contract, infringes no right, but it resumes a privilege merely, in derogation common right, the grant of which is of questionable power, the resumption of which, if politic, is unquestionably authorized.

My Maryland antagonist is especially offended at my having said, that perhaps, in rescinding a bank charter, the bonus, if any paid for it, should be restored; which poor perhaps he denounces, as a wretched casuist, borne down by the load of sin I have heaped upon his shoulders, and vainly endeavouring to look with an honest face upon the crowd of astonished and indignant contemners of his shabby office; tropes and metaphors more figurative than argumentative. In plain English, how stands reason and the argument on this, which by the much abused perhaps I acknowledge debateable, ground? Governor Ritner's late message, has relieved me from much of the argument, since he condemns the impolicy of bank bonuses-which proposition I have long contended for,-till latterly, I confess, with out much countenance. The Maryland philippic supposes the question settled, by the magnitude of this price of privilege! The value of the right, which I think (he says) too insignificant to be called property, and too unsubstantial to be entitled to the protection of courts, is, according to his reckoning, nearly six millions of dollars; which in his estimate is overwhelmingly conclusive that it is not only property, but a great deal of it; and a great deal of property he concludes, must be held by some right. It is not because the price was insignificant or unsubstantial, that I doubted the claim of a bank bonus to reimbursement. But I will meet my metaphysical assailant on his own ground. Political economy admonishes even the Governor himself, that for the State of Pennsylvania to part with a large portion of its sovereign power to a few incorporated individuals, in exchange for some of their credit given in return, is a very poor exchange for the State, a bad bargain by which it actually gets nothing, and gives a great deal-what perhaps it cannot part with at all. The six millions which our Maryland arithmetician reckons so large a price and value, cost the bank but a few dollars worth of paper and lampblack, impressed with the counterfeit seignorage of bank credit, for which paltry thing the State gave the entire and perfect chrysolite of its sovereignty. It is high time, that the whole community should appreciate the preposterous and pernicious delusion of a State exchanging its credit for that of forty or fifty of its citizens, chartered to substitute their credit for money. So much in brief, for the political economy of the bonus doctrine. But this is not all: there is moreover, a problem of finance to be solved. In all my views of this subject, I have studied to keep clear of those personifications and appeals that excite passion and disturb judgment. My aim is to treat fairly a high constitutional and fundamental topic; not to shew that the only bank in Pennsylvania whose charter is not revocable in its tenure, ought to be revoked. That I leave to others, if so inclined. I have never denied that some large State banking institution, to take the place of the Bank of the United States, may have been judicious, and even necessary, in the habits of he community; as I have always believed that the Bank of the United States might, and would be so now, but for what, with deference to other judgments, I thought injudicious means of obtaining a recharter. But I have abundant materials carefully constructed of simple arithmetic and unanswerable proof, that the finances of Pennsylvania are large sufferers by the ignorance of the short-sighted donors of

what was exchanged for the six millions, said to have been got in a bonus. Granting, as I now do, for the argument, that the six millions were paid in money, and not in depreciated credit, it is still perfectly demonstrable, that the bonus costs the State much more than it has or can come to. As I mean to dwell on this demonstration, I will not do more than simply lay down the proposition, that what the Bank of the United States gave the State, and is to give, for a charter, (counting the bonus in good money) is nevertheless no gain, but a large loss to the State, by the vast increase of expenditure and debt, that bonus opened. It was Pandora's box for Pennsylvania. Thirdly, it was not however either the economical or the arithmetical view of the subject that induced my perhaps against the bonus, but the plain and positive law of the matter. I doubt the contract obligation. A bonus is a sort of fee or gift like a lawyer's, bestowed arbitrarily for a service of inappreciable value not reducible to computation, not a price to be the subject of a legal demand, but a donation neither demandable nor recoverable by law. Once given, it cannot be reclaimed. It rests with the donee in mere honor and policy, whether to take it all, or to restore it altogether or in part, on a change of circumstances, as it rested with the donor whether to give it. I question the legislative right to sell a charter or any other advantage. Kings have sold titles of nobilityI know of no authority by which an American legislature can sell a bank charter for a bonus. The pernicious impolicy of the system has become continually more flagrant. Formerly internal improvements and even churches were constructed by lottery grants by legislation. But the practice has ceased with universal reprobation; as the corrupt and costly schemes of bank bonuses soon will. A State, like an individual, should preserve its faith inviolate, and make sacrifices of money rather than lose credit and character: and in repealing a bank charter the highest obligation of State honor and policy enjoin punctilious fulfilment of all their mere expectations. But it is no contract or engagement of which the obligation may be impaired, or which courts of justice can enforce. It is altogether matter of sound policy resting in the discretion, wisdom, and virtue of legislators, who are to bear in mind that it is not their own but public money, with which they reimburse, if they do, a bonus improvidently, or perhaps fraudently, taken by unwise predecessors.

Thus, whether we consider economy, arithmetic, or law, perhaps with an honest face looks from their tripod, on his assailant dismounted and thrown on a mere islet of mistake, with only his Iliad of shabby strictures to hide among, quo cunque nomine gaudeat.

The citizen of Maryland agrees that the grant of a corporate franchise implies the deliberate assent of the Legislature to the wisdom and sound policy of the grant. "A Legislature has no right-I speak in a moral sense-to pass any act but for the benefit of the country. It must be presumed, therefore, in all cases, that sufficient political inducements-some clear conviction of public advantage resulting from the act-to determine the Legislature to make the grant." Now this presumption of political inducement is seldom true even as a presumption, and public advantage hardly used as a pretext, the avowed object being individual exemption from common liability.

I am beholden to the Maryland strictures for also adopting my classification of

are purely

charters and reasons for it. "Charters to cities and towns," he says, political corporations, and do not include the idea of contract. The parties on both sides are the public, in these corporations; and being erected solely for the better administration of government, they are at all times subject to the modification at the will of the supreme authority." But according to his own presumption, that political inducements and public advantages are indispensable to the legislative right or power to grant charters, coupled with the fact that banks make most of the public currency, and regulate the value of all labor and the price of all property, it is clear that they are political institutions. The party receiving the charter acts for the public, as much as the party granting it. The mixture of some private interest and gain does not change this state of things, because the public interest predominates, and it is a universal principle of all politics and all jurisprudence, that whenever public and private interests are blended, the public are paramount.

The whole question lies in a very narrow compass-in one word: and be it remembered that the burthen of proof does not rest on me. It is for the citizen of Maryland to shew, if he or his like can, that bank charters are private contracts, or bank bonuses public gains. I deny the one and question the other; but the burthen of demonstration does not rest on me. By no means,-those who affirm that bank charters are constitutional contracts, are to shew it. They are to demonstrate what, however taken for granted, has never yet been adjudicated, or hardly assumed by any court, and contradicts the whole impression of English, American and common understanding. Not only so, but all doubt, even doubt, resolves itself into decision, against those who would condemn a law as contrary to the supreme law of the Constitution of the United States. Judges, particularly Chase, Marshall, Washington, Tilghman and Shippen, have expressed themselves most pointedly to this effect. Jurisdiction to annul laws is an awful power, said Judge Iredell. Judge Chase said if he ever exercised it, he would not decide any law to be void, but in a very clear case. I believe that he meant such an indubitable error, as would induce even an English judge to declare even an act of Parliament void. But grant that he did not, and conceding without grudging the judicial power to annul laws as unconstitutional, it is yielded by all judges that such an extremity requires a case of the clearest necessity. After strongly asserting the duty of a judge to declare an act of Assembly void, when convinced beyond doubt that it was passed in violation of the Constitution of the United States, or the State, Tilghman adds, that, nevertheless, the utmost deference is due to the opinion of the legislature, so great indeed, that a judge would be unpardonable, who in a doubtful case, should declare a law to be void.

With such judicial authority, I hold my position firmly, that if it be doubtful, whether bank charters are constitutional contracts, they are not such contracts, simply because to doubt, is to be resolved.

Thus with the four legislative precedents I have mentioned, the Proprietaries, the University, the Bank of North America, and the Gettysburg road, of repeal of laws granting vested rights, I may assume that the power and the practice of the Legislature of Pennsylvania are unquestionable, from first to last, to revoke grants by law, to divest vested rights, whenever public necessity requires it, and that it has never deemed it unjust to consult great public interests on principles of large

and judicious policy. Unless the Constitutions of the State and the United States forbid such legislation, as impairing contract, there is no interdict upon it.

Thus having shewn unquestionably, that the judicial power to declare laws void as contrary to constitutions, is an extreme jurisdiction, never to be exercised but in very clear cases, I now cast on those asserting it, the burthen of affirming that the charter of a bank is a contract within the meaning of that term as used in our constitutions. It cannot be done. Affirming the negative, I shall now take up the bur then of proof without dwelling on the difference between the Constitution of the United States, which adds the vexed word obligation, to that of contract, as used in the Constitution of Pennsylvania. We know how lamentably the Supreme Court of the United States were divided and exercised by this apparently slight difference of a mere word. But I shall attempt no advantage from it, although the omission of the word obligation in our Constitution, makes for my argument, I am content to do without it. The fact is, and it is a strong fact, that the courts of Pennsylvania have never adjudged any law of Pennsylvania to be contrary to the Constitution of Pennsylvania, (for the case of the Ebensburg road, in the 2d volume of the Pennsylvania Reports, forms no exception;) nor has the Supreme Court of the United States ever adjudged an act of Congress to be contrary to the Constitution of the United States. In Pennsylvania I stand upon a rock. Not only has neither legislation nor adjudication ever deemed a law a contract; but further, the judgment of no court of this State sanctions the assumption that a law can be judicially annulled, as impairing some other law importing a contract within the Constitution. These are persuasive premises. The courts of justice of our own State, by at least significant silence and inaction, are abettors, while its Legislature by repeated and unquestionable acts, has always exercised the power I assert, and much greater power than I assert, over what are called vested rights.

Going beyond the confines of mere professional impression, founded on no authority, let us inquire of philosophy, of the best foreign sources of information, of common parlance and common sense-whether a law is a contract? Was it ever so considered? Do they think so in England? in France? at present? did antiquity? What reason has Judge Story, or any other bold asserter of such a novelty, for venturing to say so? Why is a charter a contract? Without regard to the sovereignty it shares, why is a bank charter, why is any law, held a contract with the State, subject to judicial control? Why is the great power of a community exercised in the enactment of a law, to be reduced to the level of a private agreement, and construed, regulated, or annulled accordingly? Blackstone, to whom I prefer referring, because from a random word or two of his, in a parenthesis, Chief Justice Marshall was prevailed on by Judge Story to infer all this immense result, defines law to be something prescribed, and prescribed by a superior, which commands, and mostly with penal sanction, what is to be done or not done. There is no contract in this, no equality, no consideration, no agreement, such as Blackstone defines a contract. All his instances of contracts, obviously contemplate individuals; he mentions A and B, as the parties to a contract. He has no idea of an act of state. It is palpable, that a law is not in his mind at all. In both his definitions, that of a law and that of a contract, he shews beyond doubt, that he considers the one a public and sovereign act, the other an in

dividual transaction. To the same effect, may Rutherforth be cited. "A law," he says, " is a rule to which men are obliged to make their moral actions conformable." And "such acts of mankind as produce a mutual obligation, and consequently, a mutual claim on the parties concerned on both sides, are contracts." Again, he adds, "when we consider only the general notion of a law, there appears to be a plain difference between positive laws and compacts. A compact is an act of two or more persons, which produces an obligation upon those who make themselves parties to it, by their own immediate or direct consent. A law is an act of a superior, which obliges all, who are under his authority, as far as they are concerned in the matter of the law, and as far as the legislator has intended to oblige them; whether they immediately and directly consent or not.” These doctrines from indisputable authorities cannot be gainsaid. Even Marshall himself, in the very ratiocination of deducing a law to be a contract, by means of an innocent word in Blackstone, cannot help saying that one of the parties to the contract he constructs from a law, were individuals whom he names-James Gunn and others. The civil code of the State of Louisiana drawn with great care and precision, with reference to the best authorities, defines law to be a solemn declaration of legislative will. Law commands, permits, forbids, announces rewards and punishments, makes general dispositions not for particular instances, but for what is of common occurrence. A law prescribes for the future only, can have no retrospective operation, nor impair the obligation of contracts.

This definition of law, referring, among other authorities, to the judgment of the Supreme Court of the United States, evidently contemplates private contracts between individual parties, and excludes, both in its terms and spirit, all idea of an act of a State, or law itself, thus defined, being a contract.

To Madison's explanation in the Federalist, and Luther Martin's and others, for which I beg leave to refer to my letter of 1836, all proving that the constitutional prohibition applies to private contracts, between man and man, and not to laws, or what have been construed to be contracts between States and men, let me here add, Judge Story's note to the 33d chapter, page 217, of the 3d Volume of his Commentaries on the Constitution, which is as follows:

"In the original draft of the Constitution, some of the prohibitory clauses were not inserted; and particularly, the last clause, prohibiting a State to pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. The former part was inserted by a vote of seven States against three. The latter was inserted in the revised draft of the Constitution, and adopted, at the close of the Convention, whether with, or without opposition, does not appear. It was probably suggested by the clause in the Ordinance of 1787, (Art. 2,) which declared 'that no law ought to be made, &c. that shall interfere with, or affect private contracts or engagements, bona fide, and without fraud, previously formed,.' By this note, Judge Story would seem to agree to the original design of the clause, its meaning as contradistinguishable from the construction he has since been mainly instrumental in putting on it.

An intelligent foreigner, M. de Tocqueville, says of this clause in the Constitution, this power appears to me to attack more deeply than all the rest, the sovereignty of the States. I put the question to a respectable Italian lawyer now in