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to furnish this information if it be attain- cated had been agreed upon, the Court able. We are far from being confident has been informed that the edicts of that it is attainable ; but have determined August 24, 1770, is in the office of to hold the cases which have been argu- the Secretary of State. ed under advisement until the next term,

Had that edict been sufficient for the in the hope that, in the meantime, we decision of the Court, they would have may be relieved froin the necessity of disposed of the cases at this terin. deciding conjecturally on interests of But other information is required, great importance.

which has been referred to in the opinion. The Chief Justice added. Since the It is therefore considered proper to hold determination which has been communi- : the cases under advisement.

The Providence Bank, Plaintiffs in error vs. Alpheus Billings and

Thomas G. Pitman.

This cause came before the Court on there shall be said, for the use of the a writ of error from the Supreme Judicial State, by each and every bank within Court of Rhode Island and grew out of the State, except the Bank of the United these circumstances.

States, the sum of fifty cents on each In 1822, the legislature of Rhode Island and every thousand dollars of the capital passed an act iinposing a tax on every stock actually paid in.' This tax was bank in the State except the Bank of the afterwards augmented to one dollar and United States. The Providence Bank twenty five cents. which was chartered in 1791, refused the The Providence Bank, having deterpayınent of the tax, alleging that the act mined to resist the payment of this tax, which imposed it was repugnant to the brought an action of trespass against the Constitution of the United States; as it officers by whom a warrant of distress impaired the obligation of the contract was issued against and served upon the created by the charter of incorporation. property of the Bank, in pursuance of

The question presented for the consi- ihe law. The defendants justify the deration of the Court, was the constitu- taking set out in the declaration under tionality of the above act passed in 1822. the act of assembly imposing the tax;

Mr Whipple appeared for the plaintiff to which plea the plaintiffs demur, and in Error, and Mr Hazzard and Mr Jones, assign for cause of demurrer, that the act for the defendants.

is repugnant to the Constitution of the Mr Chief Justice Marshall delivered United States, inasmuch as it impairs the the opinion of the Court.

obligation of the contractcreated by their This is a writ of Error to a judgment charter of incorporation. Judgment was rendered in the highest Court for the given by the Court of Common Pleas State of Rhode Island, in an action of in favor of the defendants; which judgtrespass brought by the plaintiff in ment was on appeal confirmed by the error against the defendant.

Supreme Judicial Court of the State : In November, 1791, the legislature of that judgment has been brought before Rhode Island granted a charter of incor- this Court by a writ of error. poration to certain individuals, who had It has been settled that a contract enassociated themselves together for the tered into between a State and an indipurpose of forining a banking company, vidual, is as fully protected by the tenth They are incorporated by the name of section of the first article of the Constituthe President, Directors and Company tion, as a contract between two individof the Providence Bank ;' and have the uals : and it is not denied that a charter ordinary powers wliich are supposed to incorporating a bank is a contract. be necessary for the usual objects of this contract impaired by taxing such associations.

banks of the State ? In 1-22 the legislature of Rhode This question is to be answered by Island passed an act imposing a duty on the contract itself. licensed persons and others, and bodies It contains no stipulation promising corporate within the State ;' in which exeinption from taxation.

T'he state, among other things, it is enacted that then, has made no express contract which

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has been impaired by the act of which relinquish it; that a consideration suffi. the plaintiffs complain. No words have ciently valuable to induce a partial rebeen found in the charter, which, in lease of it may not exist : but as the themselves, would justify the opinion whole community is interested in retainthat the power of taxation was in the ing it undiminished, that community has view of either of the parties; and that a right to insist that its abandonment an exemption of it was intended, though ought not to be presumed, in a case in not expressed. The plaintiffs find great which the deliberate purpose of the difficulty in shewing that the charter State to abandon it does not appear. contains a promise, either express or The plaintiffs would give to this charter implied, not to tax the bank. The elab- the same construction as if it contained orate and ingenious argument which has a clause exempting the bank from taxabeen urged, amounts, in substance to tion on its stock in trade. But can it be this. The charter authorizes the bank supposed that such a clause would not to employ its capital in banking transac- enlarge its privileges ? They contend tions, for the benefit of the stockholders. that it must be implied ; because the It binds the State to permit these trans- power to tax may be so wielded as to deactions for this object. Any law arrest- feat the purpose for which the charter ing directly the operations of the bank was granted. And may not this be said would violate this obligation, and would with equal truth of other legislative come within the prohibition of the Con- powers? Does it not apply with equal stitution. But, as that cannot be done force to every incorporated company? circuitously which may not be done A company may be incorporated for the directly, the charter restrains the State purpose of trading in goods as well as from passing any act which may indi. trading in money. If the policy of the rectly destroy the profits of the bank. A State should lead to the imposition of a power to tax the bank may unquestiona- tax on unincorporated companies, could bly be carried to such an excess as to those which might be incorporated claim take all its profits, and still more than its an exemption, in virtue of a charter profits for the use of the State ; and con- which does not indicate such an inten. sequently destroy the institution. Now, tion? The time may come when a duty whatever may be the rule of expediency, may be imposed on manufactures. the constitutionality of a measure de. Would an incorporated company be expends, not on the degree of its exercise, empted from this duty, as the mere conbut on its principle. A power therefore sequence of its charter? The great obwhich may in effect destroy the charter, ject of an incorporation is to bestow the is inconsistent with it: and is impliedly character and property ofindividuality on renounced by granting it. Such a power a collective and changing body of men. cannot be exercised without impairing This capacity is always given to such a the obligation of the contract. When body. Any privileges which may expushed to its extreme point, or exercised empt it from the burdens common to in moderation, it is the same power, and individuals, do not flow necessarily from is hostile to the rights granted by the the charter, but must be expressed in it, charter. This is substantially the argu or they do not exist. ment for the Bank. The plaintiffs cite If the power of taxation is inconand rely on several sentiments expressed sistent with the charter, because it may on various occasions by this court, in be so exercised as to destroy the object support of these positions.

for which the charter is given; it is The claim of the Providence Bank is equally inconsistent with every other certainly of the first impression. The charter, because it is equally capable of power of taxing moneyed corporations working the destruction of the objects has been frequently exercised; and lias for which every other charter is given. never before, so far as it is known, been If the grant of a power to trade in money resisted. Its novelty, however, furnishes to a given amount, implies an exemption no conclusive argument against it. That of the stock in trade from taxation, bethe taxing power is of vital importance : cause the tax may absorb all the profits ; that it is essential to the existence of then the grant of any other thing implies government; are truths which it cannot the same exemption ; for that thing may be necessary to reaffirm. They are ac be taxed to an extent, which will render knowledged and asserted by all. It it totally unprofitable to the grantee. would seem that the relinquishment of Land, for example, has, in many, persuch a power is never to be assumed. haps in all the States, been granted by We will not say that a state may not government since the adoption of the

Constitution. This grant is a contract, taxation, than an unincorporated comthe object of which is that the profits pany would be, carrying on the same issuing from it shall enure to the benefit business. of the grantee. Yet the power of taxa The case of Fletcher vs. Peck has tion may be carried so far as to absorb been cited; but in that case the Legislathese profits. Does this impair the ob- ture of Georgia passed an act to annul ligation of the contract: This idea is its grant. The case of the State of New rejected by all; and the proposition Jersey vs. Wilson has been also mentionappears so extravagant, that it is difficult ed; but in that case the stipulation exto adinit any resemblance in the cases. empting the land from taxation, was And yet if the proposition for which the made in express words. plaintiffs contend be true, it carries us to The reasoning of the Court in the case this point. That proposition is, that a of McCullough vs. The State of Marypower which is in itself capable of being land has been applied to this case, but exerted to the total destruction of the the court itself appears to have provided grant, is inconsistent with the grant, against this application. Its opinion in and is therefore impliedly relinquished that case, as well as in Osborn et al. vs. by the grantor, though the language of The bank of the United States, was the instrument contains no allusion to founded, expressly, on the supremacy of the subject. If this be an abstract truth, the laws of Congress, and the necessary it inay be supposed universal. But it is consequence of that supremacy to exnot universal, and therefore its truth empt its instruments employed in the cannot be admitted, in these broad terms, execution of its powers, from the operain any case. We must look for the ex tion of any interfering power whatever. emption in the language of the instru- In reasoning on the argument that the ment; and if we do not find it there, it power of taxation was not confined to the would be going very far to insert it by people and property of a state, but might construction.

be exercised on every object brought The power of legislation, and conse within its jurisdiction, this court admitquently of taxation, operates on all the ted the truth of the proposition; and persons and property belonging to the added, that the power was an incident body politic. This is an original princi- of sovereignty, and was co-extensive ple, which has its foundation in society with that to which it was an incident. itself. It is granted by all for the bene. All powers, the court said, over which fit of all. It resides in government as a the sovereign power of a State extends, part of itself, and need not be reserved are subjects to taxation.

The sovewhen property of any description, or the reignty of a state extends to everything right to use it in any manner, is granted which exists by its own authority, or is to individuals or corporate bodies. How- introduced by its permission ; but does ever absolute the right of an individual it extend to those means which are emmay be, it is still in the nature of that ployed by Congress to carry into execuright, that it must bear a portion of the tion powers conferred on that body by the public burthens; and that portion must people of the United States? We think be determined by the legislature. This not. vital power may be abused; but the So in the case of Osborn ys. The Bank Constitution of the United States was not of the United States, the Court said, intended to furnish the corrective for the argument' in favor of the right of every abuse of power which may be the State to tax the bank, “supposes the committed by the state governments. corporation to have been originated for The interest, wisdom and justice of the the management of an individual conrepresentative body, and its relations cern, to be founded upon contract bewith its constituents, furnish the only tween individuals, having private trade security, where there is no express con- and private profit for its great end and tract, against unjust and oppressive taxa- principal object. tion, as well as against unwise legisla If these premises were true, the contion generally. This principle was laid clusion drawn from them would be indown in the case of McCullough vs. evitable. This mere private corporaThe State of Maryland, and in Osborn tion, engaged in its own business, et al. vs. The bank of the United States. would certainly be subject to the taxing Both those cases, we think, proceeded power of the State as any individual on the admission that an incorporated would be. bank, unless its charter shall express the The Court was certainly not discussing exemption, is no more exempted from the question whether a tax imposed by å

State on a bank chartered by itself, im- persons and others, and bodies corporate paired the obligation of its contract: and within the State, does not impair the these opinions are not conclusive as they obligation of the contract created by the would be had they been delivered in charter granted to the plaintiffs in error. such a case, but they show that the It is therefore the opinion of this court, question was not concluded as doubtful, that there is no error in the judgment of and that inferences drawn from general the Supreme Judicial Court for the expressions pointed to a different subject State of Rhode Island, affirming the cannot be correctly drawn.

judgment of the Circuit Court in this We have reflected seriously on this case ; and the same is affirmed; and the case, and are of opinion that the act of cause is remanded to the said Supreme the Legislature of Rhode Island, passed Judicial Court, that its judgmeni may in 1822, imposing a duty on licensed be finally entered.

OBITU A RY.

Sir David BAIRD.

Hyder, however, was determined that August 18,1829.— Athis seat in Perth- they should not return so safely; and shire, Gen. Sir David Baird.

under his own personal inspection he This distinguished soldier was de prepared with consummate ability, a scended from a junior branch of the trap to destroy the united detachments. Bairds, of Auchmedden in Banffshire. Accordingly on the 10th of September, He was the fifth son of Wm. Baird, Esq. daylight liad scarcely broken when they

He entered the army at the close of unwarily advanced into the very centre 1772, as Ensign in the 20 Foot. In 1778 of his toils. The enemy in ambuscade he obtained a lieutenancy, and in Sep- reserved their fire till the unhappy Eng. tember of the third year the grenadier lish were in the midst of them. By company in the regiment then raised by seven o'clock in the morning the enemy Lord Macleod, and named the 73d. This ponred down upon them in thousands, corps he joined at Elgin, from whence it and every Englishman in the army was marched to Fort George, thence embark- engaged. Captain Baird and his grenaed for Guernsey, and in the course of diers fought with the greatest heroism, 1779 sailed for Madras.

surrounded and attacked on all sides, by Thus sent to India, almost as soon as 25,000 cavalry, and 30 regiments of Seraised, and when its commissions were poy infantry, besides Hyder's European scarcely filled up, the seventythird corps, and a numerous artillery playing regiment entered upon a service which upon them from all quarters, yet this at once crowned it with glory, and anni- heroic column stood firm and undaunthilated everything belonging to it but its ed, alternately facing their enemy on immortal name; so effectually indeed every side of attack. annihilated, that, it is reported Sir David Colonels Baillie and Fletcher, and Baird and one Sergeant were all that sur. Captain Baird had only ten pieces of canvived of the original 73d.

non, but these were so excellently servIt was in the year of its arrival that ed that they made great havoc amongst Hyder Ally made his fearful irruption the enemy. At length, after a dubious upon the Carnatic. He had interposed contest of three hours, victory began to his vast army between that of the Brit- declare for the English, when an unish commanded by Sir Hector Munroe, avoidable misfortune happened which and a smaller force commanded by Col. totally changed the fortune of the d. y. onel Baillie ; when the latter, having al. By some accident, the tumbrils, which ready suffered considerably in engage. contained the ammunition, suddenly ments with the barbarians, sent to the blew up, in the centre of the British lines. commander on account of his difficult One whole face of their column was situation,conceiving itimpossible to cope thus entirely laid open, and their artilwith an enemy of at least twelve times lery destroyed. his number. Sir Hector Munroe, with T'he destruction of men was great, but the advice of a council of war, deter- the total loss of ammunition was still mined to supply Colonel Baillie with more fatal to the survivors. such a reinforcement as would enable Colonels Baillie and Fletcher, assisted him to push forward in despite of the by Captain Baird made one more desperenemy

aie effort; they rallied the Europeans The detachment consisted of about under the whole fire of the enemy, gain1000 men, under the conduct of Colonel ed a little eminence, and formed themFletcher.

selves into a new square. In this form Their junction with Colonel Baillie did this invincible band, the officers was formed, but with imminent hazard. fighting only with their swords, and the

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