Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 4


On the Establishment of a National Bank
February2, 1791

Mr. GILES said he was disposed to consider the plan as containing a principle not agreeable to the Constitution, and in itself not altogether expedient.

To show its unconstitutionality, he read the 1st section of the bill which established the subscribers of the bank into a corporation, to do which, he conceived the Constitution had given Congress no power. He read the clause in the Constitution which had been adduced as sanctioning the exercise of such a power. This clause only respects, he said, all the necessary powers to carry into effect such as were expressly delegated; that of forming corporations was not expressly granted. He then adverted [p.412] to the power of borrowing money, vested in Congress by the Constitution, and controverted the idea that a bank was necessary to carry it into execution. It might, he granted, conduce to a greater facility in exercising that power; but that it was expedient or necessary he denied, either to effect loans or establish the government.

If Congress, in this instance, he observed, exercised the power of erecting corporations, it was nowhere limited, and they might, if they thought fit, extend it to every object, and, in consequence thereof, monopolies of the East and West India trade be established; and this would place us, he said, in the precise situation of a nation without a free constitution.

He referred to the clause in the Constitution which prohibits Congress from giving a preference to one part of the United States over another. This he considered, together with his other objections, fully sufficient to justify a rejection of the plan.

He then offered some observations relative to the expediency of the measure. If it is problematical only, whether the establishment of this national bank is agreeable to the Constitution, this ought to be, he thought, sufficient to prevent an adoption of the system. He showed the consequences which will result from a doubt of the legality of the measure. He noticed the objection which had been originally made by the people to the Constitution, and the pains which were taken to obviate their fears and apprehensions. The adoption of this plan, he said, would realize many of their disagreeable anticipations. He denied the necessity of a bank for the preservation of government. The only object, as the subject struck his mind, was to raise stock; but it was certainly not expedient, he conceived, to kindle the flame of discontent, and rouse the fears and jealousies of the people, in many states, to raise stock.

He took notice of some observations which had fallen from a gentleman from Connecticut, respecting incidental powers, and denied that Congress possessed those powers. The general government, he said, was not a consolidated government, but a federal government, possessed of such powers as the states or the people had expressly delegated; but to support these incidental powers, ceded to Congress, was to make it, not a federal, not even a republican consolidated government, but a despotic one. If this idea was contemplated, the people would be alarmed, they would be justly alarmed, and he hoped they would be alarmed.

Mr. VINING observed, that he had endeavored to give the subject a full and dispassionate consideration; and, so far from thinking the plan contrary to the Constitution, he considered it perfectly consonant to it.

He adverted to the principles, design, and operations of the bank systems. Their usefulness he deduced from the experience of those countries which had been the longest in the use of those institutions. The constitutionality of the measure he urged from a fair construction of those powers, expressly delegated, and from a necessary implication; for he insisted that the Constitution was a dead letter, if implied powers were not to be exercised.

Mr MADISON did not oppose all the banking systems, but did not approve of the plan now under consideration.

Upon the general view of banks, he recapitulated the several advantages which may be derived from them. The public credit, he granted, might be raised for a time, but only partially. Banks, he conceived, tended to diminish the quantity of precious metals in a country; and the [p.413] articles received in lieu of a portion of them, which was banished, conferred no substantial benefit on the country. He dwelt on the casualties that banks are subject to.

To be essentially useful in so extensive a country, banks, he said, should be fixed in different parts of the United States; and in this view, the local banks of the several states, he said, could be employed with more advantage than if any other banking system was substituted. Circumstances, in Great Britain, he observed, required that there should be one bank, as the object there is to concentrate the wealth of the country to a point, as the interest of their public debt is all paid in one place. Here a difference in circumstances called for another kind of policy: the public debt is paid in all the different states.

He then expressly denied the power of Congress to establish banks And this, he said, was not a novel opinion; he had long entertained. All power, he said, had its limits; those of the general government were ceded from the mass of general power inherent;n the people, and were consequently confined within the bounds fixed by their act of cession. The Constitution was this act; and to warrant Congress in exercising the power, the grant of it should be pointed out in that instrument. This, he said, had not been done; he presumed it could not be done. If we ventured to construe the Constitution, such construction only was admissible, as it carefully preserved entire the idea on which that Constitution is founded.

He adverted to the clauses in the Constitution which had been adduced as conveying this power of incorporation. He said he could riot find it in that of laying taxes. He presumed it was impossible to deduce it from the power given to Congress to provide for the general welfare. If it is admitted that the right exists there, every guard set to the powers of the Constitution is broken down, and the limitations become nugatory.

The present Congress, it was said, had all the powers of the old Confederation, and more. Under the old government a bank had been established; and thence it was deduced that the present legislature had indubitably that power. The exigencies of government were such, he answered, under the old Confederation, as to justify almost any infraction of parchment rights; but the old Congress were conscious they had not every power necessary for the complete establishment of a bank, and recommended to the individual states to make sundry regulations for the complete establishment of the institution.

To exercise the power included in the bill was an infringement on the rights of the several states; for they could establish banks within their respective jurisdictions, and prohibit the establishment of any others. A law existed in one of the states prohibitory of cash notes of hand, payable on demand. The power of making such a law could not, he presumed, be denied to the states; and if this was granted, and such laws were in force, it certainly would effectually exclude the establishment of a bank.

This power of establishing a bank had been, he said, deduced from the right, granted in the Constitution, of borrowing money; but this, he conceived, was not a bill to borrow money. It was said that Congress had not only this power to borrow money, but to enable people to lend. In answer to this, he observed that, if Congress had a right to enable those people to lend, who are willing, but not able, it might be said that they have a right to compel those to lend, who were able, and not willing. [p.414]

He adverted to that clause in the Constitution which empowers Congress to pass all the laws necessary to carry its powers into execution, and, observing on the diffusive and ductile interpretation of these words, and the boundless latitude of construction given them by the friends of the bank, said that, by their construction, every possible power might be exercised.

The government would then be paramount in all public cases: charters, incorporations, and monopolies, might be given, and every limitation effectually swept away, and could supersede the establishment of every bank in the several states. The doctrine of implication, he warned the friends to this system, was a dangerous one, which, multiplied and combined in the manner some gentlemen appeared to contemplate, would form a chain reaching every object of legislation of the United States. This power to incorporate, he contended, was of primary importance, and could by no means be viewed as a subaltern, and therefore ought to be laid down in the Constitution, to warrant Congress in the exercise of it, and ought not to be considered as resulting from any other power.

Incorporation, he said, is important as the power of naturalization; and Congress, he presumed, would not exercise the power of naturalizing a foreigner, unless expressly authorized by the Constitution. He read a sentence in the bill respecting the power of making such regulations as were not contrary to law. What law? Was it the law of the United States? There were so few, that this allowed a very considerable latitude to the power of making regulations, and more than any member, he conceived, would wish to grant. Were the laws of the individual states contemplated by this provision? Then it would be in the power of the separate states to defeat an institution of the Union. He asked by what authority Congress empowered a corporation to possess. real estate. He reprobated this idea. To establish this bank was, he said, establishing a monopoly guarantied in such a manner that no similar privilege could be granted to any other number of persons whatever. He denied the necessity of instituting a bank at the present time. The Constitution ought not to be violated without urgent necessity indeed. There were banks, in several of the states, from which some advantages could be derived which could not be gained from an institution on the plan proposed.

In confirmation of his sentiments, he adduced certain passages from speeches made in several of the state conventions by those in favor of adopting the Constitution. These passages were fully in favor of this idea—that the general government could not exceed the expressly-delegated powers. In confirmation also of this sentiment, he adduced the amendments proposed by Congress to the Constitution.

He urged, from a variety of considerations, the postponement of the business to the next session of Congress.

Mr. AMES. For his own part, he never doubted the constitutionality of the plan; and if the public sense was to be regarded on the occasion, their approbation of the measures taken by the old Confederation, respecting the Bank of North America, and their total silence on the constitutionality of the plan before Congress at this day, were to him sufficient proofs of their opinions on the subject.

The first question that occurred on this subject was, whether the powers of the house were confined to those expressly granted by the letter of the Constitution, or whether the doctrine of implication was safe ground to proceed upon. If the letter of the Constitution was to be adhered to, [p.415] the question he deemed determined; but if a more rational plan was adopted, and the sense of the Constitution, upon strict examination, appeared even doubtful, every member must then appeal to his conscience and understanding. If the powers of the house were circumscribed by the letter of the Constitution, much expense might have been saved to the public, as their hands would have been completely tied. But, by the very nature of government, the legislature had an implied power of using every means, not positively prohibited by the Constitution, to execute the ends for which that government was instituted. Every constitutional right should be so liberally construed as to effect the public good. This, it has been said, was taking too great a latitude; but certainly to promote the ends of government was the end of its existence; and by the ties of conscience, each member was bound to exercise every lawful power which could have a tendency to promote the general welfare. It had been said that the doctrine of implication was dangerous, and would alarm the people. He thought it would not, unless the alarm was founded.

Suppose, he said, the power of raising armies was not expressly granted to the general government; would it be inferred from hence, that the power of declaring war, without the means of carrying it on, had been ceded to them? Would it be said that the blood of fellow-citizens was crying for vengeance, though their lives and property called for protection from the hand of government? Would it be said that they had not a constitutional right to be protected? Would it be urged that the Constitution, by not expressly granting to the general government the power of levying armies, had put it out of their power to protect its citizens? This, he conceived, would be a very dangerous doctrine.

Suppose the power of borrowing money had not been expressly given to the federal government; would it not, in emergencies, be inferred from the nature of the general powers granted to it? Suppose the power to lend had not been mentioned, and a surplus of revenue in the public coffers; should it not be distributed among the people, but locked up and suffered to remain unproductive in the treasury? He imagined not. Suppose the question of redeeming the prisoners in captivity at Algiers was before the hour; would it be urged that nothing could be done in their favor. by the general government, because no power was specially granted? No. Every person, he conceived, that felt as a man, would not think his hands tied when they were to be extended to the relief of suffering fellow-citizens. The power of buying certificates was not particularly mentioned in the Constitution; yet it had been exercised by the general government, and was inferred from that of paying the public debt, and from the reason of the case. The power of establishing banks, he conceived, could be deduced from the same source—from their utility in the ordinary operations of government, and their indispensable necessity in cases of sudden emergencies. It was said that the state banks would serve all these purposes; but why deprive the general government, he asked, of tire power of self-defence?

Mr. Ames proceeded to prove that the power of incorporating the subscribers to the bank could be deduced from that clause in the Constitution which had been termed the sweeping clause. Unless a reasonable latitude of construction of this part of the Constitution was allowed, he did not see upon what authority several acts of Congress would rest. Whence did the general government draw the authority they had exercised over the western territory? That authority, he answered, must of necessity belong to Congress: it could not rest with the individual states. [p.416]

The power here was derived by implication, and was deduced from the reason and necessity of the case; and the power contended for in the present case might, for the same reasons, be exercised, and was drawn from the same source. The government of the western territory was a species of corporation—a corporation in its nature the most important; and would it be said that Congress had acted unconstitutionally when they established it? And would the territory be left under the control of the individual states? He presumed not.

By the Constitution, a power of regulating trade was specially given to Congress; and under this clause they had established regulations affecting ships, seamen, lighthouses, &c. By parity of reasoning, he conceived that, as the power of collecting taxes was specified among the rights granted by the Constitution to Congress, they undoubtedly were entitled to make regulations affecting the instruments by means of which those taxes were to be collected.

Some opposition to the system arose from the idea that it was an infringement on the rights of the individual states. This objection he answered. It could not be denied, he said, that Congress had the right to exercise complete and exclusive jurisdiction over the district of ten miles square, ceded for the seat of permanent residence, and over such spots as were ceded for the establishment of lighthouses, &c. In these places, then, it must be granted that Congress had authority to establish a bank. If this was allowed, (and he could not see how it could be denied,) then the question became a question of place, and not of principle. He adverted to the preamble of the Constitution, which declares that it is established for the general welfare of the Union. This vested Congress with the authority over all objects of national concern, or of a general nature. A national bank undoubtedly came under this idea; and though not specially mentioned, yet the general design and tendency of the Constitution proved more evidently the constitutionality of the system, than its silence in this particular could be construed to express the contrary. He deduced the power also from those clauses in the Constitution which authorize Congress to lay and collect taxes. This, he said, could not be done from every corner of so extended an empire without the assistance of paper. In the power of borrowing money, he saw that of providing the means, by the establishment of a bank. But it has been said that, if Congress could exercise the power of making those who were willing, able to lend, they might carry their authority to creating the will in those who were able. This would be, he said, an abuse of power, and reasonings drawn from it could not be just.

Gentlemen had noticed the amendment proposed by Congress to the Constitution, as conveying the sense of the legislature on the nature of the powers vested by that instrument. The amendment stated, that it should be declared, that the powers not expressly delegated to the general government, and such as could be exercised by the states, should be considered as belonging to the states. But the power of establishing a national bank, he said, could not be exercised by the states, and therefore rested nowhere but in the federal legislature.

The doctrine of implication, it had been said, would excite alarms. It had been resorted to, and alarms had not been excited. He conceived it a necessary doctrine in many cases.

He had no desire to extend the powers granted by the Constitution beyond the limits prescribed by them. But in cases where there was [p.417] doubt as to its meaning and intention, he thought it his duty to consult his conscience and judgment to solve them; and even if doubts did still remain, on two different interpretations of it, he would constantly embrace that the least involved in doubt.

Mr. SEDGWICK expressed his surprise at the objections made to the constitutionality of the bill.

A gentleman from Virginia (Mr. Madison) had taken some pains to convince the house that he had uniformly been opposed to seeing the general government exercise the power of establishing banks. He did not wish to dispute with the honorable member the merit of consistency, but only begged leave to remark that the same gentleman had not always been averse to the exercise of power by implication. Witness the proceedings on the propriety of vesting the President of the United States with the authority of removing officers. But in this case, he was willing to take up the question solely on its own merits, without reference to former opinions.

In the present case, he conceived the determination of the question rested, in a great measure, on the meaning of the words necessary and proper.

Mr. MADISON. Those two words had been, by some, taken in a very limited sense, and were thought only to extend to the passing of such laws as were indispensably necessary to the very existence of the government. He was disposed to think that a more liberal construction should be put on them,—indeed, the conduct of the legislature had allowed them a fuller meaning,—for very few acts of the legislature could be proved essentially necessary to the absolute existence of government. He wished the words understood so as to permit the adoption of measures the best calculated to attain the ends of government, and produce the greatest quantum of public utility.

In the Constitution, the great ends of government were particularly enumerated; but all the means were not, nor could they all be, pointed out, without making the Constitution a complete code of laws: some discretionary power, and reasonable latitude, must be left to the judgment of the legislature. The Constitution, he said, had given power to Congress to lay and collect taxes; but the quantum, nature, means of collecting, &c., were of necessity left to the honest and sober discretion of the legislature.

It authorized Congress to borrow money; but of whom, on what terms, and in what manner, it had not ventured to determine; these points of secondary importance were also left to the wisdom of the legislature. The more important powers are specially granted; but the choice from the known and useful means of carrying the power into effect, is left to the decision of the legislature. He enumerated some other powers which are specified in the Constitution as belonging to Congress, and of which the means of execution are not mentioned; and concluded this part of his argument by observing that, if the bank which it was proposed to establish by the bill before the house could be proven necessary and proper to carry into execution any one of the powers given to Congress by the Constitution, this would at once determine the constitutionality of the measure.

He would not, he said, dwell any longer on the constitutionality of the plan under consideration, but would only observe that no power could be exercised by Congress, if the letter of the Constitution was strictly adhered to, and no latitude of construction allowed, and all the good that [p.418] might be reasonably expected from an efficient government entirely frustrated.

Mr. LAWRENCE. The principles of the government, and ends of the Constitution, he remarked, were expressed in its preamble. It is established for the common defence and general welfare. The body of that instrument contained provisions the best adapted to the intention of those principles and attainment of those ends. To these ends, principles, and provisions, Congress was to have, he conceived, a constant eye; and then, by the sweeping clause, they were vested with the powers to carry the ends into execution.

Mr. JACKSON. From the power given the general government of making all necessary laws concerning the property of the United States, a right to establish a national bank had been deduced; and it was asked if bank notes were not property. He said they were a property of a peculiar nature. They were not property as well as an ox or an ass; so they could not be taxed.

It had been asked whether Congress could not establish a bank within the ten miles square, granted to the general government for the permanent residence of the federal legislature. Congress could not, because they had no authority to force the circulation of this paper beyond the limits of the ten miles. The fiscal administration of the Union was said to be vested in Congress. But this did not authorize their adoption of any measures they should think fit for the regulation of the finances. The very Constitution which granted these fiscal powers restricted them by particular clauses; for example, Congress could not without control lay a poll tax, and could not, in any shape, impose duties on exports; yet they were undoubtedly fiscal operations.

Gentlemen, he said, had deduced this power from various parts of the Constitution. The preamble and context had been mentioned; the clause that provides for laying taxes had been particularly dwelt upon; but surely the bill before the house did neither lay an excise, direct tax, or any other, and could, therefore, not come within the meaning of the clause.

Mr. BOUDINOT. But gentlemen say that the Constitution does not expressly warrant the establishment of such a corporation. If, by expressly, express words are meant, it is agreed that there are no express words; and this is the case with most of the powers .exercised by Congress; for if the doctrine of necessary implication is rejected, he did not see what the supreme legislature of the Union could do in that character; if this power is not clearly given in the Constitution by necessary implication, then it is a necessary end proposed and directed, while the common and useful necessary means to attain that end are refused, or at least not granted. Mr. Boudinot was firmly of opinion that the national bank was the necessary means, without which the end could not be obtained.

Mr. STONE thought that the friends of the bill were not willing to confine themselves to such means as were necessary and proper, but had extended their views to those convenient and agreeable. If, in the plan before the house, he said, a provision had been made to secure a certainty that money could be procured by the. government on loan from this bank, there would be more plausibility, he thought, in urging its establishment by a construction of the power of borrowing money. But the bank could, and, whenever it was their interest, certainly would, refuse lending to government. If the power, in this case, was deduced by implication, and was exercised because it was thought necessary and proper, it might be [p.419] the opinion of a future Congress that monopolies, in certain cases, might be useful, and a door would then be open for their establishment.

February7, 1791

Mr. GERRY. The gentlemen on different sides of the question do not disagree with respect to the meaning of the terms taxes, duties, imports, excises, &c., and of borrowingmoney, but of the word necessary; and the question is, What is the general and popular meaning of the term? Perhaps the answer to the question will be truly this—That, in a general and popular one, the word does not admit of a definite meaning, but that this varies according to the subject and circumstances. With respect to the subject, for instance; if the people, speaking of a garrison besieged by a superior force, and without provisions or a prospect of relief, should say it was under the necessity of surrendering, they would mean a physical necessity; for troops cannot subsist long without provisions. But if, speaking of a debtor, the people should say he was frightened by his creditor, and then reduced to the necessity of paying his debts, they would mean a legal, which is very different from a physical necessity; for although the debtor, by refusing payment, might be confined, he would be allowed sustenance; and the necessity he was under to pay his debts would not extend beyond his confinement. Again, if it should be said that a client is under the necessity of giving to his lawyer more than legal fees, the general and popular meaning of necessity would in this case be very different from that in the other cases. The necessity would neither be physical nor legal, but artificial, or, if I may be allowed the expression, a long-robed necessity. The meaning of the word "necessary" varies, also, according to circumstances: for, although Congress have power to levy and collect taxes, duties, &c.; to borrow money; and to determine the time, quantum, mode, and every regulation necessary and proper for supplying the treasury,—yet the people would apply a different meaning to the word necessary under different circumstances. For instance, without a sufficiency of precious metals for a medium, laws creating an artificial medium would be generally thought necessary for carrying into effect the power to levy and collect taxes; but if there was a sufficiency of such metals, those laws would not generally be thought necessary. Again, if specie was scarce, and the credit of the government low, collateral measures would be by the people thought necessary for obtaining public loans; but not so if the case was reversed. Or, if parts of the states should be invaded and overrun by an enemy, it would be thought necessary to levy on the rest heavy taxes, and collect them in a short period, and to take stock, grain, and other articles, from the citizens, without their consent, for common defence; but in a time of peace and safety such measures would be generally supposed unnecessary. Instances may be multiplied in other respects, but it is conceived that these are sufficient to show that the popular and general meaning of the word "necessary" varies according to the subject and circumstances.

The Constitution, in the present case, is the great law of the people, who are themselves the sovereign legislature; and the preamble is in these words—"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessing of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." [p.420]

These are the great objects for which the Constitution was established; and it, administering it, we should always keep them in view. And here it is remarkable, that, although common defence and general welfare are held up, in the preamble, amongst the primary objects of attention, they are again mentioned in the 8th section of the 1st article, whereby we are enjoined, in laying taxes, duties, &c., particularly to regard the common defence and general welfare. Indeed, common sense dictates the measure; for the security of our property, families, and liberties—of every thing dear to us—depends on our ability ability to defend them. The means, therefore, for attaining this object, we ought not to omit a year, a month, or even a day, if we could avoid it; and we are never provided for defence unless prepared for sudden emergencies.

In the present case, the gentlemen in the opposition generally, as well as the gentleman first up, from Virginia, give the whole clause by which Congress are authorized "to make all laws necessary and proper," &c., no meaning whatever; for they say the former Congress had the same power under the Confederation, without this clause, as the present Congress have with it. The "Federalist" is quoted on this occasion; but, although the author of it discovered great ingenuity, this part of his performance I consider as a political heresy. His doctrine, indeed, was calculated to lull the consciences of those who differed in opinion with him at that time; and, having accomplished his object, he is probably desirous that it may die with the opposition itself. The rule in this case says, that where the words bear no signification, we must deviate a little; and as this deviation cannot be made by giving the words less than no meaning, it must be made by a more liberal construction than is given by gentlemen in the opposition. Thus their artillery is turned against themselves; for their own interpretation. is an argument against itself.

The last rule mentioned relates to the spirit and reason of the law; and the judge is of opinion "that the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it—of the cause which moved the legislature to enact it." The causes which produced the Constitution were an imperfect union, want of public and private confidence, internal commotions, a defenceless community, neglect of the public welfare, and danger to our liberties. These are known to be the causes, not only by the preamble of the Constitution, but also from our own knowledge of the history of the times which preceded the establishment of it. If these weighty causes produced the Constitution, and it not only gives power for removing them, but also authorizes Congress to make all laws necessary and proper for carrying these powers into effect, shall we listen to assertions, that these words have no meaning, and that the new Constitution has not more energy than the old? Shall we thus unnerve the government, leave the Union as it was under the Confederation,—defenceless against a banditti of Creek Indians,—and thus relinquish the protection of its of its citizens? Or shall we, by a candid and liberal construction of the powers expressed in the Constitution, promote the great and important objects thereof? Each member must determine for himself. I shall, without hesitation, choose the latter, and leave the people and states to determine whether or not I am pursuing their true interest. If it is inquired where we are to draw the line of a liberal construction, I would also inquire, Where is the line of restriction to be drawn?

The interpretation of the Constitution, like the prerogative of a [p.421] sovereign, may be abused; but from hence the disabuse of either cannot be inferred. In the exercise of prerogative, the minister is responsible for his advice to his sovereign, and the members of either house are responsible to their constituents for their conduct in construing the Constitution. We act at our peril: if our conduct is directed to the attainment of the great objects of government, it will be approved, and not otherwise. But this cannot operate as a reason to prevent our discharging the trusts reposed in us.

Let us now compare the different modes of reasoning on this subject, and determine which is right—for both cannot be.

The gentleman from Virginia (Mr. Madison) has urged the dangerous tendency of a liberal construction; but which is most dangerous, a liberal or a destructive interpretation? The liberty we have taken in interpreting the Constitution, we conceive to be necessary, and it cannot be denied to be useful in attaining the objects of it; but whilst he denies us this liberty, he grants to himself a right to annul part, and a very important part, of the Constitution. The same principle that will authorize a destruction of part, will authorize the destruction of the whole, of the Constitution; and if gentlemen have a right to make such rules, they have an equal right to make others for enlarging the powers of the Constitution, and indeed of forming a despotism. Thus, if we take the gentleman for our pilot, we shall be wrecked on the reef which he cautions us to avoid.

The gentleman has referred us to the last article of the amendment proposed to the Constitution by Congress, which provides that the powers not delegated to Congress, or prohibited to the states, shall rest in them or the people; and the question is, What powers are delegated? Does the gentleman conceive that such only are delegated as are expressed? If so, he must admit that our whole code of laws are unconstitutional. This he disavows, and yields to the necessity of interpretation, which, by a fair and candid application of established rules of construction to the Constitution, authorize, as has been shown, the measure under consideration.

The usage of Congress has also been referred to; and if we look at their acts under the existing Constitution, we shall find they are generally the result of a liberal construction. I will mention but two. The first relates to the establishment of the executive departments, and gives to the President the power of removing officers. As the Constitution is silent on this subject, the power mentioned, by the gentleman’s own reasoning, is vested in the states or the people. He, however, contended for an assumption of the power, and, when assumed, urged that it should be vested in the President, although, like the power of appointment, it was, by a respectable minority in both houses, conceived that it should have been vested in the President and Senate. His rule of interpretation then was, therefore more liberal than it is now. In the other case, Congress determined by law, with the sanction of the President, when and where they should hold their next session, although the Constitution provides that this power shall rest solely in the two houses. The gentleman also advocated this measure, and yet appears to be apprehensive of the consequences that may result from a construction of the Constitution which admits of a national bank. But from which of these measures is danger to be apprehended? The only danger from our interpretation would be the exercise by Congress of a general power to form corporations; but the dangers resulting from the gentleman’s interpretation are very [p.422] different; for what may we not apprehend from the precedent of having assumed a power on which the Constitution was silent, and from having annexed it to the supreme executive? If we have this right in one instance, we may extend it to others, and make him a despot.


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Chicago: Elliot, Jonathan, ed., "On the Establishment of a National Bank February 2, 1791," Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 4 in The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787 (Philadelphia: J. B. Lipincott Company, 1901), Original Sources, accessed March 29, 2023,

MLA: . "On the Establishment of a National Bank February 2, 1791." Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 4, edited by Elliot, Jonathan, in The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, Vol. 4, Philadelphia, J. B. Lipincott Company, 1901, Original Sources. 29 Mar. 2023.

Harvard: (ed.), 'On the Establishment of a National Bank February 2, 1791' in Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 4. cited in 1901, The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, J. B. Lipincott Company, Philadelphia. Original Sources, retrieved 29 March 2023, from