this country, whether a law can be deemed a contract, to which he at once replied in the negative. A contract without individual parties to it, is not a common idea. A State contracting is an unusual thing: and a State contracting by general law, having none of the ordinary features of a contract, is, I believe, what was seldom if ever thought of, till a law of Georgia was so considered by Marshall, on the suggestion of Mr. Story, under peculiar circumstances which I shall endeavour to explain.

Legislative precedent, judicial authority, and the reason of all mankind, concur, while we keep ourselves within a State, to refute the notion that a law is a contract, much less a bank charter created by law. Are we bound to look beyond, as Chancellor Kent said in Fulton's case, to inquire further, to go out of our own State, our own legislation, our own jurisprudence, and to rake among the embers of a supposed Federal interdict for the apprehension that a different government, that the judiciary of the United States may annul a law of this State, which by our State authority rightfully repeals a bank charter? There is no adjudication of the United States to alarm or warn us. The federal judiciary has never adjudged that a bank charter is a contract-has never adjudged any thing like it. There is no analogous or kindred judgment of that judiciary. On the contrary, there are two solemn and deliberate judgments of the Supreme Court of the United States, that bank charters are public laws, that banks are political institutions. Laws of Maryland and Ohio taxing the Bank of the United States, were vacated by the Supreme Court on the ground that it was not a private, but a public corporation. In the last mentioned case, Chief Justice Marshall's language is, that the bank is not a private corporation, but a public corporation created for public and national purposes; that it is not an individual or company, having no political connexion with government and carrying on the private business of banking. Even if the Chief Justice had not said so, the judgment of the Court rests entirely on that ground. Its acts speaks more conclusively than any words.

There is other and stronger authority to the same effect; stonger than even that of the Supreme Court. Hamilton's defence of the constitutionality of the Bank vindicates it as a political machine, and the whole argument of this originator of the first great bank, is, that it was a public measure. "The simplest and most precise idea of a bank," he says, " is a deposit of coin or other property, as a fund for circulating a credit upon it, which is to answer the purpose of money." Privatinterests and direction are involved and employed, as the best means of accomplishing this public end. "It is a medium of exchange, a regulation of trade, and a general object," he says, “because itsbills are to circulate in all the revenues of the country." He appeals to the practice of other nations for asserting that banks are an usual engine in the administration of national finances, and an ordinary, and the msot effectual instrument of public loans. So Burke, on the East India bill, said, if the Bank of England should by mismanagement fall into a state similar to that of the East India company; if it should be oppressed with demands it could not answer, engagements which it could not perform, and with bills for which it could not procure payment; no charter would protect the mismanagement from correction, and such public grievances from redress. If the City of London had the means and will of destroying an empire, and of cruelly oppressing and tyrannizing

over millions of men as good as themselves, the charter of the City of London would prove no sanction to such tyranny and oppression. (These acts of mismanagement are precisely such as are now objected to our banks.) Thus Marshall's authority and that of the Supreme Court, is confirmed by Hamilton and Burke, that banks are political contrivances, and not private concerns, to which may be superadded the practice and understanding of every American State in all branches of government, with the full approbation of the community, that bank privileges are subject at all times to such changes as the State may make in them.

An uninterrupted current of Judicial, Executive, and Legislative determinations, by which States have taxed banks, reduced their paper and increased their coin circulation, as public welfare required, together with the enactment and enforcement of other fundamental changes, never supposed to impair the obligations of their charters as contracts, prove beyond refutal, that banks have always been universally deemed political means, not private property, and that legislation may regulate them from time to time as occasion requires. The Governor's late message recommends radical alterations, more sweeping than I consider expedient, but to the power of whose enactment no objection has been raised.

Mr. Sergeant, Mr. Hopkinson, and Mr. Forward, justify the palpable breach of the letter of the law in the non-payment of coin, by asserting the right of the banks to judge whether it best comports with the public welfare. And how can they judge but as part of the government authorized to determine what is good for the community? All the Governor's suggestions assume that the banks are part of the State, to be regulated as such. The Bank of the United States is now the very State and Government itself. All States, acccording to the varying emergencies of bank agency with currency, always act on this ground. Several of the States, Massachusetts and Kentucky for instances, repealed bank charters by legislative action without judicial proceeding. In the debate of our Legislature on the repeal of the charter of the Bank of North America, the right of legislative repeal, without conviction of any offence or judicial agency was expressly insisted on. The professional notion that a court of justice is an indispensable agent in annulling a bank charter is merely professional, and wholly unfounded in either law or reason. It is one of the many spurious offspring of that professional paternity which in this country beyond all others is extremely prolific of technical dogmas. A legislature may and must be the revoking power when the bank has not forfeited its charter by misbehaviour, but the public good requires its revocation. A misbehaving bank may be tried for misbehaviour, and punished by forfeiture, in a court of justice. But a bank injurious to the commonwealth from any cause not proceeding from mismanagement or misconduct, falls within the power of legislative repeal alone. A court of justice has no judicial faculty of judging whether the bank is detrimental to the community; no cognizance of the case. The community itself must judge of that, and execute its judgment by the popular representatives. Moreover, the Supreme Court of the United States have unanimously determined,-and their unanimous resolution of a constitutional question is a rare thing,-that the Legislature of Pennsylvania retains judicial faculties especially of equitable character, owing to that imperfect distribution of the several powers of government, which it has been my unsuccessful effort in this Convention to remedy by a distinct constitutional provi

sion. When incorporated persons violate charters, the courts may act on both persons and charters; but when charters are public injuries, legislation alone can apply the remedy to the charters; and it must be a mere question of state policy whether public good requires repeal. Power to charter is assumed by American legislatures as devolved on them through the Revolution from the royal prerogative of the mother country; and legal proceedings being necessary in England to repeal a royal grant of charters, the idea has naturally prevailed with lawyers in this country, that charters can be revoked here as in England, by judicial action only. But this mistakes both premises and conclusion. It is extremely doubtful whether American legislation derives from succession to royal prerogative the power to charter; and even if it does, that is no reason why the charter emanating from a legislature must be revoked by a court. Royal prerogative has no faculty of investigation with a view to repeal. It must act through the instrumentality of courts of justice, which are but emanations from the royal authority, not co-ordinate departments of gov ernment as with us. Nearly all our charters contain a clause reserving to the legislature, power to repeal them when public welfare requires. It is equally impracticable for a court to try questions of politics, and for legislatures to try forfeitures of private franchises. The technical notion that writs and courts are indispensable to repeal public charters, is in short only asserting that they are irrepealable but at the will of the bar; that legislatures, or the people, are not to be trusted with the exercise of this dangerous power; and that it is better administered by courts of justice is, however common a notion, not an argument I need combat. It is altogether contrary to the whole theory of American government, and, I believe, has proved extremely injurious in practice; one of those technical usurpations which it becomes us to throw off.

Distinguished lawyers and eminent judges have said, whose sayings published in law books, often pass for law, that laws are common contracts, that bank charters are such contracts, and that all charters are irrevocable but by judicial proceeding to forfeit them. Denying this, as to bank charters, but with unaffected respect, by professional reverence for those who have dictated it, I must treat it somewhat extensively, with all the freedom compatible with perfect deference for those whose mistake I shall strive to shew; one in particular, whose contributions to the literature of law, I consider more valuable than to its stability, and whose extravagance all tend to take power from the community, and place it with the judiciary, which I hold to be even more injurious to the usefulness of the judiciary than derogatory to the sovereignty of the people. The law of prerogative, of prize, the common English law, which, by fiction of law, he has contributed to fasten on the French of Louisiana, while he would take it, together with jury trial, in maritime cases, from those of New England and the other States much attached to it, if not make it the common law of these United States altogether,-charter law, criminal law and constitutional law, the whole encyclopædia of jurisprudence has been so remodelled by this learned judge as to require dissent to his doctrines, from, if I am not mis. taken, every judge on the bench with him. At his suggestion, Chief Justice Marshall, for the first time that such a thing was ever thought of, pronounced a law a common contract, when, indeed, there was much to induce some extraordinary

of act judicial intervention, being one of those exigencies which may justify false judgment, or at any rate, false reasons for right judgment. It was a grant of land by a State to individuals by name, who sold it to third purchasers, so that it was actually irrevocable by subsequent law of that State, without manifest injustice. Judgment annulling such law is therefore right, and its only infirmity is that the judge in pronouncing it, gave a wrong reason for it. Soon after that bold judgment, Mr. Story was promoted to a seat in the court which gave it; and then, for the first time in the history of any jurisprudence, followed several other judgments, affirming and exaggerating that of Fletcher and Peck, to which I allude, unfortunately mistaking the argument of the Chief Justice, (suggested as it was by Mr. Story, as the law,) for the judgment of the Court. At length, nearly the whole Court was prevailed upon to carry the doctrine that laws may be judicially rescinded, as even common contracts, to the extent that a college charter is also a private contract; the fatal results of which untenable position, together with a sequel of similar judg ments, soon betrayed themselves in the utmost uncertainty of the law, and irreconcileable contradiction among the judges. And when the principle, after these results, was attempted by the Harvard University to be again enforced, intolerable consequences had left no one advocate among the judges, but its author and perhaps another. The private contracts of individuals are of sacred obligation, and even grants of land by States to individuals, must be irrevocable. But Judge Story was early warned by a friend, always studious of his reputation, that judicial enactments sustaining as contracts ante-Revolution charters against reform by post-Revolution law, would never be practicable or tolerable judicature. My immediate purpose, however, does not need the denial of the New England College cases, rank as their growth was like to be, to choke the common harvests of State legislation. The Legislature of Pennsylvania in the act I have cited, resuming the Penn property, asserted the safety and happiness of the people as the fundamental law of society, and the practice and usage of States most celebrated for their freedom and wisdom, to control and abolish all claims of property and interest, inconsistent with their safety and welfare, and that it is the duty as well as the right of the representatives of the people, to assume the discretion and management of such interest and property as belongs to the commonwealth, or was designed for their advantage. The same Legislature reformed the charter of the University of Pennsylvania, that it might conform to the Revolution and the Constitution and Government of the Commonwealth. They acknowledge the right consecrated by the Constitution of every State of the American Union, for the people to change their government and reform it as they will, and when they will. It is reasonable if not indispensable, that the exercise of such power should follow a revolution, in order to conform governments to a new state of things. But in the instances of laws of many of the States of this Union, the Supreme Court, under Judge Story's suggestion of the contract character of laws, individual and charter laws, resolved that laws may be judicially repealed. I am not bound to demonstrate the error of this doctrine, except as to bank charters. After annihilating, first, legislative repeal of a private grant of land, and then reform of a College charter, as impairing the obligation of contracts, the Chief Justice, to the false reasoning of the first case, superadded in the second as a rule of general constitutional construction, that the rule once establish

ed, it is not enough to say that a particular case was not in the mind of the Convention, when the article was framed, concerning laws impairing the obligation of contracts, nor of the American people when it was adopted. We must go further, and say, that had the particular case been suggested, it would have been excluded by the language of the Constitution. The case being within the words, must be within the operation of the rule. This is going further indeed. The case in question, or any such case, is not within the words of the Constitution: but, by technical interpretation, finding one isolated word to bear a well known meaning, in questions of property, the rule laid down is, that in questions of politics, all idea of the intention of those using that word, and all historical recollection, are to be rejected, and from a single word thus perverted, judicial power is to be assumed which none but dictators and vanquishers have ever exercised-power to set aside established laws. The propagation of constructive law is remarkable. Mr. Story suggests at the bar, and judge Marshall takes the first step: Mr. Story, appointed a judge, naturally makes the most of his offspring, and Marshall patronises it in the cases within the words, because, he says, they then fall within the operation of the rule, inasmuch as, had they been suggested, it does not appear that they would have been excluded by the language. Judge Story some time afterward, publishing commentaries, declares it to be law, that it has not been thought any objection to this constructive assumption, that the preservation of charters and other corporate rights might not have been primarily, or even secondarily, within the contemplation of the framers of the Constitution, when the clause was introduced. Finally, Chancellor Kent extols both the rule and the reason as admirable safeguards of property. A written Constitution guards private contracts from vicious or inconsiderate legislation; so said the accredited commentary on that Constitution published with it by one of the principal framers-Madison. Twenty years afterwards, a judge adopts the suggestion of an ingenious lawyer, that a grant by law executed is a contract, and nine years after adds, that with the help of the further judicial rule having found such meaning in a word, it is immaterial whether a case falls within the meaning or not, so that it is covered by the word. The construction is thus carried from an individual grant to a charter trust. Judge Story then throws in bank charters to boot, among his illustrations of the omnipotent word; of course in his commentaries he repeats his own arguments and those of the judge who was prevailed on to adopt them, and they pass as law; they are obsequiously taken as such by most of a learned profession, and perhaps nothing but the inveterate vice of this doctrine, betraying itself forthwith in utter contradiction and confusion, prevents its being perpetuated as the supreme law; so that every law enacted by any State would be but a contract whenever a court thought so, to be rescinded at pleasure by those whose vocation is neither to make or break, but simply to interpret and enforce laws. There is an honest judicial exultation in Chancellor Kent's promulgation of this vast increase of judicial power that is quite edifying. It was in the great case of the Dartmouth College says he, that the inhibition upon the States to impair by law the obligations of contracts, received the most elaborate discussion and the most efficient constructive application: This decision did more than any single act proceeding from the authority of the United States, to throw an impregnable barrier around all rights and franchises derived