McCulloch v. Maryland, 17 U.S. 316 (1819)

    ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND

                          Syllabus

Congress has power to incorporate a bank.

The Act of the 10th of April, 1816, ch. 44, to "incorporate the subscribers 
to the Bank of the United States" is a law made in pursuance of the 
Constitution.

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 of any of the powers expressly 
given by the Constitution 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 Bank of the United States has, constitutionally, a right to establish 
its branches or offices of discount and deposit 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, 
burthen, 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 the defendant in error, John James, 
who sued as well for himself as for the State of Maryland, in the County 
Court of Baltimore County, in the said State, against the plaintiff in 
error, McCulloch, to recover certain penalties, under the act of the 
Legislature of Maryland hereafter mentioned. Judgment being rendered 
against the plaintiff in error, upon the following statement of facts 
agreed and submitted to the court by the parties, was affirmed by the Court 
of Appeals of the State of Maryland, the highest court of law of said 
State, and the cause was brought by writ of error to this Court.

It is admitted by the parties in this cause, by their counsel, that there 
was passed, on the 10th day of April, 1816, by the Congress of the United 
States, an act entitled, "an act to incorporate the subscribers to the Bank 
of the United States;" and that there was passed on the 11th day of 
February, 1818, by the General Assembly of Maryland, an act, entitled, "an 
act to impose a tax on all banks, or branches thereof, in the State of 
Maryland, not chartered by the legislature," [p*318] which said acts are 
made part of this Statement, and it is agreed, may be read from the statute 
books in which they are respectively printed. It is further admitted that 
the President, directors and company of the Bank of the United States, 
incorporated by the act of Congress aforesaid, did organize themselves, and 
go into full operation, in the City of Philadelphia, in the State of 
Pennsylvania, in pursuance of the said act, and that they did on the ___ 
day of _____ 1817, establish a branch of the said bank, or an office of 
discount and deposit, in the City of Baltimore, in the State of Maryland, 
which has, from that time until the first day of May 1818, ever since 
transacted and carried on business as a bank, or office of discount and 
deposit, and as a branch of the said Bank of the United States, by issuing 
bank notes and discounting promissory notes, and performing other 
operations usual and customary for banks to do and perform, under the 
authority and by the direction of the said President, directors and company 
of the Bank of the United States, established at Philadelphia as aforesaid. 
It is further admitted that the said President, directors and company of 
the said bank had no authority to establish the said branch, or office of 
discount and deposit, at the City of Baltimore, from the State of Maryland, 
otherwise than the said State having adopted the Constitution of the United 
States and composing one of the States of the Union. It is further admitted 
that James William McCulloch, the defendant below, being the cashier of the 
said branch, or office of discount and [p*319] deposit did, on the several 
days set forth in the declaration in this cause, issue the said respective 
bank notes therein described, from the said branch or office, to a certain 
George Williams, in the City of Baltimore, in part payment of a promissory 
note of the said Williams, discounted by the said branch or office, which 
said respective bank notes were not, nor was either of them, so issued on 
stamped paper in the manner prescribed by the act of assembly aforesaid. It 
is further admitted that the said President, directors and company of the 
Bank of the United States, and the said branch, or office of discount and 
deposit have not, nor has either of them, paid in advance, or otherwise, 
the sum of $15,000, to the Treasurer of the Western Shore, for the use of 
the State of Maryland, before the issuing of the said notes, or any of 
them, nor since those periods. And it is further admitted that the 
Treasurer of the Western Shore of Maryland, under the direction of the 
Governor and Council of the said State, was ready, and offered to deliver 
to the said President, directors and company of the said bank, and to the 
said branch, or office of discount and deposit, stamped paper of the kind 
and denomination required and described in the said act of assembly.

The question submitted to the Court for their decision in this case is as 
to the validity of the said act of the General Assembly of Maryland on the 
ground of its being repugnant to the Constitution of the United States and 
the act of Congress aforesaid, or to one of them. Upon the foregoing 
statement of facts and the pleadings in this cause (all errors in [p*320] 
which are hereby agreed to be mutually released), if the Court should be of 
opinion that the plaintiffs are entitled to recover, then judgment, it is 
agreed, shall be entered for the plaintiffs for $2,500 and costs of suit. B 
ut if the Court should be of opinion that the plaintiffs are not entitled 
to recover upon the statement and pleadings aforesaid, then judgment of non 
pros shall be entered, with costs to the defendant.

It is agreed that either party may appeal from the decision of the County 
Court to the Court of Appeals, and from the decision of the Court of 
Appeals to the Supreme Court of the United States, according to the modes 
and usages of law, and have the same benefit of this statement of facts in 
the same manner as could be had if a jury had been sworn and impanneled in 
this cause and a special verdict had been found, or these facts had 
appeared and been stated in an exception taken to the opinion of the Court, 
and the Court's direction to the jury thereon.



Copy of the act of the Legislature of the State of Maryland, referred to in 
the preceding Statement.

An act to impose a tax on all banks or branches thereof, in the State of 
Maryland not chartered by the legislature

Be it enacted by the General Assembly of Maryland that if any bank has 
established or shall, without authority from the State first had and 
obtained establish any branch, office of discount and [p*321] deposit, or 
office of pay and receipt in any part of this State, it shall not be lawful 
for the said branch, office of discount and deposit, or office of pay and 
receipt to issue notes, in any manner, of any other denomination than five, 
ten, twenty, fifty, one hundred, five hundred and one thousand dollars, and 
no note shall be issued except upon stamped paper of the following 
denominations; that is to say, every five dollar note shall be upon a stamp 
of ten cents; every ten dollar note, upon a stamp of twenty cents; every 
twenty dollar note, upon a stamp of thirty cents; every fifty dollar note, 
upon a stamp of fifty cents; every one hundred dollar note, upon a stamp of 
one dollar; every five hundred dollar note, upon a stamp of ten dollars; 
and every thousand dollar note, upon a stamp of twenty dollars; which paper 
shall be furnished by the Treasurer of the Western Shore, under the 
direction of the Governor and Council, to be paid for upon delivery; 
provided always that any institution of the above description may relieve 
itself from the operation of the provisions aforesaid by paying annually, 
in advance, to the Treasurer of the Western Shore, for the use of State, 
the sum of $15,000.

And be it enacted that the President, cashier, each of the directors and 
officers of every institution established or to be established as 
aforesaid, offending against the provisions aforesaid shall forfeit a sum 
of $500 for each and every offence, and every person having any agency in 
circulating any note aforesaid, not stamped as aforesaid directed, shall 
forfeit a sum not exceeding $100, [p*322] every penalty aforesaid to be 
recovered by indictment or action of debt in the county court of the county 
where the offence shall be committed, one-half to the informer and the 
other half to the use of the State.

And be it enacted that this act shall be in full force and effect from and 
after the first day of May next. [p*400]

                         Opinions 

             MARSHALL, C.J., Opinion of the Court 

MARSHALL, Chief Justice, 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 [p*401] 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 longer 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. [p*402] 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 arguments 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 
irreconcilable 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. [p*403]

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 governments.

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, insure domestic tranquillity, and 
secure [p*404] 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, 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. The Government of the Union then (whatever may be the 
influence of this fact on the case) is, [p*405] emphatically and truly, a 
Government of the people. In form and in substance, it emanates from them. 
Its powers are granted by them, and are to be exercised directly on them, 
and for their benefit.

This Government is acknowledged by all to be one of enumerated powers. The 
principle that it can exercise only the powers granted to it would seem too 
apparent to have required to be enforced by all those arguments which its 
enlightened friends, while it was depending before the people, found it 
necessary to urge; that principle is now universally admitted. But the 
question respecting the extent of the powers actually granted is 
perpetually arising, and will probably continue to arise so long as our 
system shall exist. In discussing these questions, the conflicting powers 
of the General and State Governments must be brought into view, and the 
supremacy of their respective laws, when they are in opposition, must be 
settled.

If any one proposition could command the universal assent of mankind, we 
might expect it would be this -- that the Government of the Union, though 
limited in its powers, is supreme within its sphere of action. This would 
seem to result necessarily from its nature. It is the Government of all; 
its powers are delegated by all; it represents all, and acts for all. 
Though any one State may be willing to control its operations, no State is 
willing to allow others to control them. The nation, on those subjects on 
which it can act, must necessarily bind its component parts. But this 
question is not left to mere reason; the people have, in express terms, 
decided it by saying, [p*406] "this Constitution, and the laws of the 
United States, which shall be made in pursuance thereof," "shall be the 
supreme law of the land," and by requiring that the members of the State 
legislatures and the officers of the executive and judicial departments of 
the States shall take the oath of fidelity to it. The Government of the 
United States, then, though limited in its powers, is supreme, and its 
laws, when made in pursuance of the Constitution, form the supreme law of 
the land, "anything in the Constitution or laws of any State to the 
contrary notwithstanding."

Among the enumerated powers, we do not find that of establishing a bank or 
creating a corporation. But there is no phrase in the instrument which, 
like the Articles of Confederation, excludes incidental or implied powers 
and which requires that everything granted shall be expressly and minutely 
described. Even the 10th Amendment, which was framed for the purpose of 
quieting the excessive jealousies which had been excited, omits the word 
"expressly," and declares only that the powers "not delegated to the United 
States, nor prohibited to the States, are reserved to the States or to the 
people," thus leaving the question whether the particular power which may 
become the subject of contest has been delegated to the one Government, or 
prohibited to the other, to depend on a fair construction of the whole 
instrument. The men who drew and adopted this amendment had experienced the 
embarrassments resulting from the insertion of this word in the Articles 
[p*407] of Confederation, and probably omitted it to avoid those 
embarrassments. A Constitution, to contain an accurate detail of all the 
subdivisions of which its great powers will admit, and of all the means by 
which they may be carried into execution, would partake of the prolixity of 
a legal code, and could scarcely be embraced by the human mind. It would 
probably never be understood by the public. Its nature, therefore, requires 
that only its great outlines should be marked, its important objects 
designated, and the minor ingredients which compose those objects be 
deduced from the nature of the objects themselves. That this idea was 
entertained by the framers of the American Constitution is not only to be 
inferred from the nature of the instrument, but from the language. Why else 
were some of the limitations found in the 9th section of the 1st article 
introduced? It is also in some degree warranted by their having omitted to 
use any restrictive term which might prevent its receiving a fair and just 
interpretation. In considering this question, then, we must never forget 
that it is a Constitution we are expounding.

Although, among the enumerated powers of Government, we do not find the 
word "bank" or "incorporation," we find the great powers, to lay and 
collect taxes; to borrow money; to regulate commerce; to declare and 
conduct a war; and to raise and support armies and navies. The sword and 
the purse, all the external relations, and no inconsiderable portion of the 
industry of the nation are intrusted to its Government. It can never be 
pretended [p*408] that these vast powers draw after them others of inferior 
importance merely because they are inferior. Such an idea can never be 
advanced. But it may with great reason be contended that a Government 
intrusted with such ample powers, on the due execution of which the 
happiness and prosperity of the Nation so vitally depends, must also be 
intrusted with ample means for their execution. The power being given, it 
is the interest of the Nation to facilitate its execution. It can never be 
their interest, and cannot be presumed to have been their intention, to 
clog and embarrass its execution by withholding the most appropriate means. 
Throughout this vast republic, from the St. Croix to the Gulf of Mexico, 
from the Atlantic to the Pacific, revenue is to be collected and expended, 
armies are to be marched and supported. The exigencies of the Nation may 
require that the treasure raised in the north should be transported to the 
south that raised in the east, conveyed to the west, or that this order 
should be reversed. Is that construction of the Constitution to be 
preferred which would render these operations difficult, hazardous and 
expensive? Can we adopt that construction (unless the words imperiously 
require it) which would impute to the framers of that instrument, when 
granting these powers for the public good, the intention of impeding their 
exercise, by withholding a choice of means? If, indeed, such be the mandate 
of the Constitution, we have only to obey; but that instrument does not 
profess to enumerate the means by which the powers it confers may be 
executed; nor does it prohibit the creation of a corporation, [p*409] if 
the existence of such a being be essential, to the beneficial exercise of 
those powers. It is, then, the subject of fair inquiry how far such means 
may be employed.

It is not denied that the powers given to the Government imply the ordinary 
means of execution. That, for example, of raising revenue and applying it 
to national purposes is admitted to imply the power of conveying money from 
place to place as the exigencies of the Nation may require, and of 
employing the usual means of conveyance. But it is denied that the 
Government has its choice of means, or that it may employ the most 
convenient means if, to employ them, it be necessary to erect a 
corporation. On what foundation does this argument rest? O n this alone: 
the power of creating a corporation is one appertaining to sovereignty, and 
is not expressly conferred on Congress. This is true. But all legislative 
powers appertain to sovereignty. The original power of giving the law on 
any subject whatever is a sovereign power, and if the Government of the 
Union is restrained from creating a corporation as a means for performing 
its functions, on the single reason that the creation of a corporation is 
an act of sovereignty, if the sufficiency of this reason be acknowledged, 
there would be some difficulty in sustaining the authority of Congress to 
pass other laws for the accomplishment of the same objects. The Government 
which has a right to do an act and has imposed on it the duty of performing 
that act must, according to the dictates of reason, be allowed [p*410] to 
select the means, and those who contend that it may not select any 
appropriate means that one particular mode of effecting the object is 
excepted take upon themselves the burden of establishing that exception.

The creation of a corporation, it is said, appertains to sovereignty. This 
is admitted. But to what portion of sovereignty does it appertain? Does it 
belong to one more than to another? In America, the powers of sovereignty 
are divided between the Government of the Union and those of the States. 
They are each sovereign with respect to the objects committed to it, and 
neither sovereign with respect to the objects committed to the other. We 
cannot comprehend that train of reasoning, which would maintain that the 
extent of power granted by the people is to be ascertained not by the 
nature and terms of the grant, but by its date. Some State Constitutions 
were formed before, some since, that of the United States. We cannot 
believe that their relation to each other is in any degree dependent upon 
this circumstance. Their respective powers must, we think, be precisely the 
same as if they had been formed at the same time. Had they been formed at 
the same time, and had the people conferred on the General Government the 
power contained in the Constitution, and on the States the whole residuum 
of power, would it have been asserted that the Government of the Union was 
not sovereign, with respect to those objects which were intrusted to it, in 
relation to which its laws were declared to be supreme? If this could not 
have been asserted, we cannot well comprehend the process of reasoning 
[p*411] which maintains that a power appertaining to sovereignty cannot be 
connected with that vast portion of it which is granted to the General 
Government, so far as it is calculated to subserve the legitimate objects 
of that Government. The power of creating a corporation, though 
appertaining to sovereignty, is not, like the power of making war or 
levying taxes or of regulating commerce, a great substantive and 
independent power which cannot be implied as incidental to other powers or 
used as a means of executing them. It is never the end for which other 
powers are exercised, but a means by which other objects are accomplished. 
No contributions are made to charity for the sake of an incorporation, but 
a corporation is created to administer the charity; no seminary of learning 
is instituted in order to be incorporated, but the corporate character is 
conferred to subserve the purposes of education. No city was ever built 
with the sole object of being incorporated, but is incorporated as 
affording the best means of being well governed. The power of creating a 
corporation is never used for its own sake, but for the purpose of 
effecting something else. No sufficient reason is therefore perceived why 
it may not pass as incidental to those powers which are expressly given if 
it be a direct mode of executing them.

But the Constitution of the United States has not left the right of 
Congress to employ the necessary means for the execution of the powers 
conferred on the Government to general reasoning. To its enumeration of 
powers is added that of making all [p*412] laws which shall be necessary 
and proper for carrying into execution the foregoing powers, and all other 
powers vested by this Constitution in the Government of the United States 
or in any department thereof.

The counsel for the State of Maryland have urged various arguments to prove 
that this clause, though in terms a grant of power, is not so in effect, 
but is really restrictive of the general right which might otherwise be 
implied of selecting means for executing the enumerated powers. In support 
of this proposition, they have found it necessary to contend that this 
clause was inserted for the purpose of conferring on Congress the power of 
making laws. That, without it, doubts might be entertained whether Congress 
could exercise its powers in the form of legislation.

But could this be the object for which it was inserted? A Government is 
created by the people having legislative, executive and judicial powers. 
Its legislative powers are vested in a Congress, which is to consist of a 
senate and house of representatives. Each house may determine the rule of 
its proceedings, and it is declared that every bill which shall have passed 
both houses shall, before it becomes a law, be presented to the President 
of the United States. The 7th section describes the course of proceedings 
by which a bill shall become a law, and then the 8th section enumerates the 
powers of Congress. Could it be necessary to say that a legislature should 
exercise legislative powers, in the shape of legislation? After allowing 
each house to prescribe [p*413] its own course of proceeding, after 
describing the manner in which a bill should become a law, would it have 
entered into the mind of a single member of the convention that an express 
power to make laws was necessary to enable the legislature to make them? 
That a legislature, endowed with legislative powers, can legislate is a 
proposition too self-evident to have been questioned.

But the argument on which most reliance is placed is drawn from that 
peculiar language of this clause. Congress is not empowered by it to make 
all laws which may have relation to the powers conferred on the Government, 
but such only as may be "necessary and proper" for carrying them into 
execution. The word "necessary" is considered as controlling the whole 
sentence, and as limiting the right to pass laws for the execution of the 
granted powers to such as are indispensable, and without which the power 
would be nugatory. That it excludes the choice of means, and leaves to 
Congress in each case that only which is most direct and simple.

Is it true that this is the sense in which the word "necessary" is always 
used? Does it always import an absolute physical necessity so strong that 
one thing to which another may be termed necessary cannot exist without 
that other? We think it does not. If reference be had to its use in the 
common affairs of the world or in approved authors, we find that it 
frequently imports no more than that one thing is convenient, or useful, or 
essential to another. To employ the means necessary to an end is generally 
understood as employing any means calculated to [p*414] produce the end, 
and not as being confined to those single means without which the end would 
be entirely unattainable. Such is the character of human language that no 
word conveys to the mind in all situations one single definite idea, and 
nothing is more common than to use words in a figurative sense. Almost all 
compositions contain words which, taken in a their rigorous sense, would 
convey a meaning different from that which is obviously intended. It is 
essential to just construction that many words which import something 
excessive should be understood in a more mitigated sense -- in that sense 
which common usage justifies. The word "necessary" is of this description. 
It has not a fixed character peculiar to itself. It admits of all degrees 
of comparison, and is often connected with other words which increase or 
diminish the impression the mind receives of the urgency it imports. A 
thing may be necessary, very necessary, absolutely or indispensably 
necessary. To no mind would the same idea be conveyed by these several 
phrases. The comment on the word is well illustrated by the passage cited 
at the bar from the 10th section of the 1st article of the Constitution. It 
is, we think, impossible to compare the sentence which prohibits a State 
from laying "imposts, or duties on imports or exports, except what may be 
absolutely necessary for executing its inspection laws," with that which 
authorizes Congress "to make all laws which shall be necessary and proper 
for carrying into execution" the powers of the General Government without 
feeling a conviction that the convention understood itself to change 
materially [p*415] the meaning of the word "necessary," by prefixing the 
word "absolutely." This word, then, like others, is used in various senses, 
and, in its construction, the subject, the context, the intention of the 
person using them are all to be taken into view.

Let this be done in the case under consideration. The subject is the 
execution of those great powers on which the welfare of a Nation 
essentially depends. It must have been the intention of those who gave 
these powers to insure, so far as human prudence could insure, their 
beneficial execution. This could not be done by confiding the choice of 
means to such narrow limits as not to leave it in the power of Congress to 
adopt any which might be appropriate, and which were conducive to the end. 
This provision is made in a Constitution intended to endure for ages to 
come, and consequently to be adapted to the various crises of human 
affairs. To have prescribed the means by which Government should, in all 
future time, execute its powers would have been to change entirely the 
character of the instrument and give it the properties of a legal code. It 
would have been an unwise attempt to provide by immutable rules for 
exigencies which, if foreseen at all, must have been seen dimly, and which 
can be best provided for as they occur. To have declared that the best 
means shall not be used, but those alone without which the power given 
would be nugatory, would have been to deprive the legislature of the 
capacity to avail itself of experience, to exercise its reason, and to 
accommodate its legislation to circumstances. [p*416]

If we apply this principle of construction to any of the powers of the 
Government, we shall find it so pernicious in its operation that we shall 
be compelled to discard it. The powers vested in Congress may certainly be 
carried into execution, without prescribing an oath of office. The power to 
exact this security for the faithful performance of duty is not given, nor 
is it indispensably necessary. The different departments may be 
established; taxes may be imposed and collected; armies and navies may be 
raised and maintained; and money may be borrowed, without requiring an oath 
of office. It might be argued with as much plausibility as other incidental 
powers have been assailed that the convention was not unmindful of this 
subject. The oath which might be exacted -- that of fidelity to the 
Constitution -- is prescribed, and no other can be required. Yet he would 
be charged with insanity who should contend that the legislature might not 
superadd to the oath directed by the Constitution such other oath of office 
as its wisdom might suggest.

So, with respect to the whole penal code of the United States, whence 
arises the power to punish in cases not prescribed by the Constitution? All 
admit that the Government may legitimately punish any violation of its 
laws, and yet this is not among the enumerated powers of Congress. The 
right to enforce the observance of law by punishing its infraction might be 
denied with the more plausibility because it is expressly given in some 
cases.

Congress is empowered "to provide for the punishment [p*417] of 
counterfeiting the securities and current coin of the United States," and 
"to define and punish piracies and felonies committed on the high seas, and 
offences against the law of nations." The several powers of Congress may 
exist in a very imperfect State, to be sure, but they may exist and be 
carried into execution, although no punishment should be inflicted, in 
cases where the right to punish is not expressly given.

Take, for example, the power "to establish post-offices and post-roads." 
This power is executed by the single act of making the establishment. But 
from this has been inferred the power and duty of carrying the mail along 
the post road from one post office to another. And from this implied power 
has again been inferred the right to punish those who steal letters from 
the post office, or rob the mail. It may be said with some plausibility 
that the right to carry the mail, and to punish those who rob it, is not 
indispensably necessary to the establishment of a post office and post 
road. This right is indeed essential to the beneficial exercise of the 
power, but not indispensably necessary to its existence. So, of the 
punishment of the crimes of stealing or falsifying a record or process of a 
Court of the United States, or of perjury in such Court. To punish these 
offences is certainly conducive to the due administration of justice. But 
Courts may exist, and may decide the causes brought before them, though 
such crimes escape punishment. 

The baneful influence of this narrow construction on all the operations of 
the Government, and the absolute [p*418] impracticability of maintaining it 
without rendering the Government incompetent to its great objects, might be 
illustrated by numerous examples drawn from the Constitution and from our 
laws. The good sense of the public has pronounced without hesitation that 
the power of punishment appertains to sovereignty, and may be exercised, 
whenever the sovereign has a right to act, as incidental to his 
Constitutional powers. It is a means for carrying into execution all 
sovereign powers, and may be used although not indispensably necessary. It 
is a right incidental to the power, and conducive to its beneficial 
exercise.

If this limited construction of the word "necessary" must be abandoned in 
order to punish, whence is derived the rule which would reinstate it when 
the Government would carry its powers into execution by means not 
vindictive in their nature? If the word "necessary" means "needful," 
"requisite," "essential," "conducive to," in order to let in the power of 
punishment for the infraction of law, why is it not equally comprehensive 
when required to authorize the use of means which facilitate the execution 
of the powers of Government, without the infliction of punishment?

In ascertaining the sense in which the word "necessary" is used in this 
clause of the Constitution, we may derive some aid from that with which it 
it is associated. Congress shall have power "to make all laws which shall 
be necessary and proper to carry into execution" the powers of the 
Government. If the word "necessary" was used in that strict and rigorous 
sense for which the counsel for the State of [p*419] Maryland contend, it 
would be an extraordinary departure from the usual course of the human 
mind, as exhibited in composition, to add a word the only possible effect 
of which is to qualify that strict and rigorous meaning, to present to the 
mind the idea of some choice of means of legislation not strained and 
compressed within the narrow limits for which gentlemen contend.

But the argument which most conclusively demonstrates the error of the 
construction contended for by the counsel for the State of Maryland is 
founded on the intention of the convention as manifested in the whole 
clause. To waste time and argument in proving that, without it, Congress 
might carry its powers into execution would be not much less idle than to 
hold a lighted taper to the sun. As little can it be required to prove 
that, in the absence of this clause, Congress would have some choice of 
means. That it might employ those which, in its judgment, would most 
advantageously effect the object to be accomplished. That any means adapted 
to the end, any means which tended directly to the execution of the 
Constitutional powers of the Government, were in themselves Constitutional. 
This clause, as construed by the State of Maryland, would abridge, and 
almost annihilate, this useful and necessary right of the legislature to 
select its means. That this could not be intended is, we should think, had 
it not been already controverted, too apparent for controversy.

We think so for the following reasons:

1st. The clause is placed among the powers of Congress, not among the 
limitations on those powers. [p*420]

2d. Its terms purport to enlarge, not to diminish, the powers vested in the 
Government. It purports to be an additional power, not a restriction on 
those already granted. No reason has been or can be assigned for thus 
concealing an intention to narrow the discretion of the National 
Legislature under words which purport to enlarge it. The framers of the 
Constitution wished its adoption, and well knew that it would be endangered 
by its strength, not by its weakness. Had they been capable of using 
language which would convey to the eye one idea and, after deep reflection, 
impress on the mind another, they would rather have disguised the grant of 
power than its limitation. If, then, their intention had been, by this 
clause, to restrain the free use of means which might otherwise have been 
implied, that intention would have been inserted in another place, and 
would have been expressed in terms resembling these. "In carrying into 
execution the foregoing powers, and all others," &c., "no laws shall be 
passed but such as are necessary and proper." Had the intention been to 
make this clause restrictive, it would unquestionably have been so in form, 
as well as in effect.

The result of the most careful and attentive consideration bestowed upon 
this clause is that, if it does not enlarge, it cannot be construed to 
restrain, the powers of Congress, or to impair the right of the legislature 
to exercise its best judgment in the selection of measures to carry into 
execution the Constitutional powers of the Government. If no other motive 
for its insertion can be suggested, a sufficient one is found in the desire 
to remove all doubts respecting [p*421] the right to legislate on that vast 
mass of incidental powers which must be involved in the Constitution if 
that instrument be not a splendid bauble.

We admit, as all must admit, that the powers of the Government are limited, 
and that its limits are not to be transcended. But we think the sound 
construction of the Constitution must allow to the national legislature 
that discretion with respect to the means by which the powers it confers 
are to be carried into execution which will enable that body to perform the 
high duties assigned to it in the manner most beneficial to the people. Let 
the end be legitimate, let it be within the scope of the Constitution, and 
all means which are appropriate, which are plainly adapted to that end, 
which are not prohibited, but consist with the letter and spirit of the 
Constitution, are Constitutional.[*]

That a corporation must be considered as a means not less usual, not of 
higher dignity, not more requiring a particular specification than other 
means has been sufficiently proved. If we look to the origin of 
corporations, to the manner in which they have been framed in that 
Government from which we have derived most of our legal principles and 
ideas, or to the uses to which they have been applied, we find no reason to 
suppose that a Constitution, omitting, and wisely omitting, to enumerate 
all the means for carrying into execution the great powers vested in 
Government, ought to have specified this. Had it been intended to grant 
this power as one which should be distinct and independent, to be exercised 
in any case whatever, it [p*422] would have found a place among the 
enumerated powers of the Government. But being considered merely as a 
means, to be employed only for the purpose of carrying into execution the 
given powers, there could be no motive for particularly mentioning it.

The propriety of this remark would seem to be generally acknowledged by the 
universal acquiescence in the construction which has been uniformly put on 
the 3d section of the 4th article of the Constitution. The power to "make 
all needful rules and regulations respecting the territory or other 
property belonging to the United States" is not more comprehensive than the 
power "to make all laws which shall be necessary and proper for carrying 
into execution" the powers of the Government. Yet all admit the 
constitutionality of a Territorial Government, which is a corporate body.

If a corporation may be employed, indiscriminately with other means, to 
carry into execution the powers of the Government, no particular reason can 
be assigned for excluding the use of a bank, if required for its fiscal 
operations. To use one must be within the discretion of Congress if it be 
an appropriate mode of executing the powers of Government. That it is a 
convenient, a useful, and essential instrument in the prosecution of its 
fiscal operations is not now a subject of controversy. All those who have 
been concerned in the administration of our finances have concurred in 
representing its importance and necessity, and so strongly have they been 
felt that Statesmen of the first class, whose previous opinions [p*423] 
against it had been confirmed by every circumstance which can fix the human 
judgment, have yielded those opinions to the exigencies of the nation. 
Under the Confederation, Congress, justifying the measure by its necessity, 
transcended, perhaps, its powers to obtain the advantage of a bank; and our 
own legislation attests the universal conviction of the utility of this 
measure. The time has passed away when it can be necessary to enter into 
any discussion in order to prove the importance of this instrument as a 
means to effect the legitimate objects of the Government.

But were its necessity less apparent, none can deny its being an 
appropriate measure; and if it is, the decree of its necessity, as has been 
very justly observed, is to be discussed in another place. Should Congress, 
in the execution of its powers, adopt measures which are prohibited by the 
Constitution, or should Congress, under the pretext of executing its 
powers, pass laws for the accomplishment of objects not intrusted to the 
Government, it would become the painful duty of this tribunal, should a 
case requiring such a decision come before it, to say that such an act was 
not the law of the land. But where the law is not prohibited, and is really 
calculated to effect any of the objects intrusted to the Government, to 
undertake here to inquire into the decree of its necessity would be to pass 
the line which circumscribes the judicial department and to tread on 
legislative ground. This Court disclaims all pretensions to such a power. 
[p*424]

After this declaration, it can scarcely be necessary to say that the 
existence of State banks can have no possible influence on the question. No 
trace is to be found in the Constitution of an intention to create a 
dependence of the Government of the Union on those of the States, for the 
execution of the great powers assigned to it. Its means are adequate to its 
ends, and on those means alone was it expected to rely for the 
accomplishment of its ends. To impose on it the necessity of resorting to 
means which it cannot control, which another Government may furnish or 
withhold, would render its course precarious, the result of its measures 
uncertain, and create a dependence on other Governments which might 
disappoint its most important designs, and is incompatible with the 
language of the Constitution. But were it otherwise, the choice of means 
implies a right to choose a national bank in preference to State banks, and 
Congress alone can make the election.

After the most deliberate consideration, it is the unanimous and decided 
opinion of this Court that the act to incorporate the Bank of the United 
States is a law made in pursuance of the Constitution, and is a part of the 
supreme law of the land.

The branches, proceeding from the same stock and being conducive to the 
complete accomplishment of the object, are equally constitutional. It would 
have been unwise to locate them in the charter, and it would be 
unnecessarily inconvenient to employ the legislative power in making those 
subordinate arrangements. The great duties of the bank are prescribed; 
those duties require branches; and the bank itself [p*425] may, we think, 
be safely trusted with the selection of places where those branches shall 
be fixed, reserving always to the Government the right to require that a 
branch shall be located where it may be deemed necessary.

It being the opinion of the Court that the act incorporating the bank is 
constitutional, and that the power of establishing a branch in the State of 
Maryland might be properly exercised by the bank itself, we proceed to 
inquire: 

2. Whether the State of Maryland may, without violating the Constitution, 
tax that branch?

That the power of taxation is one of vital importance; that it is retained 
by the States; that it is not abridged by the grant of a similar power to 
the Government of the Union; that it is to be concurrently exercised by the 
two Governments -- are truths which have never been denied. But such is the 
paramount character of the Constitution that its capacity to withdraw any 
subject from the action of even this power is admitted. The States are 
expressly forbidden to lay any duties on imports or exports except what may 
be absolutely necessary for executing their inspection laws. If the 
obligation of this prohibition must be conceded -- if it may restrain a 
State from the exercise of its taxing power on imports and exports -- the 
same paramount character would seem to restrain, as it certainly may 
restrain, a State from such other exercise of this power as is in its 
nature incompatible with, and repugnant to, the constitutional laws of the 
Union. A law absolutely repugnant to another as entirely [p*426] repeals 
that other as if express terms of repeal were used.

On this ground, the counsel for the bank place its claim to be exempted 
from the power of a State to tax its operations. There is no express 
provision for the case, but the claim has been sustained on a principle 
which so entirely pervades the Constitution, is so intermixed with the 
materials which compose it, so interwoven with its web, so blended with its 
texture, as to be incapable of being separated from it without rending it 
into shreds.

This great principle is that the Constitution and the laws made in 
pursuance thereof are supreme; that they control the Constitution and laws 
of the respective States, and cannot be controlled by them. From this, 
which may be almost termed an axiom, other propositions are deduced as 
corollaries, on the truth or error of which, and on their application to 
this case, the cause has been supposed to depend. These are, 1st. That a 
power to create implies a power to preserve; 2d. That a power to destroy, 
if wielded by a different hand, is hostile to, and incompatible with these 
powers to create and to preserve; 3d. That, where this repugnancy exists, 
that authority which is supreme must control, not yield to that over which 
it is supreme.

These propositions, as abstract truths, would perhaps never be 
controverted. Their application to this case, however, has been denied, and 
both in maintaining the affirmative and the negative, a splendor of 
eloquence, and strength of argument seldom if ever surpassed have been 
displayed. [p*427]

The power of Congress to create and, of course, to continue the bank was 
the subject of the preceding part of this opinion, and is no longer to be 
considered as questionable.

That the power of taxing it by the States may be exercised so as to destroy 
it is too obvious to be denied. But taxation is said to be an absolute 
power which acknowledges no other limits than those expressly prescribed in 
the Constitution, and, like sovereign power of every other description, is 
intrusted to the discretion of those who use it. But the very terms of this 
argument admit that the sovereignty of the State, in the article of 
taxation itself, is subordinate to, and may be controlled by, the 
Constitution of the United States. How far it has been controlled by that 
instrument must be a question of construction. In making this construction, 
no principle, not declared, can be admissible which would defeat the 
legitimate operations of a supreme Government. It is of the very essence of 
supremacy to remove all obstacles to its action within its own sphere, and 
so to modify every power vested in subordinate governments as to exempt its 
own operations from their own influence. This effect need not be stated in 
terms. It is so involved in the declaration of supremacy, so necessarily 
implied in it, that the expression of it could not make it more certain. We 
must, therefore, keep it in view while construing the Constitution.

The argument on the part of the State of Maryland is not that the States 
may directly resist a law of Congress, but that they may exercise their 
[p*428] acknowledged powers upon it, and that the Constitution leaves them 
this right, in the confidence that they will not abuse it. Before we 
proceed to examine this argument and to subject it to test of the 
Constitution, we must be permitted to bestow a few considerations on the 
nature and extent of this original right of taxation, which is acknowledged 
to remain with the States. It is admitted that the power of taxing the 
people and their property is essential to the very existence of Government, 
and may be legitimately exercised on the objects to which it is applicable, 
to the utmost extent to which the Government may choose to carry it. The 
only security against the abuse of this power is found in the structure of 
the Government itself. In imposing a tax, the legislature acts upon its 
constituents. This is, in general, a sufficient security against erroneous 
and oppressive taxation.

The people of a State, therefore, give to their Government a right of 
taxing themselves and their property, and as the exigencies of Government 
cannot be limited, they prescribe no limits to the exercise of this right, 
resting confidently on the interest of the legislator and on the influence 
of the constituent over their representative to guard them against its 
abuse. But the means employed by the Government of the Union have no such 
security, nor is the right of a State to tax them sustained by the same 
theory. Those means are not given by the people of a particular State, not 
given by the constituents of the legislature which claim the right to tax 
them, but by the people of all the States They are given by all, [p*429] 
for the benefit of all -- and, upon theory, should be subjected to that 
Government only which belongs to all.

It may be objected to this definition that the power of taxation is not 
confined to the people and property of a State. It may be exercised upon 
every object brought within its jurisdiction.

This is true. But to what source do we trace this right? It is obvious that 
it is an incident of sovereignty, and is coextensive with that to which it 
is an incident. All subjects over which the sovereign power of a State 
extends are objects of taxation, but those over which it does not extend 
are, upon the soundest principles, exempt from taxation. This proposition 
may almost be pronounced self-evident.

The sovereignty of a State extends to everything which exists by its own 
authority or is introduced by its permission, but does it extend to those 
means which are employed by Congress to carry into execution powers 
conferred on that body by the people of the United States? We think it 
demonstrable that it does not. Those powers are not given by the people of 
a single State. They are given by the people of the United States, to a 
Government whose laws, made in pursuance of the Constitution, are declared 
to be supreme. Consequently, the people of a single State cannot confer a 
sovereignty which will extend over them.

If we measure the power of taxation residing in a State by the extent of 
sovereignty which the people of a single State possess and can confer on 
its Government, we have an intelligible standard, applicable [p*430] to 
every case to which the power may be applied. We have a principle which 
leaves the power of taxing the people and property of a State unimpaired; 
which leaves to a State the command of all its resources, and which places 
beyond its reach all those powers which are conferred by the people of the 
United States on the Government of the Union, and all those means which are 
given for the purpose of carrying those powers into execution. We have a 
principle which is safe for the States and safe for the Union. We are 
relieved, as we ought to be, from clashing sovereignty; from interfering 
powers; from a repugnancy between a right in one Government to pull down 
what there is an acknowledged right in another to build up; from the 
incompatibility of a right in one Government to destroy what there is a 
right in another to preserve. We are not driven to the perplexing inquiry, 
so unfit for the judicial department, what degree of taxation is the  
legitimate use and what degree may amount to the abuse of the power. The 
attempt to use it on the means employed by the Government of the Union, in 
pursuance of the Constitution, is itself an abuse because it is the 
usurpation of a power which the people of a single State cannot give.

We find, then, on just theory, a total failure of this original right to 
tax the means employed by the Government of the Union, for the execution of 
its powers. The right never existed, and the question whether it has been 
surrendered cannot arise.

But, waiving this theory for the present, let us resume the inquiry, 
whether this power can be exercised [p*431] by the respective States, 
consistently with a fair construction of the Constitution?

That the power to tax involves the power to destroy; that the power to 
destroy may defeat and render useless the power to create; that there is a 
plain repugnance in conferring on one Government a power to control the 
constitutional measures of another, which other, with respect to those very 
measures, is declared to be supreme over that which exerts the control, are 
propositions not to be denied. But all inconsistencies are to be reconciled 
by the magic of the word CONFIDENCE. Taxation, it is said, does not 
necessarily and unavoidably destroy. To carry it to the excess of 
destruction would be an abuse, to presume which would banish that 
confidence which is essential to all Government.

But is this a case of confidence? Would the people of any one State trust 
those of another with a power to control the most insignificant operations 
of their State Government? We know they would not. Why, then, should we 
suppose that the people of any one State should be willing to trust those 
of another with a power to control the operations of a Government to which 
they have confided their most important and most valuable interests? In the 
Legislature of the Union alone are all represented. The Legislature of the 
Union alone, therefore, can be trusted by the people with the power of 
controlling measures which concern all, in the confidence that it will not 
be abused. This, then, is not a case of confidence, and we must consider it 
is as it really is. [p*432] 

If we apply the principle for which the State of Maryland contends, to the 
Constitution generally, we shall find it capable of changing totally the 
character of that instrument. We shall find it capable of arresting all the 
measures of the Government, and of prostrating it at the foot of the 
States. The American people have declared their Constitution and the laws 
made in pursuance thereof to be supreme, but this principle would transfer 
the supremacy, in fact, to the States.

If the States may tax one instrument, employed by the Government in the 
execution of its powers, they may tax any and every other instrument. They 
may tax the mail; they may tax the mint; they may tax patent rights; they 
may tax the papers of the custom house; they may tax judicial process; they 
may tax all the means employed by the Government to an excess which would 
defeat all the ends of Government. This was not intended by the American 
people. They did not design to make their Government dependent on the 
States.

Gentlemen say they do not claim the right to extend State taxation to these 
objects. They limit their pretensions to property. But on what principle is 
this distinction made? Those who make it have furnished no reason for it, 
and the principle for which they contend denies it. They contend that the 
power of taxation has no other limit than is found in the 10th section of 
the 1st article of the Constitution; that, with respect to everything else, 
the power of the States is supreme, and admits of no control. If this be 
true, the distinction between property and [p*433] other subjects to which 
the power of taxation is applicable is merely arbitrary, and can never be 
sustained. This is not all. If the controlling power of the States be 
established, if their supremacy as to taxation be acknowledged, what is to 
restrain their exercising control in any shape they may please to give it? 
Their sovereignty is not confined to taxation; that is not the only mode in 
which it might be displayed. The question is, in truth, a question of 
supremacy, and if the right of the States to tax the means employed by the 
General Government be conceded, the declaration that the Constitution and 
the laws made in pursuance thereof shall be the supreme law of the land is 
empty and unmeaning declamation.

In the course of the argument, the Federalist has been quoted, and the 
opinions expressed by the authors of that work have been justly supposed to 
be entitled to great respect in expounding the Constitution. No tribute can 
be paid to them which exceeds their merit; but in applying their opinions 
to the cases which may arise in the progress of our Government, a right to 
judge of their correctness must be retained; and to understand the 
argument, we must examine the proposition it maintains and the objections 
against which it is directed. The subject of those numbers from which 
passages have been cited is the unlimited power of taxation which is vested 
in the General Government. The objection to this unlimited power, which the 
argument seeks to remove, is stated with fulness and clearness. It is that 
an indefinite power of taxation in the latter (the Government [p*434] of 
the Union) might, and probably would, in time, deprive the former (the 
Government of the States) of the means of providing for their own 
necessities, and would subject them entirely to the mercy of the National 
Legislature. As the laws of the Union are to become the supreme law of the 
land; as it is to have power to pass all laws that may be necessary for 
carrying into execution the authorities with which it is proposed to vest 
it; the National Government might, at any time, abolish the taxes imposed 
for State objects upon the pretence of an interference with its own. It 
might allege a necessity for doing this, in order to give efficacy to the 
national revenues; and thus, all the resources of taxation might, by 
degrees, become the subjects of federal monopoly, to the entire exclusion 
and destruction of the State Governments.

The objections to the Constitution which are noticed in these numbers were 
to the undefined power of the Government to tax, not to the incidental 
privilege of exempting its own measures from State taxation. The 
consequences apprehended from this undefined power were that it would 
absorb all the objects of taxation, "to the exclusion and destruction of 
the State Governments." The arguments of the Federalist are intended to 
prove the fallacy of these apprehensions, not to prove that the Government 
was incapable of executing any of its powers without exposing the means it 
employed to the embarrassments of State taxation. Arguments urged against 
these objections and these apprehensions are to be understood as relating 
to the points they [p*435] mean to prove. Had the authors of those 
excellent essays been asked whether they contended for that construction of 
the Constitution which would place within the reach of the States those 
measures which the Government might adopt for the execution of its powers, 
no man who has read their instructive pages will hesitate to admit that 
their answer must have been in the negative.

It has also been insisted that, as the power of taxation in the General and 
State Governments is acknowledged to be concurrent, every argument which 
would sustain the right of the General Government to tax banks chartered by 
the States, will equally sustain the right of the States to tax banks 
chartered by the General Government.

But the two cases are not on the same reason. The people of all the States 
have created the General Government, and have conferred upon it the general 
power of taxation. The people of all the States, and the States themselves, 
are represented in Congress, and, by their representatives, exercise this 
power. When they tax the chartered institutions of the States, they tax 
their constituents, and these taxes must be uniform. But when a State taxes 
the operations of the Government of the United States, it acts upon 
institutions created not by their own constituents, but by people over whom 
they claim no control. It acts upon the measures of a Government created by 
others as well as themselves, for the benefit of others in common with 
themselves. The difference is that which always exists, and always must 
exist, between the action of the whole on a [p*436] part, and the action of 
a part on the whole -- between the laws of a Government declared to be 
supreme, and those of a Government which, when in opposition to those laws, 
is not supreme.

But if the full application of this argument could be admitted, it might 
bring into question the right of Congress to tax the State banks, and could 
not prove the rights of the States to tax the Bank of the United States.

The Court has bestowed on this subject its most deliberate consideration. 
The result is a conviction that 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 
execution the powers vested in the General Government. This is, we think, 
the unavoidable consequence of that supremacy which the Constitution has 
declared.

We are unanimously of opinion that the law passed by the Legislature of 
Maryland, imposing a tax on the Bank of the United States is 
unconstitutional and void.

This opinion does not deprive the States of any resources which they 
originally possessed. It does not extend to a tax paid by the real property 
of the bank, in common with the other real property within the State, nor 
to a tax imposed on the interest which the citizens of Maryland may hold in 
this institution, in common with other property of the same description 
throughout the State. But this is a tax on the operations of the bank, and 
is, consequently, a tax on the operation of an instrument employed by the 
Government [p*437] of the Union to carry its powers into execution. Such a 
tax must be unconstitutional.

JUDGMENT. This cause came on to be heard, on the transcript of the record 
of the Court of Appeals of the State of Maryland, and was argued by 
counsel; on consideration whereof, it is the opinion of this Court that the 
act of the Legislature of Maryland is contrary to the Constitution of the 
United States, and void, and therefore that the said Court of Appeals of 
the State of Maryland erred, in affirming the judgment of the Baltimore 
County Court, in which judgment was rendered against James W. McCulloch; 
but that the said Court of Appeals of Maryland ought to have reversed the 
said judgment of the said Baltimore County Court, and ought to have given 
judgment for the said appellant, McCulloch. It is, therefore, adjudged and 
ordered that the said judgment of the said Court of Appeals of the State of 
Maryland in this case be, and the same hereby is, reversed and annulled. 
And this Court, proceeding to render such judgment as the said Court of 
Appeals should have rendered, it is further adjudged and ordered that the 
judgment of the said Baltimore County Court be reversed and annulled, and 
that judgment be entered in the said Baltimore County Court for the said 
James W. McCulloch.

* See Montague v. Richardson, 24 Conn. 348. 

