Abbildungen der Seite

obtained long before the existing charter expires. Charters are sold by the Legislature. Bonuses and other lucrative considerations are taken for them, and a system of pernicious legislation has established the practice of members, at least indi. vidually, themselves, or their connexions and partisans, sharing in the gains. What may be called public or local corruption is openly and eagerly resorted to by members and others. No one deems it wrong to take and to give for his county or district, and jobbing in legislation is as common as in stocks. Exchanges of local advantages are the levers that move the whole commonwealth. To a certain extent this is unavoidable, and therefore not to be reprobated, however it may be regretted. But I look to two governmental means of, at any rate, checking and controlling their continuance, which, if incurable, must render American legislation as vicious as royal prerogative. Laws formally enacted will be no better than ordinances issued by nonarchs fron arbitrary councils, unless restraint be put on the mutual disposition of legislators and speculators to give and to gain undue advantages by favored, generally unworthy, individuals. The most common and most injurious of their contrivances is a charter, by which their designs are protected from personal liability to law. I will not dwell, now, on the flagrant vices of this modern canker of republican institutions. The governmental means of correction are: first, legislation-rendered the cure, as it is the cause, of the evil, by a free use of the reserved right of repealing bad grants of public privileges; and, secondly, which I hope to see the most effectual of all checks, impartial and independent administration of justice on corporations as on individuals. Such admin. istration is now unknown in Pennsylvania, and generally throughout the United States. They are almost always stronger in sunds and intelligence than individnal opponents in courts of justice. They have the ablest counsel-very elements as they are considered of public improvement and prosperity. Belief in their superior utility and exaltation of their directors, such as we have heard from most of the gentle. men of the bar in this Convention, particularly Mr. Scott, Mr. Sergeant, Mr. Sill, Mr. Porter, and Mr. Merrill, make the atmosphere and the faith in which lawyers and judges live and thrive ; and, without detraction from the integrity or even the independence of courts of justice, their adjudications, like those professional pre posses sions, and the commentaries and compilations on the subject, from Chancellor Kent down to the humblest retainer, have become provisions of the common law, common equality and common right, to elevate and sustain the supposed benefactors and actual masters of the State. But I think their reign is drawing to a close, and that, beginning with public opinion, enforced by legislation, a great barrier against charter power will be completed by the courts as the most effectual restorer of in. dividual righ:-right to be equal—yes, to be superior—to corporate privilege. Such is undoubtedly the common law and the civil law,-the reason, and as such it will come to be the learning, of all law administered. The charter of a man's rights is large and free, and to be always liberally construed, Charters of incor. porated men are derogations from man's equal rights, to be restrained to the letter of the grant. Such are law and reason, and so to be enforced. The Supreme Conrt of the United States has set an example which no doubt will be generally followed. Let any lawyer look into his English authorities, and he will be satisfied that chartered and combined men are not favored by the common law of England or by the judges who have administered it. If that truly great magistrate, the late Chief Justice of the United States, could resume his place, in the meridian of his superior faculties, he would be as forward as his distinguished successor to maintain those obvious limitations of corporate power which all the philosophy of law incul ates, and which, indeed, are the adjudged doctrine of the Supreme Court of the United States at all times. Arbitrary English monarchs and subservient judges violated law to destroy charters ; but its principles are, nevertheless, well settled there. In this country, courts of justice, influenced by overshadowing circumstanc s, have suffered individual and public interests to be subjugated by chartered associations. But they will return, with chastened public opinion, to those unquestionable standards of right and law which the Roman code, and the English, teach, and which, ever since Trajan's well known letter to Pliny, prescribe the regulation that whatever a body of men got by charter s to be restrained, as the French say, au pied de la lettre, to the very foot of the letter. Numberless abuses now unconsciously common with corporations are illegal, and must be so decreed. It is instructive to recur to Hamilton's defence of corporate power: “a strange fallacy seems to have crept into the manner of thinking and reasoning upon the subject,” said he ; “imagination appears to have been unusually busy concerning it. An incorporation seems to have been regarded as some great independent substantive thing; as a political engine, and of peculiar magnitude and moment; whereas it is truly to be considered a quality, capacity, or means to an end.” We have lived to feel corporations—all that he treated as absurd creations of imagination-great independent substantive things, political engines of peculiar magnitude and moment. And it is as curious as it is instructive, that what Jefferson foretold and Hamilton treated as preposterous, is the reality of our present government by corporate supremacy. The enactment of laws, their administration by courts of justice, and their execution by chief magistrates, are all controlled by these great independent substantive things, polititical engines of peculiar magnitude and moment, which at this moment absolutely govern this commonwealth and this union of commonwealths with more sway than even its legitimate institutions. Emancipation from this sway cannot be effected at once. But it is coming-coming by law, by law to be enacted, and by law to be administered, by restoring to the sovereignty what no sovereignty, whether single or popular, can do without power, viz. to control the passions and machinations of men coinbined 10 usurp it-more necessary than power to control individual passions.

I cannot leave this part of my subject without remarking, that those emi. nent lawyers whom we see the champions of charter usurpations are as blind to their professional interests as they are deaf to the voice of good fame. Fortune-nay fame-must be theirs who devote their talents to rescue and vindicate individuals from charter supremacy. The courts, the legislature and the community must eventually concur to overthrow an usurpation so contrary to all republican institutions, and modern tendencies that it cannot endure ; and the legal profession will be great losers in fortune and in character, if they do not join to support the principles of law against the practices of innovators on it. .

State incorporated banks are a novelty wholly unforseen by the constitutions ; a vast fungus grown upon government, upon property, upon liberty and equality, by which the common welfare is thoroughly affected, and the currency, more than twothirds of t, engrossed. Never before, in the annals of jurisprudence, has such a great puvuc interest been withdrawn from the power of legislation to be regulated as exclusive matter of mere common law. The power to make currency is a sovereign power. Even granting that a State may form or depute such authority, it must have, it cannot alienate, the right to regulate and control it. The legislative power, says Rutherforth, in his Institutes of Natural Law, implies a power not only of making laws, but of altering and repealing them. As the circumstances either of the State itself or of the several individuals which compose it, are changed, such claims and such duties, as might once be beneficial, may become useless, burdensome, or even hurtful. If, therefore, the legislative power could not change the rules which it prescribes, so as to suit them to the circumstances of the body politic, and of the members of that body, it could not answer the purposes for which it was established; it could not at all times settle their claims and their duties in such a manner as is most conducive to the good of the whole, and of the several individuals which make up that whole. With this fundamental doctrine of English legislation our own agrees. The principle, in the English Constitution, that the Par: liament is omnipotent, does not prevail in the United States, says Chancellor Kent, in his instructive commentaries, though, if there be no constitutional objection to a statute, it is with us as absolutely uncontrollable as laws flowing froin sovereign power, under any other form of government. But in this, and in all other countries where there is a written constitution, designating the powers and duties of the legislative, as well as of the other departments of the government, an act of the legislature may be void as against the constitution. No law will or can be drawn in question without appeal to constitutional interdict: an act repealing, is as valid as an act granting, a charter. The power of Parliament to abolish laws establishing vested rights has been exercised in numerous instances, from the repeal of the mortmain rights till now, when the whole vested interests in tithes and other church property are, as well as numerous corporations, undergoing Parliamentary revocation. Pennsylvania has repeatedly, and in signal instances, exercised the same legislative power. I shall mention only those of—first, the Proprietaries’ Property; second, the College or University of Pennsylvania ; third, the Bank of North America, and fourth, the Wrights ville, York, and Gettysburg Railroad. Of the first and last I must say sounething specially. It will be borne in mind that I am not treating the power, but the policy, of legislation to repeal laws granting vested rights. That power I assert, over all public or political acts. When and whether it ought to be exercised, is not to be confounded, as a question of policy, with the right to exercise it at all times. By the newspaper reports of what Mr. Meredit' said on this sub ject, he states that what he called vested rights are held by stronger obligations than written law-by those bonds of conscientious acknowledgment which are in every breast the monitors of honesty and integrity. If he did say so, the whole course of English legislation and of the adjudications of the Supreme Court of the United States contradicts his assertion, and man fests that what are commonly called vested rights, like others, if connected with public interests, are always liable to public control. If, therefore, that gentleman intended, by such argument, to give any countenance to the vulgar impeachment, continually repeated by interested men, that those who would relieve the State from the burthen of their privileges are enemies to property and wrong-doers, he impeached all the reforms of good gov. ernment and many of its judicial supports. The doctrine of this Commonwealth, in the preamble to the act of '79, for resuming the estates of the late Proprietaries of Pennsylvania, is: “Whereas the claims of the late Proprietary, by the charter, cannot longer consist with the safety, liberty and happiness of the good people of this Commonwealth, and the safety and happiness of the people is the fundamental law of society, and it has been the practice and usage of States, most celebrated for freedom and wisdom, to control and abolish all claims of power and interest inconsistent with their safety and welfare, and it being the right and duty of the repre. sentatives of the people to assume the direction and management of such interest and property as belongs to the commonwealth, or was designed for their advantage : be it therefore enacted, that all and every the estate, right, title, interest, property, claim, and demand of the heirs and devisees, grantees or others claiming as Proprietaries of Pennsylvania, whereof they or either of them stood seized, or to which they or any of them were entitled, or which to them were decreed to belong, in or to the soil and land of the said late Province, now State, of Pennsylvania, or any part thereof, together with all granted by the charter, shall be, and are hereby, vested in the Commonwealth of Pennsylvania, for the use and benefit of the citizens thereof, freed and discharged, and absolutely acquitted, exempted and indemnified of from and against the estate, right and title of the Proprietaries, and subjected to such disposal, alienation, conveyance, division and appropriation of this or any future legislature of this Commonwealth.” The same legislature, by the same transcendant authority, fixing, without umpirage or other intervention, the sum of money to be bestowed on the Proprietaries, as indemnity, takes care to declare, that it is given from liberality and grateful recollection of the enterprising spirit which distinguished the founders of Pennsylvania. The lands, rents, property and possessions are all taken from individuals to whom they belonged, and are vested in the people of the State. The right thus to divest is put on the ground of State necessity. No right in the divested party is acknowledged to conflict with the right of the State. What is allowed is ex gratia. The legislature gives what it thinks proper. Nor is it privilege or corporate immunity that is taken away, but private property-property which the State did not grant originally or ever own at all. In the same year the legislature enacted the law to amend and alter the charter of the College, conformably to the Revolution and to the constitution and government of this Commonwealth, alleging, as a reason for such act, that the trustees had departed, by a bye-law concerning religion, from the plan of the original founders, and narrowed the foundation of the said institution. Having explained, in a public letter, the grounds of the legislative repeal of the charter of the Bank of North America, I shall not here review that revocation of what is called vested right, and I reserve the remarkable instance of the Wrightsville, York and Gettysburg Railroad for the distinct consideration I mean to give hereafter to that signal illustration of the right of a State to qualify its grant or contract. It is a recent instance going much further than I can approve. One of the most clamorous in theoretical vindication of vested rights carried into execution on that occasion much more than the power I contend for.

Vol. V. NO. XIII.—JANUARY, 1839.


Several of the members of the legislature condescended to ask my opinion on this subject, in compliance with whose request I endeavoured to explain, by a letter published in November, 1836, the difference between property and privilege-the alleged right in corporate exemption from personal responsibility, distinguished from vested right in individual ownership of any kind of property. The views of Smilie, Findley, and other eminent legislators of Pennsylvania, the fathers of republicanism, were cited for the plain distinction between a legislature's taking away the gold and silver, notes and other property of the stockholders of a bank, and taking away their corporate franchises. A charter is not property, was their argument, but a permit to sue and be sued, in a particular way, which, if it prove a public injury, the public may take back without affecting any vested right of property. A legislature, repealing a bank charter, leaves all the property of the bank untouched to the stockholders, and takes from them nothing but their corporate franchise, which consists in permission to sue and be sued impersonally—to be exempt, personally, from all liability of suit—and in succession, without limitation of time, while the charter lasts. The difference between such franchises, and the right conferred by the Commonwealth by a patent for land or in ownership of the house or chattel of an individual, was demonstrated, as must be manifest; although there still, and always will, remain disingenuous and weak defenders of corporate privilege to assert the contrary and insist on its identity with property. Strictures, published by a citizen of Maryland, on that letter, enable me to reinforce it. I was principally induced to publish by apprehension that clamorous denunciation of Mr. Dallas' letter, and the artful abuse of it by speculating champions of what they vociferously vindicate as vested rights, had succeeded in impressing the public with prejudices against the true doctrine of property. My object is the protection of property from artificial and disguised depredation upon it by unequal privileges, and the preservation of public sovereignty also inviolate. The author of the Maryland strictures falls into the common mistake of confounding all charters, for colleges, manufactories, hospitals, roads, canals, bridges, insurance offices and banks; he herds them all together in utter confusion, with the conclusion which, from such confuse & premises, may perhaps be got at, that the most inviolable contract of all is a bank charter. My letter expressly distinguishes private from public corporations; my argument rests on that position, and it is strange how a re. ply to it should “ take for granted that I consider my theory of the property of a corporation applicable to every kind, whether bank or bridge, canal or college.” My view, throughout, is just the reverse; and such remarkable misconception of it is as unaccountable, as that of a Maryland lawyer not noticing at all the judgment of the Supreme Court condemning Maryland and Ohio laws taxing the Bank of the United States, when I cite the cases, and quote the very language of Chief Justice Marshall, and the very judgment of the court, that the bank was a public and not a private corporation. He also misunderstands the distinction between the ancient charters of freedom, and modern, particularly American, charters of personal privilege. Those of the middle ages conferred, he thinks, monopolies because they granted peculiar privileges to be free from common restraints, such as exclusive right to carry on particular branches of trade, or certain manufactures or Landicrafts ; exemption from taxes or services required of the rest of a community,

« ZurückWeiter »