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 context, 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 without which the end could not be produced."
The bill was supported by Mr. Ames, Mr. Sedgwick, Mr. Smith, of South 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 public 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 conferred on it by the constitution, was admitted. 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 ardour 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 opinions of the cabinet on the constitutionality of this last law.
[The] point which had been agitated with so much zeal in the house of representatives, was examined with equal deliberation by the executive. The cabinet was divided upon it. The secretary of state, and the attorney general, conceived that congress had clearly transcended their constitutional 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;[52] and the sanction of the executive was given to the act.
Progress of parties.