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One of the fundamental articles of the incorporation was, that no loan should be made to the United States for more than one hundred thousand dollars, or to any particular state for more than fifty thousand, or to any foreign Prince or state, unless previously authorized by a law of the United States. The books were opened for subscriptions in July, 1791, and a much larger sum subscribed than was allowed by the charter; and the bank went into successful operation. This measure was not adopted without warm and violent debates.
It was said in opposition, in the first place, that Congress had no power, under the constitution, to create this or any other corporation; in the second place, that so large a moneyed institution would, in its effects, be highly injurious to the community. Its advocates, on the other hand, contended, generally, that the establishment of an institution of this kind, though not within the express words of the constitution, was among the incidental powers contemplated by that part of the instrument which enabled Congress to make all laws necessary and proper for carrying into execution the powers expressly granted.
The President, before approving the bill, requested the opinions of the members of his cabinet, in writing, as to its constitutionality. The Secretary of State, and Attorney General, were of opinion, that the bill was anconstitutional, while the Secretaries of the Treasury, and War, were of a different opinion, and concurred with the majority in Congress. Mr. Jefferson was de cidedly and warmly opposed to this institution, not only on account of its unconstitutionality, but on account of the danger to be apprehended to government from the
exorbitancy of its power, and the injury which it might inflict on community. The following is his official opinion on the constitutional question:
“ The bill for establishing a national bank, undertakes, among other things,
1. To form the subscribers into a corporation.
2. To enable them, in their corporate capacities, to receive grants of land; and so far, is against the laws of Mortmain.
3. To make alien subscribers capable of holding lands; and so far, is against the laws of Alienage.
4. To transmit these lands, on the death of a proprietor, to a certain line of successors; and so far, changes the course of Descents.
5. To put the lands out of the reach of forfeiture and escheat; and so far, is against the laws of Forfeiture. and Escheat.
6. To transmit personal chattels to successors in a certain line; and so far, is against the laws of Distri: bution.
7. To give them the sole and exclusive right of banking under the national authority; and so far, is against the laws of Monopoly.
8. To communicate to them a power to make laws paramount to the laws of the states; for so they must be construed, to protect the institution from the control of the state legislatures; and so, probably, they will be construed.
I consider the foundation of the constitution as laid on this ground, that all powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states or to the people.'
(Twelfth amendment.) To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.
The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States by the constitution.
I. They are not among the powers specially enumerated.
For these are, 1. A power to lay taxes for the purpose of paying the debts of the United States. But no debt is paid by this bill, nor any tax laid. Were it a bill to raise money, its origination in the Senate would condemn it by the constitution.
2. To • borrow money. But this bill neither borrows money, nor ensures the borrowing it. The proprietors of the bank will be just as free as any other money-holders, to lend or not to lend their money to the publick. The operation proposed in the bill, first to lend them two millions, and then borrow them back agaiņ, cannot change the nature of the latter act, which will still be a payment and not a loan, call it by what Dame you please.
3. "To regulate commerce with foreign nations, and among the states, and with the Indian tribes.' To enact a bank, and to regulate commerce, are two very different acts. He who erects a bank creates a subject of commerce in its bills; so does he who makes a bushel of wheat, or digs a dollar out of the mines.Yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling.
Besides, if this were an exercise of the power
regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external. For the power given to Congress by the constitution, does not extend to the internal regulation of the commerce of a state, (that is to say, of the commerce between citizen and citizen,) which remains exclusively within its own legislature; but to its external commerce only, that is to say, its commerce with another state, or with foreign nations, or with the Indian tribes. Accordingly, the bill does not propose the measure as a 'regulation of trade,' but as 'productive of considerable advantage to trade.'
Still less are these powers covered by any other of the special enumerations.
II. Nor are they within either of the general phrases, which are the two following:
1. To lay taxes to provide for the general welfare of the United States ;' that is to say, 'to lay taxes for the purpose of providing for the general welfare.' For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. Congress are not to lay taxes, ad libitum, for any purpose they please; but only to pay the debts, or provide for the welfare of the Union. In like manner, they are not to do any thing they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which might be for the good of the Union, would render all the preceding and subsequent enumerations of
power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with the power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they pleased. It is an established rule of construction, when a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which will render all the others useless. Certainly, no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers
could not be carried into effect. It is known that the very power now proposed as a means, was rejected as an end by the convention which formed the constitution. A proposition was made to them, to authorize Congress to open canals, and an amendatory one, to empower them to incorporate. But the whole was rejected; and one of the reasons of rejection urged in the debate was, that they then would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on that subject, adverse to the reception of the constitution.
2. The second general phrase is, 'to make all laws necessary and proper for carrying into execution the enumerated powers.' But they can all be carried into execution without a bank. A bank, therefore, is not necessary, and consequently, not authorized by this phrase, It has been much urged, that a bank will give great