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