No.2Feby 12th 1791.

The attorney general, holding it to be his duty to address to the President of the United States, as the grounds of an official opinion, no arguments, the truth of which he does not acknowledge; has reserved for this paper several topic’s, which have more or less influenced the friends & enemies of the bank-bill; and which ought therefore to be communicated to the President.

1. The enemies of the bill have contended, that a rule of construction, adverse to the power of incorporation, springs out of the constitution, itself; that after the grant of certain powers to Congress, the Constitution, as if cautious, against usurpation, specially grants several other powers, more akin to those before given, than the incorporation of a bank is to any of those, from which it is deduced.

This position they say, has been exemplified in four instances.

1. A Power is given to regulate commerce; and yet is added a power to establish uniform laws on the subject of Bankruptcies through out the United States: to fix the standard of weights & measures; and to establish post offices and post roads.

2. A Power is given to coin money; and yet is added a power to regulate the value thereof and of foreign coin; and to provide for the punishment of counterfeiting the current coin of the United States.

3. A Power is given to declare war; & yet is added a power to grant letters of Marque and reprisal: to make rules concerning captures on land & water; to raise & support armies: to provide & maintain a Navy: and to make rules for the government & regulation of the Land & naval forces.

4. A Power is given to provide for calling forth the militia, to execute the Laws of the Union; and yet is added a power to call them forth to suppress insurrections.

Whosover will attentively inspect the Constitution, will readily perceive the force of what is expressed in the letter of the convention; “That the Constitution was the result of a spirit of amity, and mutual deference & concession.” To argue, then, from its Style or arrangement, as being logically exact, is perhaps a scheme of reasoning not absolutely precise.

But if the Constitution were ever so perfect, considered even as a composition, the difficulties, which the above Doctrine has started may be solved by the following remarks.

Those similar powers, on which stress is laid, are either incidental, or substantive, that is independent powers.

If they be incidental powers, and the conclusion be, that because some incidental powers are expressed, no others are admissible; it wou’d not only be contrary to the common forms of construction, but would reduce the present Congress to the feebleness of the old one, which could exercise no powers, not expressly delegated. So that the advocates for the power of incorporation on the principle of incidentality to some specified power, would, notwithstanding this supposed rule of interpretation, be as much at liberty to insist on its being an incidental power as ever.

If these similar powers be substantive and independant (as on many occasions they are, that is, as they can be conceived to be capable of being used, independently of what is called the principal power) it ought not to be inferred, that they were inserted for any other purpose, than to bestow an independent power, where it would not otherwise have existed.

The only remaining signification, which the Doctrine now controverted can have, is that the incorporation of a bank being more wide from a connection with the specified powers of legislation, than the additional ones were from the principal powers, to which they were supposed to belong; the power of incorporation being omitted, or rather not specially mentioned, cannot be assumed. Even this answer is not adequate to those, who derive the power of incorporation from the nature of the fœderal government.

Hence the rule contended for by the enemies of the bill is defective every way. It would be still more so with respect to those (if any such there be) who construe the words, “necessary and proper”, so as to embrace every expedient power.

2. An appeal has been also made by the enemies of the bill, to what passed in the federal convention on this subject. But ought not the Constitution to be decided on by the import of its own expressions? What may not be the consequence, if an almost unknown history should govern the Construction?

3. The opinions too of several respectable characters have been cited, as deliverd in the State conventions. As these have no authoritative influence; so ought it to be remembered, that observations were uttered by the advocates of the Constitution, before its adoption, to which they will not, and in many cases, ought not to adhere.

4. On the other hand the friends to the bill have relied on the Congressional Acts as to Westpoint, the Government of the Western Territory, and the power of removal from Office, given to the President.

The two first are within express powers, as will occur, by adverting to the power to exercise authority over places purchased for forts &c., and to the power to dispose of, and make needful rules and regulations respecting the property of the Und States: the last is a point with a great weight of reason on each side. If it be founded on the general nature of executive authority, the power is probably not tenable, without resorting to the Doctrines of the friends to the Bill. But it appears to be a power not specially given to any person (except on an impeachment) and may therefore incidentally belong to Congress to confer on the President: however if this step be an error, it is never too late to correct it.

5. It has been also pretended, that even the infirm old Congress incorporated a bank; and can a less power be presumed to be vested in the federal government, which has been formed to remedy their weakness? This argument is so indefinite; the time of the incorporation was so pressing and the States had such an unlimitted command over Congress and their acts, that the public acquiescence ought not to be the basis of such a power under the present circumstances.

6. Congress it is farther said, may provide for the general welfare, and this includes the power of incorporation: but they are to provide for the general welfare in laying & collecting taxes. Is the incorporation of a bank a tax bill? The meaning of the power taken together, seems to be, that Congress may lay taxes for the purpose of expending money for the public welfare, even to subscribe it to a bank. But is this like the creation of bank? It implies that a bank has been already created.

7. It has been also asserted, that Congress have an exclusive legislation at the seat of government. This will not be true, until they go to the place of the permanent residence.

The Attorney general has not collected any other information upon this subject; altho’ more may perhaps have been said by the partizans for & against the Bank than is here noticed.