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James Madison’s Speech on the Bank Bill: also be most convenient at the different places

2 February 1791 where the interest of the debt was to be paid. The
case in America was different from that in
Mr. Madison began with a general review of the England: the interest there was all due at one
advantages and disadvantages of banks. The former place, and the genius of the monarchy favored the
he stated to consist in, first, the aids they afford to concentration of wealth and influence at the
merchants who can thereby push their mercantile metropolis.
operations farther with the same capital. 2d. The
aids to merchants in paying punctually the customs. He thought the plan liable to other objections: It
3d. Aids to the government in complying punctually did not make so good a bargain for the public as
with its engagements, when deficiencies or delays was due to its interests. The charter to the bank of
happen in the revenue. 4th. In diminishing usury. England had been granted for 11 years only, and
5th. In saving the wear of the gold and silver kept in was paid for by a loan to the government on terms
the vaults and represented by notes. 6th. In better than could be elsewhere got. Every renewal
facilitating occasional remittances from different of the charter had in like manner been purchased;
places where notes happen to circulate. The effect of in some instances at a very high price. The same
the proposed bank, in raising the value of stock, he had been done by the banks of Genoa, Naples, and
thought, had been greatly overrated. It would no other like banks of circulation. The plan was
doubt raise that of the stock subscribed into the unequal to the public creditors—it gave an undue
bank; but could have little effect on stock in general, preference to the holders of a particular
as the interest on it would remain the same, and the denomination of the public debt and to those at
quantity taken out of the market would be replaced and within reach of the seat of government. If the
by bank stock. subscriptions should be rapid, the distant holders
of paper would be excluded altogether.
The principal disadvantages consisted in, 1st.
banishing the precious metals, by substituting In making these remarks on the merits of the bill,
another medium to perform their office: This effect he had reserved to himself, he said, the right to
was inevitable. It was admitted by the most deny the authority of Congress to pass it. He had
enlightened patrons of banks, particularly by Smith entertained this opinion from the date of the
on The Wealth of Nations. The common answer to Constitution. His impression might perhaps be the
the objection was, that the money banished was only stronger because he well recollected that a power
an exchange for something equally valuable that to grant charters of incorporation had been
would be imported in return. He admitted the weight proposed in the general convention and rejected.
of this observation in general, but doubted whether,
in the present habits of this country, the returns Is the power of establishing an incorporated bank
would not be in articles of no permanent use to it. among the powers vested by the Constitution in
2d. Exposing the public and individuals to all the the legislature of the United States? This is the
evils of a run on the bank, which would be question to be examined.
particularly calamitous in so great a country as this,
and might happen from various causes, as false After some general remarks on the limitations of
rumours, bad management of the institution, an all political power, he took notice of the peculiar
unfavorable balance of trade from short crops, etc. manner in which the federal government is
limited. It is not a general grant, out of which
It was proper to be considered also that the most particular powers are excepted—it is a grant of
important of the advantages would be better particular powers only, leaving the general mass in
obtained by several banks properly distributed than other hands. So it had been understood by its
by a single one. The aids to commerce could only be friends and its foes, and so it was to be interpreted.
afforded at or very near the seat of the bank. The
same was true of aids to merchants in the payment As preliminaries to a right interpretation, he laid
of customs. Anticipations of the government would down the following rules:
An interpretation that destroys the very enumeration of particular powers; would
characteristic of the government cannot be just. supercede all the powers reserved to the state
governments. These terms are copied from the
Where a meaning is clear, the consequences, Articles of Confederation; had it ever been
whatever they may be, are to be admitted—where pretended that they were to be understood
doubtful, it is fairly triable by its consequences. otherwise than as here explained?

In controverted cases, the meaning of the parties to It had been said that “general welfare” meant
the instrument, if to be collected by reasonable cases in which a general power might be exercised
evidence, is a proper guide. by Congress without interfering with the powers
of the States; and that the establishment of a
Cotemporary and concurrent expositions are National Bank was of this sort. There were, he
reasonable evidence of the meaning of the parties. said, several answers to this novel doctrine.

In admitting or rejecting a constructive authority, 1. The proposed Bank would interfere so as


not only the degree of its incidentality to an express indirectly to defeat a State Bank at the same place.
authority is to be regarded, but the degree of its 2. It would directly interfere with the rights of the
importance also, since on this will depend the states to prohibit as well as to establish banks and
probability or improbability of its being left to the circulation of bank notes. He mentioned a law
construction. of Virginia, actually prohibiting the circulation of
notes payable to bearer. 3. Interference with the
Reviewing the Constitution with an eye to these power of the states was no constitutional criterion
positions, it was not possible to discover in it the of the power of Congress. If the power was not
power to incorporate a Bank. The only clauses under given, Congress could not exercise it; if given,
which such a power could be pretended, are either— they might exercise it, altho it should interfere
with the laws or even the constitution of the states.
1. The power to lay and collect taxes to pay the 4. If Congress could incorporate a Bank, merely
debts and provide for the common defence and because the act would leave the states free to
general welfare; Or, establish banks also, any other incorporations
might be made by Congress. They could
2. The power to borrow money on the credit of the incorporate companies of manufacturers, or
United States; Or, companies for cutting canals, or even religious
societies, leaving similar incorporations by the
3. The power to pass all laws necessary and proper states, like state banks, to themselves. Congress
to carry into execution those powers. might even establish religious teachers in every
parish and pay them out of the Treasury of the
The bill did not come within the first power. It laid United States, leaving other teachers unmolested
no tax to pay the debts, or provide for the general in their functions. These inadmissible
welfare. It laid no tax whatever. It was altogether consequences condemned the controverted
foreign to the subject. principle.

No argument could be drawn from the terms The case of the Bank established by the former
“common defence and general welfare.” The power Congress had been cited as a precedent. This was
as to these general purposes was limited to acts known, he said, to have been the child of
laying taxes for them; and the general purposes necessity. It never could be justified by the regular
themselves were limited and explained by the powers of the Articles of Confederation. Congress
particular enumeration subjoined. To understand betrayed a consciousness of this in recommending
these terms in any sense that would justify the to the states to incorporate the Bank also. They did
power in question would give to Congress an not attempt to protect the Bank Notes by penalties
unlimited power; would render nugatory the
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against counterfeiters. These were reserved wholly urged an attention to the diffuse and ductile terms
to the authority of the states. which had been found requisite to cover the
stretch of power contained in the bill. He
The second clause to be examined is that which compared them with the terms necessary and
empowers Congress to borrow money. proper, used in the Constitution, and asked
whether it was possible to view the two
Is this a bill to borrow money? It does not borrow a descriptions as synonimous, or the one as a fair
shilling. Is there any fair construction by which the and safe commentary on the other.
bill can be deemed an exercise of the power to
borrow money? The obvious meaning of the power If, proceeded he, Congress, by virtue of the power
to borrow money is that of accepting it from and to borrow, can create the means of lending, and in
stipulating payments to those who are able and pursuance of these means, can incorporate a Bank,
willing to lend. they may do any thing whatever creative of like
means.
To say that the power to borrow involves a power of
creating the ability, where there may be the will, to The East-India Company has been a lender to the
lend is not only establishing a dangerous principle, British government, as well as the Bank, and the
as will be immediately shewn, but is as forced a South-Sea Company is a greater creditor than
construction as to say that it involves the power of either. Congress then may incorporate similar
compelling the will, where there may be the ability, companies in the United States, and that too not
to lend. under the idea of regulating trade, but under that
of borrowing money.
The third clause is that which gives the power to
pass all laws necessary and proper to execute the Private capitals are the chief resources for loans to
specified powers. the British government. Whatever then may be
conceived to favor the accumulation of capitals
Whatever meaning this clause may have, none can may be done by Congress. They may incorporate
be admitted that would give an unlimited discretion manufactures. They may give monopolies in every
to Congress. branch of domestic industry.

Its meaning must, according to the natural and If, again, Congress by virtue of the power to
obvious force of the terms and the context, be borrow money can create the ability to lend, they
limited to means necessary to the end and incident may by virtue of the power to levy money create
to the nature of the specified powers. the ability to pay it. The ability to pay taxes
depends on the general wealth of the society, and
The clause is in fact merely declaratory of what this on the general prosperity of agriculture,
would have resulted by unavoidable implication, as manufactures and commerce. Congress then may
the appropriate, and as it were, technical means of give bounties and make regulations on all of these
executing those powers. In this sense it had been objects.
explained by the friends of the Constitution and
ratified by the state conventions. The states have, it is allowed on all hands, a
concurrent right to lay and collect taxes. This
The essential characteristic of the government, as power is secured to them not by its being
composed of limited and enumerated powers, would expressly reserved, but by its not being ceded by
be destroyed: If instead of direct and incidental the Constitution. The reasons for the bill cannot be
means, any means could be used which, in the admitted because they would invalidate that right;
language of the preamble to the bill, “might be why may it not be conceived by Congress that a
conceived to be conducive to the successful uniform and exclusive imposition of taxes would,
conducting of the finances; or might be conceived to not less than the proposed Banks, be conducive to
tend to give facility to the obtaining of loans.” He the successful conducting of the national finances,
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and tend to give facility to the obtaining of revenue, attention. This is not the character of any human
for the use of the government? work, particularly the work of a body of men. The
examples cited, with others that might be added,
The doctrine of implication is always a tender one. sufficiently inculcate nevertheless a rule of
The danger of it has been felt in other governments. interpretation very different from that on which
The delicacy was felt in the adoption of our own; the bill rests. They condemn the exercise of any
the danger may also be felt, if we do not keep close power, particularly a great and important power,
to our chartered authorities. which is not evidently and necessarily involved in
an express power.
Mark the reasoning on which the validity of the bill
depends. To borrow money is made the end and the It cannot be denied that the power proposed to be
accumulation of capitals implied as the means. The exercised is an important power.
accumulation of capitals is then the end and a bank
implied as the means. The bank is then the end and a As a charter of incorporation the bill creates an
charter of incorporation, a monopoly, capital artificial person previously not existing in law. It
punishments, etc. implied as the means. confers important civil rights and attributes which
could not otherwise be claimed. It is, though not
If implications thus remote and thus multiplied can precisely similar, at least equivalent to the
be linked together, a chain may be formed that will naturalization of an alien, by which certain new
reach every object of legislation, every object within civil characters are acquired by him. Would
the whole compass of political economy. Congress have had the power to naturalize if it had
not been expressly given?
The latitude of interpretation required by the bill is
condemned by the rule furnished by the constitution In the power to make bylaws, the bill delegated a
itself. sort of legislative power, which is unquestionably
an act of a high and important nature. He took
Congress have power “to regulate the value of notice of the only restraint on the bylaws, that they
money”; yet it is expressly added, not left to be were not to be contrary to the law and the
implied, that counterfeitors may be punished. constitution of the bank; and asked what law was
intended; if the law of the United States, the
They have the power “to declare war,” to which scantiness of their code would give a power never
armies are more incident than incorporated Banks to before given to a corporation—and obnoxious to
borrowing; yet is expressly added, the power “to the states, whose laws would then be superceded
raise and support armies”; and to this again, the not only by the laws of Congress, but by the
express power “to make rules and regulations for the bylaws of a corporation within their own
government of armies”; a like remark is applicable jurisdiction. If the law intended was the law of the
to the powers as to a navy. state, then the state might make laws that would
destroy an institution of the United States.
The regulation and calling out of the militia are
more appurtenant to war than the proposed bank to The bill gives a power to purchase and hold lands;
borrowing; yet the former is not left to construction. Congress themselves could not purchase lands
within a state “without the consent of its
The very power to borrow money is a less remote legislature.” How could they delegate a power to
implication from the power of war than an others which they did not possess themselves?
incorporated monopoly bank from the power of
borrowing—yet the power to borrow is not left to It takes from our successors, who have equal
implication. rights with ourselves, and with the aid of
experience will be more capable of deciding on
It is not pretended that every insertion or omission the subject, an opportunity of exercising that right
in the constitution is the effect of systematic for an immoderate term.
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It takes from our constituents the opportunity of He proceeded next to the cotemporary expositions
deliberating on the untried measure, although their given to the Constitution.
hands are also to be tied by it for the same term.
The defence against the charge founded on the
It involves a monopoly, which affects the equal want of a bill of rights presupposed, he said, that
rights of every citizen. the powers not given were retained and that those
given were not to be extended by remote
It leads to a penal regulation, perhaps capital implications. On any other supposition, the power
punishments, one of the most solemn acts of of Congress to abridge the freedom of the press, or
sovereign authority. the rights of conscience, etc. could not have been
disproved.
From this view of the power of incorporation
exercised in the bill, it could never be deemed an The explanations in the state conventions all
accessary or subaltern power, to be deduced by turned on the same fundamental principle, and on
implication, as a means of executing another power; the principle that the terms necessary and proper
it was in its nature a distinct, an independent and gave no additional powers to those enumerated.
substantive prerogative, which not being (Here he read sundry passages from the debates of
enumerated in the Constitution could never have the Pennsylvania, Virginia and North-Carolina
been meant to be included in it, and not being conventions, shewing the grounds on which the
included could never be rightfully exercised. Constitution had been vindicated by its principal
advocates against a dangerous latitude of its
He here adverted to a distinction which he said had powers, charged on it by its opponents.) He did
not been sufficiently kept in view, between a power not undertake to vouch for the accuracy or
necessary and proper for the government or union authenticity of the publications which he quoted—
and a power necessary and proper for executing the he thought it probable that the sentiments
enumerated powers. In the latter case, the powers delivered might in many instances have been
included in each of the enumerated powers were not mistaken or imperfectly noted; but the complexion
expressed, but to be drawn from the nature of each. of the whole, with what he himself and many
In the former, the powers composing the others must recollect, fully justified the use he had
government were expressly enumerated. This made of them.
constituted the peculiar nature of the government;
no power therefore not enumerated could be inferred The explanatory declarations and amendments
from the general nature of government. Had the accompanying the ratifications of the several
power of making treaties, for example, been states formed a striking evidence wearing the
omitted, however necessary it might have been, the same complexion. He referred those who might
defect could only have been lamented or supplied by doubt on the subject to the several acts of
an amendment of the Constitution. ratification.

But the proposed bank could not even be called The explanatory amendments proposed by
necessary to the government; at most it could be but Congress themselves, at least, would be good
convenient. Its uses to the government could be authority with them; all these renunciations of
supplied by keeping the taxes a little in advance— power proceeded on a rule of construction
by loans from individuals—by the other banks over excluding the latitude now contended for. These
which the government would have equal command, explanations were the more to be respected, as
nay greater, as it may grant or refuse to these the they had not only been proposed by Congress, but
privilege, made a free and irrevocable gift to the ratified by nearly three-fourths of the states. He
proposed bank, of using their notes in the federal read several of the articles proposed, remarking
revenue. particularly on the 11th and 12th: the former, as
guarding against a latitude of interpretation—the

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latter, as excluding every source of power not within The Secretary of the Treasury having perused with
the constitution itself. attention the papers containing the opinions of the
Secretary of State and Attorney General
With all this evidence of the sense in which the concerning the constitutionality of the bill for
Constitution was understood and adopted, will it not establishing a National Bank proceeds according
be said, if the bill should pass, that its adoption was to the order of the President to submit the reasons
brought about by one set of arguments and that it is which have induced him to entertain a different
now administered under the influence of another set; opinion.
and this reproach will have the keener sting, because
it is applicable to so many individuals concerned in It will naturally have been anticipated that, in
both the adoption and administration. performing this task, he would feel uncommon
solicitude. Personal considerations alone arising
In fine, if the power were in the Constitution, the from the reflection that the measure originated
immediate exercise of it cannot be essential—if not with him would be sufficient to produce it. The
there, the exercise of it involves the guilt of sense which he has manifested of the great
usurpation, and establishes a precedent of importance of such an institution to the successful
interpretation leveling all the barriers which limit administration of the department under his
the powers of the general government and protect particular care, and an expectation of serious ill
those of the state governments. If the point be consequences to result from a failure of the
doubtful only, respect for ourselves, who ought to measure, do not permit him to be without anxiety
shun the appearance of precipitancy and ambition; on public accounts. But the chief solicitude arises
respect for our successors, who ought not lightly to from a firm persuasion that principles of
be deprived of the opportunity of exercising the construction like those espoused by the Secretary
rights of legislation; respect for our constituents who of State and the Attorney General would be fatal
have had no opportunity of making known their to the just & indispensable authority of the United
sentiments and who are themselves to be bound States.
down to the measure for so long a period: all these
considerations require that the irrevocable decision In entering upon the argument it ought to be
should at least be suspended until another session. premised that the objections of the Secretary of
State and Attorney General are founded on a
It appeared on the whole, he concluded, that the general denial of the authority of the United States
power exercised by the bill was condemned by the to erect corporations. The latter indeed expressly
silence of the Constitution; was condemned by the admits that if there be anything in the bill which is
rule of interpretation arising out of the Constitution; not warranted by the Constitution, it is the clause
was condemned by its tendency to destroy the main of incorporation.
characteristic of the Constitution; was condemned
by the expositions of the friends of the Constitution Now it appears to the Secretary of the Treasury
whilst depending before the public; was condemned that this general principle is inherent in the very
by the apparent intention of the parties which definition of Government and essential to every
ratified the Constitution; was condemned by the step of the progress to be made by that of the
explanatory amendments proposed by Congress United States: namely—that every power vested in
themselves to the Constitution; and he hoped it a Government is in its nature sovereign and
would receive its final condemnation, by the vote of includes by force of the term a right to employ all
this house. the means requisite and fairly applicable to the
attainment of the ends of such power; and which
are not precluded by restrictions & exceptions
specified in the Constitution, or not immoral, or
Alexander Hamilton Opinion on the not contrary to the essential ends of political
Constitutionality of a National Bank society.
15 February 1791
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This principle in its application to Government in is this—where the authority of the government is
general would be admitted as an axiom. And it will general, it can create corporations in all cases;
be incumbent upon those who may incline to deny it where it is confined to certain branches of
to prove a distinction; and to shew that a rule which legislation, it can create corporations only in those
in the general system of things is essential to the cases.
preservation of the social order is inapplicable to the
United States. Here then as far as concerns the reasoning of the
Secretary of State & the Attorney General, the
The circumstances that the powers of sovereignty affirmative of the constitutionality of the bill
are in this country divided between the national and might be permitted to rest. It will occur to the
state governments does not afford the distinction President that the principle here advanced has
required. It does not follow from this that each of been untouched by either of them.
the portions of powers delegated to the one or to the
other is not sovereign with regard to its proper For a more complete elucidation of the point
objects. It will only follow from it that each has nevertheless, the arguments which they have used
sovereign power as to certain things, and not as to against the power of the government to erect
other things. To deny that the Government of the corporations, however foreign they are to the great
United States has sovereign power as to its declared & fundamental rule which has been stated, shall
purposes & trusts, because its power does not extend be particularly examined. And after shewing that
to all cases, would be equally to deny that the state they do not tend to impair its force, it shall also be
governments have sovereign power in any case, shewn that the power of incorporation incident to
because their power does not extend to every case. the government in certain cases does fairly extend
The tenth section of the first article of the to the particular case which is the object of the
Constitution exhibits a long list of very important bill.
things which they may not do. And thus the United
States would furnish the singular spectacle of a The first of these arguments is that the foundation
political society without sovereignty, or of a people of the Constitution is laid on this ground “that all
governed without government. powers not delegated to the United States by the
Constitution nor prohibited to it by the States are
If it would be necessary to bring proof to a reserved to the States or to the people,” whence it
proposition so clear as that which affirms that the is meant to be inferred that Congress can in no
powers of the federal government, as to its objects, case exercise any power not included in those
are sovereign, there is a clause of its Constitution enumerated in the Constitution. And it is affirmed
which would be decisive. It is that which declares that the power of erecting a corporation is not
that the Constitution and the laws of the United included in any of the enumerated powers.
States made in pursuance of it, and all treaties made
or which shall be made under their authority shall be The main proposition here laid down, in its true
the supreme law of the land. The power which can signification, is not to be questioned. It is nothing
create the Supreme law of the land, in any case, is more than a consequence of this republican
doubtless sovereign as to such case. maxim, that all government is a delegation of
power. But how much is delegated in each case is
This general & indisputable principle puts at once a question of fact to be made out by fair reasoning
an end to the abstract question—Whether the & construction upon the particular provisions of
United States have power to erect a corporation? the Constitution—taking as guides the general
that is to say, to give a legal or artificial capacity to principles & general ends of government.
one or more persons, distinct from the natural. For it
is unquestionably incident to sovereign power to It is not denied that there are implied as well as
erect corporations, and consequently to that of the express powers, and that the former are as
United States, in relation to the objects intrusted to effectually delegated as the latter. And for the sake
the management of the government. The difference of accuracy it shall be mentioned that there is
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another class of powers which may be properly concerning it. An incorporation seems to have
denominated resulting powers. It will not be been regarded as some great, independent,
doubted that if the United States should make a substantive thing—as a political end of peculiar
conquest of any of the territories of its neighbors, magnitude & moment; whereas it is truly to be
they would possess sovereign jurisdiction over the considered as a quality, capacity, or mean to an
conquered territory. This would rather be a result end. Thus a mercantile company is formed with a
from the whole mass of the powers of the certain capital for the purpose of carrying on a
government & from the nature of political society, particular branch of business. Here the business to
than a consequence of either of the powers specially be prosecuted is the end; the association in order
enumerated. to form the requisite capital is the primary mean.
Suppose that an incorporation were added to this;
But be this as it may, it furnishes a striking it would only be to add a new quality to that
illustration of the general doctrine contended for. It association; to give it an artificial capacity by
shews an extensive case in which a power of which it would be enabled to prosecute the
erecting corporations is either implied in or would business with more safety & convenience.
result from some or all of the powers vested in the
National Government. The jurisdiction acquired That the importance of the power of incorporation
over such conquered territory would certainly be has been exaggerated, leading to erroneous
competent to every species of legislation. conclusions, will further appear from tracing it to
its origin. The Roman law is the source of it,
To return—It is conceded, that implied powers are according to which a voluntary association of
to be considered as delegated equally with express individuals at any time or for any purpose was
ones. capable of producing it. In England, whence our
notions of it are immediately borrowed, it forms a
Then it follows that as a power of erecting a part of the executive authority, & the exercise of it
corporation may as well be implied as any other has been often delegated by that authority.
thing; it may as well be employed as an instrument Whence, therefore, the ground of the supposition
or mean of carrying into execution any of the that it lies beyond the reach of all those very
specified powers as any other instrument or mean important portions of sovereign power, legislative
whatever. The only question must be, in this as in as well as executive, which belong to the
every other case, whether the mean to be employed, government of the United States?
or in this instance the corporation to be erected, has
a natural relation to any of the acknowledged To this mode of reasoning respecting the right of
objects or lawful ends of the government. Thus a employing all the means requisite to the execution
corporation may not be erected by Congress for of the specified powers of the government, it is
superintending the police of the city of Philadelphia objected that none but necessary & proper means
because they are not authorized to regulate the are to be employed, & the Secretary of State
police of that city; but one may be erected in maintains that no means are to be considered as
relation to the collection of the taxes, or to the trade necessary but those without which the grant of the
with foreign countries, or to the trade between the power would be nugatory. Nay so far does he go
states, or with the Indian Tribes, because it is the in his restrictive interpretation of the word as even
province of the federal government to regulate those to make the case of necessity which shall warrant
objects & because it is incident to a general the constitutional exercise of the power to depend
sovereign or legislative power to regulate a thing to on casual & temporary circumstances, an idea
employ all the means which relate to its regulation which alone refutes the construction. The
to the best & greatest advantage. expediency of exercising a particular power, at a
particular time, must indeed depend on
A strange fallacy seems to have crept into the circumstances; but the constitutional right of
manner of thinking & reasoning upon the subject. exercising it must be uniform & invariable—the
Imagination appears to have been unusually busy same today as tomorrow.
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All the arguments therefore against the would be nugatory. There are few measures of any
constitutionality of the bill derived from the government which would stand so severe a test. To
accidental existence of certain state-banks, insist upon it would be to make the criterion of the
institutions which happen to exist today, & for ought exercise of any implied power a case of extreme
that concerns the government of the United States, necessity; which is rather a rule to justify the
may disappear tomorrow, must not only be rejected overleaping of the bounds of constitutional
as fallacious, but must be viewed as demonstrative authority than to govern the ordinary exercise of
that there is a radical source of error in the it.
reasoning.
It may be truly said of every government, as well
It is essential to the being of the national as of that of the United States, that it has only a
government that so erroneous a conception of the right to pass such laws as are necessary & proper
meaning of the word necessary should be exploded. to accomplish the objects intrusted to it. For no
government has a right to do merely what it
It is certain that neither the grammatical nor popular pleases. Hence by a process of reasoning similar
sense of the term requires that construction. to that of the Secretary of State, it might be proved
According to both, necessary often means no more that neither of the state governments has a right to
than needful, requisite, incidental, useful, or incorporate a bank. It might be shewn that all the
conducive to. It is a common mode of expression to public business of the state could be performed
say that it is necessary for a government or a person without a bank, and inferring thence that it was
to do this or that thing when nothing more is unnecessary it might be argued that it could not be
intended or understood than that the interests of the done, because it is against the rule which has been
government or person require, or will be promoted, just mentioned. A like mode of reasoning would
by the doing of this or that thing. The imagination prove that there was no power to incorporate the
can be at no loss for exemplification of the use of inhabitants of a town, with a view to a more
the word in this sense. perfect police: For it is certain that an
incorporation may be dispensed with, though it is
And it is the true one in which it is to be understood better to have one. It is to be remembered that
as used in the Constitution. The whole turn of the there is no express power in any state constitution
clause containing it indicates that it was the intent of to erect corporations.
the convention by that clause to give a liberal
latitude to the exercise of the specified powers. The The degree in which a measure is necessary can
expressions have peculiar comprehensiveness. They never be a test of the legal right to adopt it. That
are—“to make all laws, necessary and proper for must ever be a matter of opinion; and can only be
carrying into execution the foregoing powers & all a test of expediency. The relation between the
other powers vested by the constitution in the measure and the end, between the nature of the
government of the United States, or in any mean employed towards the execution of a power
department or officer thereof.” To understand the and the object of that power, must be the criterion
word as the Secretary of State does would be to of constitutionality, not the more or less of
depart from its obvious & popular sense, and to give necessity or utility.
it a restrictive operation; an idea never before
entertained. It would be to give it the same force as The practice of the government is against the rule
if the word absolutely or indispensably had been of construction advocated by the Secretary of
prefixed to it. State. Of this the act concerning light houses,
beacons, buoys & public piers is a decisive
Such a construction would beget endless uncertainty example. This doubtless must be referred to the
& embarassment. The cases must be palpable & power of regulating trade, and is fairly relative to
extreme in which it could be pronounced with it. But it cannot be affirmed that the exercise of
certainty that a measure was absolutely necessary, or that power, in this instance, was strictly necessary;
one without which the exercise of a given power
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or that the power itself would be nugatory without mentioned, that relating to light houses, etc. That
that of regulating establishments of this nature. which declares the power of the President to
remove officers at pleasure acknowledges the
This restrictive interpretation of the word necessary same truth in another and a signal instance.
is also contrary to this sound maxim of construction:
namely, that the powers contained in a constitution The truth is that difficulties on this point are
of government, especially those which concern the inherent in the nature of the federal constitution.
general administration of the affairs of a country, its They result inevitably from a division of the
finances, trade, defence, etc. ought to be construed legislative power. The consequence of this
liberally in advancement of the public good. This division is that there will be cases clearly within
rule does not depend on the particular form of a the power of the National Government; others
government or on the particular demarkation of the clearly without its power; and a third class, which
boundaries of its powers, but on the nature and will leave room for controversy & difference of
objects of government itself. The means by which opinion, & concerning which a reasonable latitude
national exigencies are to be provided for, national of judgment must be allowed.
inconveniencies obviated, national prosperity
promoted, are of such infinite variety, extent and But this doctrine which is contended for is not
complexity, that there must, of necessity, be great chargeable with the consequence imputed to it. It
latitude of discretion in the selection & application does not affirm that the national government is
of those means. Hence, consequently, the necessity sovereign in all respects, but that it is sovereign to
& propriety of exercising the authorities intrusted to a certain extent: that is, to the extent of the objects
a government on principles of liberal construction… of its specified powers.
.
It leaves therefore a criterion of what is
But while, on the one hand, the construction of the constitutional and of what is not so. This criterion
Secretary of State is deemed inadmissible, it will not is the end to which the measure relates as a mean.
be contended on the other that the clause in question If the end be clearly comprehended within any of
gives any new or independent power. But it gives an the specified powers, & if the measure have an
explicit sanction to the doctrine of implied powers, obvious relation to that end, and is not forbidden
and is equivalent to an admission of the proposition by any particular provision of the constitution—it
that the government, as to its specified powers and may safely be deemed to come within the compass
objects, has plenary & sovereign authority, in some of the national authority. There is also this further
cases paramount to that of the states, in others criterion which may materially assist the decision.
coordinate with it. For such is the plain import of the Does the proposed measure abridge a preexisting
declaration that it may pass all laws necessary & right of any state, or of any individual? If it does
proper to carry into execution those powers. not, there is a strong presumption in favour of its
constitutionality; & slighter relations to any
It is no valid objection to the doctrine to say that it is declared object of the Constitution may be
calculated to extend the powers of the general permitted to turn the scale… .
government throughout the entire sphere of state
legislation. The same thing has been said and may There are two points in the suggestions of the
be said with regard to every exercise of power by Secretary of State which have been noted that are
implication or construction. The moment the literal peculiarly incorrect. One is that the proposed
meaning is departed from, there is a chance of error incorporation is against the laws of monopoly,
and abuse. And yet an adherence to the letter of its because it stipulates an exclusive right of banking
powers would at once arrest the motions of the under the national authority. The other that it gives
government. It is not only agreed, on all hands, that power to the institution to make laws paramount to
the exercise of constructive powers is indispensable, those of the states.
but every act which has been passed is more or less
an exemplification of it. One has been already
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But with regard to the first point, the bill neither was disagreed to because it was thought improper
prohibits any state from erecting as many banks as to vest in Congress a power of erecting
they please, nor any number of individuals from corporations—others, because it was thought
associating to carry on the business, & consequently unnecessary to specify the power, and inexpedient
is free from the charge of establishing a monopoly: to furnish an additional topic of objection to the
for monopoly implies a legal impediment to the Constitution. In this state of the matter, no
carrying on of the trade by others than those to inference whatever can be drawn from it.
whom it is granted.
But whatever may have been the nature of the
And with regard to the second point, there is still proposition or the reasons for rejecting it
less foundation. The bylaws of such an institution as concludes nothing in respect to the real merits of
a bank can operate only upon its own members; can the question. The Secretary of State will not deny
only concern the disposition of its own property; that whatever may have been the intention of the
and must essentially resemble the rules of a private framers of a constitution, or of a law, that intention
mercantile partnership. They are expressly not to be is to be sought for in the instrument itself,
contrary to law; and law must here mean the law of according to the usual & established rules of
a state as well as of the United States. There never construction. Nothing is more common than for
can be a doubt that a law of the corporation, if laws to express and effect more or less than was
contrary to a law of a state, must be overruled as intended. If then a power to erect a corporation, in
void; unless the law of the state is contrary to that of any case, be deducible by fair inference from the
the United States; and then the question will not be whole or any part of the numerous provisions of
between the law of the state and that of the the Constitution of the United States, arguments
corporation, but between the law of the state and drawn from extrinsic circumstances, regarding the
that of the United States. intention of the convention, must be rejected… .

Another argument made use of by the Secretary of It is presumed to have been satisfactorily shewn in
State is the rejection of a proposition by the the course of the preceding observations
convention to empower Congress to make
corporations, either generally, or for some special 1. That the power of the government as to the
purpose. objects intrusted to its management is in its nature
sovereign.
What was the precise nature or extent of this
proposition, or what the reasons for refusing it, is 2. That the right of erecting corporations is one
not ascertained by any authentic document, or even inherent in & inseparable from the idea of
by accurate recollection. As far as any such sovereign power.
document exists, it specifies only canals. If this was
the amount of it, it would at most only prove that it 3. That the position that the government of the
was thought inexpedient to give a power to United States can exercise no power but such as is
incorporate for the purpose of opening canals, for delegated to it by its constitution does not militate
which purpose a special power would have been against this principle.
necessary; except with regard to the Western
Territory, there being nothing in any part of the 4. That the word necessary in the general clause
Constitution respecting the regulation of canals. It can have no restrictive operation, derogating from
must be confessed, however, that very different the force of this principle, indeed, that the degree
accounts are given of the import of the proposition in which a measure is or is not necessary cannot
and of the motives for rejecting it. Some affirm that be a test of constitutional right, but of expediency
it was confined to the opening of canals and only.
obstructions in rivers; others, that it embraced
banks; and others, that it extended to the power of 5. That the power to erect corporations is not to be
incorporating generally. Some again alledge that it considered as an independent & substantive power
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but as an incidental & auxiliary one; and was payable on demand to be receivable in its
therefore more properly left to implication than revenues, & stipulates that it shall not grant
expressly granted. privileges similar to those which are to be allowed
to this company to any others. All this is
6. That the principle in question does not extend the incontrovertibly within the compass of the
power of the government beyond the prescribed discretion of the government. The only question is,
limits, because it only affirms a power to whether it has a right to incorporate this company
incorporate for purposes within the sphere of the in order to enable it the more effectually to
specified powers. accomplish ends which are in themselves lawful.

And lastly that the right to exercise such a power, in To establish such a right, it remains to shew the
certain cases, is unequivocally granted in the most relation of such an institution to one or more of the
positive & comprehensive terms. specified powers of the government.

To all which it only remains to be added that such a Accordingly it is affirmed that it has a relation
power has actually been exercised in two very more or less direct to the power of collecting
eminent instances: namely in the erection of two taxes; to that of borrowing money; to that of
governments, One, northwest of the river Ohio, and regulating trade between the states; and to those of
the other southwest—the last, independent of any raising, supporting & maintaining fleets & armies.
antecedent compact. To the two former, the relation may be said to be
immediate.
And there results a full & complete demonstration
that the Secretary of State & Attorney General are And, in the last place, it will be argued that it is,
mistaken when they deny generally the power of the clearly, within the provision which authorizes the
national government to erect corporations. making of all needful rules & regulations
concerning the property of the United States, as
It shall now be endeavored to be shewn that there is the same has been practiced upon by the
a power to erect one of the kind proposed by the government.
bill. This will be done by tracing a natural &
obvious relation between the institution of a bank A Bank relates to the collection of taxes in two
and the objects of several of the enumerated powers ways; indirectly, by increasing the quantity of
of the government; and by shewing that, politically circulating medium & quickening circulation,
speaking, it is necessary to the effectual execution of which facilitates the means of paying—directly, by
one or more of those powers. In the course of this creating a convenient species of medium in which
investigation, various instances will be stated by they are to be paid… .
way of illustration of a right to erect corporations
under those powers. A Bank has a direct relation to the power of
borrowing money, because it is a usual and in
Some preliminary observations may be proper. sudden emergencies an essential instrument in the
obtaining of loans to government.
The proposed bank is to consist of an association of
persons for the purpose of creating a joint capital to A nation is threatened with a war. Large sums are
be employed, chiefly and essentially, in loans. So far wanted, on a sudden, to make the requisite
the object is not only lawful, but it is the mere preparations. Taxes are laid for the purpose, but it
exercise of a right which the law allows to every requires time to obtain the benefit of them.
individual. The Bank of New York, which is not Anticipation is indispensable. If there be a bank,
incorporated, is an example of such an association. the supply can at once be had; if there be none
The bill proposes in addition that the government loans from individuals must be sought. The
shall become a joint proprietor in this undertaking, progress of these is often too slow for the
and that it shall permit the bills of the company exigency; in some situations they are not
12
practicable at all. Frequently, when they are, it is of In all questions of this nature the practice of
great consequence to be able to anticipate the mankind ought to have great weight against the
product of them by advances from a bank… . theories of individuals.

The institution of a bank has also a natural relation The fact, for instance, that all the principal
to the regulation of trade between the states: in so commercial nations have made use of trading
far as it is conducive to the creation of a convenient corporations or companies for the purposes of
medium of exchange between them, and to the external commerce is a satisfactory proof that the
keeping up a full circulation by preventing the establishment of them is an incident to the
frequent displacement of the metals in reciprocal regulation of that commerce.
remittances. Money is the very hinge on which
commerce turns. And this does not mean merely This other fact, that banks are an usual engine in
gold & silver; many other things have served the the administration of national finances, & an
purpose with different degrees of utility. Paper has ordinary & the most effectual instrument of loans,
been extensively employed… . & one which in this country has been found
essential, pleads strongly against the supposition
Illustrations of this kind might be multiplied without that a government clothed with most of the most
end. They shall, however, be pursued no further. important prerogatives of sovereignty in relation
to the revenues, its debts, its credit, its defense, its
There is a sort of evidence on this point arising from trade, its intercourse with foreign nations—is
an aggregate view of the Constitution, which is of forbidden to make use of that instrument as an
no inconsiderable weight. The very general power of appendage to its own authority… .
laying & collecting taxes & appropriating their
proceeds—that of borrowing money indefinitely— It is presumed, that nothing of consequence in the
that of coining money & regulating foreign coins— observations of the Secretary of State and
that of making all needful rules and regulations Attorney General has been left unnoticed.
respecting the property of the United States—these
powers combined, as well as the reason & nature of There are indeed a variety of observations of the
the thing speak strongly this language: That it is the Secretary of State designed to shew that the
manifest design and scope of the Constitution to utilities ascribed to a bank in relation to the
vest in Congress all the powers requisite to the collection of taxes and to trade could be obtained
effectual administration of the finances of the without it, to analyse which would prolong the
United States. As far as concerns this object, there discussion beyond all bounds. It shall be forborne
appears to be no parsimony of power. for two reasons—first because the report
concerning the Bank may speak for itself in this
To suppose, then, that the government is precluded respect; and secondly, because all those
from the employment of so usual as well as so observations are grounded on the erroneous idea
important an instrument for the administration of its that the quantum of necessity or utility is the test
finances as that of a bank, is to suppose what does of a constitutional exercise of power… .
not coincide with the general tenor & complexion of
the Constitution, and what is not agreeable to Source: The Online Library of Liberty (a project
impressions that any mere spectator would entertain of the Liberty Fund):
concerning it. Little less than a prohibitory clause http://oll.libertyfund.org/index.php
can destroy the strong presumptions which result
from the general aspect of the government. Nothing
but demonstration should exclude the idea that the
power exists.

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