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THE SECRETARY OF THE TREASURY, having perused with attention the papers containing the opinion of the secretary of state and attorney general concerning the constitutionality of the bill for establishing a national bank, proceeds, according to the order of the President, to submit the reasons which have induced him to entertain a different opinion... In entering upon the argument, it ought to be premised that the objections of the secretary of state and attorney general are founded on a general denial of the authority of the United States to erect corporations. The latter, indeed expressly admits that if there be anything in the bill which is not warranted by the Constitution, it is the clause of incorporation. Now it appears to the secretary of the treasury that this general principle is INHERENT in the very DEFINITION of government and ESSENTIAL to every step of the progress to be made by that of the United States, namely: that every power vested in a government is in its nature soverign and includes, by force of the term, a right to employ all the MEANS requisite and fairly applicable to the attainment of the ENDS of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or contrary to the essential ends of political society... The circumstance that the powers of sovereignty are in this country divided between the national and state governments does not afford the distinction required. It does not follow from this that each of the portion of powers delegated to the one or to the other is not soverign with regard to its proper objects. It will only follow from it that each has sovereign power as to certain things and not as to other things. To deny that the government of the United States has sovereign power as to its declared purposes and trusts, because its power does not extend to all cases, would be equally to deny that the state governments have sovereign power in any case, because their power does not extend to every case. The 10th section of the 1st Article of the Constitution exhibits a long list of very important things which they may not do. And thus the United States would furnish the singular spectacle of a political society without soveriegnty, or of a people governed without government. If it would be necessary to bring proof to a proposition so clear as that which affirms that the powers of the the federal government, as to its objects, were sovereign, there is a clause of its Constitution which would be decisive. It is 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 to such case. This general and indisputable principle puts at once an end to the abstract question whether the United States have power to erect a corporation; that is to say, to give a legal or artificial capacity to one or more persons, distinct from the natural. For it is unquestionably incident to sovereign power to erect corporations, and consequently to that of the United States, in relation to the objects entrusted to the management of the government. The difference is this: where the authority of the government is general, it can create corporations in all cases; where it is confined to certain branches of legislation, it can create corporations only in those cases. Here then, as far as concerns the reasonings of the secretary of state and the attorney general, the affirmative of the constitutionality of the bill might be permitted to rest. It will occur to the President that the principle here advanced has been untouched by either of them. For a more complete elucidation of the point, nevertheless, the arguments which they had used against the power of the government to erect corporations, however foreign they are to the great and fundamental rule which has been stated, shall be particularly examined.... The first of these arguments is that the foundation of the Constitution is laid on this ground: "that all powers not delegated to the United States by the Constitution, nor prohibited to it by the states, are reserved for the states, or to the people," Whence it is meant to be inferred that Congress can in no case exercise any power not included in those not enumerated in the Constitution. And it is affirmed that the power of erecting a corporation is not included in any of the enumerated powers.... It is not denied that there are implied as well as express powers and that the former are as effectually delegated as the latter....Then it follows that as a power of erecting a corporation may as well be implied as any other thing, it may as well be employed as an instrument or mean of carrying into execution any of the specified powers as any other instrument or mean whatever. The only question must be, in this, as in every other case, whether the mean to be employed or, in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city. But one may be erected in relation to the collection of taxes, or to trade with foreign countries, or to trade between the states, or with Indian tribes; because it is the province of the federal government to regulate those objects, and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage. Through this mode of reasoning respecting the right of employing all the means requisite to the execution of the specified powers of the government, it is objected that none but necessary and proper means are to be employed; and the secretary of the state maintains that no means are to be considered as NECESSARY but those without which the grant of the power would be be nugatory. Nay, so far does he go in his restrictive interpretation of the WORD as even to make the case of the NECESSITY which shall warrant the constitutional exercise of the power to depend on casual and temporary circumstances - an idea which alone refutes the construction. The expediency of exercising a particular power at a particular time, must, indeed, depend on circumstances; but the constitutional right of exercising it must be uniform and invariable, the same today as tomorrow. All the arguments, therefore, against the constitutionality of the bill derived from the accidental existence of certain state banks -- institutions which happen to exist today and, for aught that concerns the government of the United States, may disappear tommorow -- must not only be rejected as fallicous but must be viewed as demonstrative that there is a radical source of error in the reasoning. It is essential to the being of the national government that so erroneous a conception of the meaning of the word "necessary" should be exploded. Its is certain that neither a grammatical nor popular sense of the term requires that construction. According to both, "necessary" often means no more than needfull, requisite, incidental, usefull, or conductive to. It is a common mode of expression to say that it is NECESARY for a government or a person to do this or that thing, when nothing more is intended or understood than than that the interests of the government or person require, or will be promoted by, the doing this or that thing. The imagination can be at no loss for the exemplifications of the true one in which it is to be understood as used in the Constitution. The whole turn of the clause containing it indicates that it was the intent of the Convention by that clause, to give a liberal latitude to the exercise of the specified powers. The experessions have peculiar comprehensiveness. The are, "to make all laws necessary and proper for carrying into 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." To understand the word as the secretary of state does would be to depart from its obvious and popular sense and to give it a restrictive operation, an idea never before entertained. It would be to give it the same force as if the word "absolutely" or "indispensably" had been prefixed to it....To insist upon it would be to make the criterion on of the exercise of any implied power a CASE OF EXTREME NECESSITY: which is rathe a rule to justify the overleaping of the bounds of constitutional authority than to govern the ordinary exercise of it. It may he truly said of every government, as well as that of the United States, that it has only a right to pass such laws as are necessary and proper to accomplish the objects entrusted to it; for no government has a right to do MERELY WHAT IT PLEASES. Hence, by a process of reasoning similar to that of the secretary of state, it might be proved that neither of the state governments has a right to incorporate a bank. It might be shown that all the public business of the state could be performed without a bank, and inferring thence it was unnecessary, it might be argued that it could not be done, because it is against the rule which has been just mentioned. A like mode of reasoning would prove that there was no power to incorporate the inhabitants of a town, with a view to a more perfect police. For it is certain that an incorporation may be dis-pensed with, though it is better to have one. It is to he remembered that there is no EXPRESS power in any state constitution to erect corporations.... This restrictive interpretation of the word "necessary" is also contrary to this sound maxim of construction; namely, that the powers contained in a constitution of government, especially those which concern the general administration of the affairs of a country, its finances, trade, defense, etc., ought to be construed liberally in advancement of the public good. This rule does not depend on the particular form of a government, or on the particular demarcation of the boundaries of its powers, but on the nature and objects of government itself. The means by which national exigencies are to be provided for, national inconveniences obviated, national prosperity promoted, are of such infinite variety, extent, and complexity that there must of necessity be great latitude of discretion in the selection and application of those means. Hence, consequently, the necessity and propriety of exercising the authorities entrusted to a government on principles of liberal construction. . . . The truth is that difficulties on this point are inherent in the nature of the federal Constitution; they result inevitably from a division of the legislative power. The consequence of this division is that there will be cases clearly within the power of the national government; others, clearly without its powers; and a third class which will leave room for controversy and difference of opinion, and concerning which a reasonable latitude of judgment must be allowed. But the doctrine which is contended for is not chargeable with the consequences imputed to it. It does not affirm that the national government is sovereign in all respects but that it is sovereign to a certain extent; that is, to the extent of the objects of its specified powers. It leaves, therefore, a criterion of what is constitutional and of what is not so. This criterion is the END to which the measure relates as a MEAN. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by a particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion, which may materially assist the decision: Does the proposed measure abridge a preexisting right of any state or of any individual? If it does not, there is a strong presumption in favor of its constitutionality, and slighter relations to any declared object of the Constitution may be permitted to turn the scale. . . . There are two points in the suggestions of the secretary of state . . . that are peculiarly incorrect. One is that the proposed incorporation is against the laws of monopoly, because it stipulates an exclusive right of banking under the national authority; the other, that it gives power to the institution to make laws paramount to those of the states. But, with regard to the first point: The bill neither prohibits any state from erecting as many banks as they please, nor any number of individuals from associating to carry on the business, and consequently, is free from the charge of establishing a monopoly; for monopoly implies a legal impediment to the carrying on of the trade by others than those to whom it is granted. And with regard to the second point, there is still less foundation. The bylaws of such an institution as a bank can operate only on its own members can only concern the disposition of its own property, and must essentially resemble the rules of a private mercantile partnership. They are expressly not to be contrary to law; and law must here mean the law of a state as well as of the United States. There never can be a doubt that a law of a corporation, if contrary to a law of a state, must be overruled as void, unless the law of the state is contrary to that of the United States, and then the question will not be between the law of the state and that of the corporation, but between the law of the state and that United States. . . . It is presumed to have been satisfactorily shown in the course of the preceding observations: 1. That the power of the government, as to the objects entrusted to its ment, is, in its nature, sovereign. 2. That the right of erecting corporations is one inherent in, and inseparable from, the idea of sovereign power. 3. That the position that the government of the United States can exercise no power but such as is delegated to it by its Constitution does not militate against this principIe. 4. That the word "necessary", in general clause, can have no restrictive operation derogating from the force of this principle; indeed, that the degree in which a measure is or is not necessary cannot be a test of constitutional right but of expediency only. 5. That the power to erect corporations is not to be considered as an independent or substantive power but as an incidental and auxiliary one and was therefore more properly left to implication than expressly granted. 6. That the principle in question does not extend the power of the government beyond the prescribed limits, because only affirms a power to incorporate for purposes within the sphere of the specified powers. And, lastly, that the right to exercise such a power in certain cases is unequivocally granted in the most positive and comphensive terms... It shall now be endeavored to be shown that there is a power to erect one of the kind proposed by the bill. This will be done by tracing a natural and obvious relation between the institution of a bank and objects of several of the enumerated powers of the government; and by showing that, politically speaking, it is necessary to the effectual execution of one or more pf those powers.... The proposed bank is to consist of an association of persons, for the purpose of creating a joint capital, to be emploted chiefly and essentially in loans. So far the object is not only lawful but it is the mere exercise of a right which the law allows to every individual. The Bank of New York, which is not incorporated, is an example of such an association. The bill proposes, in addition, that the government shall become a joint proprietor in this undertaking, and that it shall permit the bills of the company, payable on demand, to be recievable in its revenues; and stipulates that it shall not grant priveleges, similar to those which are to be allowed to the company, to any others. All this is incontrovertably within the compass of the discretion of the government. The only question is, whether it has a right to incorporate this company in order to enable it the more effectually to accomplish ends which are in themselves lawful. To establish such a right, it remains to show the relation of such an institution to show the relation of such an institution to one or more of the specified powers of the government. Accordingly, it is affirmed that it has a relation, more or less direct, to the power of collecting taxes, to that of borrowing money, to that of regulating trade between the states, and to those of raising and maintaining fleets and armies. To the two former the relation may be said to be immediate; and in the last place it will be argued that it is clearly within the provision which authorizes the making of all needful rules and regulations concerning the property of the United States, as the same has been proctised upon by the government. A bank relates to the collection of taxes in two ways -- indirectly, by increasing the quantity of circulating medium and quickening circulation, which facilitates the means of paying directly, by creating a convient species of medium in which they are to be paid. To designate or appoint the MONEY or THING in which taxes are to be paid is not only a proper but a NECESSARY EXERCISE of the power of collecting them.... The appointment, then ,of the MONEY or THING in which the taxes are to be paid is an incident to the power of collection. And among the expedients which may be adopted is that of bills issied under the authority of the United States.... A bank has a direct relation to the power of borrowing money, because it is a usual and in sudden emergencies an essential, instrument in the obtaining of loans to government.... The essentiality of such an institution as an instument of loans is exemplified at this very moment. An Indian expedition is to be prosecuted. The only fund out of which the money can arise, consistently with the public engagements, is a tax, which only begins to be collected in July next. The preparations, however, are instantly to be made. The money must therefore, be borrowed -- and of whom could it be 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. Let it then be supposed that the necessity existed (as but a casualty would be the case); that proposals were made for obtaining a loan; that a number of individuals came forward and said, "We are willing to accomodate the government with the money; with what we have in hand, and the credit we can raise upon it, we doubt not of being able to furnish the sum required, but in order to do this it is indispensable that we should be incorporated as a bank. This is essential toward putting it in our power to do what is desired and we are obliged on that account to make it the consideration or condition of the loan" Can it be believed that a compliance with this proposition would be unconstitutional? Does not this alone evince the contrary?.... The institution of a bank has also a natural relation to the regulation of trade between the states, insofar as it is conducive to the creation of a convenient medium of exchange between them, and to the keeping up a full circulation, by preventing the frequent displacement of the metals in reciprocal remittances. Money is the very hinge on which commerce turns. And this does not merely mean gold and silver; many other things have served the purpose, with different degrees of utility. Paper has been extensively employed. It cannot, therefore, be admitted with the attorney general that the regulation of trade between the states, as concerns the medium of circulation and exchange, ought to be considered as confine to coin.... The secretary of state objects to the relation here insisted upon, by the following mode of reasoning: To erect a bank, say he, and to regulate commerce are very different acts. He who creates a bank, creates a subject of commerce; so does he who makes a bushel of wheat, or digs a dollar out of the mines; yet neither of these persons regulate commerce thereby. To make thing which may be bought and sold is not to prescribe regulations for buying and selling. The secretary of state further argues that if this was a regulation of commerce, it would be void, as extending as much to the internal commerce of every state as to its external. But what regulation of commerc does not extend to the internal commerc of every state? What are all the duties upon imported articles, amounting to prohibitions, but so many bounties upon domesti manufactures, affecting the interests of different classes of citizens in different ways? What are all the provisions in the Coasting Act which relate to the trade between district and district of the same state? In short what regulation of trade between the states but must affect the internal trade of each state? What can operate upon the whole but must extend to every part? The relation of a bank to the execution of the powers that concern the common defense has been anticipated. It has been noted that, at this very moment, the aid of such an institution is essential to the measures to be pursued for the protection of our frontiers. It now remains to show that the incorporation of a bank is within the operation of the provision which authorizes Congress to make all needful rules and regulations concerning the property of the United States. But it is previously necessary to advert to a distinction which has been taken by the attorney general. He admits that the word "property" may signify personal property, however acquired, and yet asserts that it cannot signify money arising from the sources of revenue pointed out in the Constitution, "because," says he, "the disposal and regulation of money is the final cause for raising it by taxes." But it would be more accurate to say that the object to which money is intended to be applied is the final cause for raising it than that the disposal and regulation of it a such. The support of government the support of troops. for the common defense the payment of the public debt, are the true final causes for raising money. The disposition and regulation of it, when raised, are the steps by which it is applied to the ends for which it was raised, not the'ends themselves. Hence, therefore, the money to be raised by taxes, as well as any other persoal property, must be supposed to come within the meaning, as they certainly do within the letter, of authority to make all needful rules and regulations concerning property of the United States.... A hope is entertained that it has, by this time, been made to appear, to the satisfaction of the President, that a bank has a natural relation to the power of collecting taxes -- to that of regulating trade -- to that of providing for the common defense -- and that, as the bill under consideration contemplates the government in the light of a joint proprietor of the stock of the bank, it brings the case within the provision of the clause of the Constitution which immediately respects the property of the United States. Under a conviction that such a relation subsists, the secretary of the treasury, with all defence, concieves that it will result as a necessary consequence from the position that all the specified powers of government are sovereign, as to the proper objects; that the incorporation of a bank is a constitutional measure; and that the objections taken to the bill, in this respect, are ill-founded.... It has been stated as an auxiliary test of constitutional authority to try whether it abridges any preexisting right of any state, or any individual. The proposed investigation will stand the most severe examination on this point. Each state may still erect as many banks as it pleases. Every individual may still carry on the banking business to any extent he pleases. Sources: Works of Alexander Hamilton, IV, pp 104-138, Annals of America Vol 3 Sel 91. Notes: President George Washington Secretary of State Thomas Jefferson Attorney General Edmund Jennings Randolph Secretary of Treasury Alexander Hamilton
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