that it
would lead to might be extended lead to an extension of the powers of the general government throughout the intire sp[h]ere of state legislation. The same thing has been said and may as justly be said with regard to the exe every exercise of power by implication or construction. Wherever the literal meaning is departed from there is a chance of error and abuse. And yet an adhererence to the letter of its powers would speedily bring the government to a full stop. and destroy its utility. It is agreed on all hands that the exercise of implied or constructive powers is indispensable. Every act that has been past is more or less an example of it. That which declares the Power of the President to remove the officers at pleasure is a signal one.
that is that difficulties on this point are inherent in the nature of the National Constitution which which is founded on a division of the legislative power assigning certain powers portions of sovereignty to the Union and leaving the rest with the particular members. The consequence of this will be that there will be some cases clearly within the power of the National government such as the right to lay duties on imported articles; some clearly not within its power such as a provision to convey water by pipes through the city of Philadelphia for the accommodation of its parti inhabitants, which is a matter purely local; and there are others will admit of room for dispute and difference of sentiment and in regard to which a sound discretion must be exercised.
The position which has been stated does not assert that the National Goverment is sove[re]ign in all respects, but that it has sovereign powe[r] to a certain ; that is as far as its specified objects extend.
There is therefore always a criterion of what is constitutional and what is not constitutional. This criterion is the
object to which the measure relates . If the object is one entrusted to the National Government and if the measure has any obvious relation to that object end and is not forbidden by any particular provision of the constitution—it may be deemed to be within the compass of the National authority. These are these other crit criteria which ought to have great weight in the decision. Does the proposed measure abrige a preexisting right of any state or of any individual?—if this question can be answered in the negative it affords a strong presumption in favour of the constitutionality of the measure and slighter relations to any declared object of the constitution may be permitted to turn the scale.4
The objectors to the rule which has been stated may be confidently asked what other can be adopted? What is there in the nature of things to render the declared powers in the national constitution less sovereign than the powers in the state constitutions? What are the characteristics which
define the means that sovereign or legislative power may employ to end committed attend and end within its province from those which it may not employ?
It is observable that both the Secretary of State and the Attorney General build their objections wholly upon a supposed inability in the National government to erect a Corporation;
The Attorney General and this not in the particular case only but in every case . Indeed the Attorney General acknowleges “that if any part of the bill does either encounter the constitution or is not warranted by it, the clause of the Corporation is the only one.” indeed allows that if there be any
How it has come to pass that the power of erecting corporations has been conceived to be of so peculiar or transcendent a nature, as to form an implied exception to every power granted to the United States and in every case is not easy to be conjectured and remains unexplained. Why it should not be as incident to legislative authority to erect a corporation, if a necessary and proper, or a requisite and fit mean to
an end, as to do any other thing, is, to say the best of it, not obvious.
Congress for example have power to regulate Trade with foreign nations. This power is not supposed to be confined merely to the prescribing rules for the
ordering orderly conducting of Commerce between the United States and other Countries; but it is agreed agreed on all hands to mean extend to the adoption of proper measures for the advancement of Navigation & foreign commerce. To this end are various regulations in the revenue laws that have been passed. Let it supposed that it were demonstrable that there was a particular an opportunity for opening a particular branch with some foreign country, which would be particularly beneficial to the United States; but that in order to entering upon it, it was absolutely necessary there should be an union of the capitals of a number of Individuals; let it be added to this that in order to engage those individuals to embark on it it was indispensable equally necessary that they should be incorporated & should for a certain be permitted to enjoy certain peculiar privileges and exemptions—in such a state of things as this, can there be any reasonable ground of doubt that it would be within the compass of the general power of regulating an commerce with foreign nations to erect such a corporation and to grant to it the requisite privileges and immunities? It is apprehended that there cannot be any such ground of doubt. The It would not be a good answer to say that such a case cannot be supposed. It is certainly a possible one. It has been believed to exist in other countries, and has produced such institutions which remain to this day. The possibility of it is enough for the argument. It would doubtless be expedient to be well assured that the circumstances were such as to require and justify it; but this would be a mere question of expediency not of right or power. If the sense of a number of the state conventions acts of the different state Conventions which who be consulted it will be pere
As far as the sense of the different state Conventions can be supposed to have weight
on this point it will appear that there was a prevail prevalent idea that Congress had power to erect trading companies or corporations. Hence is found among the amendments proposed by them, generally, a clause to this effect “That Congress shall not grant monopolies nor erect any company with exclusive advantages of commerce.” thus tacitly admitting the power of Congress to erect such Corporations or companies, and objecting no further than to the grant of exclusive privileges. The existence of such a power is indeed a natural and obvious inference from that of regulating Trade.
Neither the Origin of the power of erecting corporations nor the practice respecting
in it in the couuntry from which we have borrowed our ideas of it are of a nature to warrant the conclusion that it is of so preeminent a nature as to be beyond the reach of the ext portions of sov powers of the United States.
Its origin is traced to the Roman empire where a voluntary association of individuals was alone sufficient to produce a Corporation. In England the power of erecting corporations forms a part of the executive authority and the exercise of it may even be delegated to that Authority to other persons. Certainly then
it may be fairly presumed there is no colour to suppose that the whole Legislative authority of the Unit Union is unequal to it.
The Secretary of State
affirms indefinitely that the power of erecting corporations is ex remains exclusively with the states; but he certainly has not provd d . The arguments already produce adduced are sufficient it is presumed to shew that this is at least a questionable position. But there are that it is not true in the extent in which he advances is advanced may be reduced to absolute demonstration. And it is not doubted in that in the progress of the investigation the progress of it will appear more and more clearly.
Congress are “to exercise exclusive legislation in all cases whatsoever ever over
such district which shall become the seat of of the Government of the United States and over all places purchased for the erection of forts magazines arsenals dockyards and other needful buildings” By what process of reasoning can it be made a doubt that a power of exercising exclusive legislation in all cases whatsoever must include that of erecting a corporation within the limits which is are embraced by it? There can be none.
Here then are cases in which it is certain that Congress may erect corporations. And if
they a direct power of erecting a Bank in other places is denied to the government it has only to establish one at one some place which it may acquired exclusive legislation and the matter may be so managed as to have the administration of it where it may be most convenient. Doctrines which lead to such consequences like these are at least to be embraced with caution suspected of error.
There is indeed a case in which Congress have exercised the power of erecting a Corporation and that, one of the most important kind;
and one not less important than the establishment of a Government. The “Act for the Government of the Territory of the United States South of the River Ohio” is here alluded to. A constitution of Government is a Corporation of the highest nature—and that act establishes one; proceeding as is presumed upon
If then it
can it ought to be admitted that the U States have the power of erecting Corporations in cases relative to the objects entrusted to it, it remains to see
the 2d. Clause of the 3d. Section of the Constitution which declares that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.
Let it now be seen what are the objections to the power of erecting corporations generally.
The sum of them as respects the Secretary of State seems to be that they contain certain capacities properties or attributes; which are against the laws of mortmain against the laws of Alienage
which change the course of descents, which are against the laws of forfieture and escheat against the law of distribution, and as respects the particular institution contemplated against the laws of Monopoly: And it is added to the rest that a power is given conferred to make laws paramount of to the laws of the States. Nothing but a necessity invincible by other s can justify it is said such a prostration of laws which constitute the pillars of our whole system of jurisprudence and are the foundation laws of the State governments.
first be seen, how far these observations are correct, and then what force they have. The law & bill is said to be again
The power of erecting Corporations is nothing more than that of giving individuality to a number of persons.
The common When once this individuality is created the Common law of every state annexes to it those incidents which produce the effects above-mentioned as they as far as they reality really exist. It establishes that foreigners may hold laws in the artificial capacity thereby created may hold lands — that the lands shall be transacte transmitted to the successors of the first holders in their in the same capacity not to the heirs of the individuals—notwithstanding the laws of descents—that the corporate property in case of the dissolution of the corporation shall revert to the donors, not to the sovereign, notw as in the case of a failure of heirs of private persons—notwithstanding the law of escheat & that it shall not be forfieted for the crimes of the individual members; notwithstanding the laws of foreigners . All these circumstances too are mere consequences of the creation of an artificial person. The distinction between citizen and alien can only apply between natural persons. Such an artificial person may have successors but can have no heirs—therefore the laws of descent cannot reach it, and, for the same reason, it is equally out of the reach of the law of escheat which relates wholly to a failure of heirs. An artificial person cannot commit a crime—therefore its property cannot be liable to forfieture.
This shews that it is
incorrect to say, that a the erection of a corporation is against those different heads of the state laws. It is in fact only to create a certain Artificial or legal entity, to which the fundamental law maxims of the law of every state itself, annexes an emptio exemption from the operation of the rules that fall under those heads, as being inapplicable to it. It is only to put a certain number of individuals with their own consent in a situation with which subjects their property a different regulation from that which would attend it if they had not consented to enter into this State.
But if the thing were not truly to be viewed in this right—if the creation of corporation were really against those different of the state laws, if it
really made an alteration in them laws in those respects the particulars which have been mad mentioned—what would be the consequence of all this? Is it meant to be maintained that Congress can not make alterations in the state laws. If this is intended all the powers of the national government become nugatory. For almost every new law must is an alteration in some way or other other of one su one or more old laws some other law either common or statute.
There are laws concerning bankruptcy in several states—several states have laws concerning the values of foreign Coins—Congress are empowered to uniform laws concerning bankruptcy throughout the United States and to regulate the value of foreign coin. The exercise of either of these powers, by Congress, necessarily involves an alteration of the laws of those states; and in respect to bankruptcies in cases that affect real property and penalties of the highest nature.
Congress under every person by the common-law of each state may now export his property commodities property to foreign countries at pleasure. But Congress may without doubt in pursuance of the power of regulating Trade prohibit the exportation of commodities; in doing which they would certainly alter the common law of each state in abrigement of individual rights.
This being the case it can never be good reasoning to say—the doing of this or that act is unconstitutional because it alters this or that law of the states. It must always be shewn that the thing which makes the alteration is unconstitutional in its own nature not because it makes the alteration. Hence an argument which
objects the such an effect to the ex constitutional right of exercising any power must be rejected.
Two things are advanced by the Secretary of State which are peculiarly incorrect. These are that the proposed incorporation is against the laws of monopoly and that power is given by it to make laws paramount to the laws of the states. As to the first the only part of the bill which can give colour to the suggestion is that which
stipulating stipulates that the U States will not not erect any similar institution or grant similar privileges to any other. But does this prohibit any state from erecting itself a bank. Does it even prohibit any number of individuals from associating themselves to carry ing other the banking business? It does neither and consequently is altogether from the charge of establishing a monopoly. A consequential interference with the Banks of other states if founded would not make good a charge—For Monopoly implies a legal impediment to the carrying on of the Trade by others than those to whom it is granted. That supposition however would be a forced one. Such an interference indeed might tend to prevent rather than to create monopoly by dividing the business— But it is not probable that the but whether any species of competition will exist is altogether problematical.
The idea of the Corporation having power to make laws paramount to those of the states is still less colourable.
Their bye laws of regulations from the nature of the institution can operate only upon the members themselves its own members can relate only the disposition of its own property & can be little more than the private will essentially resemble the private rules of a mercantile partnership. They are expressly not to be contrary to law—and this law here must necessarily mean the law of each state so far as it dos not contravene that of the U States as well as of the U States so far as the formerly does not improperly contravene the latter. If there should be a repugnancy between any state law and that of the U States the Courts as in every similar case must decide between them on the their respective validity. There may be questions between an interfering law of a state & that of the U States but there can be none between a state and a law of a state and a law of the Corporation.
sum of the Arguments of the Attorney General against the power of incorporation in the National Government generally are to this effect.
First that it is not expressly given to Congress.
This is admitted. There
are no war is no clause of the constitution declaring in direct terms express terms that Congress may make corporations.
It was said upon this in argument in the House of Representatives—that if a power of so transcendent a nature was meant to be conferred upon Congress it would have been expressly mentioned.
But this idea of the transcendant nature of the power is all exageration. It has been seen that it is only to give individuality to a number of persons voluntarily associated for a particular purpose or to substitute an artificial to a natural person. It has been seen that in its origin a voluntary association of Individuals was capable of producing
it without the help of positive law—And that in England it is a part of the Executive authority.
Perhaps the best definition that can be given of a Corporation is this. It is a legal person or a person created by law,
to hold property or a franchise in succession consisting of one or more individuals natural persons capable of hold ing property or a franchise in succession in a legal as distinct from their natural, capacity. According to this idea of it, of legislation if the United States should declare that all bonds for duties should be given to the Collector of each district by the name of the Collector of the District of A or B and that the sai should enure to such Collector and his successors in office, in trust for the U States, this would be to constitute a Corporation in each district; and it is presumed, that if it had been thought expedient to put the Collection of the duties in this train, however the expediency of it might be called in Question, the constitutional right of doing it would never have been disputed.
A still plainer case is this—Congress are empowered to establish post roads. Let it be supposed that it were to be resolved to establish turn pike road throughout the united under the direction of certain Commissioners by a Certain denomination to be appointed as other officers are; and that certain funds including a portion of Western lands should be vested in them and their successors in office to be disposed of for the purpose of defraying the expences of making the road—this certainly would be a corporation; and can it be doubted that it is within the constitutional power of Congress to make such an arrangement. It is repeated that the expediency of doing it or not doing it is never a test of constitutional right; for the consequence of such a principle would be that every inexpedient or injudicious measure which a government may adopt is unconstitution[ally] an absurdity of the first magnitude.
There are certain The Western lands are pledged for as a fund to sink the public debt. Suppose to render the application of the fund still more inviolable, as has been proposed by able men by giving it the character and sanction of private property, as has been repeatedly proposed by able men in Great Britain & if rightly recollected practiced upon in the the late instance, it had been judged expedient expedient by Congress to vest those lands in certain Commissioners to be appointed as off other officers and in their successors in office to be disposed of & the proceeds applied to the redemption of the public debt, could have an could any objection have been made to the constitutionality of the measure? Certainly none—probably none would have even been thought of from the obvious futility of it. And yet here would have been most manifestly a corporation.
Instances of a similar kind may be multiplied without number in which a natural construction of the powers of Congress would authorise the erection of Corporations as very simple means to
declared ends the specified ends of the governt. It is therefore plainly one of those incidental things, one of those ordinary objects one of those mere means to an end, which was best left to be implied as an ingredient in a general power. Particularly as there might exist prejudices on the point. And it was not prudent to encounter any by unnecessary specifications.
This is not an improper place to take notice of an observation made by the Secretary of State concerning
a the proposition in the Convention to insert specifically a power to make Corporations which he uses as an argument against the power.
What the precise nature, or extent of the proposition, was is not ascertained by any authentic document. As far as any such document exists it only specifies canals. The
memories recollections of individuals do not correspond either as to the import of the proposition or the reasons for not adopting it. Some affirm that it there was an objection to granting power to erect corporations others that it was thought unnecessary as being incidental to the powers granted and migh inexpedient to be specified as involving a new topic of objection; others that the purposes of it, being canals and obstructions in rivers were thought irrelative to fœderal objects regulation. Thus stands the manner, and certainly in this situation there is no inference to be drawn from the fact.
The Secretary of State also knows, that whatever may have been the true state of that fact it is of no weight in the question, that whatever may have been the intention of the framers of a Constitution, or of a law, that intention must be sought for in the instrument and must be
gene deter dimined by general principles of construction & the applied to the tenor & objects of the instrument. If then a power to erect corporations is deducible by fair inference from the whole or any part of the constitution of the United States the intention of the Conven arguments drawn from extrinsic circumstances regarding the intention of the Convention must be rejected. The Attorny Gener
The power of making corporations not being expressly granted The Attorney General proceeds to infer that it can only exist from one of three causes
1 Because the nature of the Fœderal Government implies it or
2 Because it is involved in some of the specified powers of legislation or
3dly. Because it is necessary and proper to carry into execution some of the specified powers.
With regard to the first he argues that to be implied in the nature of the Fœderal Government would beget a doctrine so indefinite as to grasp every power.
Let it be remarked in the first place that neither of these
provisions propositions is essentially precisely or substantially that which has been relied upon is relied upon here—This is that the right of erecting corporations is incidental to sovereign power, not to the particular nature of the fœderal Government. None of the reasonings of the Attorney General do therefore reach this proposition.
But let it be supposed that he would consider the two propositions in the same light and that the answer which has been stated to the one is to be applied to the other.
Then the answer is, that it is not true that the Doctrine would be so indefinite as to grasp every power—Because the
quality qualification which has stated to the Doctrine is that it must be in relation to the objects confided to the government. A general legislative power is a power to erect corporations in all cases where they shall appear necessary or expedient to the legislature. A legislative power as to certain objects includes a power only to erect corporations in relation to those objects—not in relation to other objects. Hence therefore to contend that the legislative power of the U States extends to the erection of Corporations in relation to the objects of the Fœderal Government does not imply a claim that it shall extend to things not relative to the objects of that Government. Thus a power to erect a corporation relatively to Trade is not a power to erect one relatively to Religion. The first is a declared and leading object of the Regulation of the Fœderal Government. The last it has no power concerning.
The object therefore is in every case as already remarked to test and characterise the proper exercise of the power. As reasonably might be argued that a right to prescribe penalties for a breach of the laws of Trade is a right to prescribe penalties for violations of the laws of
The Attorney General after combating the first proposition relatively to the nature of the Fœderal Government which has been just examined in its true sense proceeds to shew that
it is not within the power of erecting corporations is not involved in any of the specified powers of legislation.
In order to accomplish this, he makes an enumeration
according to his own ideas of the particulars which are included in his opinion, are for so only it must be considered are comprehended in several of the principal general powers; and including in this enumeration only such particulars only as appeared to him the particular in controversy as well as many others that may be imagined and many more that no imagination can reach in perspective and that occasions only can suggest he fairly begs the question.
It is not meant to represent this as intentional. It is a natural consequence of attempting to try
a power by a fallacious test a general power by an enum which always includes an infinite number of particulars by a n enumeration. Every such enumeration must be more or less important imperfect; because the human imagination is inadequate to the detail. Even every particular that may be specified must be in itself a general that must include a vast variety of other particulars. The intent of this enumeration is doubtless to shew what is contained in each power & then to infer that the power of incorporation not corresponding with either of the particulars does not exist. The force of this conclusion must depend on the accuracy of the enumeration—the pointing out of inaccuracy and defects must therefore destroy it. It was from a Conviction of this very difficulty that the Convention forebore to attempt such a specification.
critial critical examssion examination of the detail into which he enters would involve too voluminous a discussion. It will be sufficient to destroy all possibl the effect intended to be produced by this enumeration to state certain palpable defects and omissions—some less palpable or certain but still probable ones. and In the couse of this to corrobarate but some new & particular view, the general doctrines which have been advanced.
The first power descanted upon is that of laying and collecting Taxes which indeed is the most accurately subdivided.
One subdivision of it is “to prescribe the mode of Collection”—an immense chapter which involves a variety of details and among others the very
power in question. It includes—the establishment of districts and ports—the creation of officers and the appointment of their duties powers and legal capacities, modes of proceeding, exemptions penalties modes of prosecution & recovery—species of money or other thing in which the taxes are to be paid—And it may legally include the erection of corporation s charged with the Collection, upon certain conditions stipulated between the Government and them. This last point shal
It has been already
stated in what manner the Officers of the customs might be made a Corporation for the purposes of taking bonds & receiving the monies payable upon them. It shall be explained in another place how far the power of establishing the species of money in which the taxes shall be paid is connected with the institution of a Bank. It shall now be shewn that by a fair construction of the power of laying & collecting taxes a corporation may be instituted charged with the collection upon certain conditions stipulated with the Government.
It is a common practice in some countries and has been practiced in this—to farm particular taxes. This is to sell or mortgage the product of them to an individual or company for a certain
spef specified sum, leaving it the collection to that individual or company. Let it be supposed that it was was manifest that this mode of proceeding was the most eligible to the government and equally convenient & safe for the citizens—let it also be supposed that a number of individuals were disposed to undertake the matter upon condition of being incorporated. An incorporation, if a number of individuals were concerned would be a natural and a necessary ingredient in the arrangement— but it would be essential to the security of the undertakers that the property in the fund should be definitively vested in them and that they should have an easy method of recovering the taxes—to which a corporate capacity would be indispensable. It must be extremely difficult to assign a reasy why the Legislature Congress might not adopt this mode of Collection as well as any other, and might not as a necessary ingredient in it incorporate the undertakers. It would not be doubted that this could by any an other government and why not by that of the United States which has as plenary a power of taxation as any in the world with only two qualifications shall all duties that direct shall be apportioned according to a a certain ratio of population. fixed rule & that no dut
The specification of particulars
incident relates to the power of borrowing money, and is materially defective. It confines that power to three points—the stipulation of a sum to be lent, of an interest or no interest to be paid and of the time and manner of repayment.
A palpable omission strikes the eye at once the pledging or mortgaging of a fund for the security of the money lent. Here is a common & in most cases an essential requisite which is overlooked.
The idea of
a the stipulation of an interest or no interest is too confined. The phrase should have been to stipulate the consideration of the loan. Individuals often borrow upon considerations different from the payment of interest sometimes in addition to it sometimes independent of it—So may governments, and so they often find it necessary to do. Every one recollects the lottery tickets and other douceurs often given in Great Britain as collateral inducements to the lending of money to the government.
There are also frequently collateral conditions not falling within any of the enumerated particulars. Every Contract for monies borrowed in Holland, stipulates that the sum due shall be free from all taxes and from sequestration in time of war and mortgages all the lands & property of the United States for the reimbursement.
It is also known that a lottery is a very common expedient for borrowing money, which is certainly not included under either of the specified heads.
These things are mentioned to shew the defectiveness of the specification & that any
inference drawn from them not comprehending the power of erecting a corporation must be unfun unfounded. It is reserved in the sequel to shew the relation between this power and the institution of a bank.
The enumeration respecting the power of regulating trade is still more defective and inconclusive.
First as it relates to the Trade with foreign Countrys Here is a total omission of every thing that regards the Citizens of the United States—their vessels and Merchandize.
1 The power of prohibitting the exportation of domestic commodities of which there cannot be a shadow of doubt and which in time of war it would be necessary to exercise, sometimes temporarily in
a shape of an embargo sometimes altogether—as with reference to Naval and other warlike stores which might be wanted at home
2 The prescribing rules concerning the characteristics and privileges of an American bottom and the manner in which she shall be navigated as to the composition of her Commander and Crew what proportion of Citizens to foreigners.
3 The prescribing of regulations concerning the police of Ships on their Voyages &c as by the “Act for the Government & regulation of Seamen in the Merchants service.”
4 The granting of bounties to certain species of vessels and certain kinds of Merchandize. This has been actually done in respect to dried & pickled fish & salted provision.
There are other things which occur that appear to be within the power of regulating trade though not as certainly as those which have been mentioned.
the regulation of policies of insurance
1 The prescribing rules for the Inspection of Commodities to be exported. Though the states individually are competent to this there appears no reason in point of authority why a general System might not be adopted for the purpose by the United States.
2 The regulation of policies of Insurance
3 The prohibition of wearing as well as importing foreign Commodities
4 The Regulation of salvage upon goods found at Sea
5 The Regulation of pilots
6 The Regulation of bills of Exchange drawn by a Merchant in one State upon a Merchant in another.
And as it respects the Trade between the Fe states y The power of
Hence is seen the imperfection of the enumeration under the second head and the impossibility of deducing from it any argument against the power of incorporation contended for
and which it is presumed has been shewn to exist in relation to Trading Companies—which therefore ought to be classed under as one of the particulars comprehended in the power of regulating Trade. The relation which it has to a Bank in particular is reserved to be shewn future discussion.
The last specification relates to that clause which empowers Congress to make all needful rules and regulations respecting the territory or other property belonging to the U States.
The remaks here will relate less to the defectiveness in the enumeration of particulars than to some errors of reasoning.
It is admitted as one of the Items of this head of powers
The institution of a Government in the western Territory is admitted to belong to this head of the powers of the Fœderal Government. Now to admit the right of instituting a Government and to deny that of erecting a corporation appears to be a contradiction in terms. For a Government as already remarked is a Corporation of the highest nature. It is a Corporation which can itself create other corporations.
How it could be imagined that the National Legislature could institute a government in the Western Territory and
cannot erect an incorporation for clearing obstructions in its Ri in the Rivers which run through it, or for any other purpose there confounds all conjecture. It directly overturns Or how it can be admitted that there is a power to institute a goverment and denied that there is a power to erect a Corporation requires to be reconciled.
Here then by an
express express concession of the Atty General is a power to erect a Corporation in one case at least; a power too which has in fact been carried into operation.
It is said that the property contemplated in the clause may signify personal property of the United States however acquired; and yet it is affirmed that it cannot signify money arising from the sources of revenue pointed out in the Constitution.
This opposition in terms is not remarked for the sake of any verbal
critical criticism. It is only meant to make use of what is conceded to oppose it to what is denied.
The concession is that property in the
general sense of the clause extends generally to personal as well as real property.
The denial is that it extends to money raised by taxes
me which therefore is to be considered as excepted out of the general term property though comprehending personal property.
For this exception the reason given is—. “That the disposal and regulation of money is the final cause
of for raising it by taxes” But this reason is not satisfactory. This reason which is rather subtile, and against the letter of the clause, must be combatted by reasoning that may perhaps itself seem to savour of subtilty and refinement.
It would certainly be a more accurate and more just mode of expression to say “that the object to which money is to be applied is the final cause for raising it” than that the disposal and regulation of it is such. Now the objects for which the Constitution authorises the raising of money are common defence and general welfare. The disposition and regulation of it when raised are therefore the steps by which it is
app in fact applied to the objects for which it was raised. Hence therefore the money to be raised by taxes as well as any other personal property may be supposed to be comprehended within the meaning as they certainly are within the letter of the provisio authority to dispose of and make all needful rules and regulations concerning the property of the U States—for the purposes of the common defence and general welfare.
The terms general welfare are of very comprehensive import. They must
necessary necessarily embrace every object of general concern ment—whatever has a general operation, relating either to the order of the national finances or to the general interests of Trade Agriculture or manufactures.
A case will make this plainer. Certain revenues are now established, in relation to the public debt. Suppose the whole or a considerable part of this debt discharged & the funds now pledged for it or a considerable part of them liberated.
Here then would be monies in the public Treasury to be disposed of and regulated. the taxes might be repealed; It is true but in some and in certain cases it might be wise to do so but in others it will might be more wise to retain them, as the repeal might injure our own manufactures and industry. It would then remain to cause such a disposition as . Here then would be monies to be disposed of & regulated in the strictest sense of the clause. might consist with general utility or general welfare
What then would there be in such case to prevent, the investiture of those monies in a Bank, if such an institution should appear
calcuted calculated to promote the general good? welfare? Evidently the want of a power to erect ed a corporation would not be an obstacle. For the power to erect a government is admitted to exist and has been exercised under it. Here then is plainly a case
Hence it is evident, that under this clause alone a Bank may be erected. For as has been before remarked the existence of a constitutional power cannot depend on times & circumstances;
only the Constitution explicitly marks out the conditions on which it is to begin to exist.
Hitherto except in this last instance the arguments which have used have been
establish the general proposition that the Government of the U States has power to erect Corporations in certain cases. This it is confided has been satisfactorily done and all the objections to it satisfactorily removed. And as all the Arguments of the Secretary of State & Attorney General are built on a denial of that proposition, as far as their objections are concerned there might be no necessity to proceed further. intended to prove that
But something more is proper to be done to satisfy the judgment of the President United States. It
remains to shew that there is a power to erect such a species of Corporation as a Bank by shewing that it has a fair relation to some one or more of the specified powers. This indeed has been in part done Previous to this it will be useful briefly to analise A few preliminary observations may be proper.
The proposed bank
will consist of an association of persons to certain a joint capital to be employed chiefly and essentially in loans. There is no doubt that it is lawful for any number so to associate of individuals so to associate and dispose of their money or property. The Bank of New York is an example of this. That Bank is not incorporated. The Bill proposes in respect to the government that it shall become a joint proprietor in this undertaking; that it shall permit the bills of the Bank payable on demand & that to be received in payment of its Revenues, and that it will not grant a similar privilege to any other Bank.
All this is indubitably within the discretion of the Governt. The only Question is has it a right to incorporate this company the more effectually to enable it to accomplish ends which are in themselves lawful.
Its power of making Corporations in all the cases relative to its proper objects has been proved. Let it now be examined to which of those objects the proposed institution relates.
No person who reads with an impartial eye the powers vested in the National Government but must be satisfied that it is intended by its constitution to vest it with all the powers
that are necessary for the what may be called the Administration of its Finances.
It is authorised to raise money to an indefinite extent to borrow money to an indefinite extent, to coin money, regulate the value thereof and of foreign coin, to dispose of and make all needful rules and regulations concerning the property of the United States and to pass all laws necessary and proper for carrying into execution those powers.
It has a direct relation to the power of collecting taxes; to that of borrowing to that of regulating Trade between the States and
to that and as a consequence of the two first to that of raising supporting and maintaining fleets and armies for the common defence. And it is within the letter of the clearly within the provision which respects the disposal and regulation of the property of the U States as the same has been practiced upon by the Government.
It relates to the collection of taxes in two ways, indirectly by
the facility which rep increasing the quantity of circulating medium— indirectly by creating a convenient species of medium in which they are to be received.
It is undeniably within the power of providing for the collection of the taxes to appoint the money or thing in which they are to be paid. Accordingly Congress have declared
that in the Collection law that they shall the duties on imports and tonnage shall be payable in gold and silver at certain rates. But while it was a necessary part of the work to declare in what they should be payable, there was cert it was mere matter of discretion what that medium of payment should be. It might have been, though inconvenient, in the commodities themselves. Taxes in kind are not without precedents even in the United States. It might have been in the paper emissions of the several States; and it or it might have been in the bills of the Ban It might have been in notes issued under bills it might have been in the bills of the Banks of North America New York Massachusettes all or any of them or it might have been in bills emitted under the immediate Authority of the United States.
It is presumed there is not a tittle of this which can be controverted. The appointment then of the money or thing in which the taxes are to be paid is an object within the
power of the Government as incident to the power of Collection. And among the expedients which occur is that of bills issued under the authority of the United States.
Now the manner of issuing these bills must be again matter of discretion. There must be agents employed for the purpose. These Agents may be
stand officers of the Government or they may be Directors of a Bank. If the notes of the Bank Bank of North America were made receiveable in the taxes, the Directors of that Bank would thereby become ipso facto Agents of the Government for this purpose.
Suppose it were
judged necessary to preserve the Credit of the bills that they should be made payable in gold and silver on demand and that it were thought expedient to appropriated and set apart a sum of money as a fund for answering them; Certainly all this would be clearly within the power of designating certain officers of the Government who were to issue the bills and administer the fund. The constitutionality of all this could certainly not be called in question. And yet it would amount to the institution of a Bank, with a view to the more convenient collection of taxes. For a Bank in the simplest idea of it is a deposit of money or other property as a fund for circum circulating a credit upon it as equivalent to money. The reality of this character would become the more obvious if the officers place in which the fund was kept should be made the receptable of the monies of all other persons who should incline to deposit them there for safe keeping; and if in addition to the rest the officers of this fund were authorised to make discounts at the usual rate of interest upon good security. The first would be an operation within the discretion of the officers themselves and to deny the power of the Government to authorise the last would be to refine away all government.
This process serves to establish the natural and direct relation between the Institution of a Bank and the Collection of taxes and to shew that it is a mean which may with constitutional propriety be employed
in reference to it. It is true that the species of Bank which has been just designated does not involve the idea of incorporation. But the argument intended to be founded upon it is this, that the institution or thing comprehended in the definition of a Bank being one relative to the collection of taxes, as it regards the appointment of the money or thing in which they are to be , the sovereign power of passing all laws necessary and proper includes that incorporation of a Bank incorporating such an institution as it a requisite to its greater security utility and more convenient management. Some further process will still more clearly illustrate this point. Suppose when the species of Bank was about to be instituted it were to be remarked urged that in order to securing to it a proper degree of confidence, the fund ought not no only to set apart and appropriated generally, but ought to be specifically vested in those who were to have the Direction and their successors in office, to the end that it might become of the nature of private property incapable of being touched without invading the sanctions by which the rights of property are protected and occasioning more serious and general alarm, which might operate as a check upon the Government. Such a proposition might be opposed by arguments against the expediency of it or the solidity of the reason assigned for it; but it is not easy to conceive what could be said against the constitutionality of it, unless it should be a general denial of the power of incorporating in any case. But this it is presumed has been satisfactorily refuted. Here then by a very simple and natural step the quality of a corporation would be given to the institution.
Let the argument proceed a step farther. Suppose a Bank of the foregoing nature with or without
an incorporation had been instituted; and experience had demonstrated as it is very probable it would that it wanted the confidence requisite to the Credit of its bills Suppose at this conjuncture also being wholly on a public foundation. Suppose in this state of things that by some of those adverse conjunctures which occasionally attend there had been a very great drain of the specie of the Country so as to cause general distress for want of an adequate medium of circulation & defalcation in the product of the revenue as a consequence of it. Suppose also that there was no Bank instituted in any state—in such a state of things would it not be manifest most manifest evident that the Incorporation of a such on the general principle of that proposed by the Bill namely the Union of the Capitals of a number of individuals under a private manage would be a measure immediately relative to the effectual Collection of the taxes?
If it be said that such a state of thing that necessary and therefore constitutional which is not now so now. The solid answer to this is that circumstances may affect the expediency of
the a measure but not the constitutionality of it.
It has been shewn that the word necessary is not to be taken in so strict a sense.
An addition Though the Attorny General in fact concedes this, yet Of this a further illustration may be given here. Congress are to appoint the it falls into a use of the word in the sense he regrets in relation to this particular point. medium medium in which the taxes are to be paid. This as has been remarked may be commodities or gold & silver or various kinds of paper. If Congress are to do nothing but what is strictly necessary they cannot require the payment of taxes in gold or silver only because som other commodities may answer—nor can they allow them to be necessary received in paper, unless there was no gold and silver.
The institution of a Bank is directly relative to the borrowing of money.
It Its main design is to lend money. It is essential, especially in a Country like this, to the obta procuring of loans in sudden imergencies. It is the usual instrument relied upon for this purpose in different nations.
A nation is threatened with a war. Considerable sums are wanted on a sudden to make the requisite preparations. Taxes are laid for the purpose; but it requires time to obtain the benefit of them.
A loan is Anticipation is indispensable. If there is a Bank the supply can at once can be had. If there is none individ loans of individuals must be resorted to. The progress of these is often too slow for the exigency. In some situations indeed they are not practicable. Often when they are it is of great importance to be able to anticipate the product of them by advances from a Bank.
The essentiality of this institution as an instrument of loans is exemplified at this very moment. An Indian expedition is to be prosecuted.
all the The only fund out of which the money can arise consistently with the public engagements is a tax which will only begin to be collected in July next. The preparations were are instantly to be made. The tax mu money must therefore be borrowed. And of whom could it borrowed if there were no public banks?
It happens that there are institutions of this kind but if there were none it would be indispensable to create one.
And can it be believed that the Government would be destitute of the power of doing it?
Let it be supposed that the necessity existed (as but for a casualty it would) that proposals were made for a loan that a number of individuals came forward and said—We are willing to accommodate the Government with this money—with what we have in hand and the Credit we
should be might raise upon it, we sho doubt not of being able to furnish the sum required but in order to this it is absolutely necessary we should be incorporated in order to be established of a bank. This will not only be a consideration with us for the loan but it is
ADf, Hamilton Papers, Library of Congress.
1. In the margin opposite this paragraph H wrote “Inspection laws.”
2. In the margin opposite this paragraph H wrote “Take in here what relates to manner of construing Constitution.”
3. Space in MS left blank by H.
4. In the margin opposite this paragraph H wrote “Is any state competent to doing what is proposed to be done?”