The Life of George Washington, Vol. 4 / Commander in Chief of the American Forces During the War / which Established the Independence of his Country and First / President of the United States

by John Marshall

The convenience was then examined. This had been stated in the report of the secretary of the treasury to congress, to consist in the augmentation of the circulation medium, and in preventing the transportation and retransportation of money between the states and the treasury.

The first was considered as a demerit. The second, it was said, might be effected by other means. Bills of exchange and treasury drafts would supply the place of bank notes. Perhaps indeed bank bills would be a more convenient vehicle than treasury orders; but a little difference in the degree of convenience can not constitute the necessity which the constitution makes the ground for assuming any non-enumerated power.

Besides, the existing state banks would, without doubt, enter into arrangements for lending their agency. This expedient alone suffices to prevent the existence of that necessity which may justify the assumption of a non-enumerated power as a means for carrying into effect an enumerated one.

It may be said that a bank whose bills would have a currency all over the states, would be more convenient than one whose currency is limited to a single state. So it would be still more convenient that there should be a bank whose bills should have a currency all over the world; but it does not follow from this superior conveniency, that there exists any where a power to establish such a bank, or that the world may not go on very well without it.

For a shade or two of convenience, more or less, it can not be imagined that the constitution intended to invest congress with a power so important as that of erecting a corporation.

In supporting the constitutionality of the act, it was laid down as a general proposition, "that every power vested in a government is in its nature sovereign," and includes by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power; and which are not precluded by restrictions and exceptions specified in the constitution, are not immoral, are not contrary to the essential ends of political society.

This principle, in its application to government in general, would be admitted as an axiom; and it would be incumbent on those who might refuse to acknowledge its influence in American affairs to prove a distinction; and to show that a rule which, in the general system of things, is essential to the preservation of the social order, is inapplicable to the United States.

The circumstance that the powers of sovereignty are divided between the national and state governments, does not afford the distinction required. It does not follow from this, that each of the portions of power delegated to the one or to the other, is not sovereign with regard to its proper objects. It will only follow from it, that each has sovereign power as to certain things, and not as to other things. If the government of the United States does not possess sovereign power as to its declared purposes and trusts, because its power does not extend to all cases, neither would the several states possess sovereign power in any case; for their powers do not extend to every case. According to the opinion intended to be combated, the United States would furnish the singular spectacle of a political society without sovereignty, or a people governed without a government.

If it could be necessary to bring proof of a proposition so clear as that which affirms that the powers of the federal government, as to its objects, were sovereign, there is a clause in the constitution which is decisive. It is that which declares the constitution of the United States, the laws made in pursuance of it, and the treaties made under its authority to be the supreme law of the land. The power which can create the supreme law in any case, is doubtless sovereign as to such case.

This general and indisputable principle puts an end to the abstract question, whether the United States have power to erect a corporation: for it is unquestionably incident to sovereign power to erect corporations, and consequently to that of the United States, in relation to the objects intrusted to the management of the government. The difference is this: where the authority of the government is general, it can create corporations in all cases; where it is confined to certain branches of legislation, it can create corporations only in those cases.