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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 Never before, in the annals of jurisprudence, has such a great pubuc interest been withdrawn from the power of legislation to be regulated as exclusive matter of mere common law.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 Parliament 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 from sovereign power, under any other form of government. But in this, and in all other cou tries 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 Wrightsville, York, and Gettysburg Railroad. Of the first and last I must say something 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. Meredith 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 manifests 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 government 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.

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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 confused 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 reply 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 handicrafts; exemption from taxes or services required of the rest of a community,

and from personal service in war. These, which I quoted Mr. Findley and Mr. Smilie for deeming sacred, the author of the strictures says are now the only privileges which are not so. We have changed all that, says he, flippantly, since the Dartmouth College case, and the legislatures have a right to cut and carve as they please what your forefathers of republicanism held sacred. The revolutionary effect of the Dartmouth College case is not equal to this gentleman's apprehension of it; the very issue between us is, that I deny the power which he concedes, without reserve, to American legislatures, to cut and carve either public rights or private property as they please. Their pleasure is no right. They have no right to give to individuals what is common property; and they are too apt, under the guidance of off-hand violaters of social and political right, to misconceive altogether what private property is—the real and legitimate meaning, use, and appropriation of property. I hold the right of property sacred, coeval and coeternal with the social state, if it did not precede it; and the artificial contrivances, by legislation, to change its tenure to the advantage of one and the disadvantage of another, or of one class to the disadvantage of another, is doubtful, if not false assumption of legislative right. Monopolies, perpetuities, castes and titles of nobility, will not be contended for by any American. Privileges to levy imposts and duties, not for public ends, but particular emolument, or to administer justice according to regulations peculiar to a few beneficiaries, are conceded by the Maryland gentleman himself, while he considers it even comic to discriminate between the right, by American institutions, for all men, according to every bill of rights, to be equal in the means of acquiring, possessing and transmitting property, and the arbitrary permission of old times, by special leave, to a few freedmen to follow what livelihood they liked. In his theory it is a sacred contract for a few men incorporated to make currency for the public, which no State can interfere with, when granted by charter, because such privilege is the property of the corporators. But the right of any number of men, incorporated in a town, to follow such callings as they prefer, may be cut and carved as legislators please. I feel too much reverence for the sacred right of property to cut and carve thus. Industry is property. A man's earning, by labor, is property as sacred as his profits from bank stock. The social edifice stands entirely on the basis of property. To protect property from false and unequal privileges-privileges to hold it exempt from exposure to the common liabilities of property-to protect property from all infringements is what I contend for. This gentleman, who cannot comprehend, but confounds, the striking difference between charters of old and recent corporations, likewise loses himself among the metaphysics of monopolies, and will not perceive whothe charter of a bank is derogatory to common right. By turning his attention to the plain matter of fact, that formerly freedom was a privilege, whereas now privilege, by charter to some, inflicts unjust inequality on others-that to be exempt, in stock, from personal suit is above equality with the rest of your fellow-citizens-perhaps the citizen of Maryland may discover, that equality, which was a privilege of old, is now the common right derogated from by charter. Freedom is no longer a privilege, but common right. He might have learned from Burke, in the very speech he quotes, that the great charters, as Burke calls them, (the old) restrained power, while modern charters create it. Not only so, but power, by privilege, which, since the American Bill of Rights became part of all

constitutions, is contrary to common right. The distinction between ancient and modern charters thus appears, together with the derogation from common right which a modern charter vouchsafes, to the prejudice of all those who are not privileged by charter. It was the boast of Napoleon that he established equality, without which his encomiasts insisted that liberty cannot be. Liberty reigns in this country to a degree he could hardly conceive of; but equality in the acquisition, disposal and transmission of property is becoming extinct by laws more destructive to property than the most radical or agrarian enemies to its tenures, if there are any, can desire. With persons perfectly free, our property is much of it held by unequal titles more unjust than the rules of primogeniture and entails. The same lively citizen of Maryland insists that if, by privilege, I mean that attribute or quality by which any corporation performs its proper functions, and he supposes I can mean nothing else, then he entirely denies any shadow of right in a legislature to destroy it, for it is as much property as money in the vault. The corporate franchise, quality or privilege is a right—a vested right—says this sarcastic advocate, in the phrase of the forefathers of republicanism, and, according to the meaning of that phrase, a sacred right-it is property, to all intents, within the protection of the law. He then recapitulates, carefully, all corporate franchises except that particular one which I especially denounce as unjust privilege, held by no vested right, viz: exemption from personal responsibility for corporate property, and triumphantly closes his strictures by saying: "I will not discuss, further, whether a charter is a contract-I think it beyond discussion--but I will pause to inquire how it comes to pass that you should assume a doubt that a bank charter is not a contract." He had not discussed it at all: it was beyond his discussion: and when he pauses to inquire how it came to pass that I doubt why a bank charter is not a contract, his whole force, never noticing the two solemn judgments of the Supreme Court of the United States, that banks are public institutions, consists of a citation of one of Judge Story's solitary dicta, in his favorite Dartmouth College case, that a bank is a private corporation, emblazoned in italics, capitals and all the brilliancy of the art of printing. This candid antagonist, contemning the whole inventory of my propositions, by an eastern figure, as without even an islet of orthodoxy, (also duly italicised,) in a waste of heresy and schism, evidently did not choose to confront the radical differences between public and private charters; between charters of personal freedom and charters of corporate property, or between the corporate franchise of suit and the privilege of personal exemption from suit at all for incorporated property. Such strictures do not even approach the question, but expend themselves in tropes on mistaken premises. Property is a right, vested in an individual, which legislation cannot take away, for another individual, nor for public use, without equivalent. In this country the means of acquiring, holding and transmitting property are equal to all; monopolies and perpetuities are illegal, so are privileges. When, thererefore, legislation renders these measures unequal, by incorporating individuals exempt from common liabilities, it violates the first principle of equality in property. And when it does so by authorizing privileged individuals, as a bank, to make currency, moreover grants what belongs to the public. Should the public resume that privilege without taking the chattels of the bank, it affects no property, impairs no