JUDGE STORY'S OPINION THEREON.

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frequent defalcations, from incapacity it may be, but more frequently from design, the public are often cheated to a large amount. The diminution from these causes, in the last year of which returns have been made, (1836,) amounted to 126,684 dollars. But the losses which the Government has sustained since then, have, we believe, been proportionably much greater.

It is quite foreign to our object to enter on an inquiry as to the constitutionality, or otherwise, of a national banking institution in the United States; which is a matter altogether for the consideration of the American people, who have an undisputed right to consult their own fancies and predilections in any case of the kind, and who can themselves be the only sufferers by any headstrong or self-willed determination, or of a constrained or wrongful interpretation of the wording of the constitution under which they are pleased to be governed. We take the following extract from Mr. Justice Story's "Commentaries on the Constitution of the United States," which gives a brief summary of the principal arguments for and against the constitutionality of a national bank within the Union.

"One of the earliest and most important measures, which gave rise to a question of constitutional power, was the act chartering the bank of the United States, in 1791. That question has often since been discussed; and though the measure has been repeatedly sanctioned by Congress, by the executive, and by the judiciary, and has obtained the

448 JUDGE STORY ON THE CONSTITUTIONALITY

like favour in the great majority of the states, yet it is, up to this very hour, still debated upon constitutional grounds, as if it were still new and untried. It is impossible, at this time, to treat it as an open question, unless the constitution is for ever to remain an unsettled text, possessing no permanent attributes, and incapable of having any ascertained sense; varying with every change of doctrine and of party, and delivered over to interminable doubts.

"The reasoning upon which the constitutionality of a national bank is denied, turns upon the strict interpretation of the clause giving auxiliary powers, necessary and proper to execute the other enumerated powers. It is to the following effect. The power to incorporate a bank is not among those enumerated in the constitution. It is urged that a bank will give great facility or convenience to the collection of taxes. If this were true, yet the constitution allows only the means that are necessary, and not merely those which are convenient for effecting the enumerated powers. If such a latitude of construction were allowed, as to consider convenience, as justifying the use of such means, it would swallow up all the enumerated powers. Therefore the constitution restrains Congress to those means, without which the power would be nugatory.

"The reasoning by which the constitutionality of a national bank is sustained is (in part) contained in the following summary. The powers confided to the national government are unquestionably, so far as they exist, sovereign and supreme. It is not, and

OF A NATIONAL BANK.

449

cannot be disputed, that the power of creating a corporation is one belonging to sovereignty. But so are all legislative powers; for the original power of giving the law, on any subject whatever, is a sovereign power. If the erecting of a corporation be an incident to sovereignty, and it is not prohibited, it must belong to the national government in relation to the objects entrusted to it. The true difference is this: where the authority of a government is general, it can create corporations in all cases; where it is confined to certain branches of legislation, it can create corporations only as to those cases. It cannot be denied, that implied powers may be delegated, as well as express. It follows that a power to erect corporations may as well be implied as any other thing, if it be an instrument, or means of carrying into execution any specific power.

"It is true, that among the enumerated powers, we do not find that of establishing a bank or creating a corporation; but we do find there the great powers to lay and collect taxes, to borrow money, to regulate commerce, to declare and conduct war, and to raise and support navies. Now, if a bank be a fit means to execute any or all of these powers, it is just as much implied as any other means. If it be necessary and proper for any of them, how is it possible to deny the authority to create it for such purposes? There is no more propriety in giving this power in express terms, than in giving any other incidental power or means in express terms.

“That a national bank is an appropriate means to carry into effect some of the enumerated powers of 2 G

VOL. I.

the government, and that this can be best done by creating it into a corporation, may be established by the most satisfactory reasoning. It has a relation, more or less direct, to the power of collecting taxes, to that of borrowing money, to that of regulating trade between states, and to those of raising and maintaining fleets and armies. And it may be added, that it has a most important bearing upon the regulation of currency between the states. It is an instrument, which has been applied by governments in the administration of their fiscal and financial operations; and in the present times it can hardly require argument to prove that it is a convenient, a useful, and an essential instrument in the fiscal operations of the United States."

Whatever diversity of opinion may exist as to the constitutionality of an institution of this kind in the United States, there can be none, we apprehend, as to the measure of its usefulness, in aiding in the collection of the public revenues, but more especially in regulating the commercial exchanges, that since the expiry of the charter of the late United States Bank, have been left to the chances of a varying and uncertain control, in their connection with the trade and intercourse of the country.

The following table exhibits the highest and lowest rate of exchange at New York, on London, at sixty days after sight; and on Boston, Philadelphia, Charleston, and New Orleans at sight; and of the American gold of the old and new coinage, sovereigns, Spanish doubloons, Spanish dollars, and five franc pieces in each year, from January 1825, to 1839.