to the election of 1800. That I had never interfered directly or
indirectly, with my friends or any others, to influence the election
either for him or myself; that I considered it as my duty to be merely
passive, except that in Virginia I had taken some measures to procure
for him the unanimous vote of that State, because I thought any failure
there might be imputed to me. That in the election now coming on, I was
observing the same conduct, held no councils with any body respecting
it, nor suffered any one to speak to me on the subject, believing it my
duty to leave myself to the free discussion of the public; that I do
not at this moment know, nor have ever heard, who were to be proposed
as candidates for the public choice, except so far as could be gathered
from the newspapers. That as to the attack excited against him in the
newspapers, I had noticed it but as the passing wind; that I had seen
complaints that Cheetham, employed in publishing the laws, should be
permitted to eat the public bread and abuse its second officer: that as
to this, the publishers of the laws were appointed by the Secretary of
State, without any reference to me; that to make the notice general, it
was often given to one republican and one federal printer of the same
place; that these federal printers did not in the least intermit their
abuse of me, though receiving emoluments from the government, and that
I have never thought it proper to interfere for myself, and consequently
not in the case of the Vice-President. That as to the letter he referred
to, I remembered it, and believed he had only mistaken the date at which
it was written; that I thought it must have been on the first notice of
the event of the election of South Carolina; and that I had taken that
occasion to mention to him, that I had intended to have proposed to
him one of the great offices, if he had not been elected; but that his
election, in giving him a higher station, had deprived me of his aid in
the administration. The letter alluded to was, in fact, mine to him of
December the 15th, 1800. I now went on to explain to him verbally,
what I meant by saying I had lost him from my list. That in General
Washington’s time, it had been signified to him that Mr. Adams, the
Vice-President, would be glad of a foreign embassy; that General
Washington mentioned it to me, expressed his doubts whether Mr. Adams
was a fit character for such an office, and his still greater doubts,
indeed, his conviction, that it would not be justifiable to send away
the person who, in case of his death, was provided by the constitution
to take his place: that it would moreover appear indecent for him to be
disposing of the public trusts, in apparently buying off a competitor
for the public favor. I concurred with him in the opinion, and, if I
recollect rightly, Hamilton, Knox, and Randolph were consulted, and gave
the same opinions. That when Mr. Adams came to the administration, in
his first interview with me, he mentioned the necessity of a mission to
France, and how desirable it would have been to him if he could have got
me to undertake it; but that he conceived it would be wrong in him to
send me away, and assigned the same reasons General Washington had done;
and therefore, he should appoint Mr. Madison, &c. That I had myself
contemplated his (Colonel Burr’s) appointment to one of the great
offices, in case he was not elected Vice-President; but that as soon
as that election was known, I saw it could not be done, for the good
reasons which had led General Washington and Mr. Adams to the same
conclusion; and therefore, in my first letter to Colonel Burr, after the
issue was known, I had mentioned to him that a chasm in my arrangements
had been produced by this event. I was thus particular in rectifying the
date of this letter, because it gave me an opportunity of explaining the
grounds on which it was written, which were, indirectly, an answer to
his present hints. He left the matter with me for consideration, and the
conversation was turned to indifferent subjects. I should here notice,
that Colonel Burr must have thought I could swallow strong things in
my own favor, when he founded his acquiescence to the nomination as
Vice-President, to his desire of promoting my honor, the being with me,
whose company and conversation had always been fascinating with him, &c.
I had never seen Colonel Burr till he came as a member of Senate. His
conduct very soon inspired me with distrust. I habitually cautioned
Mr. Madison against trusting him too much. I saw afterwards, that under
General Washington’s and Mr. Adams’s administrations, whenever a great
military appointment or a diplomatic one was to be made, he came post to
Philadelphia to show himself, and in fact that he was always at market,
if they had wanted him. He was indeed told by Dayton in 1800, he
might be Secretary at War; but this bid was too late! His election as
Vice-President was then foreseen. With these impressions of Colonel
Burr, there never had been an intimacy between us, and but little
association. When I destined him for a high appointment, it was out of
respect for the favor he had obtained with the republican party, by his
extraordinary exertions and success in the New York election in 1800.
April the 15th, 1806. About a month ago, Colonel Burr called on me, and
entered into a conversation, in which he mentioned, that a little before
my coming into office, I had written to him a letter intimating that I
had destined him for a high employ, had he not been placed by the people
in a different one; that he had signified his willingness to resign as
Vice-President, to give aid to the administration in any other place;
that he had never asked an office, however; he asked aid of nobody, but
could walk on his own legs and take care of himself; that I had always
used him with politeness, but nothing more; that he aided in bringing on
the present order of things; that he had supported the administration;
and that he could do me much harm: he wished, however, to be
on different ground: he was now disengaged from all particular
business--willing to engage in something--should be in town some days,
if I should have any thing to propose to him. I observed to him, that
I had always been sensible that he possessed talents which might be
employed greatly to the advantage of the public, and that, as to myself,
I had a confidence that if he were employed, he would use his talents
for the public good: but that he must be sensible the public had
withdrawn their confidence from him, and that in a government like ours
it was necessary to embrace in its administration as great a mass of
public confidence as possible, by employing those who had a character
with the public, of their own, and not merely a secondary one through
the executive. He observed, that if we believed a few newspapers, it
might be supposed he had lost the public confidence, but that I knew how
easy it was to engage newspapers in any thing. I observed, that I
did not refer to that kind of evidence of his having lost the public
confidence, but to the late Presidential election, when, though in
possession of the office of Vice-President, there was not a single voice
heard for his retaining it. That as to any harm he could do me, I knew
no cause why he should desire it, but, at the same time, I feared no
injury which any man could do me: that I never had done a single act,
or been concerned in any transaction, which I feared to have fully laid
open, or which could do me any hurt, if truly stated: that I had never
done a single thing with a view to my personal interest, or that of any
friend, or with any other view than that of the greatest public good:
that, therefore, no threat or fear on that head would ever be a motive
of action with me. He has continued in town to this time; dined with me
this day week, and called on me to take leave two or three days ago.
I did not commit these things to writing at the time, but I do it now,
because in a suit between him and Cheetham, he has had a deposition of
Mr. Bayard taken, which seems to have no relation to the suit, nor
to any other object than to calumniate me. Bayard pretends to have
addressed to me, during the pending of the Presidential election in
February, 1801, through General Samuel Smith, certain conditions on
which my election might be obtained, and that General Smith, after
conversing with me, gave answers from me. This is absolutely false. No
proposition of any kind was ever made to me on that occasion by General
Smith, nor any answer authorized by me. And this fact General Smith
affirms at this moment.
For some matters connected with this, see my notes of February the 12th
and 14th, 1801, made at the moment. But the following transactions
took place about the same time, that is to say, while the Presidential
election was in suspense in Congress, which, though I did not enter at
the time, they made such an impression on my mind, that they are now
as fresh, as to their principal circumstances, as if they had happened
yesterday. Coming out of the Senate chamber one day, I found Gouverneur
Morris on the steps. He stopped me, and began a conversation on the
strange and portentous state of things then existing, and went on to
observe, that the reasons why the minority of States was so opposed to
my being elected, were, that they apprehended that, 1. I would turn all
federalists out of office; 2. put down the navy; 3. wipe off the public
debt. That I need only to declare, or authorize my friends to declare,
that I would not take these steps, and instantly the event of the
election would be fixed. I told him, that I should leave the world
to judge of the course I meant to pursue, by that which I had pursued
hitherto, believing it to be my duty to be passive and silent during the
present scene; that I should certainly make no terms; should never go
into the office of President by capitulation, nor with my hands tied by
any conditions which should hinder me from pursuing the measures which
I should deem for the public good. It was understood that Gouverneur
Morris had entirely the direction of the vote of Lewis Morris of
Vermont, who, by coming over to Matthew Lyon, would have added another
vote, and decided the election. About the same time, I called on Mr.
Adams. We conversed on the state of things. I observed to him, that
a very dangerous experiment was then in contemplation, to defeat the
Presidential election by an act of Congress declaring the right of
the Senate to name a President of the Senate, to devolve on him the
government during any interregnum: that such a measure would probably
produce resistance by force, and incalculable consequences, which it
would be in his power to prevent by negativing such an act. He seemed to
think such an act justifiable, and observed, it was in my power to fix
the election by a word in an instant, by declaring I would not turn out
the federal officers, nor put down the navy, nor spunge the national
debt. Finding his mind made up as to the usurpation of the government by
the President of the Senate, I urged it no further, observed, the
world must judge as to myself of the future by the past, and turned the
conversation to something else. About the same time, Dwight Foster of
Massachusetts called on me in my room one night, and went into a very
long conversation on the state of affairs, the drift of which was to let
me understand, that the fears above mentioned were the only obstacle to
my election, to all of which I avoided giving any answer the one way
or the other. From this moment he became most bitterly and personally
opposed to me, and so has ever continued. I do not recollect that I
ever had any particular conversation with General Samuel Smith on this
subject. Very possibly I had, however, as the general subject and
all its parts were the constant themes of conversation in the private
tête-à-têtes with our friends. But certain I am, that neither he nor
any other republican ever uttered the most distant hint to me about
submitting to any conditions, or giving any assurances to any body;
and still more certainly, was neither he nor any other person ever
authorized by me to say what I would or would not do.
*****
*****
[The following official opinion, though inadvertently omitted in its
proper place, is deemed of sufficient importance to be inserted here.]
The bill for establishing a National Bank, undertakes, among other
things,
1. To form the subscribers into a corporation.
2. To enable them, in their corporate capacities, to receive grants of
land; and so far, is against the laws of _Mortmain_.*
* Though the constitution controls the laws of Mortmain, so
far as to permit Congress itself to hold lands for certain
purposes, yet not so far as to permit them to communicate a
similar right to other corporate bodies.
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.’ (Twelfth amendment.) 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.
I. They are not among the powers specially, enumerated. For these are,
1. A power to _lay taxes_ for the purpose of paying the debts of the
United States. But no debt is paid by this bill, nor any tax laid. Were
it a bill to raise money, its origination in the Senate would condemn it
by the constitution.
2. To ‘borrow money.’ But this bill neither borrows money, nor insures
the borrowing it. The proprietors of the bank will be just as free
as any other money-holders, to lend or not to lend their money to the
public. The operation proposed in the bill, first to lend them two
millions, and then borrow them back again cannot change the nature of
the latter act, which will still be a payment and not a loan, call it by
what name you please.
3. ‘To regulate commerce with foreign nations, and among the States, and
with the Indian tribes.’ To erect a bank, and to regulate commerce, are
very different acts. He who erects a bank creates a subject of commerce
in its bills: so does he who makes a bushel of wheat, or digs a dollar
out of the mines. Yet neither of these persons regulates commerce
thereby. To make a thing which may be bought and sold, is not to
prescribe regulations for buying and selling. Besides, if this were
an exercise of the power of regulating commerce, it would be void, as
extending as much to the internal commerce of every State, as to its
external. For the power given to Congress by the constitution, does not
extend to the internal regulation, of the commerce of a State (that
is to say, of the commerce between citizen and citizen), which remains
exclusively with its own legislature; but to its external commerce
only, that is to say, its commerce with another State, or with foreign
nations, or with the Indian tribes. Accordingly, the bill does not
propose the measure as a ‘regulation of trade,’ but as ‘productive of
considerable advantage to trade.’
Still less are these powers covered by any other of the special
enumerations.
II. Nor are they within either of the general phrases, which are the two
following.
1. ‘To lay taxes to provide for the general welfare of the United
States’; that is to say, ‘to lay taxes for the purpose of providing
for the general welfare.’ For the laying of taxes is the power, and
the general welfare the purpose for which the power is to be exercised.
Congress are not to lay taxes, _ad libitum_, for any purpose they
please: but only to pay the debts, or provide for the welfare of the
Union. In like manner, they are not to do any thing they please, to
provide for the general welfare, but only to lay taxes for that purpose.
To consider the latter phrase, not as describing the purpose of the
first, but as giving a distinct and independent power to do any act they
please, which might be for the good of the Union, would render all the
preceding and subsequent enumerations of power completely useless.
It would reduce the whole instrument to a single phrase, that of
instituting a Congress with power to do whatever would be for the good
of the United States; and as they would be the sole judges of the good
or evil, it would be also a power to do whatever evil they pleased. It
is an established rule of construction, where a phrase will bear either
of two meanings, to give it that which will allow some meaning to the
other parts of the instrument, and not that which will render all the
others useless. Certainly no such universal power was meant to be given
them. It was intended to lace them up straitly within the enumerated
powers, and those without which, as means, these powers could not be
carried into effect. It is known that the very power now proposed as
a means, was rejected as an end by the convention which formed the
constitution. A proposition was made to them, to authorize Congress to
open parials, and an amendatory one, to empower them to incorporate.
But the whole was rejected; and one of the reasons of rejection urged
in debate was, that they then would have a power to erect a bank,
which would render the great cities, where there were prejudices
and jealousies on that subject, adverse to the reception of the
constitution.
2. The second general phrase is, ‘to make all laws necessary and proper
for carrying into execution the enumerated powers.’ But they can all
be carried into execution without a bank. A bank, therefore, is not
necessary, and consequently, not authorized by this phrase.
It has been much urged, that a bank will give great facility or
convenience in the collection of taxes. Suppose this were true: yet the
constitution allows only the means which are ‘necessary’ not those which
are merely ‘convenient’ for effecting the enumerated powers. If such
a latitude of construction be allowed to this phrase, as to give any
non-enumerated power, it will go to every one; for there is no one which
ingenuity may not torture into a convenience, in some way or other, to
some one of so long a list of enumerated powers. It would swallow up
all the delegated powers, and reduce the whole to one phrase, as before
observed. Therefore it was, that the constitution restrained them to the
necessary means, that is to say, to those means without which the grant
of the power would be nugatory.
But let us examine this ‘convenience,’ and see what it is. The report
on this subject, page 2, states the only general convenience to be, the
preventing the transportation and re-transportation of money between the
States and the treasury. (For I pass over the increase of circulating
medium ascribed to it as a merit, and which, according to my ideas of
paper money, is clearly a demerit.) Every State will have to pay a sum
of tax-money into the treasury; and the treasury will have to pay in
every State a part of the interest on the public debt, and salaries
to the officers of government resident in that State. In most of the
States, there will be still a surplus of tax-money, to come up to the
seat of government, for the officers residing there. The payments of
interest and salary in each State, may be made by treasury orders on the
state collector. This will take up the greater part of the money he has
collected in his State and consequently prevent the great mass of it
from being drawn out of the state. If there be a balance of commerce in
favor of that State, against the one in which the government resides,
the surplus of taxes will be remitted by the bills of exchange drawn for
that commercial balance. And so it must be if there were a bank. But if
there be no balance of commerce, either direct or circuitous, all the
banks in the world could not bring us the surplus of taxes but in the
form of money. Treasury orders, then, and bills of exchange, may prevent
the displacement of the main mass of the money collected, without the
aid of any bank: and where these fail, it cannot be prevented even with
that aid.
Perhaps, indeed, bank bills may be a more convenient vehicle than
treasury orders. But a little difference in the degree of convenience,
cannot constitute the necessity which the constitution makes the ground
for assuming any non-enumerated power.
Besides; the existing banks will, without doubt, enter into arrangements
for lending their agency, and the more favorable, as there will be a
competition among them for it. Whereas, this bill delivers us up bound
to the national bank, who are free to refuse all arrangements but on
their own terms, and the public not free, on such refusal to employ any
other bank. That of Philadelphia, I believe, now does this business by
their post notes, which, by an arrangement with the treasury, are paid
by any State collector to whom they are presented. This expedient alone,
suffices to prevent the existence of that necessity which may justify
the assumption of a non-enumerated power, as a means for carrying into
effect an enumerated one. The thing may be done, and has been done, and
well done, without this assumption; therefore, it does not stand on that
degree of necessity which can honestly justify it.
It may be said, that a bank, whose bills would have a currency all over
the States, would be more convenient than one whose currency is limited
to a single State. So it would be still more convenient, that there
should be a bank whose bills should have a currency all over the world.
But it does not follow from this superior conveniency, that there exists
any where a power to establish such a bank, or that the world may not
go on very well without it. Can it be thought that the constitution
intended, that for a shade or two of convenience, more or less, Congress
should be authorized to break down the most ancient and fundamental
laws of the several States, such as those against mortmain, the laws of
alienage, the rules of descent, the acts of distribution, the laws
of escheat and forfeiture, and the laws of monopoly. Nothing but a
necessity invincible by any other means, can justify such a prostration
of laws, which constitute the pillars of our whole system of
jurisprudence. Will Congress be too strait-laced to carry the
constitution into honest effect, unless they may pass over the
foundation laws of the State governments, for the slightest convenience
to theirs?
The negative of the President is the shield provided by the
constitution, to protect against the invasions of the legislature, 1.
the rights of the Executive; 2. of the Judiciary; 3. of the States
and State legislatures. The present is the case of a right remaining
exclusively with the States, and is, consequently, one of those intended
by the constitution to be placed under his protection.
It must be added, however, that unless the President’s mind, on a view
of every thing which is urged for and against this bill, is tolerably
clear that it is unauthorized by the constitution, if the pro and the
con hang so even as to balance his judgment, a just respect for the
wisdom of the legislature would naturally decide the balance in favor of
their opinion. It is chiefly for cases where they are clearly misled by
error, ambition, or interest, that the constitution has placed a check
in the negative of the President.
Th: Jefferson.
February 15, 1791.