Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/152

 144 secretary of the treasury will ask his indulgence, while he gives some additional illustrations of cases, in which a power of erecting corporations may be exercised, under some of those heads of the specified powers of the government, which are alleged to include the right of incorporating a bank. 1. It does not appear susceptible of a doubt, that if congress had thought proper to provide in the collection law, that the bonds, to be given for the duties, should be given to the collector of the district A or B, as the case might require, to inure to him and his successors in office, in trust for the United States; that it would have been consistent with the constitution to make such an arrangement. And yet this, it is conceived, would amount to an incorporation. 2. It is not an unusual expedient of taxation, to farm particular branches of revenue; that is, to sell or mortgage the product of them for certain definite sums, leaving the collection to the parties, to whom they are mortgaged or sold. There are even examples of this in the United States. Suppose that there was any particular branch of revenue, which it was manifestly expedient to place on this footing, and there were a number of persons willing to engage with the government, upon condition that they should be incorporated, and the funds vested in them, as well for their greater safety, as for the more convenient recovery and management of the taxes; is it supposable that there could be any constitutional obstacle to the measure? It is presumed, that there could be none. It is certainly a mode of collection, which it would be in the discretion of the government to adopt; though the circumstances must be very extraordinary, that would induce the secretary to think it expedient. 3. Suppose a new and unexplored branch of trade should present itself with some foreign country. Suppose it was manifest, that to undertake it with advantage, required a union of the capitals of a number of individuals, and that those individuals would not be disposed to embark without an incorporation, as well to obviate the consequences of a private partnership, which makes every individual liable in his whole estate for the debts of the company to their utmost extent, as for the more convenient management of the business; what reason can there be to doubt, that the national government would have a constitutional right to institute and incorporate such a company? None. They possess a general authority to regulate trade with foreign countries. This is a mean, which has been practised to that end by all the principal commercial nations, who have trading companies to this day, which have subsisted for centuries. Why may not the United States constitutionally employ the means usual in other countries for attaining the ends entrusted to them? A power to make all needful can rarely be established by the mere fact of their votes, it is certain, that the true rule of interpretation is to ascertain the public and just intention from