Note 43 — Chapter I · Introductory: The Antecedents of the Power

The vote on the motion was 8 to 3 (New Hampshire, Connecticut, Massachusetts, New Jersey, Delaware, Maryland, North Carolina, and South Carolina opposed; Pennsylvania, Virginia, Georgia in favor). This incident in the Federal Convention was to figure in the congressional debates over the incorporation of banks and the construction of postroads. Opinions have differed as to whether the action of the Convention may be said to show that the Constitution did not contemplate the exercise by Congress of a power to incorporate. Madison’s record says: “Mr. King thought the power unnecessary.... Mr. Wilson mentioned the importance of facilitating by canals the communication with the Western Settlements. As to Banks, he did not think with Mr. King that the power in that point of view would excite the prejudices and parties apprehended. As to mercantile monopolies, they are already included in the power to regulate trade.” Farrand, vol. iii, p. 615. Madison’s later opinion (1824) was that a general power to incorporate had been negatived. Ibid., p. 463.