powers that body will render them subservient to the great purpose of our national compact."1

President Jackson, soon after entering upon his Administration, attacked the bank, and in 1832 vetoed a bill to recharter it, on the ground that the bill was "unconstitutional because he disapproved of it." The next proposition to determine the question of its constitutionality by an amendment arose out of this controversy. The legislature of Georgia, in its proposition for a constitutional convention in 1833, indicated as a subject for discussion, "The power of chartering a bank and of granting incorporation," that it may be "expressly given to or withheld from Congress."3 The bank debates of 1841 and 1862 led to no amendments; few questions of constitutional law seem so well settled as the right to create national banks.

In the early seventies an amendment was twice proposed prohibiting Congress from hereafter chartering private corporations to carry on business within the States.* The same resolution suggested that the Constitution should be so amended as to prohibit Congress as well as the States from passing any law impairing the obligation of contracts."

154. ISSUING OF BANK NOTES.

After the expiration of the charter of the second United States Bank, in 1836, the controversy was renewed in a new form. On one of the last days of 1836 a resolution, the text of which unfortunately is not given, was introduced to amend the Constitution by inserting provisions restricting the incorporation of banks by States, and limiting them when incorporated to the issue of bank notes."

The panic of 1837, which was caused by the inflation of the currency due to the issuing of notes by the State banks, led to the presentation of additional amendments prohibiting any State from incorporating banks for the issue of paper notes. The first of these was reported by a select committee

1 Journal of the House of Representatives of Pennsylvania (1822-23), pp. 75–76.

2 Mason's Veto Power. App. A, No. 14; also pp. 75-76.

3App.. No. 619. See reply of Massachusetts legislature. Resolves of Massachusetts, Vol. XIX, p. 418.

in March, 1837, but no further action was taken. The next year Mr. Garland of Louisiana presented an amendment prohibiting State incorporated banks from issuing and cir culating notes of the same or of a lower denomination than the highest denomination of the coins of the United States." Mr. Buchanan of Pennsylvania, in 1840, at that time a member of the Senate, proposed a resolution that a select committee be appointed to inquire into the expediency of an amendment to prohibit the circulation of bank paper under the authority of the several States. The resolution was considered and the committee was appointed, but there is no further record of their action. These amendments were simply an incident connected with the crisis of 1837.4 Owing to the favor in which State banks were held, especially in the West and South, it would have been impossible to have secured an amendment, even if Congress had recommended one.

155. LEGAL-TENDER NOTES.

5

When the bank question arose again, in 1862, the amendments proposed bore rather on an associated subject-the issue of legal-tender notes by the Government during the civil war. As early as 1866, Mr. Thomas had introduced a resolution into the House instructing the Committee on the Judiciary to inquire into the expediency of proposing an amendment to the Constitution restricting the power of Congress to issue a paper circulating medium. The resolution was agreed to, but nothing further was heard of amending the Constitution in this respect until 1870. The previous year, in the first legal-tender case, the Supreme Court had held that the notes were not legal tender for debts contracted previous to the passage of the act. Doubtless in consequence of this decision an amendment was proposed by Mr. Ingersoll of Illinois, February 14, 1870, empowering Congress to issue United States notes and make them legal tender in payment of debts. Soon after this the Supreme Court in the second of the legal-tender cases reversed its decision, and accordingly it is not surprising to

8

1App., No. 671.

2App., No. 686.

3 App., No. 701.

4 They may possibly have been suggested by the decision of the Supreme Court in the case of Briscoe v. Bank of Kentucky, 11 Peters, 257 (1837).

5 App., No. 1127.

6 Hepburn v. Griswold, 8 Wallace, 603.

7 App., No. 1326. See also Nos. 1333, 1350. Ante, par. 153. Knox v. Lee, 12 Wallace, 457.

find an amendment introduced in 1873 forbidding Congress to make anything but gold and silver legal tender in payment of debts. The year 1874 was marked by the passage of the "inflation bill," which was vetoed by President Grant,2 and an amendment similar to the one introduced the previous year was shortly afterward presented.3

It is of interest to note that incidental to the short career of the Greenback party, which was opposed to the resumption of specie payments, an amendment was presented by Judge Ewing of Ohio, and Mr. Oliver of Iowa, in 1878, providing for the issue of legal-tender notes and regulating the amounts thereof.

March 3, 1884, the Supreme Court in the third legal-tender case, that of Julliard r. Greenman, decided that Congress may make Government notes legal tender in time of peace as well as war.5 Just one week later four resolutions proposing amendments to the Constitution, relative to the issue of legaltender notes, were presented. That these were directly suggested by the recent decision of the Supreme Court is shown by the text of the amendment proposed by Mr. Potter of New York. This provided that Congress should not have power to make anything but "gold or silver coin a tender in payment of debts, except after a declaration of war, when the public safety may require it."

Amendments similar to this, save as to the last clause, were presented by Mr. Hewitt of New York and Senator Bayard of Delaware. The remaining amendment proposed by Senator Garland, while not going so far as these, proposed to limit the public debt of the United States by stipulating that the issue of legal tender notes should never exceed the sum of $350,000,000, unless the bills providing for such increase should receive the concurrence of two-thirds of each House of Congress, the vote being recorded by yeas and nays in the journals.9

App., No. 1378. Although another amendment was proposed at the same time to empower Congress to pass necessary laws to protect the financial "affairs of the people of the United States." No. 1375 (e).

2 Mason's Veto Power, App. A, No. 92; also pp.

3 App., No. 1387.

80-81.

4 App., Nos. 1463, 1466. They also prohibited the United States or any State from authorizing the issue of any other kind of notes. by any person, association, or corporation.

5110 U. S., 421.

App., No. 1626.

'App., No. 1627.

App., No. 1628. 9App., No. 1628.

156. INTERNAL IMPROVEMENTS.

A much more hotly contested use of implied powers, especially those growing out of the commerce clause, has been the expenditure of public money for internal improvements. Such a practice seems not to have been contemplated by the Federalists up to 1801. The act authorizing the building of the Cumberland road, passed March 29, 1806, was the first measure making provision for internal improvements out of the general funds. In December of this year, President Jefferson in his annual message, in calling the attention of Congress to an anticipated surplus, recommended its "application" to the great purposes of the public education, roads, rivers, canals, and such other objects of public improvement as it may be thought proper. Public men seemed to agree as to the desirableness of internal improvements, and Gallatin, the Secretary of the Treasury, in anticipation of the adoption of such a policy, had already drawn up a plan for a system of national turnpikes and canals. The President, however, suggested that amendments should be added to the Constitution distinctly conferring this power upon Congress. No action was taken upon this recommendation and the discussion of the constitutionality of such an act was reserved to a later day. The President again referred to the subject in his messages of October 27, 1807, and March 8, 1808, but no further suggestion was made to amend the Constitution on this subject until 1813, when Mr. Jackson of Virginia introduced two amendments, one empowering Congress to make roads, the other authorizing it to construct canals in any State, with the consent of the State within which the same shall be made.3 The same resolutions were reintroduced by him in the remaining session of the Thirteenth Congress and were debated, but they led to no action. President Madison in his annual messages of 1815 and 1816 suggested that the Government should undertake internal improvements. He reminded Congress that "any defect of constitutional authority which may be encountered can be supplied in a mode which the Constitution itself has providently pointed out." Shortly after the last message, Madison vetoed an act making internal improvements

Statutes at Large, 11, 357.

2 App., No. 376.

3 App., Nos. 411, 412.

4 App., Nos. 416, 417, 421, 422.

5 App., Nos. 448, 457.

on the ground that it was unconstitutional.' President Monroe in his first annual message in 1817 recommended the adoption of an amendment to the Constitution conferring upon Congress the right in question.2

A week later, Senator Barbour of Virginia introduced an amendment empowering Congress "to pass laws appropriating money for constructing roads and canals, and improving the navigation of water courses." No improvements were to be made in any State without the consent of such State.3 Whenever such appropriations were made the amount was to be distributed among the several States in proportion to the number of Representatives from each State, but the portion of any State, with its own consent, may be applied to internal improvements in any other State.

May 4, 1822, President Monroe vetoed "An act for the preservation and repair of the Cumberland road." The President recommended, however, that an amendment should be adopted giving the Federal Government power to make improvements for great national purposes.*

In his annual message of this year," the President again invited the attention of Congress to the subject. In 1817 John Quincy Adams opposed the President's purpose to mention the matter in his message. He feared it would provoke contest between the executive and legal departments. Further, he doubted the propriety of the President recommending amendments, inasmuch as the Constitution gave him no share in framing them."

In response to the President's message, three amendments were proposed in this session of Congress, authorizing the appropriation of money for "great national purposes."8

In 1824, and again in 1825, Martin Van Buren, then a member of the Senate, introduced an amendment giving Congress power to make roads and canals.9

Mason's Veto Power, App. A, No. 8.

2 App., No. 465.

App., No. 467.

Mason's Veto Power, App. A, No. 9; also pp. 95-96.

Seventeenth Congress, second session.

"App., No. 514.

'Adams: Memoirs, IV, pp. 463-464; VI, pp. 302. Post, par., 184.

8 App., Nos. 515, 522, 523.

9 App., Nos. 536 and 546a. See Jefferson, annoyance at the victory of the liberal constructionists. Morse's Jefferson, p. 329. See Van Buren's remarks in 1825. Debates, Nineteenth Congress, first session, pp. 20-21. Between 1826 and 1830, the legislatures of Virginia, South Carolina, Georgia, and Alabama repeatedly passed resolutions declaring