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and salutary, Least of all are his terms an apology for corporations. And, sir, do you believe the people of Pennsylvania would ever have assented to the constitutional provision, if they had anticipated its application to such a subject ? Would they have trusted their representatives to concentrate the money power of the country in one corporate institution under the direction of a few individuals, if they had understood, when this was done, that they should have no control over it. No, sir, I have no doubt they would have disabled, by an express provision in our own constitution, their legislature from making such a contract-from selling into irredeemable bondage their liberties. But they did not so understand the contracts referred to in the constitution, and they do not now so understand them.
What, then, is this resolution but a denial of a right, which the people of Pennsylvania ever possessed and have never given up-a right which came down to us from the revolution, which is ours, and which I wish to make part of the inheritance of my children. If the resolution be true, and this right of controling this bank be gone from us, then it is in vain we labor to devise restrictions for other banks. We may tie them up never so closely, but whilst this monster is permitted to run at large, and is taught that he cannot be restrained, you have not made one step of advance towards reform. Indeed you do but serve him when you crush others, and when all is done, reform is nothing, absolutely nothing, unless it leave to the people their privilege to protect themselves from this worst, because the greatest of corporations.
The Cuair here interrupted Mr. W., and announced that the hour allowed by the rule, had expired.
Mr. Woodward inquired, if the time consumed in the call of the yeas and nays, had been deducted ?
The Chair replied in the affirmative.
Mr. WOODWARD then said ;-I feel exceedingly anxious, Mr. Chairman, to get out something like my views on this very important subject. I am ready to take my seat, if the committee say so. I trust, however, that I shall be considered as entitled to the same courtesy which has been extended to other gentlemen; and, that a vote may be taken on giving ine leave to proceed, I move that in this instance the rule be dispensed with, and that I have leave to proceed with my remarks.
Mr. PORTER, of Northampton, seconded the motion.
'THURSDAY AFTERNOON, DECEMBER 28, 1838.
Mr. WOODWARD resumed the remarks he had commenced yesterday.
He would proceed now, first, to say, and then, to prove, that the corporation created by the act to which he had referred, was a public, and not a private, corporation.
There is wide difference between public corporations, and those of a strictly private nature, and the right to repeal charters, is made, by the
courts, lo depend on this difference. It might be said that, if a corporation possess any share of political power, or if it was erected mainly for the convenience and welfare of the public, who can participate in its
objects, uses and purposes, by right," it was a public corporation. And he apprehended, the public or private character of a corparation, was to be decided, rather by the objects and purposes of it, than by the character of the funds employed by it.
He observed, in casting his eye over the speech of the gentleman from Northampton, (Mr. Porter) which he had not the pleasure of listening to, and which he had only had opportunity to glance at, since it was in print, that he relies on the distinction taken by Judge Story, who, it must be remarked, uses stronger, and apparently less cautious, language, on this subject, than any of the other judges; but he would endeavor to show, presently, that Judge Story himself considered the Dartmouth college a private corporation, because of the exclusively private character of its objects and purposes.
Judge Baldwin states the distinction clearly, in the case of Buonaparte vs. the Camden and Amboy rail road company, reported in the first volume of Baldwin's Reports. The question in that case, turned on the character of the corporation, and it shall be seen that Judge Baldwin looked not to the private ownership of the stock, but to the uses of the corporation, and the right of the public to participate in them.
The act of assembly incorporating that company, provides that the rail road shall remain a public highway, but the company were allowed to charge toll to such amount, as to make it almost an exclusive monopoly.
Judge Baldwin, as he had already said, delivered the opinion of the court, as to whether it was a public or private corporation.
• Generally speaking, public corporations are towns, cities, counties, parishes, existing for public purposes; private corporations are for banks, insurance, roads, canals, bridges, &c., where the stock is owned by individuals, but their use may be public.-4 Wheat., 664.
A road or canal constructed by the public, or a corporation, is a public highway, for the public benefit, if the public have a right of passage thereon, by a reasonable, stipulated, uniform toll ; its exaction does not make its use private. If the public can pass, and repass, and enjoy its benefits by right, it matters not whether the toll is due to the public, or a private corporation; the true condition is, whether the objects, uses and purposes of the corporation, are for public convenience or private emolument, and whether the public can participate in them by right, or only by permission. To ascertain this, the provisions of the law must be examined."
Now, although banks might sometimes be private, still they might be public corporations. All that he had to do, on the present occasion, was to show that the Bank of the United States was a public, and not a priVate corporation.
The question, according to the argument of Judge Baldwin, was--was the bank established for public convenience, or only for private emolument?
That question had been frequently answered on this floor, during our deliberations.
The grounds on which all had put the passage of the bill, were, that it was necessary to carry out the internal improvement system-to aid in placing the common schools on a firmer basis, and to sustain the credit of the state. Public necessity and public convenience had induced the establishnient of that corporation.
Was the Bank of the United States incorporated for individual emolument--for the benefit of individual stockholders ? He had never heard such an allegation, from its friends or advocates. He presumed there was not a member of the legislature who voted for the bill, that entertained such an idea. The grounds on which the measure had always been justified, were, that the public interests required it, and that it was adapted to the public necessities.
Now, if that was the principal object-the main end in view, then he apprehended that it became necessarily a public corporation; and the fact that private means are invested and employed by it, did not at all change the character of the corporation, nor take from it its public use. He would ask whether the public can participate in it by right? Have they any interest in the existence of the bank, by authority of law-by the charter itself? Undoubtedly they have.
The bank is required to loan money to the commonwealth at different times, by the act of assembly itself. It is obliged to contribute its funds to the treasury of the state, to carry out the great objects of the commonwealth. It is obliged to contribute $100,000, per annum, to the conimon school fund.
In this way, said Mr. W., the public, by the ternis of the charler, have a right to a participation in its means, and the enjoyment of its privileges. They had an interest in it, and could participate in its wealth-in its resources, not hy the permission of the bank, but by right. This was another characteristic of a public corporation.
Again :--The present bank was the same institution as the United States Bank, in aliis tures, excepi that the general government was formerly a stockholder, and that bank was a public, and not a private corporation, as was decided in the case of Osborne vs. the United States Bank-9th Wheaton, p. 859.
That bank though founded chiefly on private means, was a public corporation, and let it be remembered, that in deciding that it was so, Chief Justice Marshall, looked to the general reasons and purposes of its institution which (Mr. W.) contended, were the proper criteria of public corporations.
It was true, Judge Story had said a bank founded on private means, was a private corporation, but, in the case just referred to, the supreme court of the United States had decided that an institution, four-fifihs of whose capital was of private coatribution, was a public corporation, and that the congress could establish 1:0 other than such a corporation. And, sir, if it was a public corporation, under its charter from congress, has it ceased to be so, under its present charter, with the same capital, and more intimatety than ever associated with the general interests of the state, and the public welfare? Having the absolute control of the paper currency of the state, the auxiliary of internal improvements, common schools, and the general revenues, who will say that the present corporation is not quite as public in all its aspects, as when it was only the fiscal agent of the general government ?
[Here Mr. PORTER, of Northampton, rose and asked the gentleman from Luzerne, (Mr. Woodward) to read the authority, as he, Mr. P., had no recollection of any such decision having been made.]
Mr. W. replied, that he had not the book at hand, but merely extracts. Having procured the book, Mr. W. read the following:
Osborn vs. United States Bank, 9th Wheaton, p. 859-Chief Justice
" The foundation of the argument in favor of the right of a state to tax the bank, is laid in the supposed character of that institution. ment supposes the corporation to have been originated for the management of an individual concern, to be founded upon contract between individuals, having private trade and private profit for its great end and principal object.''
He then goes on to shew that if these premises were true, the right of a state to tax the bank would follow necessarily. “ But the premises are not true.
The bank is not considered as a private corporation, whose principal object is individual trade and individual profit; but as a public eorporation, created for public and national purposes. That the mere business of banking is, in its own nature, a private business, and may be carried on by individuals or companies, having no political connexion with the government, is admitted; but the bank is not such an individual or company. It was not created for its own sake, or for private purposes. It has never been supposed that eongress could create such a corporation. The whole opinion of the court in the ease of M'Culloch vs. the state of Maryland, is founded on, and sustained by the idea that the bank is an instrument which is "
necessary and proper for carrying into effect the powers vested in the government of the United States.” It is not an instrument which the government found ready made, and has supposed to be adopted to its purposes; but one which was created in the form in which it now appears, for national pur
Such was the opinion of Chief Justice Marshall, in the case to which he had referred. Now, if that great and good man were on the bench, and the question should come before him, whether a bank, created by act of assembly, was a public or private corporation, would he not look at the object and purposes for which it was established at the end, purposes, and design of that institution ? And when he discovered that it was established to answer public necessity—to aid the commonwealth in carrying out its various purposes, would he not admit-would he not decide, as he (Mr. Woodward) believed the supreme court of the United States would decide, when the question should come before it, that it is a public institution ?
The only case to which the gentleman from Northampton, (Mr. Porter) had referred, on the subject of charters, was that of the Dartmouth
college ; and that was the only case he (Mr. W.) had had time to look into. There might be other cases, relating to private grants of land, but he had not had an opportunity of looking into them. But what was the Dartmouth college case ?
That college was deemed, like other colleges of private foundation, to be a private eleemgoynary institution, endowed by its charter with a capacity to take and hold property uncnnected with the government. It was a private institution for general charity.
Judge Story, in his commentaries on constitutional law, vol. 3, p. 262, gives that account of it. Would the gentleman from Northampton, able and distinguished as he was known to be, or any other lawyer, draw an argument from this, as if applicable to the bank. Was there, he asked, any analogy between the two cases ? Was not the Bank of the United States a partner with the government of the commonwealth, in carrying into offect the great purposes she had in contemplation, or now in progress? If this was a public corporation, as he had endeavored to show it was, then, what, he would ask, was there to prevent the legislature from repealing its charter? There was nothing. And for truth's sake we ought to say, that the only bank charter about which the question can arise, is repealable.
The Dartmouth college was a case precisely in point. Chief Justice Marshall had asserted it to be in the power of a legislature to repeal. or alter, or control the charter of a public corporation. He (Mr. W.) believed that the gentleman from Northampton denied the correctness of the decision in the very first paragraph of his printed speech.
Mr. W. then cited the opinion of the chief justice, as follows:
"I do not think the principle correct, that all charters of incorporation are beyond legislative control. Those which are of a public or political character, such as municipal corporations and the like, not partaking of the nature of contracts, are subject to the supervision of the legislature, which has the power to alter, remodel, and repeal the same as the exigencies of the state and a regard for the public good may require. 10 is, in iny judgment, to private corporations, that the principle is applicable and the position true, that a charter is a contract, and cannot be altered by one of the parties to it, without the assent of the other.”
If, then, the bank was a public eorporation, as he (Mr. Woodward) affirmed it to be, its charter might be repealed by the legislature. Again, sir, the legislature could not arbitrarily sacrifice the rights of property, but they might take private property for public purposes. This was a principle which was universally known, and had been settled over and over again. They could not take the property of one man and give it to another ; nor could they take private property for private purposes. The delegate from Adams (Mr. Stevens) asked, the other day, whether banks did not hold their privileges by the same tenure as the farmer holds his land ? Suppose they did, did it follow that the legislature might not repeal their charters when the public necessity required? The legislature might take the gentleman's property and devote it to public purposes. So that if the banks did hold their charters on the same principle that an individual held his land, he was bound to give it up for the conveni.