JEFFERSON’S OPINION ON THE
CONSTITUTIONALITY OF THE BANK
February 15, 1791
(The Writings of Thomas Jefferson, ed. by H. E. Bergh, Vol. III, p. 145 ff.)
The bill for establishing a national bank, in 1791, undertakes, among other things,--
1. To form the subscribers into a corporation.
2. To enable them, in their corporate capacities, to receive grants of lands; and, so far, is against the laws of mortmain.
3. To make alien subscribers capable of holding lands; and so far is against the laws of alienage.
4. To transmit these lands, on the death of a proprietor, to a certain line of successors; and so far, changes the course of descents.
5. To put the lands out of the reach of forfeiture, or escheat; and so far, is against the laws of forfeiture and escheat.
6. To transmit personal chattels to successors, in a certain line; and so far, is against the laws of distribution.
7. To give them the sole and exclusive right of banking, under the national authority; and, so far, is against the laws of monopoly.
8. To communicate to them a power to make laws, paramount to the laws of the states; for so they must be construed, to protect the institution from the control of the state legislatures; and so probably they will be construed.
I consider the foundation of the Constitution as laid on this ground--that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states, or to the people (12th amend.). To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.
The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States by the Constitution.