thority of this precedent, as well as the clear right of the case, imposes a duty upon the state, from which it cannot shrink without dishonor. So long as one single constitutional effort can be made to save them, the state ought not to surrender its rights, to the encroaching pretentions of the cir cuit court.

But justice should ever be held sacred. Pride and resentment are alike poor apologies for perseverance in error. If it were admitted that the proceedings of the federal court against the state, through its officers, are not warranted by the constitution, still, if the state has commenced in error, it should abandon the controversy. Before, therefore, we determine upon the course we ought to pursue, it is necessary to review and examine the ground upon which we stand.

The bank of the United States established an office of discount and deposit, at Cincinnati, in this state, which commenced banking in the spring of the year 1817. The legislature met in December following, and upon the 13th day of December, a resolution was proposed in the House of Representatives, and adopted, appointing a committee to enquire into the expediency of taxing such branches, as were, or might be established within this state. The committee reported against the expediency of levying such a tax; but the house of representatives, reversed their report by a majority of 37 to 22. A substitute for their report was then offered, asserting the right of the state to levy such a tax,

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and the expediency of doing it at that time. The constitutional right of the state to levy such a ́tax, was carried by 48 to 12, and the expediency of proceeding to levy the tax, by $3 to 27. A bill assessing a tax, was reported to the house, and passed to be engrossed for a third reading and final passage, and upon the third reading, was postponed to the second Monday of December, 1818.

After this solemn assertion of the right to tax, and when a bill for that purpose was pending before the house of representatives, the bank proceeded to organize a second office of discount and deposit, at Chillicothe in this state, which commenced banking in the spring of the year 1818. In January 1819, the legislature enacted the law levying the tax, and postponed its execution until the September following, that the bank might have abundant time so to arrange their business, as not to come within the provisions of the taxing law.

At the period of adopting these measures, the constitutional right of the state, to levy the tax, was doubted by none, but those interested in the bank, or those who expected to derive pecuniary advantages, for themselves or their friends, by the location of branches. It seemed impossible that a rational, disinterested and independent mind could doubt. During the existence of the old bank of the United States, the state of Georgia had asserted this right of taxation, and actually collected the tax. The bank brought a suit, to money, in the federal circuit

recover back the

court of Georgia. This suit was brought before the supreme court, upon a question not directly involving the power of taxation. The supreme court decided the point before them, in favor of the bank, but upon such grounds, that the suit was abandoned and the tax submitted to. When the charter of the present bank was enacted, it was known that the states claimed, and had practically asserted the power of taxing it, yet no exemption from the operation of the power is stipulated by Congress. The natural inference from the silence of the charter upon this point, would seem to be, that the power of the states was recogniz ed, and that Congress were not disposed to interfere with it.'

The Constitution of the United States had distinetly expressed, in what cases the taxing power of the states should be restrained. No maxim of legal construction is better settled, and more universally acknowledged, than, that express limitations of power, either in constitutions or in statutes, are distinct admissions that the power exists, and may be exercised in every other case, than those expressly limited. With a knowledge of these facts and doctrines in their minds, that a confidence in the power of the state, to levy this tax, should be almost universal, is what every intelligent man would expect. But after the law was enacted, that levied the tax, and before the time of its taking effect, the Supreme Court of the U. S. in the case of Maryland and M'Colloch, decided, that

the states were debarred by the constitution of the United States, from assessing or levying any such tax. And upon the promulgation of this decision it is maintained that it became the duty of the state and its officers to acquiesce, and treat the act of the legislature as a dead letter. The committee have considered this position, and are not satisfied that it is a correct one.

It has been already shewn, that since the 11th amendment to the constitution, the separate states, as parties to the compact of union, are not subject to the jurisdiction of the federal courts, upon questions involving their power and authority as sovereign states. Not being subject to their jurisdiction, no state can be concluded by the opinions of these tribunals: but these are questions, in respect to which there is no common judge, and therefore the state has a right to judge for itself. If by the management of a party, and through the inadvertence or connivance of a state, a case be made, presenting to the supreme court of the United States for decision, important and interesting questions of state power, and state authority, upon no just principle, ought the states to be concluded, by any decision had upon such a case. The committee are clearly of opinion, that such is the true character of the case, passed upon the world by the title of M'Colloch vs. Maryland.

It was once remarked, by a most profound politi cian, that words are things; and the observation is most unquestionably a correct one. This case, dig

nified with the important and high sounding title of "M'Colloch vs. the state of Maryland," when looked into, is found to be an ordinary qui tam action of debt, brought by a common informer, of the name of John James; and it is throughout an agreed case, made expressly for the purpose of obtaining the opinion of the supreme court of the United States, upon the question, whether the states could constitutionally levy a tax upon the bank of the United States. This agreed case was manufactured in the summer of the year 1818, and passed through the county court of Baltimore county, and the court of appeals of the state of Maryland, in the same season so as to be got upon the docket of the supreme court of the United States, for adjudication, at their February term, 1819. It is only by the management and concurrence of parties, that causes can be thus expeditiously brought to a final hearing in the supreme court.

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It must be remembered, that through the extravagant and fraudulent speculations, of those ertrusted with conducting the concerns of the bank, it stood at the close of the year 1818, upon the very brink of destruction. At this critical juncture of its affairs,it was a manoeuvre of consummate policy to draw from the supreme court of the United States a decision, that the institution itself, was constitutionally created; and that it was exempt from the taxing power of the states. This decision served to prop its sinking credit; and if it inflicted a dangerous wound upon the authority