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[MVB], Notes on implied powers, [c22 January 1824]

Implied Powers

Genl Hamiltons Report on the Bank of the U.S. Febry 1798

1 The question turns on the power of Congress to grants acts of incorporation. That is a power incident to Sovereignty. In Legislating on the Subjects commited to the Genl. Govemt, it is sovereign & can do all that any other sovereign power may including of course the power to grant acts of incorporation.

2d The powers confered upon the Genl Govmnt are express, implied, & resulting.

3d. The power to incorporate may be implied as an instant or mean of carrying into effect any of the Specified power of the Govemnt, & the only question as in every other case is whether the means to be employed has a natural tendency relation to any of the acknowledged object or lawful ends of the Govemt.

4th The ground taken by the Secty of state (Mr Jefferson) was that no means were allowable except such as without their lese the Specified power would be negatory

5. The whole turn of the clause shews that it was intended by the conviction by that clause to give a liberal latitude to the exercise of the specified powers.

6th. The relation betwn the measure & the end betwen the nature of the mean employed towards the execution of a power & the object of that power & must be the criterion of constitutionality, not the more or less necessity or illegible.

7th. The practice of the Govemnt agt the Secretary construction. The act concerning light houses beacons buoys & public Piers is a decisive example. This must be refered to the power to regulate trade, but that power could be exercised without them.

8th. The pay. Genls. condefinition of the word necessary is "To be necessary to be incidental & may be denominated the national means of executing a power"

9th Admits that the clause in question gives no new or independent powers. But it gives an explicit sanction to the doctrine of implid powers & is equivalent to an admission of the proposition that the Govt as to its specified powers and objects has plenary & sovereign authority in some cases paramount & in others co-ordinate with the States

10. No objection that this may by construction extend the powers of the Genl. Gov. the throughout the whole illegible of State legislature. The same they may be said of every power claimd by construction or implication. The much the better is departed from them is danger of abuse but without it the notion of the Govemnt would at once be arrested. The difficulty rises from the nature of the Federal contribution. The result is inevitable from a division of Legislative power. There will always be cases clearly without the Federal Power others without it & a third class disputed & doubtful concuring which a reasonable latitude of Jugdmt must be allowed

11. But his no rule furnishes a illegible. It is the end. If the measure proposed have an obvious relation to that endit & is not denyed it may safely be considerd to be within the power of the Fed. Gov. especially if does not abridge a previous right of the States or individuals.

12th An other objection used by the S. of S. is the rejection by the conviction of a proposition to empower congress to make corporations either generally or for some special purpose what was the precise nature or extent of this proposition or what the reason for refusing it is not ascertained by any authentic document or even by accurate recollection. As far as any document exists it specific only canals; for which purpose a special power would have ben necessary except with regard to the Western territory; there being nothing in any part of the constitution respecting the regulation of canals, he then goes on to State the different & contradictory accounts which are given of the proposition some saying it was confind to canals, other that it included Banks & concludes that no safe inference could be drawn from it

13. The degree in which a measure is or is not necessary cannot be a lett of constitutional right but if expediency only

14. The establishment of a Bank has relation

To the power of collecting taxs

To that of borowing Money

To that of regulating trade betwen the States

To those of raising plats & illegible

To making all needful rules & regulations concerning the property of the U.State

15 The constitutional test of a right of application must always be whether it be for a purpose of a general or local nature. If the former there can be no want of constitutional power.

16 Why may not the power to regulate trade include that of erecting a leading company as has ben done by other commercial

Report on Manufacturers

1798

5th. Du

says McCorp

"Legislature to pronounce upon the object which concern the general Welfare & for which under that description an appropriation of money for ^a^ doubt that whatever concerns the general interest of Learning agriculture manufactures & commerce are within the sphere of the national councils as far as regards an application of money"

Genl. Hamilton

Report on the

Constitutionality

of the Bank of the

U. S. &c

Source: DLC Library of Congress
Collection: MVB Papers (DLC)
Series: Series 4 (3 December 1821-31 December 1824)