I cannot but adhere. The objections to the latter have appeared to me to predominate greatly over the advantages expected from it, and the constitutionality of the former I still regard as sustained by the considerations to which I yielded in giving my assent to the existing bank.

The charge of inconsistency between my objection to the constitutionality of such a bank, in 1791, and my assent in 1817, turns on the question, how far legislative precedents, expounding the constitution, ought to guide succeeding legislatures, and to overrule individual opinions.

Some obscurity has been thrown over the question, by confounding it with the respect due from one legislature to laws passed by preceding legislatures. But the two cases are essentially different. A constitution being derived from a superior authority, is to be expounded and obeyed, not controlled or varied by the subordinate authority of a legislature. A law, on the other hand, resting on no higher authority than that possessed by every successive legislature, its expediency as well as its meaning is within the scope of the latter. The case in question has its true analogy in the obligation arising from judicial expositions of the law on succeeding judges; the constitution being a law to the legislator, as the law is a rule of decision to the judge.

And why are judicial precedents, when formed on due discussion and consideration, and deliberately sanctioned by reviews and repetitions, regarded as of binding influence, or rather of authoritative force, in settling the meaning of a law? It must be answered, 1st, because it is a reasonable and established axiom, that the good of society requires that the rules of conduct of its members should be certain and known, which would not be the case if any judge, disregarding the decisions of his predecessors, should vary the rule of law according to his individual interpretation of it. Misera est servitus ubi jus est aut vagum aut incognitum. 2nd. because an exposition of the law, publicly made, and repeatedly confirmed by the constituted authority, carries with it, by fair inference, the sanction of those who, having made the law through their legislative organ, appear, under such circumstances, to have determined its meaning through their judiciary organ.

Can it be of less consequence that the meaning of a constitution should be fixed and known, than that the meaning of a law should be so? Can, indeed, a law be fixed in its meaning and operation, unless the constitution be so? On the contrary, if a particular legislature, differing in the construction of the constitution, from a series of preceding constructions, proceed to act on that difference, they not only introduce uncertainty and instability in the constitution, but in the laws themselves; inasmuch as all laws preceding the new construction, and inconsistent with it, are not only annulled for the future, but virtually pronounced nullities from the beginning.

But it is said that the legislator having sworn to support the constitution, must support it in his own construction of it, however different from that put on it by his predecessors, or whatever be the consequences of the construction. And is not the judge under the same oath to support the law? Yet, has it ever been supposed that he was required, or at liberty to disregard all precedents, however solemnly repeated and regularly observed; and by giving effect to his own abstract and individual opinions, to disturb the established course of practice in the business of the community? Has the wisest and most conscientious judge ever scrupled to acquiesce in decisions in which he has been overruled by the matured opinions of the majority of his colleagues; and subsequently to conform himself thereto, as to authoritative expositions of the law? And is it not reasonable to suppose that the same view of the offi cial oath should be taken by a legislature, acting under the constitution, which is his guide, as is taken by a judge, acting under the law, which is his?

There is in fact, and in common understanding, a necessity of regarding course of practice, as above characterized, in the light of a legal rule of inter preting a law: and there is a like necessity of considering it a constitutional rule of interpreting a constitution.

That there may be extraordinary and peculiar circumstances controlling the rule in both cases, may be admitted; but with such exceptions, the rule

will force itself on the practical judgment of the most ardent theorist. He will find itimpossible to adhere to, and act officially upon, his solitary opinions as to the meaning of the law or constitution, in opposition to a construction reduced to practice, during a reasonable period of time; more especially where no prospect existed of a change of construction by the public or its agents. And if a reasonable period of time, marked with the usual sanctions, would not bar the individual prerogative, there could be no limitation to its exercise, although the danger of error must increase with the increasing oblivion of explanatory circumstances, and with the continual changes in the import of words and phrases.

Let it then be left to the decision of every intelligent and candid judge, which, on the whole, is most to be relied on, for the true and safe construction of a constitution: that which has the uniform sanction of successive legislative bodies, through a period of years, and under the varied ascendancy of parties; or that which depends upon the opinions of every new legislature, heated as it may be by the spirit of party, eager in the pursuit of some favorite object, or led astray by the eloquence and address of popular statesmen, themselves, perhaps, under the influence of the same misleading causes.

It was in conformity with the view here taken of the respect due to deliberate and reiterated precedents, that the Bank of the United States, though on the original question held to be unconstitutional, received the Executive signature in the year 1817. The act originally establishing a bank had undergone ample discussions in its passage through the several branches of the Govern ment. It had been carried into execution, throughout a period of twenty years, with annual legislative recognitions; in one instance, indeed, with a positive ramification of it into a new State, and with the entire acquiescense of all the local authorities, as well as the nation at large; to all of which may be added, a decreasing prospect of any change in the public opinion adverse to the constitutionality of such an institution. A veto from the Executive, under these circumstances, with an admission of the expediency and almost necessity of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intention.

It has been contended that the authority of precedents was in that case invalidated by the consideration that they proved only a respect for the stipulated duration of the bank with a toleration of it until the law should expire, and by the casting vote given in the Senate by the Vice President, in the year 1811, against a bill for establishing a national bank, the vote being expressly given on the ground of unconstitutionality. But, if the law itself was unconsti tutional, the stipulation was void, and could not be constitutionally fulfilled or tolerated. And as to the negative of the Senate, by the casting vote of the presiding officer, it is a fact, well understood at the time, that it resulted not from an equality of opinions in that assembly on the power of Congress to establish a bank, but from a junction of those who admitted the power, but disapproved the plan, with those who denied the power. On a simple question of constitutionality, there was a decided majority in favor of it.

Mr. INGERSOLL.

JAMES MADISON,

JUDICIAL DECISIONS.

SUPREME COURT OF THE UNITED STATES.-1819.

M'CULLOCH,

vs.

THE STATE OF MARYLAND, et al. S

The following points were decided: Congress has power to incorporate a bank.

The Government of the Union is a Government of the People; it emanates from them; its powers are granted by them; and are to be exercised directly on them, and for their benefit.

The Government of the Union, though limited in its powers, is supreme within its sphere of action; and its laws, when made in pursuance of the constitution, form the supreme law of the land.

There is nothing in the constitution of the United States, similar to the articles of confederation, which exclude incidental or implied powers.

If the end be legitimate, and within the scope of the constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.

The power of establishing a corporation is not a distinct sovereign power or end of Government, but only the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate means of exercising any of the powers given by the constitution to the Government of the Union, it may be exercised by that Government.

If a certain means to carry into effect any of the powers, expressly given by the con stitution to the Government of the Union, be an appropriate measure, not prohibited by the constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.

The act of the 10th April, 1816, c. 44, to "incorporate the subscribers to the Bank of the United States," is a law made in pursuance of the constitution.

The Bank of the United States has, constitutionally, a right to establish its branches, or offices of discount and deposite, within any State.

The State within which such branch may be established, cannot, without violating the constitution, tax that branch.

The State Governments have no right to tax any of the constitutional means employed by the Government of the Union to execute its constitutional powers.

The States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress, to carry into effect the powers vested in the National Government. This principle does not extend to a tax paid by the real property of the Bank of the United States, in common with the other real property in a particular State, nor to a tax imposed on the proprietary interest which the citizens of that State may hold in this institution, in common with other property of the same description throughout the State.

This was an action of debt, brought by John James, who sued, as well for himself, as for the State of Maryland, in the county court of Baltimore, against the plaintiff in error, M'Culloch, to recover certain penalties imposed by the Legislature of Maryland. By an act of that State it was made penal for any bank, or branch thereof, established without authority of the said State," to issue notes, in any manner, of any other denomination than five, ten, twenty, fifty, one hundred, five hundred, and one thousand dollars;"

and such bank, or branch, was further prohibited from issuing notes of these denominations, except upon stamped paper, for which they were to pay to the State treasurer a duty, at certain fixed rates. It was provided, however, that, by the annual payment, in advance, of the sum of fifteen thousand dollars, any such bank, or branch, might be relieved from the operation of these restrictions.

For a violation of the provisions of this act, the officers of the bank were, by the said act, made personally and individually liable to the penalty of five hundred dollars, each: and it was to recover this penalty, in a qui tam action, that this suit was brought.

The decision having been, in the county court of Baltimore, against the defendant M'Culloch, and, also, in the court of appeals of Maryland, the cause was brought, by writ of error, to the Supreme Court of the United States. It was argued for the plaintiff in error by Mr. WEBSTER, Mr. WIRT, Attor ney General, and Mr. PINKNEY; and, for the defendants, by Mr. MARTIN, Attorney General of Maryland, Mr. HOPKINSON, and Mr. JONES.

MARCH 7th, 1819.

Mr. Chief Justice MARSHALL delivered the opinion of the court.

In the case now to be determined, the defendant, a sovereign State, denies the obligation of a law, enacted by the Legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the Legislature of that State. The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the Government of the Union, and of its members, as marked in that constitution, are to be discussed, and an opinion given, which may essentially influence the great operations of the Government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of hostile legislation, perhaps of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the constitution of our country devolved this important duty.

The first question made in the cause is, has Congress power to incorporate a bank?

It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested, was introduced at a very early period of our history, has been recognised by many successive Legislatures, and has been acted upon by the Judicial Department, in cases of peculiar delicacy, as a law of undoubted obligation.

It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still Inger and more complete than this. But it is conceived that a doubtful question-one on which human reason may pause, and the human judgment be suspended-in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the People, are to be adjusted, if not put at rest, by the practice of the Government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.

The power, now contested, was exercised by the first Congress elected under the present constitution. The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first, in the fair and open field of debate, and, afterwards, in the Executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by argu ments which convinced minds as pure and as intelligent as this country can

boast, it became a law. The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the Government, convinced those who were most prejudiced against the measure, of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity to assert, that a measure adopted under these circumstances, was a bold and plain usurpation, to which the constitution gave no countenance.

These observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcileable with the constitution.

In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument, not as emanating from the People, but as the act of Sovereign and independent States. The powers of the General Government, it has been said, are delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the States, who alone possess supreme dominion.

It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the State Legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might "be submitted to a convention of delegates chosen in each State by the People thereof, under the recommendation of its legislature, for their assent and ratification." This mode of proceeding was adopted; and, by the convention, by Congress, and by the State Legislatures, the instrument was submitted to the People. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several States. And where else should they have assembled ? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American People into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the People themselves, or become the measures of the State Govern

ments.

From these conventions the constitution derives its whole authority. The Government proceeds directly from the People; is ordained and established" in the name of the People; and is declared to be ordained, "in order to form a more perfect union, establish justice, ensure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity." The assent of the States, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the People. But the People were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance of, and could not be negatived by, the State Governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.

It has been said, that the People had already surrendered all their powers to the State sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to Government, does not remain to be settled in this country. Much more might the legitimacy of the General Government be doubted, had it been created by the States. The powers delegated to the State sovereignties, were to be exercised by themselves, not by a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was the confederation, the State sovereignties were certainly competent. But when, in order to form a more perfect union," it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the People, the necessity of referring it to the People, and of deriving its powers directly from them, was felt and acknowledged by all.