NAYS-Messrs. Agnew, Barndollar, Biddle, Brown, of Lancaster, Chauncey, Clarke, of Beaver, Clark, of Dauphin, Cochran, Cope, Cox, Craig, Crum, Darlington, Dickerson, Farrelly. Harris, Hays, Kerr, Konigmacher, Martin, M'Call, Merkel, Montgomery, Pollock, Porter, of Lancaster, Reigart, Saeger, Scott, Young, Sergeant, President―30.

SEVENTH ARTICLE.

The Convention again resolved itself into a committee of the whole, Mr. REIGART in the chair, on the report of the committee to whom was refered the seventh article of the constitution.

The question being on the motion of Mr. WooDWARD to amend the amendment of Mr. READ, by adding to the end thereof the words follow. ing, viz:

"And the legislature may repeal, change or modify the charters of all banks heretofore iucorporated, or which may hereafter be incorporated in this commonwealth, whether the power to repeal, change or modify be reserved in such charter or not, but when the legislature shall repeal the charter of any bank, or resume any of its corporate privileges, they shall provide adequate and sufficient compensation to the stockholders of such bank."

A quorum of members not being present, some delay took place, after which

Mr. WOODWARD* resumed the remarks he commenced on the last evening.

Mr. INGERSOLL rose and said, I have asserted Mr. Chairman, that it is absolute murder to an argument to mutitate in this way. And if it is not now the pleasure of this body to hear my argument out, I will renounce the intention of addressing it further on this subject.

Mr. PORTER of Northampton, rose and said: Mr. Chairman; the issue presented by the resolution adopted on the 21st November last, as well as that presented by the amendment now submitted by the delegate from Luzerne, (Mr. Woodward) is a general abstract question. Has the legislature the right to repeal a charter granted to individuals for banking purposes, and if the right exists-would it be policy to exercise it? This question I should like to hear discussed, without bringing other existing topics into the debate. In the whole course of the argument of that delegate, he has reference to one charter, the grant of which and the excitement produced in consequence, has no doubt led to the agitation of this subject.

The question is one of vast importance in principle and in its bearing upon the rights of the community and of the individual members of that community. If you establish the principle contended for it may involve in its consequences that title to every tract of land-to every house and lot--to every charter for a turnpike road--bridge-rail road-canalchurch-school house,--college and academy in the country. Adopt the amendment now proposed and carry it out in its extent and you will give to your legislature, as whim, caprice, excitement or any thing else may move them, the power over every man's title and rights. This is a despotism to which I for one will never consent to submit.

* See Appendix.

So far from considering, with the esteemed delegate from Luzerne, that the adoption of the resolution of the 21st of November last, at Harrisburg, was a measure hostile to our institutions and fatal to the liberties of our country, I should dread the adoption of the amendment now proposed by him as calculated to produce those results.

Conceding for the sake of the argument to the Bank of the United States all power and influence attributed to it, and that it was unwise to have granted its charter, yet we must remember that what is law in relation to it, is law in relation to every other private corporation in the state, and to every foot of land held by every farmer, mechanic or other citizen of the commonwealth. I might assimilate the conduct of those, who, to remove what is esteemed a present evil, would give a vital stab to the security of our republican institutions, to that of the surgeon who would remove a wen from the patient's body, the inevitable consequence of which would be his death, when by leaving it undisturbed, his life would continue subject only to the inconvenience, and if you please the unsightliness of the protuberance, which a few years would remove without

any other process. I have deprecated as the greatest evil that can befal our country, the destruction of confidence in individual rights, and I solemnly believe that if our own liberties are destroyed, it will be by that means.

I deprecate, as destructive to the democratic party in this state and the Union, the fastening upon them of the charge that the democratic citizens as a party are willing to carry out the principles contained in the amendment now proposed; and I feel as well assured as I can be of any thing which time has not developed, that if this charge be credited, we shall be placed in the minority both in the state and Union--a result which no one would more seriously deplore than myself; but a result to which I feel we must prepare to submit, in consequence of departing from the path of duty and principle, should we make ourselves amenable to this charge.

The delegate from the county of Luzerne, in the argument which he has adduced, which is plausible, but in my judgment unsound, lays out of view all the judicial decisions on the subject. Why he has done so, he has not condescended to inform us. That delegate is a member of a learn ed and honorable profession, in which he stands deservedly high for his years, and gives rich promise of future usefulness--a profession which, permit me to say, requires its members to arrive at logical conclusions from given premises. A profession which teaches us to draw knowledge and information from the experience and learning and abilities of those who have gone before us. I am sorry to see one for whom I hope so much, rejecting the lights and aids by which alone the members of that profession can expect to arrive at great attainments in it. I know and respect his talents and his private worth, and I cannot but regret that one of so much promise, should put forth opinions which his own good sense, ere he has gone through the "viginite annorum lucrabationse"* necessary it is said to make a good lawyer, will compel him to recant. If this be not the case, then I am no prophet.

To the supreme court of the United States, as the court of the last resort belongs the decision of all questions involving the constitutionality of

*The lucrabations of twenty years.

legislative enactments. It being their province and their duty, under the constitution and laws of the land. In making these decisions they do so on points which come legitimately before them, and whatever may be my own individual opinions, I am constrained to bow in submission to the law of the land. In making these decisions the judges of your supreme court are required gravely to consider and reflectively to decide the great and important questions which come before them. We pay respect and deference, even if we do not admit their binding authority upon us, to the opinions of the learned and experienced, who fill the private walks of life. How much more are we bound to yield up our own opinions upon legal subjects, to the determination of the proper judicial tribunals. Any other course would launch us upon the great ocean of doubt, confusion and uncertainty without rudder, compass or chart. We should have no polar star of principle to guide us on our way. Amid the gloom, darkness and confusion of such a voyage, when tossed about by every wind, sailing to and fro without object and without end. What benefit would we derive from the corruscations of even the brightest genius, whose erratic course, like the vivid lightning, illumines for the moment with a fitful glare to make the horrors of our situation more appaling, or at best, like the ignus fatuus, which only lights to allure, would entice us to ruin, and strand us on the quicksands of error, or wreck us 'midst the breakers of destruction.

In saying that he would lay out of view, all judicial decisions in considering the question whether a charter of incorporation was a contract, the delegate from Luzerne, added that he would test it by the common sense of the community, and proceeded to ask whether the act incorporating the Bank of the United States, was not a law containing sections and paragraphs and clauses just like any other law. This was a singular course for a gentleman who is a lawyer to pursue in an argument. It is the first time in my life that I ever heard of the common law of the land, and the common sense of the community differing. What is the common law, but the embodied common sense of the community? The lex on scripta. The law which arises from time to time as circumstances call it into action. That silent process of legislation going on from day to day, which from the elastic nature of the common law, enables courts to give redress as occasion calls for it. This is what I call the common sense of the community applied to legal matters, and by this test, I am willing to try the questions proposed.

The circumstance of the act being in the form as to sections, and paragraphs of other laws, would not prevent it from constituting a contract.We must look to substance-The interest of the parties, not to form. Its form however, is like that of every other act of incorporation for private purposes. But it is said that it wants all the essential requisites of a contract which is constituted by the terms "I will" and " I will not." Without stopping to inquire as to the accuracy of this definition, let us put a case. Suppose one man says to another," I will do so and so, if you will do so and so," and the other party assents to the proposition and performs his part of the terms. Is not this a contract to all intents and purposes, and are not both parties bound? If the legislature, who in this behalf are the agents of the people, and act for them, say to a number of individuals, if you will pay us so much money down and so much tax annually afterwards, we will grant to you and your successors the right to carry on the

banking business for a given number of years, according to the terms and conditions contained in this instrument. If the individuals say they will do this, and actually accept of the terms, and perform their part of the agreement, in what essential particular does this differ from an ordinary contract?

The state propose the terms. The company accept and comply with them. Where is the difference between this and a contract made between two individuals? If this be not a contract I am at a loss to conceive what will create one. It is in vain for gentlemen to argue against it. The delegate asks with great apparent triumph "where is the provision in your constitution that authorizes the legislature to make a contract?" I reply that it is one of the powers belonging to those exercising the sovereignty of every country. It was exercised under the constitution of 1776, which contained an express provision authorizing it. It is recognized in the 1st section of the 7th article of the existing constitution; the section. now under consideration. It is again recognized in the 1st section of the schedule annexed to the constitution in the following language: "all laws of this commonwealth in force at the time of making the said alterations and amendments in the said constitution, and not inconsistent there with, and all rights, actions, prosecutions, claims and contracts as well of individuals as of bodies corporate, shall continue as if the said alteration and amendments had not been made." I think I have now turned the gentleman to the very provisions. But besides these clauses in the constitution, the constant current of legislation for nearly fifty years, and the decision of the supreme court of the United States, in Briscoe vs. the Bank of Kentucky, as well as that of Tennessee, in the case of Bell vs. the Bank of Nashville, recognize the power in the state legislature to create banking corporations, as well as all other corporations which are admitted to be private and consequently contracts.

I would like to know, and I will thank gentlemen who take these nice destinctions, to inform me if they can, wherein there is a difference or distinction to be drawn between a contract made by the people of a country through their constitutional agents, and a contract between individuals. If there be any difference, it should operate to bind the public as a contracting party the more firmly, because of the greater importance of the principle in preserving the public faith. An individual who intentionally failed in the performance of his contracts seldom obtains credit again, and there is generelly no very high character for morality attached to those who wilfully refuse to perform their contracts. Would not an act which was wrong in an individual, be ten-fold more so in a community. I lay out of view all this ad captandum argument about "the sale of the rights and the farming out the liberties of the people, where the most money gets the most and best laws," &c; for all this presupposes, what I will never admit, corruption in the agents of the people and a dereliction of duty by them, which in effect is to brand the people themselves with incapacity for self government, and incompetency to choose honest and competent agents. To this conclusion, that part of the gentleman's argument necessarily leads.

It is said again, that the bank charter is not a contract, that there is no remedy for the violation of it. This is a mere gratuitous assertion, not supported by the law of the land. One hazarded without due reflection

or examination. Let the Bank of the United States or any other corporation, violate the terms on which their charter was granted, and I will. vouch for it to find a remedy under the existing laws. If the gentleman will turn to the last act of assembly on the subject, passed on the

day of ——, 1836, he will find that a general jurisdiction is given to the courts of this commonwealth, to exercise equity powers, in all cases of corporations, partnerships and unincorporated associations. This power is conferred on the supreme court and courts of common pleas, and I believe that independently of all this, there is a provision in the charter of the Bank of the United States, authorizing a proceeding by scire facias, on complaint made that the condition of its charter has been violated.

If gentlemen will look into the recent volumes of the New York chancery reports, they will find numerous instances of proceedings in equity against corporations, and the officers of corporations, and of the exercise of equity powers in relation to them. Let any set of directors, managers or trustees, mismanage their trust, and let their conduct be brought before a court having equity power, as our courts now have, and gentlemen will then see whether there is no remedy for breach, or violation by corporations, of the contracts contained in charters of incoporation.

My argument was, and my conviction is, that the members of the legislature are elected to perform all the functions that belong to legislators. That among these, is the power to grant charters of incorporation, as well for banking as for any other proper and necessary purposes. If they do so, and they think that the privileges conferred are worth a pecuniary compensation, to be appled in aid of the funds of the commonwealth, this is a matter of legislative discretion, which they are constitutionally competent to exercise, and if they improperly exercise it, they are answerable for their misconduct to their masters, the people, whose agents they are in the premises, and the contract and bargain they make, is between the people on the one side, and the corporations on the other.

I will not enter into any discussion as to the power of this convention to make a prospective provision on this subject. That it will have an undoubted right to do, and that I will join gentlemen in doing. I however, will never consent to destroy vested rights. This, had we power to do it, would be unloosing the bonds of society, and signing the death warrant of republican government. The attempt, too, would be perfectly nugatory were we to adopt the amendment proposed, for it would be declared null and void by the judicial tribunals of the country. The effect of urging these existing topics upon us, will only create distractions in the country and do no good. We have had too much of this-we find one party seizing on something which it is supposed will find favor with the people. Then the other party, fearing that their adversaries may gain something by it, take up the cry with equal zeal, and it is kept up until the whole community is worked up into fearful commotion. Í fear if this thing does not cease, that the country will be ridden down with it yet. We have seen such things done heretofore, and I apprehend, we are now feeling the sad effects of these party divisions, distractions and excitement created to gratify the insatiated love of power and place, that seems to have taken hold of so many of our citizens.