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was supported, and on which the judgment of the executive was most probably formed, should be briefly stated.
To prove that the measure was not sanctioned by the constitution, the general principle was asserted, that the foundation of that instrument was 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." 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 definition.
The power in question was said not to be among those which were specially enumerated, nor to be included within either of the general phrases which are to be found in the constitution.
The article which contains this enumeration was reviewed; each specified power was analysed; and the creation of a corporate body was declared to be distinct from either of them.
The general phrases are,
1st. To lay taxes to provide for the general welfare of the United States. The power here conveyed, it was observed, was "to lay taxes" the purpose was "the general welfare." Congress could not lay taxes adlibitum, but could only lay them for the general welfare; nor did this clause authorize that body to provide for the general welfare otherwise than by laying taxes for that purpose.
2dly. To make all laws which shall be 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 had been much urged that a bank would give great facility or convenience in the collection of taxes. Suppose this were means which are
true; yet the constitution allows only the necessary, not those which are convenient. If such a latitude of construction -be allowed this phrase, as to give any nonenumcrated power, it will go to every one; for there is no one
which ingenuity may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers. It would swallow up all the list of enumerated powers, and reduce the whole to one phrase. Therefore it was that the constitution restrained them to necessary means, that is to say, to those means without which the grant of the power must be nugatory.
The convenience was then examined. This had been stated in the report of the secretary of the treasury to congress, to consist in the augmentation of the circulating medium, and in preventing the transportation and retransportation of money between the states and the treasury.
The second, it was
The first was considered as a demerit. said, might be effected by other means. and treasury drafts, would supply the place of bank notes. Perhaps indeed bank bills would be a more convenient vehicle than treasury orders; but a little difference in the degree of convenience cannot constitute the necessity which the constitution makes the ground for assuming any non-enumerated power.
Besides, the existing state banks would, without doubt, enter into arrangements for lending their agency. This expedient alone suffices to prevent the existence of that necessity which may justify the assumption of a non-enumerated power as a means for carrying into effect an enumerated one.
It may be said that a bank whose bills would have a currency all over the states, would be more convenient than one whose currency is limited to a single state. So it would be still more convenient that there should be a bank whose bills should have a currency all over the world; but it does not follow from this superior conveniency, that there exists any where a power to establish such a bank, or that the world may not go on very well without it.
For a shade or two of convenience, more or less, it cannot be imagined that the constitution intended to invest congress with a power so important as that of erecting a corporation.
. In supporting the constitutionality of the act, it was laid down as a general proposition, "that every power vested in a
government is in its nature sovereign, 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, are not immoral, are not contrary to the essential ends of political society.
This principle, in its application to government in general, would be admitted as an axiom; and it would be incumbent on those who might refuse to acknowledge its influence in American affairs to prove a distinction; and to show that a rule which, in the general system of things, is essential to the preservation of the social order, is inapplicable to the United States.
The circumstance that the powers of sovereignty are divided between the national and state governments, does not afford the distinction required. It does not follow from this, that each of the portions of power delegated to the one or to the other, is not sovereign 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. If the gov ernment of the United States does not possess sovereign power as to its declared purposes and trusts, because its power does not extend to all cases, neither would the several states possess sovereign power in any case; for their powers do not extend to every case. According to the opinion intended to be combated, the United States would furnish the singular spectacle of a political society without sovereignty, or a people governed without a government.
If it could be necessary to bring proof of a proposition so clear as that which affirms that the powers of the federal government, as to its objects, were sovereign, there is a clause in the constitution which is decisive. It is that which declares the constitution of the United States, the laws made in pursuance of it, and the treaties made under its authority to be the supreme law of the land. The power which can create the supreme law in any case, is doubtless sovereign as to such case.
This general and indisputable principle puts an end to the abstract question, whether the United States have power to
erect a corporation for it is unquestionably incident to sovereign power to erect corporations, and consequently to that of the United States, in relation to the objects intrusted 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
That the government of the United States can exercise only those powers which are delegated by the constitution, is a proposition not to be controverted; neither is it to be denied on the other hand, that there are implied as well as express powers, and that the former are as effectually delegated as the latter. For the sake of accuracy it may be observed, that there are also resulting powers. It will not be doubted that if the United States should make a conquest of any of the territories of its neighbours, they would possess sovereign jurisdiction over the conquered territory. This would rather be a result of the whole mass of the powers of the gov ernment, and from the nature of political society, than a consequence of either of the powers specially enumerated, This is an extensive case in which the power of erecting corporations is either implied in, or would result from some or all of the powers vested in the national government.
Since it must be conceded that implied powers are as completely delegated as those which are expressed, 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 question in this as in every other case must be, whether the mean to be employed has a natural relation to any of the acknowledged objects or lawful ends of the govern ment. Thus a corporation may not be created 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 created in relation to the collection of the taxes, or to the trade with foreign countries, or between the
states, or with the Indian tribes, because it is in 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.
A strange fallacy seems to have crept into the manner of thinking and reasoning upon this subject. The imagination has presented an incorporation as some great, independent, substantive thing....As a political end of peculiar magnitude and moment; whereas it is truly to be considered as a quality, capacity, or mean to an end. Thus a mercantile company is formed with a certain capital for the purpose of carrying on a particular branch of business. The business to be prose cuted is the end. The association in order to form the rɛquisite capital is the primary mean. Let an incorporation be added, and you only add a new quality to that association which enables it to prosecute the business with more safety and convenience. The association when incorporated still remains the mean, and cannot become the end.
To this reasoning respecting the inherent right of gov. ernment to employ all the means requisite to the execution of its specified powers, it is objected, that none but necessary and proper means can be employed; and none can be necessary, but those without which the grant of the power would be nugatory. So far has this restrictive interpretation been pressed as to make the case of necessity which shall warrant the constitutional exercise of a power, to depend on casual and temporary circumstances; an idea, which alone confutes the construction. The expedience 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. All the arguments, therefore, drawn from the accidental existence of certain state banks which happen to exist to-day, and for aught that concerns the gov ernment of the United States may disappear to-morrow, must not only be rejected as fallacious, but must be viewed as demonstrative that there is a radical source of error in the reasoning.