The bill to incorporate the subscribers to the Bank of the United States had not yet been presented to GW for his signature when he solicited and received the opinion of the attorney general on its constitutionality. After receiving Randolph’s opinion, GW solicited the views of the secretary of state. Both Randolph and Jefferson had prepared written opinions arguing that the bank bill was unconstitutional. On 16 Feb. 1791 GW wrote to Hamilton, referring these opinions to him and requesting a written opinion on the “validity and propriety” of the bill.1
This request prompted the writing of one of the most important state papers produced during the Washington administration, Hamilton’s lengthy and closely reasoned “Opinion on the Constitutionality of an Act to Establish a Bank.” In preparing the opinion Hamilton sought not simply to refute the arguments of Randolph and Jefferson but to assert the broad authority of Congress to legislate on the basis of Article I, Section 8 of the Constitution, which empowered the legislature “To make all Laws which shall be necessary and proper for carrying into Execution” all “Powers vested by this Constitution in the Government of the United States.” This argument, embodying what subsequently became known as the doctrine of implied powers, has had far-reaching consequences for American constitutionalism. The doctrine was employed by Chief Justice John Marshall, who was familiar with Hamilton’s argument, in his opinion in United States v. Fisher in 1805 and was given its most famous formulation in Marshall’s opinion in McCulloch v. Maryland in 1819.2
The circumstances under which Hamilton’s opinion was composed have been the subject of considerable speculation. Hamilton apparently spent much of his time during the week of 16–23 Feb. preparing his opinion, although he probably devoted a part of his time to preparing his report on the Holland loan of three million florins, his report on the petition of Comfort Sands and others, and his report on the petition of William Simmons, all dated 24 Feb. and presented to Congress on 25 Feb. 1791.3 On 21 Feb. he wrote to GW: “The Secretary of the Treasury presents his respects to the President of the United States to request his indulgence for not having yet furnished his reasons on a certain point. He has been ever since sedulously engaged in it, but finds it will be impossible to complete before Tuesday or Wednesday morning early. He is anxious to give the point a thorough examination” (DLC:GW). In preparing the opinion, Hamilton may have consulted with William Lewis, the U.S. attorney for Pennsylvania who had previously served as legal counsel for the Bank of North America.4
The finished opinion consists of more than thirteen thousand words. No contemporary evidence has been found to support the often-repeated assertion that it was written in one session over the night of 22–23 Feb. 1791. In his letter of transmittal Hamilton reported that the writing of the opinion had “occupied him the greatest part of last night” but does not claim to have written the entire document during the course of that single night.
Nowhere does Hamilton mention the assistance of a clerk, but his wife, Elizabeth Schuyler Hamilton, reported to Arthur Latham Perry when she was in her nineties that she had assisted Hamilton in finishing the opinion. Perry, a political economist who later served on the faculty of Williams College, recorded the conversation in his journal entry for New Year’s Day, 1853, noting that, although she was then in her ninety-fifth year, Elizabeth Hamilton was still “active in body” and “clear in mind.” In discussing the writing of the opinion, she told Perry that “I sat up all night with him to help him do it. Jefferson thought we ought not to have a Bank, and President Washington thought so. But my husband said, We must have a Bank. I sat up all night, copied out his writing, and the next morning he carried it to President Washington and we had a Bank.”5
There are eight known manuscript versions of the opinion. One is an incomplete draft in Hamilton’s handwriting, with numerous cancellations and interlineations, which is in the Hamilton Papers at the Library of Congress. A transcript of this draft, with the full text, including the cancellations and interlineations rendered in type, is in Syrett, Hamilton Papers, description begins Harold C. Syrett et al., eds. The Papers of Alexander Hamilton. 27 vols. New York, 1961–87. description ends 8:64–97. The other seven manuscript versions are all contemporary copies of Hamilton’s finished text. Columbia University, the Massachusetts Historical Society, and the Historical Society of Pennsylvania each own one copy. There are two copies in the Hamilton Papers at the Library of Congress and a letter-book copy in the Washington Papers at the Library of Congress. The seventh copy is in private hands; it was owned for many years by Mr. John R. Dillard of Philadelphia, Pa., and is generally referred to as the Dillard copy. None of the known copies is in the handwriting of Elizabeth Schuyler Hamilton.
The seven known copies are all textually similar. The editors of The Papers of Alexander Hamilton divide them into three groups, based on minor textual variations. The GW letter-book copy, the copy in the Historical Society of Pennsylvania, and the Dillard copy, they contend, are essentially identical. One of the copies in the Hamilton Papers at the Library of Congress and the Massachusetts Historical Society copy are nearly identical, as are the second copy in the Hamilton Papers at the Library of Congress and the Columbia University copy.6
None of these seven contemporary copies can be conclusively identified as the actual document transmitted to GW by Hamilton on 23 Feb. 1791. The editors of The Papers of Alexander Hamilton elected to publish the Dillard copy, which is in the handwriting of Henry Kuhl, a clerk in the Treasury Department, indicating that “most evidence points to the copy owned by Mr. Dillard” as the one delivered to GW. As evidence they cite the fact that Kuhl was one of Hamilton’s clerks and the textual similarity of the Dillard copy to the letter-book copy in the Washington Papers. While this argument is plausible, the evidence that the Dillard copy was presented to GW is inconclusive. Kuhl may have assisted Hamilton in his late-night effort to complete the report, but no independent evidence of this has been found. The document is taken from the copy in GW’s letter book, which was undoubtedly copied from the text presented to GW on 23 Feb. 1791. The letter-book copy is in the hand of Bartholomew Dandridge.
1. See Randolph to GW, 12 Feb. 1791, Jefferson to GW, 15 Feb. 1791, GW to Hamilton, 16 Feb. 1791, and Madison to GW, 21 Feb. 1791. On GW’s decision to sign the bill, see GW to Hamilton, 23 Feb. 1791. Hamilton’s opinion focused on the constitutionality of the bank bill. After the adjournment of Congress, Hamilton prepared a separate, much shorter report on the practical advantages of a national bank (see Hamilton to GW, 27 Mar. 1791, and note 1).
2. Marshall discussed Hamilton’s opinion at length in his Life of George Washington (Philadelphia, 1805–7), 5:297, and Notes (separately paginated at the end of the volume), pp. 3–11.
4. Horace Binney, The Leaders of the Old Bar of Philadelphia (Philadelphia, 1859). Binney, a prominent Philadelphia lawyer, had been on familiar terms with Lewis in the first decades of the nineteenth century and may have been told of Lewis’s role in the development of the opinion by Lewis himself.
5. Carroll Perry, A Professor of Life: A Sketch of Arthur Latham Perry (Boston, 1923), 78–79, quoted in Broadus Mitchell, Alexander Hamilton: The National Adventure (New York, 1962), 99.