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under the constitution, have ever since, without question, and with the universal approbation of the nation, from time to time created territorial governments. Yet congress derive this power by implication, as necessary and proper to carry into effect the express power to regulate the territories of the United States. In the convention, two propositions were made, and referred to a committee at the same time with the propositions already stated respecting granting of charters, "to dispose of the unappropriated lands of the United States," and "to institute temporary governments for new states arising therein." Both of these propositions shared the same fate, as those respecting charters of incorporation. But what would be thought of the argument, built upon this foundation, that congress did not possess the power to erect territorial governments, because these propositions were silently abandoned, or annulled in the convention.
§ 626. This is not the only case, in which congress may erect corporations. Under the power to accept a cession of territory for the seat of government, and to exercise exclusive legislation therein, no one can doubt, that congress may erect corporations therein; not only public, but private corporations. They have constantly exercised the power; and it has never yet been breathed, that it was unconstitutional. Yet it can be exercised only as an incident to the power of general legislation. And if so, why may it not be exercised, as an incident to any specific power of legislation, if it be a means to attain the objects of such power?
§ 627. That a national bank is an appropriate means to carry into effect some of the enumerated powers of the government, and that this can be best done by
erecting it into a corporation, may be established by the most satisfactory reasoning. It has 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, and to those of raising and maintaining fleets and armies. And it may be added, that it has a most important bearing upon the regulation of currency between the states. It is an instrument, which has been usually applied by governments in the administration of their fiscal and financial operations. And in the present times it can hardly require argument to prove, that it is a convenient, a useful, and an essential instrument in the fiscal operations of the government of the United States. This is so generally admitted by sound and intelligent statesmen, that it would be a waste of time to endeavour to establish the truth by an elaborate survey of the mode, in which it touches the administration of all the various branches of the powers of the government.
§ 628. In regard to the faculties of the bank, if congress could constitutionally create it, they might confer on it such faculties and powers, as were fit to make it an appropriate means for fiscal operations. They had a right to adapt it in the best manner to its end. No one can pretend, that its having the faculty of holding a capital; of lending and dealing in money; of issuing bank notes; of receiving deposits; and of appointing suitable officers to manage its affairs; are not highly useful and expedient, and appropriate to the purposes of a bank. They are just such, as are usually granted to state banks; and just such, as give increased facilities to all its operations. To say, that the bank might have gone on without this or that faculty, is nothing. Who, but congress, shall say, how
few, or how many faculties it shall have, if all are still appropriate to it, as an instrument of government, and may make it more convenient, and more useful in its operations? No man can say, that a single faculty in any national charter is useless, or irrelevant, or strictly improper, that is conducive to its end, as a national instrument. Deprive a bank of its trade and business, and its vital principles are destroyed. Its form may remain, but its substance is gone. All the powers given to the bank are to give efficacy to its functions of trade and business.
629. As to another suggestion, that the same objects might have been accomplished through the state banks, it is sufficient to say, that no trace can be found in the constitution of any intention to create a dependence on the states, or state institutions, for the execution of its great powers. Its own means are adequate to its end; and on those means it was expected to rely for their accomplishment. It would be utterly absurd to make the powers of the constitution wholly dependent on state institutions. But, if state banks might be employed, as congress have a choice of means, they have a right to choose a national bank, in preference to state banks, for the financial operations of the government. Proof, that they might use one means, is no proof, that they cannot constitutionally use another means.
§ 630. After all, the subject has been settled repeatedly by every department of the government, legislative, executive, and judicial. The states have acquiesced; and a majority have constantly sustained the power. If it is not now settled, it never can be. If it is settled, it would be too much to expect a reargument, whenever any person may choose to ques
POWERS OF CONGRESS
§ 631. ANOTHER question, which has for a long time agitated the public councils of the nation, is, as to the authority of congress to make roads, canals, and other internal improvements.
§ 632. So far, as regards the right to appropriate money to internal improvements generally, the subject has already passed under review in considering the power to lay and collect taxes. The doctrine there contended for, which has been in a great measure borne out by the actual practice of the government, is, that congress may appropriate money, not only to clear obstructions to navigable rivers; to improve harbours; to build breakwaters; to assist navigation; to erect forts, light-houses, and piers; and to other purposes allied to some of the enumerated powers; but may also appropriate it in aid of canals, roads, and other institutions of a similar nature, existing under state authority. The only limitations upon the power are those prescribed by the terms of the constitution, that the objects shall be for the common defence, or the general welfare of the Union. The true test is, whether the object be of a local character, and local use; or, whether it be of general benefit to the states. If it be purely local, congress cannot constitutionally appropriate money for the object. But, if the benefit be general, it matters not, whether in point of locality it be in one state, or several; whether it be of large, or of small extent. Its nature and character determine the right, and congress may
appropriate money in aid of it; for it is then in a just sense for the general welfare.
§ 633. But it has been contended, that the constitution is not confined to mere appropriations of money; but authorizes congress directly to undertake, and carry on a system of internal improvements for the general welfare, wherever such improvements fall within the scope of any of the enumerated powers. Congress may not, indeed, engage in such undertakings merely, because they are internal improvements for the general welfare, unless they fall within the scope of the enumerated powers. The distinction between this power, and the power of appropriation is, that in the latter, congress may appropriate to any purpose, which is for the common defence or general welfare; but in the former, they can engage in such undertakings only, as are means, or incidents to its enumerated powers. Congress may, therefore, authorize the making of a canal, as incident to the power to regulate commerce, where such canal may facilitate the intercourse between state and state. They may authorize light-houses, piers, buoys, and beacons to be built for the purposes of navigation. They may authorize the purchase and building of custom-houses, and revenue cutters, and public ware-houses, as incidents to the power to lay and collect taxes. They may purchase places for public uses; and erect forts, arsenals, dock-yards, navy-yards, and magazines, as incidents to the power to make war.
§ 634. For the same reason congress may authorize the laying out and making of a military road, and acquire a right over the soil for such purposes; and as incident thereto they will have a power to keep the road in repair, and prevent all obstructions thereto. But