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how such a circ'ımstance is to annul, though it inay vitiate the act of all the rest constituting a majority of both branches. Without prior conviction a court of justice cannot judicially know the fraud; and, as is said in Peck’s case, there appear to be insuperable difficulties in the way of ascertaining, assuming, or acting upon it judicially at all. Plutarch states, in his life of Cicero, that Cornelius Lentulus, under accusation, corrupted most of his judges; and being acquitted by a majority of two, he said that what he had given one of them was thrown away, for a majority of one was all he wanted. At least a majority must be corrupted; and even then there remain many difficulties befcre a court of justice can set at naught a law on the plea of fraud.
Having thus, by liberal concession, cleared my premises of all that might embarrass the real, and my only, question, I deny that bank charters are contracts, within the meaning of the Constitution. That they have been thought such was, without due consideration, judicial determination, or other sanction, taken for granted from the sweeping but individual doctrines of one of the judges in the Dartmouth Col. lege case and its unfortunate offspring, as novel as they are latitudinary; from Judge Story having, without any authority, said so in the course of his discussion and support of those doctrines; and from inconsiderate and unauthorized compilers and book-makers, to whom the legal profession is beholden (and doubtless they are convenient) for commentaries, digests, and other works, which abridge research, but ought seldom to be taken as law. Let it always be kept in mind that I speak of bank charters only. It is a common error to confound all charters of incorporation-which is done often without reflection, though sometimes disingenuously. Modern free republican self-government, with bills of rights, liberty, and equality, are confounded with the totally different political systems of old, when charters less known were entirely unlike modern corporations. Mr. Forward, in his letter on this subject, treats all charters as alike, a very prevalent misapprehension; assuming that all are contracts, because some are. “Every body knows,” he says, “and even partizans (alluding probably to Mr. Dallas) do not deny that a charter is a contract between the Government and individuals, and has all the essential attributes of any other contract.” And so he proceeds, on premises altogether assumed, and as I conceive fallacious, confounding all charters, and affirming that all are contracts because some may be, making no distinction between public and private, or between a State and an individual, and concluding from such premises that because a State has no power to resume a private grant or impair contracts between individuals, it therefore has no right to control public incorporations or regulate what is part of political government. Having thus, by assumption and confusion of the subject-matter, established his position, Mr. Forward adds that “it is to be recollected that it is not the solitary power of destroying the Bank of the United States that is ascribed to the Convíotion, but a power to destroy all charters-annihilate all vested rights.” “If there be any exception,” says he, exultingly, “let the friends of absolute power point it out, and let them fix the limits that shall circumscribe the omnipotence of the Convention. No such limits can be assigned. The power to annul charters is the power to annul patents for lands; and if either the one or the other can be done by the Convention, they may expel us from our houses and rob us of our goods.” All this eloquence and obloquy, these hard words and alarms, are
the result of mistaken premises, of not discriminating between obviously different kinds of charters, and assuming what Mr. Dallas's letter may perhaps warrant,but I plant as the very cardinal question, whether bank charters are private contracts. Every lawyer is familiar with the distinction between public and private acts of incorporation. Every statesman should recollect the difference between the guilds and colleges of despotic ages, and a charter of privilege from our free condition. Every American feels to his cost that power to make public currency a substitute for money, is a recent grant or usurpation of part of the sovereignty wh ch, for the first time, is now mistaken for a mere private charter. Charters of old were mostly municipal exemptions and immunities from the general lot of individual res. traint and subjection-grants of freedom-such as Magna Charta and others. But modern acts of incorporation are generally grants of special privilege and franchise from common liabilities and segregation from individual equality; grants of privi. ege, contrary to common right, almost peculiar to this country and this century. Old charters were asylums of liberty : modern charters are strongholds of privilige. Formerly the freedom of some town or guild was necessary to a man's being permitted to follow a trade; whereas, now all men are free alike to choose any calling; but the incorporated are privileged above the rest in property. If American Legislatures can charter at all, the charters they grant for private purposes may be rights, which, once vested, cannot be resumed or impaired by legislation. Whether such grants are contracts, in the meaning of the Constitution, or not, they may be rights, as well vested as other private rights. It is a great mistake to suppose that charter or corporate rights are more sacred that personal rights. Judicial speculations and professional obsequiousness have tended, if not endeavoured, to place property on higher ground than persons. But this is a mischievous error, without the least foundation in justice or authority. Charter property is held by no better tenure than private. All rights are vested. No charter vests corporate rights more firmly than every individual right, whether actual, acquired, or howsoever beld. I assert all personal rights; and I question no private or vested rights, by denying tnat a bank charter is a contract. No novel or alarming denial of any right is set up, by vindicating the right of Government to superintend, regulate, control, and repeal, if need be, without judicial agency, the bank charter which Government grants.
I will not altogether deny, but desire to question briefly, the power almost universally taken for granted, without express authority by constitution of an American State, to grant a charter of incorporation. We are taught that social and political anthority in the old world proceeds from either parentage or force; which is the derivation of Government, according to Paley, and other inquirers into its origin. The power of parents on that of force, founds political authority. Perhaps our American Governments are founded in consent—that of the United States certainly is. But however established, why is an American Legislature necessarily authorized, by tacit commission, without express grant, perfunctorily to confer chartered privileges on a favored few? Such franchises have no foundation but in public convenience and public utility; and are they within the ordinary scope of the mere trust of American legislative function? That Legislatures should not, if they can, grant monopolies, seems to be yielded by the studied eifort to show that corporations are not monopolies. Are perpetuities within the power of legislation?
They are contrary to common law and right. Public policy denies, and courts of justice annul them, as incompatible with good government. Courts of justice will not indulge even wills, so as to create a perpetuity which the law abhors-strong language, but it is the language of Blackstone. Yet the law is, that one of the peculiar properties of a corporation is perpetual succession ; for in judgment of law it is capable of indefinite duration. What right have annual legislative trustees of the perinanent sovereignty, without express authority in their written commissionwhat public policy is there, by personal privilege, in granting property in perpetuity to one or more incorporated persons, which common law and equity withhold from the same persons, if not incorporated? Common law abhors and annuls perpetuities. The common practice of American legislatures pullulates them. A man may have as a corporation sole what he cannot have as an individual. It is settled law that a charter conveys no power but what is expressly granted, or indispensable to effectuate what is so granted. Yet personal exemption from the common lot of all unincorporated persons, which is not expressly granted by any charter, is assumed as part and parcel of the grant, to the detriment of the community. Property prevails over person, to establish, by judicial and professional interpretation of common law, what, if tested by any mode of ascertaining it, would assuredly be refused by common sentiment. Charters, in the theory, are to go by their very letter; but in practice they conser privileges beyond all their original and true spirit. American legislators are trustees of parts of a reserved sovereignty. But they grant the whole sovereignty over the currency, the highways, and other property of the sovereignty, which they are not entrusted to part with, because the Federal Legislature has no power, in terms, to grant charters. Such power is denied by much of the intelligence of the country. It has always been insisted by many of the makers of the federal constitution, that without express power to incorporate, such power does not exist. Hamilton in his vindication of the constitutionality of the Bank of the United States, asserts the English position, that power to incorporate is inherent in every definition of government, as a general pripciple, essential to every step of its progress; that every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society. This general principle then, he says, puts an end at once to Jefferson's abstraction, that the United States have noi power to erect a corporation, that is to say, to give a legal or artificial capacity to one or more persons distinct from the natural. “It is incident," says Hamilton,“ to sovereign power to erect corporations. The difference is this, that where the authority of government is general, it can create corporations in all cases; where it is confined to certain branches of legislature, it can create corporations only in those cases. The Roman law is the source of the power of incorporation, according to which a voluntary association of individuals, at any time or for any purpose, was capable of producing it. In England whence our notions of it are immediately borrowed, it seems part of the Executive authority, and the exercise of it has been often delegated by that authority; whence, therefore, the ground of the supposition, that it lies beyond the reach of all those important portions of sovereign power, legislative as well as executive, which belong to the Government of the United States. 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 as a quality, capacity, or means to an end. Thus a mercantile company is formed with a certain capital for the purpose of carrying on a particular branch of business. Here the business to be prosecuted is the end. The association in order to form the requisite capital is the primary means. Suppose that an incorporation were added to this, it would only be to add a new quality to that association ; to give it an artificial capacity by which it would be enabled to prosecute the business with more safety and advantage. A general legislative authority implies a power to erect corporations in all cases, a particular legislative power implies authority to erect corporations in relation to cases arising under that power only. To erect a corporation is to substitute a legal or artificial persen; and where a number are concerned, to give them individuality. To that legal or artificial person once created, the common law of every State of itself annexes all those incidents and attributes which are represented as a prostration of the main pillars of their jurisprudence; for the true definition of a corporation seems to be this: that it is a legai person, or a person created by act of law, consisting of one or more natural persous authorised to hold property, or a franchise in succession, in a legal, as contra listinguished from a natural, capacity.”
I have quoted thus copiously from Hamilton's admirable desence of legislative power to grant corporations, because I know of no abler vindication, and my object is to state the whole question in its utr ost fairness and force. But this argument was in answer to Jefferson's—become, liko Hamilton's, the standard of a political school. as successor to the British Crown, without explicit constitutional permission? 0s can the English common law, Americanized, judicially repeal these most important of our alterations of that common law? I venture to question this boasted issue of complicated construction-all assumed, all constructive-construction reared on assumption. The crown incorporates, therefore the legislature incorporates, without express constitutional permission. The English common law annexes incidents to corporations subversive of equality, therefore American common law abrogates the carclinal statutes of our Government, and thus an incorported individual is placed beyond all our political institutions.
will not say that the errors of Ham, iton's argument, but its inconsistency at any rate with those political principles wl.ich have been asserted by certain philosophers from Locke to Jefferson, consists among other things in ascribing sovereignty to legislation, which, however consistent with English doctrines, is inconsistent with American. Congress is not sovereign, even though supreme in its delegated authorty: nor is a State legislature. Power superior to that of legislation, abides in written constitutions, and sovereignty or ly in the people. Corporations derived from Roman law; and in England part of ihe executive authority may have been corroborated by the common law annexing to them personal intangibility. But English common law has never secured corporate beyond private rights, and how came that part of the common law of England, which sanctions corporations, to be consecrated here as law at all? That it is not the law of the United States must be agreed, and whether so in any State, depends on the particular constitution and law of that State. In all the States carved out of Louissana, if the Roman law is their inheritance, every voluntary association might be incorporated, but no member of a corporation would be personally privileged from common liability. The flower of English royal prerogative to grant charter, even by deputy, when transplanted to America, took root, if any where, in the popular, not the legislative soil. When Jesferson denies that Congress can create a corporation with capacity to set aside the laws of mortmain, alienage, descents, distributions, escheats and monopolies established by the State, does he not authorise denial of the common law's power to do So ? State legislation may eflect those purposes directly, but can it grant charters
The first constitution of Pennsylvania is explicit in this respect, Chapter I, Sec. tion, 3 and 4 of the Declaration of rights. “The people of this State have the sole exclusive and inherent right of governing and regulating the internal policy of the same.-All power being orginally inherent in, and consequently derived from the people ; therefore, all officers of Government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.”—These pregnant declarations of the source, trust, and accountability of legislation, if not unmeaning phrases, are original and explicit reservations by a sovereign people of their rights, always to regulate the internal police of their State, by mere short lived responsible trustees, never empowered, unless in terms, to devolve on other trustees (which is incompatible with the nature of trusts) perpetual and exclusive privileges of exemption from the common lot of their common constituents. In the second chapter of the same Constitution, legislative powers are defined; and among others is, in terms, that of granting charters of incorporation. It may be affrmed, therefore, from the constitution of '76, when corporations had not become common right by common misapprehension, and State bank charters were unknown, that the prevailing opinion in Pennsylvania was that legislatures cannot grant them without being authorised expressly by constitutional permission. In the debates on repealing the charter of the Bank of North America, this is forcibly urged by Mr. Smilie and Mr. Findley; and before legislative practice on this subject had become inveterate, under the seductive influence of public improvements and individual infidelity, legislative power to incorporate was not taken for granted as it is now, but the contrary. The first article of the Declaration of Rights of the constitution of '90, declares the birthright equality of all men, and their indefeasible right of acquiring, possessing, and protecti property; which is no unmeaning phrase, as it must be, if legislation may render all men unequal in the acquisition, possession, and protection of property, by privileging a few to be exempt from the liabilities common to all the rest concerning it. The law of continental Europe, from which we derive our illegitimate corporations, does not confer on men incorporated the formidable privilege of holding corporate property free from the personal liabilities to which they are liable for their unincorporated property. The pedigree of American corporations is extremely base. Privileges inconsistent with American governinent proceed from acts of legislatures having no constitutional power expressly to grant them; but the legislature does not give the most formidable privileges. A name, faculty of suit, succession, a seal, authority to make laws not contradicting the law paramount, and to hold property, are capacities useful to the public ends which alone legislat ionhas a right to provide for, when individuals are incorcrates