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Chap. Iv. the finances ; and of the greatest utility in the opera1791. tions connected with the support of public credit," he had earnestly recommended its adoption in the first general system which he presented to the view of congress; and, at the present session, had repeated that recommendation in a special report, containing a copious and perspicuous argument on the policy of the measure. A bill conforming to the plan he suggested was sent down from the senate, and was permitted to progress, unmolested, in the house of representatives, to the third read

on.nationaling. On the final question, a great, and it would seem an unexpected opposition was made to its passage. Mr. Madison, Mr. Giles, Mr. Jackson and Mr. Stone spoke against it. The general utility of banking systems was not admitted, and the particular bill before the house was censured on its merits; but the great strength of the argument was directed against the constitutional authority of congress to pass an act for incorporating a national bank.

The government of the United States, it was said, was limited; and the powers which it might legitimately exercise were enumerated in the con. stitution itself In this enumeration, the power now contended for was not to be found. Not being expressly given, it must be implied from tluse which were given, or it could not be vested in the government. The clauses under which it could be claimed were then reviewed and critically examined; and it was contended that, on fair construction, no one of these could be understood to imply so important a power as that of creating a Chap.iv. corporation. 1791.

The clause which enables congress to pass all laws necessary and proper to execute the specified powers, must, according to the natural and obvious force of the terms and the contt xt, be limited to means necessary to the end and incident to the nature of the specified powers. The clause it was said, was in fact merely declaratory of what would have resulted by unavoidable implication, as the appropriate, and as it were technical means of executing those powers. Some gentlemen observed, that "the true exposition of a necessary mean to produce a given end was that mean with? out which the end could not be produced."

The bill was supported by Mr. Ames, Mr. Sedgwick, Mr. Smith of S iuth Carolina, Mr. Lawrence, Mr. Boudinot, Mr. Gerry and Mr. Vining.

The utility of banking institutions was said to be demonstrated by their effects. In all commercial countries they had been resorted to as an instrument of great efficacy in mercantile transactions ; and even in the United States, their pub* lie and private advantages had been felt and acknowledged. •

Respecting the policy of the measure, no well founded doubt could be entertained; but the objections to the constitutional authority of congress deserved to be seriously considered.

That the government was limited by the terms of its creation was not controverted; and that it could exercise only those powers which were con

Chap, iv. ferred on it by the constitution was admitted. 1791. If, on examination, that instrument should be found to forbid the passage of the bill, it must be rejected, though it would be with deep regret that its friends would suffer such an opportunity of serving their country to escape for the want of a constitutional power to improve it.

In asserting the authority of the legislature to pass the bill, gentlemen contended, that incidental as well as express powers must necessarily belong to every government; and that, when a power is delegated to effect particular objects, all the known and usual means of effecting them must pass as incidental to it. To remove all doubt on this subject, the constitution of the United States had recognized the principle, by enabling congress to make all laws which may be necessary and proper for carrying into execution the powers vested in the government. They maintained the sound construction of this grant to be a recognition of an authority in the national legislature, to employ all the known and usual means for executing the powers vested in the government. They then took a comprehensive view of those powers, and contended that a bank was a known and usual instrument by which several of them were exercised.

After a debate of great length, which was supported on both sides with ability, and with that ardor which was naturally excited by the importance attached by each party to the principle in contest, the question was put, and the bill was carried in the affirmative by a majority of nineteen voices.

The point which had been agitated with so Chap. Iv. much zeal in the house of representatives, was \j9\, examined not less deliberately by the executive. The cabinet was divided upon it. The secretary -n,,.opinion, of state and the attorney general conceived that °abJl«on congress had clearly transcended their constitu-tionalitf

°" thi» last law.

tional powers; while the secretary of the treasury, with equal clearness, maintained the opposite opinion. The advice of each minister, with his reasoning in support of it, was required in writing, and their arguments were considered by the president with all that attention which the magnitude of the question, and the interest taken in it by the opposing parties, so eminently required. This deliberate investigation of the subject terminated in a conviction, that the constitution of the United States authorized the measure,* and the sanction of the executive was given to the act.

The judgment is so essentially influenced by the wishes, the affections, and the general theories of those by whom any political proposition is decided, that a contrariety of opinion on this great constitutional question might well have been expected. It must be recollected that the conflict between pro^oier

. . . partiei.

congressional and state authority originated with the creation of those authorities. Even during the war, the preponderance of the states was obvious; and in a very few years after peace, the struggle ended in the utter abasement of the general government. Many causes concurred to produce a constitution which was deemed more competent to

See JVote, No. III. at the end of the Volume. Vol. v. q.q

Chap. iv. the preservation of the union, but its adoption was 1791. opposed by great numbers; and in some of the large states especially, its enemies soon felt and manifested their superiority. The old line of division was still as strongly marked as ever. Many retained the opinion that liberty could be endangered only by encroachments upon the states, and that it was the great duty of patriotism to restrain the powers of the general government within the narrowest possible limits.

In the other party, which was also respectable for its numbers, many were found who had watched the progress of American affairs, and who sincerely believed that the real danger which threatened the republic was to be looked for in the undue ascendency of the states. To them it appeared that the substantial powers, and the extensive means of influence which were retained by the local sovereignties, furnished them with weapons for aggression which were not easily to be resisted, and that it behoved all those who were anxious for the happiness of their country, to guard the equilibrium established in the constitution, by preserving unimpaired, all the legitimate powers of the union. These were more confirmed in their sentiments by observing the temper already discovered in the legislatures of several states, respecting the proceedings of congress.

To this great and radical division of opinion, which would necessarily affect every question on the authority of the national legislature, were added other motives which were believed to possess

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