« ПретходнаНастави »
is as much his prerogative to do so, as it is to confer a title of nobility or to declare war. This doctrine is expressly laid down by Blackstone.* It is true, that in some few cases of extraordinary exigence, the Parliament has undertaken to confer a franchise, and may do so still, but such acts have always been regarded as irregular, although the king, of course, must assent even to them. “ The Parliament,” says Blackstone, " by its absolute and transcendent authority, may perform this, or any other act whatsoever : and actually did perform it to a great extent, by Stat. 39, Eliz. c. 5, which incorporated all hospitals and houses of correction founded by charitable persons, without further trouble, and the same has been done in other cases of charitable foundations. But otherwise, it has not formerly been usual thus to trench upon the prerogative of the crown, and the king may prevent it when he pl-ases.”+ Now, we ask, if this does not demonstrate beyond a doubt that, by the common law, the right of creating a corporate franchise, “is regarded as a transcendent power of sovereignty in the British constitution,” the opinion of Mr. Pinkney of Maryland, to the contrary notwithstanding. If this be admitted to be, as it unquestionably is, the true theory of the British constitution, we may save ourselves the trouble of inquiring, what is the doctrine of the civil law upon the subject. The constitution of the United States is not to be construed in reference to that jurisprudenceit is matter of positive construction, of peculiar character, of strict law-Nihil ad edictum Prætoris. Still less, we take it, ought it to be controlled by the wild imaginings and speculative conceits of men, as to what might, could, would or should be law. Surely the sound rule of interpretation is, to suppose that the people of this country meant what they said, that they spoke the language of their own day, and acted upon the ascertained and immemorial maxims of their hereditary institutions. Besides, it is not true, as Mr. Pinkney affirins, upon no better authority than Blackstone's Commentaries, that a corporation was, by the civil law, a mere voluntary association of individuals, not particularly controlled by the state. The doctrine of that jurisprudence may be seen upon reference to Domat, who has collected all the texts, and states the principle with his usual clearness and judgment.I Nor is any stress, whatever, to be laid upon a circumstance which, the learned advocate just mentioned, seems to consider as so important, viz. that the king might authorize a subject to institute a corporation. He would have
+ 2 Ibib. p. 474.
* 1 Bl. Comm. p. 273.
Public Law, B. I. Tit. 15, sec. 2.
found by going a little beyond the English text books, that the question whether the jura regalia may be delegated, has been fully discussed and decided, under some qualifications, in the affirmative, by those who are accustomed to look rather more deeply into such subjects than "Doctor Blackstone."'*
Instead, therefore, of inferring from the fact that, in England, the authority of Parliament is not necessary to create a corporation, as Mr. Pinkney does in McCullough's case, that the granting of such franchises is no act of sovereignty, we deduce from the same premises, precisely the opposite conclusion. We ask, how it comes to pass, that the reasoning of the Court in that case, never occurred to the great constitutional lawyers of the mother country? Why should the granting a charter, even by an omnipotent Parliament, be considered “as trenching upon the king's prerogative,” if the doing so, would be only employing a “means" within the ordinary range of legislative discretion ? Is it not manifest that the argument would apply to that government with the same, and, indeed, with greater force than it does here? Ought not the British legislature—of which the monarch too is a constituent part-to have as large a discretion as a Congress of few, and those specified and enumerated powers? If Parliament should undertake, with a view to accomplish some of its legitimate objects, to incorporate a company, the king, says Blackstone, would have a right to say to them, “you have begun at the wrong end, you ought to have requested the crown to exercise its prerogative;" then, with what sort of colour can it be pretended, that such a statute differs in no wise from any other act of legislation, according to the common law of England, which was, and is the common law of this land. But we shall presently cite other instances to shew that the Federal Government in laying down its principles, has assumed more-has been less scrupulous in its regard for the ancient landmarks and consecrated maxims of law and liberty, according to the faith of our fathers, even than that of England.
Does the Supreme Court mean to say, that Congress, under one of its two cardinal powers, that of regulating commerce, would have a right to found and incorporate a city within the Jimits of a state? Yet, why not ; since its acts are the supreme law, and what “laws are necessary and proper,” is matter of legislative discretion, not to be passed upon by the courts ? In
* See the note of Godefroy on Feudor, lib. ii. Tit. 59. 'So the Pope, though he usurped very great authority, never could make a corporation. Com. Dig. Franchise, F.5. It is astonishing that even the Canonists subtle and contriving as they were should have fallen so far short of our constitutional lawyers.
short, there is no end to the consequences that may and will be deduced from the doctrine in M'Cullough's case. The amount of it really is, that the enumeration of powers in the constitution was a vain attempt to confine what is necessarily illimitablethat such an instrument never can ascertain its objects with any sort of precision—that it can, at most, hint a vague purpose and sketch a sweeping outline, which is to be filled up at discretion-in short, that it is not the plan of a government formed and settled, and circumscribed from the first, as it is intended to continue forever, but is a mere nucleus, around which a government is to be formed, according to the circumstances of the times, and the opinions of mankind. Such a principle being once established,
no man can pretend to anticipate what shape the constitution of the United States (not that written by the convention, but the other which is to be built upon it) is destined to take. We are fairly at the mercy of sophisters and metaphysicians, and we shall see fully verified, the wise old maxim of the schools dolus versatur in generalibus. One usurpation will be a precedent for another-it will be treason to complain in future of abuses, that in point of principle, can be no worse than those we have already submitted to. Thus Mr. Pinkney begins his argument in this very case, by declaring that he did not consider the constitutionality of the bank as an open question, because it had been assumed by Congress, and acquiesced in for thirty years! We venture to predict that no act of the federal
government (supposing it to have common discretion) will ever be
pronounced unconstitutional in that court, for the simple reason that the principle of M’Cullough's case covers the whole ground of political sovereignty, and consecrates usurpation in advance.A regular bred dialectician shall demonstrate, drop by drop, with the most vigorous logic, that a tun of wine will not get a man drunk, if his hearer will only consent to surrender his senses to a Sorites. The consequences in such deductions shall be inevitable, and no man be able to say this or that link in the chain of reasoning is bad; on this side is Jona and not Peloponnesus-bere law ends, and usurpation begins. For a man of common sense—indeed, for plain, practical men—it is enough that such reasonings, however ingenious and consequential, lead to manifest absurdity, and so must be radically vicious somewhere. That argument, for instance, cannot be sound which necessarily converts a government of enumerated into one of indefinite powers, and a confederacy of republics into a gigantic and consolidated empire. But such moderation is not to be expected of those who deal in sweeping abstractions and reason about government and the most interesting and practical concerns of
mankind, precisely as a scholastic divine—" he that hight irrefragable,” would argue upon an unintelligible thesis in ontology or pneumatology. Ought not the maxim of the federal government—from its very end and constitution—from its inevitable tendency to encroachment and usurpation, and the extreme difficulty of defending its jurisdiction with sufficient accuracy—to be quod dubitas ne feceris? Can any thing justify those who administer such a government–from first to last, a matter of compromise and concession, of complex organization and discordant materialsmin venturing upon measures of such dubious character (to say the least of them) as to require all the ingenuity of the most practised disputants to reconcile the common sense of inankind to them?
M'Cullough's case established a doctrine sufficiently latitudinarian. It gave the government an unbounded discretion in the choice of “means” to effect its constitutional objects. Nor does it confine the exercise of this arbitrary power to cases of absolute necessity. It declares that Congress has the same latitude in matters even of the most doubtful character, by way of standing policy—in time of peace, for example, it may do what could only be justified by the pressing exigencies of war, when the urgency of the case creates its own law and supersedes all others A national bank, is, no doubt, in many points of view, an excellent institution, but did any one ever before hear of such an establishment being founded for the purpose of collecting revenue? But whether as a means, “it is necessary and proper" it seems, is for the Legislature to decide, and the court has no right to look into that question. What is this but to say, that Congress may do any thing, provided they declare that it is done with a view to effect something else--it is not material whatthat is within their undoubted powers? Add to this, the rule laid down in Fletcher vs. Peck, that the motives of the lawgiver cannot be looked into by the judges, unless he vouchsafe to declare them, and this whole doctrine is as complete as the most ambitious political libertine could wish it to be. Thus the only chance of having the present tariff declared unconstitutional by the Supreme Court, was, that its authors should call it what it really is-an act, passed to encourage domestic industry, and for no other purpose in the world. A conscientious man would feel himself bound-a high-minded and honourable man would think it at least ungenerous, not to avow the motives upon which he acted, and which he believed to be fully sufficient to justify his conduct. Mr. Drayton's motion to that effect however, at the last session, seems to have been scouted, and this outrage,
ous enactment (for we are unwilling to call it a law) comes before the court, and is treated by it as a bona fide revenue measure; a fraud upon the constitution, which is notorious to every man in the nation, being absolutely invisible to its highest judicatory! Were such a rule of interpretation adopted in the Jus Privatum, as has been laid down in the Jus Publicum of this confederacy, there is not a statute but might become a dead letter. Let any one only reflect upon the ingenious devices of money-lenders to evade the usury acts-but these have been all foiled, because the courts have looked into the motives of the parties, and the emphatic language of Lord Mansfield is literally true, that it is not in the wit of man to reserve, with impunity, more than the lawful interest, on any contract which amounts, substantially, to a loan of money.
Perhaps it may be said that this would be allowing too much discretion to the court—but we do not see that it would exceed the bounds of a sound, legal discretion, such as is absolutely necessary in every part of the administration of justice. Besides, that discretion would have the inestimable advantage of being in favorem libertatis, whereas the uncontrolled discretion of Congress is just the contrary. None but the worst consequences can reasonably be anticipated from it. In a country extending over such an immense territory-already comprising a multitude of commonwealths, differing so widely in interests, in character, and in political opinions, and still going on to increase without any assignable limit--it is preposterous to expect that a central government, which shall attempt to meddle with the domestic concerns of society, can be tolerable to its subjects. It will be inevitably societas mater discordiarum; or if two sections should unite to give the law, it would be the most impracticable, impenetrable and reckless tyranny that ever existed. At all events, whether we have pointed out the true causes of the evil, and whether there be any remedy for it or not, we are satisfied that no purity of character, no rectitude of intention, no superiority of judgment and capacity in the judges of the Supreme Court (and we can scarcely expect greater than it is already distinguished by) will ever enable that tribunal to answer its great end, as an umpire between the states and the confederacy. The mischief has already been done—the first step is taken, and the whole system is radically wrong.
Another instance in which the Federal Courts seem to have sanctioned principles at variance with the genius and practice of the common law is remarked by Chancellor Kent, whose observations we shall present to our readers. He is addressing