mistakes. How are the judges to determine in the case? Are they to be guided in their decisions by the rules of expediency?

It has been asked, if those minute powers of the constitution were thought to be necessary, is it supposable that the great and important power on the table was not intended to be given? Mr. Madison interpreted this circumstance in a quite different way, viz:-If it was thought necessary to specify, in the constitution, those minute powers, it would follow that more important powers would have been explicitly granted, had they been contemplated.

The Western territory business, he observed, was a case sui generis, and therefore cannot be cited with propriety. West Point, so often mentioned, he said, was purchased by the United States pursuant to law, and the consent of the State of New York is supposed, if it has not been expressly granted; but, on any occasion, does it follow that one violation of the constitution is to be justified by another?

The permanent residence bill, he conceived, was entirely irrevalent to the subject; but he conceived it might be justified on truly constitutional principles. The act vesting in the President of the United States the power of removability has been quoted; he recapitulated, in a few words, his reasons for being in favor of that bill.

The Bank of North America, he said, he had opposed, as he considered the institution as a violation of the confederation. The State of Massachusetts, he recollected, voted with him on that occasion. The Bank of North America was, however, the child of necessity; as soon as the war was over, it ceased to operate as to continental purposes. But, asked he, are precedents in war to justify violations of private and State rights, in a time of peace? And did the United States pass laws to punish the counterfeiting the notes of that bank? They did not, being convinced of the invalidity of such a law; the bank therefore took shelter under the authority of the State.

The energetic administration of this Government is said to be connected with this institution. Mr. Madison here stated the principles on which he conceived this Government ought to be administered, and added, other gentlemen may have had other ideas on the subject, and may have consented to the ratification of the constitution, on different principles and expectations; but he considered the enlightened opinion and affections of the People, the only solid basis for the support of this Government.

Mr. Madison then stated his objections to the several parts of the bill. The first article he objected to, was the duration. A period of twenty years, he observed, was, to this country, as a period of a century in the history of other countries there was no calculating for the events which might take place. He urged the ill policy of granting so long a term, from the experience of the Government in respect to some treaties, which, though found inconvenient, could not now be altered.

The different classes of the public creditors, he observed, were not all put on an equal footing by this bill; but, in the bill for the disposal of the Western territory, this had been thought essential. The holders of six per cent. securities will derive undue advantages. Creditors at a distance, and the holders of three per cent. securities, ought to be considered; as the public good is most essentially promoted by an equal attention to the interest of all.

I admit, said he, that the Government ought to consider itself as the trustee of the public on this occasion; and, therefore, should avail itself of the best disposition of the public property.

In this view of the subject, he objected to the bill, as the public, he thought, ought to derive greater advantages from the institution than those proposed. In case of a universal circulation of the notes of the proposed bank, the profits will be so great, that the Government ought to receive a very considerable sum for granting the charter.

There are other defects in the bill, which render it proper and necessary, in my opinion, that it should undergo a revision and amendment before it passes into a law. The power vested by the bill in the Executive, to borrow of the

bank, he thought was objectionable; and the right to establish subordinate banks, he said, ought not to be delegated to any set of men under heaven. The public opinion has been mentioned; if the appeal to the public opinion is suggested with sincerity, we ought to let our constituents have an opportunity to form an opinion of the subject.

He concluded by saying, he should move for the previous question.

Mr. GERRY rose to reply to Mr. Madison; but the House discovering an impatience to have the main question put, after a few remarks, he waived any further observations.

FEBRUARY 8, 1794.

Mr. MADISON having, in the conclusion of his speech, moved the previous question, to wit: "Shall the main question now be put?" it was resolved in the affirmative by a vote of 38 to 20.

And the main question being put, to wit: "Shall the bill pass?" it was resolved in the affirinative. Ayes 39, noes 20.

Those who voted in the affirmative, are,

Messrs. Fisher Ames, of Mass.
Egbert Benson, N. Y.
Elias Boudinot, N. J.
Benjamin Bourn, R. I.

Lambert Cadwallader, N. J.
George Clymer, Pa.
Thomas Fitzsimmons, Pa.
William Floyd, N. Y.
Abiel Foster, N. H.
Elbridge Gerry, Mass.
Nicholas Gilman, N. H.
Benjamin Goodhue, Mass.
Thomas Hartley, Pa.
John Hathorn, N. Y.
Daniel Heister, Pa.
Benjamin Huntington, Conn.
John Lawrence, N. Y.
George Leonard, Mass.
Samuel Livermore, N. H.
Peter Muhlenburg, Pa.

Messrs. George Partridge, Mass.

Those who voted in the negative, are,

Messrs. John Baptist Ashe, N. C.

Abraham Baldwin, Geo.

Timothy Bloodgood, N. C.

John Brown, Va.

Edanus Burke, S. C.

Daniel Carroll, Md.

Benjamin Contee, Md.

Jonathan Grout, Mass.
William B. Giles, Va.
James Jackson, Geo.

So the bill was passed, and it was

Jeremiah Van Rensselaer, N. Y.
James Schureman, N. J.
Thomas Scott, Pa.
Theodore Sedgwick, Mass.
Joshua Seney, Md.

John Sevier, N. C.
Roger Sherman, Conn.
Peter Sylvester, N. Y.
Thomas Sinnickson, N. J.
William Smith, Md.
William Smith, S. C.
John Steele, N. C.
Jonathan Sturges, Conn.
George Thatcher, Mass.
Jonathan Trumbull, Conn.
John Vining, Del.

Jeremiah Wadsworth, Conn.

Henry Wyncoop, Pa.

Messrs. Richard Bland Lee, Va.

James Madison, Jun. Va.

George Matthews, Geo.
Andrew Moore, Va.

Josiah Parker, Va.

Michael Jenifer Stone, Md.
Thomas Tudor Tucker, S. C.
Alexander White, Va.
Hugh Williamson, N. C.

Ordered, That the Clerk of the House do acquaint the Senate therewith. On the 14th of February, 1791, the bill was presented to the President for his approbation; on the 25th, it received his signature, and became a law. The interval between these two dates was occupied by him in anxious and diligent inquiries into the constitutionality of the bill, and in the consideration of his duty in relation to it. In these investigations, he called to his aid his cabinet advisers, and received from some of them their written opinions on the subject. These have been obtained, and are here inserted, as well on account of their own intrinsic importance, as of the illustration they afford of

the caution and circumspection in the discharge of official duties of the truly great man to whom they were addressed.

The opinions of Edmund Randolph, Attorney General, and of Mr. Jefferson, Secretary of State, were, that the bill was unconstitutional, while that of Alexander Hamilton, Secretary of the Treasury, was given on the opposite side, and in support of the bill.

OPINION OF EDMUND RANDOLPH,

Attorney General of the United States, to President Washington.

The Attorney General of the United States, in obedience to the order of the President of the United States, has had under consideration the bill, entitled "An act to incorporate the subscribers to the Bank of the United States," and reports on it, in point of constitutionality, as follows:

It must be acknowledged, that, if any part of the bill does either encounter the constitution, or is not warranted by it, the clause of incorporation is the only one.

The legal properties of this corporation would be,

1st. To have succession until the 4th of March, 1811;

2d. To purchase, receive, and retain, real and personal property, to an amount not exceeding fifteen millions of dollars, including the capital stock; 3d. To sell and dispose of the property;

4th. To sue, and be sued;

5th. To have a common seal; and

6th. To make by-laws, and do all acts appertaining to the corporation, under certain restrictions prescribed in the act.

These properties, with different modifications in some instances, belong to all corporations. Their importance strikes the eye.

That the power of creating corporations is not expressly given to Congress, is obvious.

If it can be exercised by them, it must be,

1st. Because the nature of the Federal Government implies it; or,

2d. Because it is involved in some of the specified powers of legislation; or, 3d. Because it is necessary and proper to carry into execution some of the specified powers:

1st. To be implied in the nature of the Federal Government, would beget a doctrine so indefinite as to grasp every power.

Governments having no written constitution may, perhaps, claim a latitude of power not always easy to be determined. Those which have written constitutions are circumscribed by a just interpretation of the words contained in them. Nay, farther; a legislature, instituted even by a written constitution, but without a special demarcation of powers, may, perhaps, be presumed to be left at large, as to all authority which is communicable by the people, and does not affect any of those paramount rights, which a free people cannot be supposed to confide even to their representatives. Essentially otherwise is the condition of a legislature whose powers are described. An example of the former. is in the State Legislatures; of the latter, in the Legislature of the Federal Government, the characteristic of which has been confessed by Congress, in the twelfth amendment, to be, that it claims no powers which are not delegated to it.

This last observation straitens the federal powers, and opposes an opinion, not unpatronised, that Congress may exercise all authority to which the States are individually incompetent.

If any subject of government, from which the States are not excluded by the constitution, be beyond their jurisdiction within their own limits, let it be shown: it cannot be easily conceived.

But what if a subject should really exist? Is the argument less conclusive to say, that the States must retain it, because it is not given to the Federal

Government, than that the latter, although limited in itself, possesses it, because it is not within the verge of a State constitution? While, on the other hand, it ought not to be denied that the Federal Government superintendsthe general welfare of the States, it ought not to be forgotten, on the other, that it superintends it according to the dictates of the constitution.

The opinion above alluded to can have only one other object, namely, that every institution to which a single State can give efficacy only within its own boundaries, devolves on Congress. But the extravagance of such a position, is manifested by a single circumstance, that the cutting of canals through two or more States, at the will of Congress, is one of its least consequences.

2d. We ask, then, in the second place, whether, upon any principle of fair construction, the specified powers of legislation involve the power of granting charters of incorporation? We say charters of incorporation, without confining the question to the bank; because the admission of it in that instance, is an admission of it in every other, in which Congress may think the useof it equally expedient.

There is a real difference between the rule of interpretation, applied to a law and a constitution. The one comprises a summary of matter, for the detail of which numberless laws will be necessary; the other is the very detail. The one is, therefore, to be construed with a discreet liberality, the other, with a closer adherence to the literal meaning.

But, when we compare the modes of construing a State and the Federal constitution, we are admonished to be stricter with regard to the latter, because there is a greater danger of error in defining partial, than general powers.

The rule, therefore, for interpreting the specified powers, seems to be, that, as each of them includes those details, which properly constitute the whole of the subject to which the power relates, the details themselves must be fixed by reasoning. And the appeal may, on this occasion, be made to common sense and common language.

Those powers, then, which bear any analogy to that of incorporation, shall be examined separately in their constituent parts; and afterwards, in those traits which are urged to have the strongest resemblance to the favorite power. First. Congress have power to lay and collect taxes, &c. The heads of this

power are,

1st. To ascertain the subjects of taxation, &c.

2d. To declare the quantum of taxation, &c.

3d. To prescribe the mode of collection; and

4th. To ordain the manner of accounting for the taxes, &c.

Second. Congress have also power to borrow money on the credit of the United States.

The heads of this power, are,

1st. To stipulate a sum to be lent;

2d. To stipulate an interest, or no interest, to be paid; and

3d. To stipulate the time and manner of repayinent, unless the loan be placed on an irredeemable fund.

Third. Congress have also power to regulate commerce with foreign nations, among the several States, and with the Indian tribes.

The heads of this power, with respect to foreign nations, are,

1st. To prohibit them or their commodities from our ports;

2d. To impose duties on them, where none existed before, or to increase existing duties on them;

3d. To subject them to any species of custom house regulations; or,

4th. To grant them any exemptions or privileges which policy may suggest. The heads of this power, with respect to the several States, are little more than to establish the forms of commercial intercourse between them, and to keep the prohibitions which the constitution imposes on that intercourse, undiminished in their operation; that is, to prevent taxes on imports or exports; preferences to one port over another, by any regulation of commerce or reve

nue; and duties upon the entering or clearing of the vessels of one State in the ports of another.

The heads of this power, with respect to Indian tribes, are,

1st. To prohibit the Indians from coming into, or trading within, the United States;

2d. To admit them with, or without, restrictions;

3d. To prohibit citizens of the United States from trading with them; or, 4th. To permit with, or without, restrictions.

Fourth. Congress have also power to dispose of, and make all needful rules and regulations respecting, the territory, or other property belonging to the United States.

The heads of this power, are,

1st. To exert an ownership over the territory of the United States, which may be properly called the property of the United States, as is the Western territory, and to institute a Government therein; or,

2d. To exert an ownership over the other property of the United States. This property may signify,

1st. Personal property of the United States, howsoever acquired; or, 2d. Real property, not aptly denominated territory, acquired by cession or otherwise.

It cannot signify,

1st. Debts due from the United States;

2d. Nor money arising from the sources of revenue pointed out in the constitution. The disposal and regulation of money, is the final cause for raising it by taxes, &c.

Fifth. The preamble to the constitution has also been relied on as a source of power.

To this, it will be here remarked, once for all, that the preamble, if it be erative, is a full constitution of itself, and the body of the constitution is useless; but that it is declarative only of the views of the convention, which they supposed would be best fulfilled by the powers delineated; and that such is the legitimate nature of preambles.

With this analysis of the foregoing specified powers, compare each of the corporate powers, and where is the similitude? It lies, say the advocates of the bill, in the power to lay and collect taxes, &c.; because it facilitates the payment of them: in that of borrowing money, because it creates an ability to lend; in that of regulating commerce, because it increases the medium of circulation, and thus encourages activity and industry. In that of disposing and regulating property, because the contributions and the interest of the United States in the bank, are property of the United States. Of each of these reasons, something will be said in their order.

The incorporation of a bank can facilitate the payment of taxes, only by creating a faculty to pay, or by supplying a deficient medium, or by rendering the transportation of money to the seat of government more convenient. But, to lay and collect taxes, is, in fact, to demand and receive a public debt, resting the mode of procuring the money on the resources of the debtors; and, as to its transportation, surely there are many other vehicles besides bank bills.

To borrow money, presupposes the accumulation of a fund to be lent; and is secondary to the creation of an ability to lend.

By regulating commerce, in order to increase the medium of circulation, cannot be intended any of the commercial powers designated above; these being very remote from the incorporation of a bank. Nor can it be imagined, that it is intended to reach the emission of paper money. What construction remains, by which to regulate commerce, can increase the medium? Only the emission of coin, which is licensed in terms by another clause.

To dispose of, or to regulate, property, even bank stock itself, is utterly distinct from the incorporation of a bank: for the contributions on which the bank stock arises, go upon the principle, that a bank already exists; how else can contributions be made to it?