Speech in Congress Opposing the
February 2, 1791
Mr. Madison began with a general review of the advantages and
disadvantages of banks. The former he stated to consist in, first, the aids
they afford to merchants who can thereby push their mercantile operations
farther with the same capital. 2d. The aids to merchants in paying punctually
the customs. 3d. Aids to the government in complying punctually with its
engagements, when deficiencies or delays happen in the revenue. 4th. In
diminishing usury. 5th. In saving the wear of the gold and silver kept in the
vaults, and represented by notes. 6th. In facilitating occasional remittances
from different places where notes happen to circulate. The effect of the
proposed bank, in raising the value of stock, he thought, had been greatly
overrated. It would no doubt raise that of the stock subscribed into the bank;
but could have little effect on stock in general, as the interest on it would
remain the same, and the quantity taken out of the market would be replaced by
The principal disadvantages consisted in, 1st. banishing the precious
metals, by substituting another medium to perform their office: This effect was
inevitable. It was admitted by the most enlightened patrons of banks,
particularly by Smith on the Wealth of Nations. The common answer to the
objection was, that the money banished was only an exchange for something
equally valuable that would be imported in return. He admitted the weight of
this observation in general, but doubted whether, in the present habits of this
country, the returns would not be in articles of no permanent use to it. 2d.
Exposing the public and individuals to all the evils of a run on the bank,
which would be particularly calamitous in so great a country as this, and might
happen from various causes, as false rumours, bad management of the
institution, an unfavorable balance of trade from short crops, &c.
It was proper to be considered also, that the most important of the
advantages would be better obtained by several banks properly distributed, than
by a single one. The aids to commerce could only be afforded at or very near
the seat of the bank. The same was true of aids to merchants in the payment of
customs. Anticipations of the government would also be most convenient at the
different places where the interest of the debt was to be paid. The case in
America was different from that in England: the interest there was all due at
one place, and the genius of the monarchy favored the concentration of wealth
and influence at the metropolis.
He thought the plan liable to other objections: It did not make so good
a bargain for the public as was due to its interests. The charter to the bank
of England had been granted for 11 years only, and was paid for by a loan to
the government on terms better than could be elsewhere got. Every renewal of
the charter had in like manner been purchased; in some instances, at a very
high price. The same had been done by the banks of Genoa, Naples, and other
like banks of circulation. The plan was unequal to the public creditors —
it gave an undue preference to the holders of a particular denomination of the
public debt, and to those at and within reach of the seat of government. If the
subscriptions should be rapid, the distant holders of paper would be excluded
In making these remarks on the merits of the bill, he had reserved to
himself, he said, the right to deny the authority of Congress to pass it. He
had entertained this opinion from the date of the constitution. His impression
might perhaps be the stronger, because he well recollected that a power to
grant charters of incorporation had been proposed in the general convention and
Is the power of establishing an incorporated bank among the
powers vested by the constitution in the legislature of the United States? This
is the question to be examined.
After some general remarks on the limitations of all political power, he
took notice of the peculiar manner in which the federal government is limited.
It is not a general grant, out of which particular powers are excepted —
it is a grant of particular powers only, leaving the general mass in other
hands. So it had been understood by its friends and its foes, and so it was to
As preliminaries to a right interpretation, he laid down the following
An interpretation that destroys the very characteristic of the
government cannot be just.
Where a meaning is clear, the consequences, whatever they may be, are to
be admitted — where doubtful, it is fairly triable by its
In controverted cases, the meaning of the parties to the instrument, if
to be collected by reasonable evidence, is a proper guide.
Contemporary and concurrent expositions are a reasonable evidence of the
meaning of the parties.
In admitting or rejecting a constructive authority, not only the degree
of its incidentality to an express authority, is to be regarded, but the degree
of its importance also; since on this will depend the probability or
improbability of its being left to construction.
Reviewing the constitution with an eye to these positions, it was not
possible to discover in it the power to incorporate a Bank. The only clauses
under which such a power could be pretended, are either —
1. The power to lay and collect taxes to pay the debts, and provide for
the common defence and general welfare: Or,
2. The power to borrow money on the credit of the United States: Or,
3. The power to pass all laws necessary and proper to carry into
execution those powers.
The bill did not come within the first power. It laid no tax to pay the
debts, or provide for the general welfare. It laid no tax whatever. It was
altogether foreign to the subject.
No argument could be drawn from the terms "common defence, and general
welfare." The power as to these general purposes, was limited to acts laying
taxes for them; and the general purposes themselves were limited and explained
by the particular enumeration subjoined. To understand these terms in any
sense, that would justify the power in question, would give to Congress an
unlimited power; would render nugatory the enumeration of particular powers;
would supercede all the powers reserved to the state governments. These terms
are copied from the articles of confederation; had it ever been pretended, that
they were to be understood otherwise than as here explained?
It had been said that "general welfare" meant cases in which a general
power might be exercised by Congress, without interfering with the powers of
the States; and that the establishment of a National Bank was of this sort.
There were, he said, several answers to this novel doctrine.
1. The proposed Bank would interfere so as indirectly to defeat a State
Bank at the same place. 2. It would directly interfere with the rights of the
States, to prohibit as well as to establish Banks, and the circulation
of Bank Notes. He mentioned a law of Virginia, actually prohibiting the
circulation of notes payable to bearer. 3. Interference with the power of the
States was no constitutional criterion of the power of Congress. If the power
was not given, Congress could not exercise it; if given, they might exercise
it, altho it should interfere with the laws, or even the constitution of the
States. 4. If Congress could incorporate a Bank, merely because the act would
leave the States free to establish Banks also; any other incorporations might
be made by Congress. They could incorporate companies of manufacturers, or
companies for cutting canals, or even religious societies, leaving similar
incorporations by the States, like State Banks to themselves: Congress might
even establish religious teachers in every parish, and pay them out of the
Treasury of the United States, leaving other teachers unmolested in their
functions. These inadmissible consequences condemned the controverted
The case of the Bank established by the former Congress, had been cited
as a precedent. This was known, he said, to have been the child of necessity.
It never could be justified by the regular powers of the articles of
confederation. Congress betrayed a consciousness of this in recommending to the
States to incorporate the Bank also. They did not attempt to protect the Bank
Notes by penalties against counterfeiters. These were reserved wholly to the
authority of the States.
The second clause to be examined is that, which empowers Congress to
Is this a bill to borrow money? It does not borrow a shilling. Is there
any fair construction by which the bill can be deemed an exercise of the power
to borrow money? The obvious meaning of the power to borrow money, is that of
accepting it from, and stipulating payment to those who are able and
willing to lend.
To say that the power to borrow involves a power of creating the
ability, where there may be the will, to lend, is not only establishing a
dangerous principle, as will be immediately shewn, but is as forced a
construction, as to say that it involves the power of compelling the will,
where there may be the ability, to lend.
The third clause is that which gives the power to pass all laws
necessary and proper to execute the specified powers.
Whatever meaning this clause may have, none can be admitted, that would
give an unlimited discretion to Congress.
Its meaning 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 is 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. In this sense it had been explained by the friends of
the constitution, and ratified by the state conventions.
The essential characteristic of the government, as composed of limited
and enumerated powers, would be destroyed: If instead of direct and incidental
means, any means could be used, which in the language of the preamble to the
bill, 'might be conceived to be conducive to the successful conducting of the
finances; or might be conceived to tend to give facility
to the obtaining of loans.' He urged an attention to the diffuse and ductile
terms which had been found requisite to cover the stretch of power contained in
the bill. He compared them with the terms necessary and proper,
used in the Constitution, and asked whether it was possible to view the two
descriptions as synonimous, or the one as a fair and safe commentary on the
If, proceeded he, Congress, by virtue of the power to borrow, can create
the means of lending, and in pursuance of these means, can incorporate a Bank,
they may do any thing whatever creative of like means.
The East-India company has been a lender to the British government, as
well as the Bank, and the South-Sea company is a greater creditor than either.
Congress then may incorporate similar companies in the United States, and that
too not under the idea of regulating trade, but under that of borrowing
Private capitals are the chief resources for loans to the British
government. Whatever then may be conceived to favor the accumulation of
capitals may be done by Congress. They may incorporate manufacturers. They may
give monopolies in every branch of domestic industry.
If, again, Congress by virtue of the power to borrow money, can create
the ability to lend, they may by virtue of the power to levy money, create the
ability to pay it. The ability to pay taxes depends on the general wealth of
the society, and this, on the general prosperity of agriculture, manufactures
and commerce. Congress then may give bounties and make regulations on all of
The States have, it is allowed on all hands, a concurrent right to lay
and collect taxes. This power is secured to them not by its being expressly
reserved, but by its not being ceded by the constitution The reasons for the
bill cannot be admitted, because they would invalidate that right, why may it
not be conceived by Congress, that an uniform and exclusive imposition
of taxes, would not less than the proposed Banks 'be conducive to the
successful conducting of the national finances, and tend to give
facility to the obtaining of revenue, for the use of the government.'
The doctrine of implication is always a tender one. The danger of it has
been felt in other governments. The delicacy was felt in the adoption of our
own, the danger may also be felt, if we do not keep close to our chartered
Mark the reasoning on which the validity of the bill depends. To borrow
money is made the end and the accumulation of capitals, implied
as the means The accumulation of capitals is then the end, and a
bank implied as the means The bank is then the end, and a
charter of incorporation, a monopoly, capital punishments, &c
implied as the means.
If implications, thus remote and thus multiplied, can be linked
together, a chain may be formed that will reach every object of legislation,
every object within the whole compass of political economy.
The latitude of interpretation required by the bill is condemned by the
rule furnished by the constitution itself.
Congress have power "to regulate the value of money", yet it is
expressly added not left to be implied, that counterfeiters may be
They have the power "to declare war," to which armies are more incident,
than incorporated Banks, to borrowing, yet is expressly added, the power "to
raise and support armies", and to this again, the express power "to make rules
and regulations for the government of armies", a like remark is applicable to
the powers as to a navy.
The regulation and calling out of the militia are more appurtenant to
war, than the proposed bank, to borrowing, yet the former is not left to
The very power to borrow money is a less remote implication from the
power of war, than an incorporated monopoly bank, from the power of borrowing
— yet the power to borrow is not left to implication.
It is not pretended that every insertion or omission in the constitution
is the effect of systematic attention. This is not the character of any human
work, particularly the work of a body of men. The examples cited, with others
that might be added, sufficiently inculcate nevertheless a rule of
interpretation, very different from that on which the bill rests. They condemn
the exercise of any power, particularly a great and important power, which is
not evidently and necessarily involved in an express power.
It cannot be denied that the power proposed to be exercised is an
As a charter of incorporation the bill creates an artificial person
previously not existing in law. It confers important civil rights and
attributes, which could not otherwise be claimed. It is, though not precisely
similar, at least equivalent, to the naturalization of an alien, by which
certain new civil characters are acquired by him. Would Congress have had the
power to naturalize, if it had not been expressly given?
In the power to make bye laws, the bill delegated a sort of legislative
power, which is unquestionably an act of a high and important nature. He took
notice of the only restraint on the bye laws, that they were not to be contrary
to the law and the constitution of the bank, and asked what law was intended,
if the law of the United States, the scantiness of their code would give a
power, never before given to a corporation — and obnoxious to the States,
whose laws would then be superceded not only by the laws of Congress, but by
the bye laws of a corporation within their own jurisdiction. If the law
intended, was the law of the State, then the State might make laws that would
destroy an institution of the United States.
The bill gives a power to purchase and hold lands, Congress themselves
could not purchase lands within a State "without the consent of its legislature."
How could they delegate a power to others which they did not possess
It takes from our successors, who have equal rights with ourselves, and
with the aid of experience will be more capable of deciding on the subject, an
opportunity of exercising that right, for an immoderate term.
It takes from our constituents the opportunity of deliberating on the
untried measure, although their hands are also to be tied by it for the same
It involves a monopoly, which affects the equal rights of every
It leads to a penal regulation, perhaps capital punishments, one of the
most solemn acts of sovereign authority.
From this view of the power of incorporation exercised in the bill, it
could never be deemed an accessary or subaltern power, to be deduced by
implication, as a means of executing another power; it was in its nature a
distinct, an independent and substantive prerogative, which not being
enumerated in the constitution could never have been meant to be included in
it, and not being included could never be rightfully exercised.
He here adverted to a distinction, which he said had not been
sufficiently kept in view, between a power necessary and proper for the
government or union, and a power necessary and proper for executing the
enumerated powers. In the latter case, the powers included in each of the
enumerated powers were not expressed, but to be drawn from the nature of each.
In the former, the powers composing the government were expressly enumerated.
This constituted the peculiar nature of the government, no power therefore not
enumerated, could be inferred from the general nature of government. Had the
power of making treaties, for example, been omitted, however necessary it might
have been, the defect could only have been lamented, or supplied by an
amendment of the constitution.
But the proposed bank could not even be called necessary to the
government; at most it could be but convenient. Its uses to the government
could be supplied by keeping the taxes a little in advance — by loans from
individuals — by the other banks, over which the government would have
equal command; nay greater, as it may grant or refuse to these the privilege,
made a free and irrevocable gift to the proposed bank, of using their notes in
the federal revenue.
He proceeded next to the contemporary expositions given to the
The defence against the charge founded on the want of a bill of rights,
presupposed, he said, that the powers not given were retained; and that those
given were not to be extended by remote implications. On any other supposition,
the power of Congress to abridge the freedom of the press, or the rights of
conscience, &c. could not have been disproved.
The explanations in the state conventions all turned on the same
fundamental principle, and on the principle that the terms necessary and proper
gave no additional powers to those enumerated. (Here he read sundry passages
from the debates of the Pennsylvania, Virginia and North-Carolina conventions,
shewing the grounds on which the constitution had been vindicated by its
principal advocates, against a dangerous latitude of its powers, charged on it
by its opponents.) He did not undertake to vouch for the accuracy or
authenticity of the publications which he quoted — he thought it probable
that the sentiments delivered might in many instances have been mistaken, or
imperfectly noted; but the complexion of the whole, with what he himself and
many others must recollect, fully justified the use he had made of them.
The explanatory declarations and amendments accompanying the
ratifications of the several states formed a striking evidence, wearing the
same complexion. He referred those who might doubt on the subject, to the
several acts of ratification.
The explanatory amendments proposed by Congress themselves, at least,
would be good authority with them; all these renunciations of power proceeded
on a rule of construction, excluding the latitude now contended for. These
explanations were the more to be respected, as they had not only been proposed
by Congress, but ratified by nearly three-fourths of the states. He read
several of the articles proposed, remarking particularly on the 11th. and 12th.
the former, as guarding against a latitude of interpretation — the latter,
as excluding every source of power not within the constitution itself.
With all this evidence of the sense in which the constitution was
understood and adopted, will it not be said, if the bill should pass, that its
adoption was brought about by one set of arguments, and that it is now
administered under the influence of another set; and this reproach will have
the keener sting, because it is applicable to so many individuals concerned in
both the adoption and administration.
In fine, if the power were in the constitution, the immediate exercise
of it cannot be essential — if not there, the exercise of it involves the
guilt of usurpation, and establishes a precedent of interpretation, levelling
all the barriers which limit the powers of the general government, and protect
those of the state governments. If the point be doubtful only, respect for
ourselves, who ought to shun the appearance of precipitancy and ambition;
respect for our successors, who ought not lightly to be deprived of the
opportunity of exercising the rights of legislation; respect for our
constituents who have had no opportunity of making known their sentiments, and
who are themselves to be bound down to the measure for so long a period; all
these considerations require that the irrevocable decision should at least be
suspended until another session.
It appeared on the whole, he concluded, that the power exercised by the
bill was condemned by the silence of the constitution; was condemned by the
rule of interpretation arising out of the constitution; was condemned by its
tendency to destroy the main characteristic of the constitution; was condemned
by the expositions of the friends of the constitution, whilst depending before
the public; was condemned by the apparent intention of the parties which
ratified the constitution; was condemned by the explanatory amendments proposed
by Congress themselves to the Constitution; and he hoped it would receive its
final condemnation, by the vote of this house.
1. "11th" and "12th" here refers to what became the 9th and 10th amendments, respectively.