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 government. 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 prosecuted is the end. The association in order to form the requisite 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 can not become the end.

To this reasoning respecting the inherent right of government 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 government 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.

But it is essential to the being of the government that so erroneous a conception of the meaning of the word necessary should be exploded.

It is certain that neither the grammatical nor popular sense of the term requires that construction. According to both, necessary often means no more than needful, requisite, incidental, useful, or conducive to. It is a common mode of expression to say that it is necessary for a government or a person to do this or that thing, where nothing more is intended or understood than that the interests of the government or person require, or will be promoted by doing this or that thing.

This is the true sense in which the word is used in the constitution. The whole turn of the clause containing it indicates an intent to give by it a liberal latitude to the exercise of the specified powers. The expressions have peculiar comprehensiveness,

They are "to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States, or in any department or office thereof." To give the word "necessary" the restrictive operation contended for, would not only depart from its obvious and popular sense, but would give it the same force as if the word absolutely or indispensably had been prefixed to it.

Such a construction would beget endless uncertainty and embarrassment. The cases must be palpable and extreme in which it could be pronounced with certainty that a measure was absolutely necessary, or one without which a given power would be nugatory. There are few measures of any government which would stand so severe a test. To insist upon it would be to make the criterion of the exercise of an implied power a case of extreme necessity; which is rather a rule to justify the overleaping the bounds of constitutional authority than to govern the ordinary exercise of it.

The degree in which a measure is necessary can never be a test of the legal right to adopt it. The relation between the measure and the end; between the nature of the mean employed towards the execution of a power, and the object of that power must be the criterion of constitutionality, not the more or less necessity or utility.

The means by which national exigencies are to be provided for, national inconveniences obviated, and national prosperity promoted, are of such infinite variety, extent, and complexity, that here must of necessity be great latitude of discretion in the selection and application of those means. Hence the necessity and propriety of exercising the authority intrusted to a government on principles of liberal construction.

While on the one hand, the restrictive interpretation of the word necessary is deemed inadmissible, it will not be contended on the other, that the clause in question gives any new and independent power. But it gives an explicit sanction to the doctrine of implied powers, and is equivalent to an admission of the proposition that the government, as to its specified powers and objects, has plenary and sovereign authority. It is true that the power to create corporations is not granted in terms. Neither is the power to pass any particular law, nor to employ any of the means by which the ends of the government are to be attained. It is not expressly given in cases in which its existence is not controverted. For by the grant of a power to exercise exclusive legislation in the territory which may be ceded by the states to the United States, it is admitted to pass; and in the power "to make all needful rules and regulations respecting the territory or other property of the United States," it is acknowledged to be implied. In virtue of this clause, has been implied the right to create a government; that is, to create a body politic or corporation of the highest nature; one that, in its maturity, will be able itself to create other corporations. Thus has the constitution itself refuted the argument which contends that, had it been designed to grant so important a power as that of erecting corporations, it would have been mentioned. But this argument is founded on an exaggerated and erroneous conception of the nature of the power. It is not of so transcendent a kind as the reasoning supposes. Viewed in a just light, it is a mean which ought to have been left to implication, rather than an end which ought to have been expressly granted.

The power of the government then to create corporations in certain cases being shown, it remained to inquire into the right to incorporate a banking company, in order to enable it the more effectually to accomplish ends which were in themselves lawful.

To establish such a right it would be necessary to show the relation of such an institution to one or more of the specified powers of government.

It was then affirmed to have a relation more or less direct to the power of collecting

taxes, to that of borrowing money, to that of regulating trade between the states, to those of raising, supporting, and maintaining fleets and armies; and in the last place to that which authorizes the making of all needful rules and regulations concerning the property of the United States, as the same had been practised upon by the govern

ment.

The secretary of the treasury next proceeded, by a great variety of arguments and illustrations, to prove the position that the measure in question was a proper mean for the execution of the several powers which were enumerated, and also contended that the right to employ it resulted from the whole of them taken together. To detail those arguments would occupy too much space, and is the less necessary, because their correctness obviously depends on the correctness of the principles which have been already stated.

NOTE-No. VI.

The officer to whom the management of the finances was confided was so repeatedly charged with a desire to increase the public debt and to render it perpetual, and this charge had such important influence in the formation of parties, that an extract from this report can not be improperly introduced.

After stating the sum to be raised, the secretary says, "three expedients occur to the option of the government for providing this:

One, to dispose of the interest to which the United States are entitled in the bank of the United States. This at the present market price of bank stock would yield a clear gain to the government much more than adequate to the sum required.

Another, to borrow the money upon an establishment of funds either merely commensurate with the interest to be paid, or affording a surplus which will discharge the principal by instalments within a short term.

The third is to raise the amount by taxes.

After stating his objections to the first and second expedients, the report proceeds thus, "but the result of mature reflection is, in the mind of the secretary, a strong conviction that the last of the three expedients which have been mentioned, is to be preferred to either of the other two.

"Nothing can more interest the national credit and prosperity than a constant and systematic attention to husband all the means previously possessed for extinguishing the present debt, and to avoid, as much as possible, the incurring of any new debt.

"Necessity alone, therefore, can justify the application of any of the public property, other than the annual revenues, to the current service, or the temporary and casual exigencies; or the contracting of an additional debt by loans, to provide for those exigencies.

"Great emergencies indeed might exist, in which loans would be indispensable. But the occasions which will justify them must be truly of that description.

"The present is not of such a nature. The sum to be provided is not of magnitude enough to furnish the plea of necessity.

"Taxes are never welcome to a community. They seldom fail to excite uneasy sensations more or less extensive. Hence a too strong propensity in the governments of nations, to anticipate and mortgage the resources of posterity, rather than to encounter the inconveniencies of a present increase of taxes.

But this policy, when not dictated by very peculiar circumstances, is of the worst

kind. Its obvious tendency is, by enhancing the permanent burdens of the people, to produce lasting distress, and its natural issue is in national bankruptcy."

It will be happy if the councils of this country, sanctioned by the voice of an enlightened community, shall be able to pursue a different course.

NOTE-NO. VII.

About the same time a letter was addressed to the attorney general on the same subject. The following extract is taken from one of the twenty-sixth of August to the secretary of the treasury.

"Differences in political opinions are as unavoidable as, to a certain point, they may be necessary; but it is exceedingly to be regretted that subjects can not be discussed with temper, on the one hand, or decisions submitted to on the other, without improperly implicating the motives which led to them; and this regret borders on chagrin when we find that men of abilities, zealous patriots, having the same general objects in view, and the same upright intentions to prosecute them, will not exercise more charity in deciding on the opinions and actions of each other. When matters get to such lengths, the natural inference is that both sides have strained the cords beyond their bearing, that a middle course would be found the best until experience shall have decided on the right way; or, which is not to be expected, because it is denied to mortals, until there shall be some infallible rule by which to forejudge events.

"Having premised these things, I would fain hope that liberal allowances will be made for the political opinions of each other; and instead of those wounding suspicions, and irritating charges with which some of our gazettes are so strongly impregnated, and which can not fail, if persevered in, of pushing matters to extremity, and thereby tearing the machine asunder, that there might be mutual forbearance and temporising yieldings on all sides. Without these, I do not see how the reins of government are to be managed, or how the union of the states can be much longer preserved.

"How unfortunate would it be if a fabric so goodly, erected under so many providential circumstances, after acquiring in its first stages, so much respectability, should, from diversity of sentiment, or internal obstructions to some of the acts of government (for I can not prevail on myself to believe that these measures are as yet the acts of a determined party) be brought to the verge of dissolution. Melancholy thought! But while it shows the consequences of diversified opinions, where pushed with too much tenacity, it exhibits evidence also of the necessity of accommodation, and of the propriety of adopting such healing measures as may restore harmony to the discordant members of the union, and the governing powers of it.

"I do not mean to apply this advice to any measures which are passed, or to any particular character. I have given it, in the same general terms, to other officers of the government. My earnest wish is that balm may be poured into all the wounds which have been given, to prevent them from gangrening, and to avoid those fatal consequences which the community may sustain if it is withheld. The friends of the union must wish this: those who are not, but who wish to see it rended, will be disappointed; and all things I hope will go well."

and transferred from the French to the American papers, but as preserved and avowed by Mr. Jefferson, and given to the world by his grandson. It is in these words.

*"My Dear Friend,

"Monticello, April 24th, 1796.

"The aspect of our politics has wonderfully changed since you left us. In place of that noble love of liberty and republican government which carried us triumphantly through the war, an Anglican, monarchical, and aristocratical party has sprung up, whose avowed object is to draw over us the substance as it has already done the forms of the British government. The main body of our citizens, however, remain true to their republican principles; the whole landed interest is republican, and so is a great mass of talents. Against us are the executive, the judiciary, two out of three branches of the legislature, all the officers of the government, all who want to be officers, all timid men who prefer the calm of despotism to the boisterous sea of liberty, British merchants and Americans trading on British capitals, speculators and holders in the banks and public funds, a contrivance invented for the purposes of corruption, and for assimilating us in all things to the rotten as well as sound parts of the British model. It would give you a fever were I to name to you the apostates who have gone over to these heresies, men who were Samsons in the field and Solomons in council, but who have had their heads shorn by the harlot England. In short, we are likely to preserve the liberty we have obtained only by unremitting labours and perils. But we shall preserve it; and our mass of weight and wealth on the good side is so great as to leave no danger that force will ever be attempted against us. We have only to awake and snap the Lilliputian cords with which they have been entangling us during the first sleep which succeeded our labours.

"I will forward the testimonials, &c."

The reader is requested to pause, to reflect on the state of things at the date of this letter, and to ask himself if its inevitable tendency be not to strengthen the impression in the Directory of France which had influenced its conduct towards the United States? If it be not in the same spirit with the interpolated sentence, carried to a greater extreme, and calculated to produce the same effect?-If the editor who made the interpolation might not reasonably suppose that he was only applying expressly to France a sentiment already indicated in terms too plain to be misunderstood?

France and Great Britain were then waging deadly war against each other. In this mortal conflict, each sought to strengthen herself, or weaken her adversary by any influence to be acquired over foreign powers-by obtaining allies when allies were attainable, or securing neutrality where co-operation was not to be expected. The temper with which the American people contemplated this awful spectacle can not be forgotten. The war of our revolution, in which France fought by the side of America against Great Britain, was fresh in their recollection. Her unexamined professions of republicanism enlisted all their affections in her favour, and all their antipa thies against the monarchs with whom she was contending. Feelings which were believed to be virtuous, and which certainly wore the imposing garb of patriotism, impelled them with almost irresistible force against that wise neutrality which the executive government had laboured to preserve, and had persisted in preserving with wonderful and unexampled firmness. France might, not unreasonably, indulge the hope that our government would be forced out of its neutral course, and be compelled to enter into the war as her ally. The letter to Mazzei could scarcely fail to encourage this hope.

⚫Vol. iii. p. 327.