After some general remarks on the limitations
of all political power, he took notice of the pe
culiar manner in which the federal government
is limited. It is not ageneral grant, out of which
particular powers are excepted—it is a grant of
particular powers only, leaving the general mass
in other hands. So it had been understood by
its friends and its foes, and so it was to be inter
preted.
As preliminaries to a right interpretation, he
laid down the following rules :
An interpretation that destroys the very cha
ra<fteriftic of the government cannot be just.
Where a meaning is clear, the conferences,
whatever they may be, are to be admitted—
where doubtful, it is fairly triable by its conse
quences.
In controverted cases, the meaning of the par
ties to the inftrunient, if to be collected by rea
sonable evidence, is a proper guide.
Cotemporary and concurrent expositions are a
reasonable evidence of the meaning of the par
ties.
In admitting or rejecting a conflrutflive au
thority, not only the degree of its incidentality
to an express authority, is to be regarded, but
the degree of its importance also ; lince on this
will depend the probability or improbability of
its being left to conftru<stion.
Reviewing the constitution with an eye to
tliefe positions, it was not poflible to discover in
it the power to incorporate a Bank. The only
clauses under which such a power could be pre
tended, are either—
1. The power to lay and colled; taxes to pay
the debts, and provide for ihe common defence
and general welfare : Or, - ✓
2. The power to borrow money on the credit
of the United States : Or,
3. The power to pass all laws neceflary and
proper to carry into execution those powers.
The bill did not come within the firft power.
It laid no tax to pay the debts, or provide for the
general welfare. It laid no tax whatever. It
■was altogether foreign to the fubje<ft.
No argument could be drawn from the terms
" common defence, and general welfare." The
power as to these general purposes, was limited
to acfts laying taxes for them ; and the general
purposes themlelves weie limited and explained
by the particular enumeration subjoined. To
■underltand these terms in any sense, that would
juftify the power in question, would give to Con
gress an unlimited power ; would render nuga
tory the enumeration of particularpowers ; would
fupercede all the powers refervedto the state go
vernments. These terms are copied from the
articles of confederation ; had it ever been pre
tended, that they were to be understood other
wise than as here explained ?
It had been said that " general welfare" meant
cases in which a general power might be exerci
sed by Congress, without interfering with the
powers of the States; and that the eftablifliment
of a National Bank was of this fort There
■were, he said, several answers to this novel doc-
trine
x. The proposed Bank would interfere so as
indirectly to defeat a State Bank at the fame '
place 2. It would directly interfere with the
rights of the States, to prohibit as well as to eftab
lifti Banks, and the circulation of Bank Notes.
He mentioned a law of Virginia, actually prohi
biting the circulation of notes payable to bearer.
3. Interference with the power of the States was
110 conftitutiotial criterion of the power of Con
gress. If the power was not given, Congress
could not exercise it ; if given, they might exer
cise it, altho it should interfere with the laws, or
even the constitution of the States.— 4. If Con
gress could incorporate a Bank, merely because
the act would leave the States free to establish
Banks also ; any other incorporations might be
xnade by Congress. They could incorporate com
panies of manufacturers, or companies for cutting
canals, or even religious societies, leaving simi
lar incorporations by the States, like Stare Banks
to themselves: Congress might even establish re
ligious teachers in every parish, and p?y them
oilt of the Treasury of the United States, leaving
other teachers unmolelted in their functions.
These inadmissible confeqiiences condemned the
controverted principle.
The cafe of the Bank established by the for
mer Congress, had been cited as a precedent.
This was known, he said, to have been the child
of neceflity. It never could be juftified by the
regular powers of the articles of confederation.
Congress betrayed a consciousness of this in re
commending to the States to incorporate the Bank
also. They did not attempt to protect the Bank
Notes by penalties against counterfeiters. These
were reserved wholly to the authority of the
States.
The second clause to be examined is that, which
empowers Congress to borrow money.
Is this a bill to borrfl/w money ? It does not
borrow a fliilling. Is there any fair conftru<slion
l>y which the bill can be deemed an exercise of
the power to borrowmoney ?—The obviousmean
ing of the power to borrow money, is that of ac
eepting it ftoni, and stipulating payment to tliofe
who are able and "milling to lend.
To fay that the power to borrow involves a
power of creating the ability, where there inay
be the will, to lend, is not only eftablifliinga dan-
gerous principle, as will be immediately fliewn,
but is as forced a construction, as to fay that it
involves the power of compellingthe will, where
there may be the ability, to lend.
The third clause is that which gives the power
to pass all laws necefl'ary and proper to execute
the fpecified powers.
Whatever meaning this claufemay have, none
can be admitted, that would give an unlimited
discretion to Congress.
Its meaning mull, according to the natural and
obvious force of the terms and the context, be
limited to means necejfary to the end, and incident
to the nature of the fpecified powers.
The clause is in fa (ft merely declaratory of
what would have resulted by unavoidable impli
cation,as the appropriate,and as it were,technical
means of executing those powers. In this (enfe
it had been explained by the friends of the con
stitution, and ratified by the Hate conventions.
The elfential charatfteriftic of the government,
as composed of limited and enumerated powers,
would be destroyed : If inltead of direct and in
cidental means, any means could be used, which
in the language of the preamble to the bill, ' might
be conceived to be conducive to the fuccefsful
conducting of the finances ; or might be conceiv
ed to tend to give facility to the obtaining of loans.'
He urged an attention to the ditFufe and duiftile
terms which had been found requisite to cover
the stretch of power contained in the bill. He
compared them with the terms nece[fary and proper,
used in the Constitution, and alked whether it
was possible to view the two defer Options as fyno
ninious, or the one as a fair and fafe commentary
on the other.
If, proceeded he, Congress, by virtue of the
power to borrow, can create the means of lend
ing, and in purfiTance of'thefe means, can incor
porate a Bank, they may do any thing whatever
creative of like means.
The Eaft-lndia company has been a lender to
the Britifli government, as well as the Bank, and
the South-Sea company is a greater creditor than
either. Congress then may incorporate similar
companies in the United States, and that too not
under the idea of regulating trade, but under
that of borrowing money.
Private capitals are the chief resources for loans
to the Britilh government. Whatever then may
be conceived to favor the accumulation of capi-
tals may be done by Congress. They may incor
porate manufacturers. They may give tnonopo-
ies in every branch of domeitic industry
If, again, Congress by virtue of the power to
borrow money, can create the ability to lend,
they may by virtue of the power to levy money,
create the ability to pay it. The ability to pay
taxes depends on the general wealth of the so
ciety, and this, on the general prosperity of
agriculture, manufactures and commerce. Con
gress then may give bounties and make regula
tions on all of these objedls. \
The States have, it is allowed on all hands, a
concurrent right to lay and collect taxes. This
power is secured to them not by its being ex
pressly reserved, but by its not being ceded by
the constitution. The reai'ons for the bill can
not be admitted, because they would invalidate
that righc ; why may it not be conceived by Con
gress, that an uniform and exglufive impohtion
of taxes, would not less than the proposed Banks
' be conducive to the fuccefsful conducting of the
national finances, and tend to give facility to the
obtaining of revenue, for the use of the govern-
ment ?'
The doctrine of implication is always a tender
one. The danger of it has been felt in other
governments. The delicacy was felt in the adop
tion of our own ; the danger may also be felt,
if we do not keep close to our chartered author
ities.
Mark the reasoning on which the validity of
the bill depends. To borrow money is made the
end and the accumulation of capitals, implied as
the meant. The accumulation of capitals is then
the end, and a bank implied as the means. The
bank is then theend, and a charter of incorpo
ration, a monopoly, capital punishments, &c.
implied as the i?ieans.
If implications, thus remote and thus multi
plied, can be linked together, a chain may be
formed that will reach every object of legislation,
every object within the whole compass of politi
cal economy.
The latitude of interpretation required by the
bill is condemned by the rule furniflied by the
constitution itfelf.
Congress have power " to regulate the value
of money yet it is expressly added not left to
be implied, that counterfeitors may be puuiflied.
They have the power " to declare war," to
which armies are more incident, than incorpo
rated Banks, to borrowing ; yet is expressly ad
ded, the power "to raise and support armies
and to this again, the express power " to make
758
rules and regulations for the government of ar
mies a like remark is applicable to the powers
as to a navy,
The regulation and calling out of the militia
are more appurtenant to war, than the proposed
bank, to borrowing ; yet the former is not left
to conftrudlion.
The very power to borrow money is a less re
mote implication from the power of war, than
an incorporated monopoly bank, from the pow
er of borrowing—yet the power to borrow is i lo c
left to implication.
It is not pretended that every ii-ifertioi] oroinif
fion in the constitution is the effed of fyltematic
attention. This is not the character of any hu
man work, particularly the work of a body of
men. The examples cited, with others "that
might be added, fufTiciently inculcate nevertheless
a rule of interpretation, very different from that
on which the bill relbs. They condemn the cx
ereife of any power, particularly a great and im
portant power, which is not evidently and jieccl
farily involved in an exprefspower.
It cannot be denied that I lie power proposed
to be exercised is an important power.
As a charter of incorporation the bill creates
an artificial person previously not exiftingin law.
It confers important civil rights and attributes
which could not otherwise be claimed. It is,
though not precisely similar, at least
to the naturalization of an alien,by which certain
new civil characters are acquired by him. Would
Congress have had the power to naturalize, if it
had not been expressly givea ?
In the power to make bye laws, the bill dele
gated a fort of legislative power, which is un
questionably an adt of a high and important na
ture. He took notice of the only restraint on
the bye laws, that they were not to be contrary
to the law and the conllicution of the bank ; and
alked what law was intended ; if the law of the
United States, the scantiness of their code would
give a power, never before given to a corpora
tion—and obnoxious to the States, whose laws
would then be fuperceded not only by the laws
of Congress, but by the bye laws of a corpora
tion within their own juridiction. If the law
intended, was the law of the State, then the
State might make laws that would destroy an in
stitution of the United States.
The bill gives a power to purchase and ho'cl
lands ; Congress themselves could not purchase
lands within a State " without the consent of
its legislature." Mow could they delegate a pow
er to others which theydid not pollefs themselves
It takes from our fucceilors, who have equal
rights with ourselves, and wrh the aid of expe
rience will be more capable of deciding on the
fubjeCl, an opportunity of exercising that right,
for an immoderate term.
Ittakes from our constituents the opportunity
of deliberatingon the untried mealure, although
their hands are also to be tied by it for the fame
erra
It involves a monopoly, which afFedis the equal
rights of every citizen.
It leads to a penal regulation, perhaps capital
punishments, one of the moll: foleinn aits of so
vereign authority.
From this view of the power of incorporation
exercised in the bill, it could never be deemed
an acceflary or subaltern power, to be deduced
by implication, as a means of executing another
power ; it was in its nature a diftintTt, an inde
pendent and fubltantive prerogative, which not
being enumerated in the constitution could never
have been meant to be included in it, and not
being included could never be rightfully exer
cised.
He here adverted to a diftincftion, which he
said had not been fufficiently kept in view, be
tween a power necefl'ary and proper for the go
vernment or union, and a power neceifary and
proper for executing the enumerated powers. In
the latter cafe, the powers included in each of
the enumerated powers were not exprefled, but
to be drawn from the nature of each. In the
former, the powers composing the government
were expressly enumerated. This constituted
the peculiar nature of the government, no power
therefore not enumerated, could be inferred from
the general nature of government. Had the
power of making treaties, for example, been
omitted, however neceflarj' it might have been,
the defect could only have been lamented, orfup
plied by an amendment of the constitution.
But the proposed bank could not even be called
necessary to the government; at molt it could
be but convenient. Its uses to the government
could be supplied by keeping the taxes a little in
advance—by loans from indi vid uals—by the other
banks, over which the government would have
eqnal command ; nay greater, as it may grant
or refufe to these the privilege, made a free and
irrevocable gift to the proposed bank, of using
their notes in the federal revenue.
He proceeded next to the coteniporary exposi
tions given to the constitution.
The defence against the charge founded on
the want of a bill of rights, presupposed, he said.
that the powers not given were retained; ani