This discussion presumes legal continuity and legal change within legal continuity. There
is ample reason for this. Legal systems and traditions go back for hundreds and thousands of years. Even when there is a revolution, the new legal order may continue important elements of the old. The framers worked within
legal order, and Blackstone was the common source of law at the time. Marshall, in his 1819 opinion on the BUS constitutionality, alludes to Englishlaw: “If we look to the origin of corporations, to the manner in which they have been framed inthat Government from which we have derived most of our legal principles and ideas...”In 1782, Hamilton left the military, became a lawyer in New York, became assistant to
Robert Morris, and was elected to the Continental Congress. Hamilton publically endorsedtheBank of North America, writing as the “Continentalist.”See Edwin J. Perkins,
American Public Finance and Financial Services, 1700-1815
113-114.See pp. 321-322 of Volume 2 of Max Farrand’s
The Records of the Federal Convention
availablehere.guidance to constitutional meaning. If the framers had wanted the legislature (Congress) to havethis power, it probably would have enumerated it as a legislative power, since it involved a break with the power of the Executive in English law.
The Articles of Confederation gave Congress no power to incorporate, but Congress, in the stressof war and problems of financing war, incorporated the Bank of North America in early 1781, promoted by Robert Morris, who was Superintendent of Finance of the United States and by thenLieutenant-Colonel Alexander Hamilton who was George Washington’s trusted aide-de-camp.
This was the first private commercial bank in the country. Incorporation at that time was notopen to all under general incorporation laws; it was a governmental franchise with certain legal privileges and goals. This initial act met with resistance in late 1781 at a new session of Congress. The federal incorporation was withdrawn and replaced by charters from individualstates. From 1783 onwards, the Bank operated in Philadelphia under a Pennsylvania charter.
This history suggests that the framers were well aware of the question of a power to incorporate.Because incorporation was not a routine event granted to anyone, but a political act, it suggeststhat,, if no federal power to incorporate is in the Constitution, the framers intended none. Thestates had this power and used it. Evidently, it was reserved to them under the TenthAmendment.During the Federal Convention in which the Constitution was drafted, a power to incorporate to be vested in the Legislature was considered in two separate clauses. One read “To grant charters
of incorporation in cases where the public good may require them, and the authority of a singleState may be incompetent.” The other read “To grant charters of incorporation.” Neither of thesemade it into the final draft of the Constitution. This is further evidence that the framers intended