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^#/ 0^^:^ 
 
 
 
 ARGUMENT 
 
 IN FAVOR OF 
 
 THE CONSTITUTIONALITY 
 
 OF THE 
 
 GENERAL BANKING LAW, 
 
 WITH 
 
 AN APPENDIX 
 
 y^ i,i^ l^ 
 
AN 
 
 ARGUMENT, 
 
 IN FAVOR OF 
 
 THE CONSTITUTIONALITY 
 
 OF THE 
 
 GENERAL BANKING LAW 
 
 OF THIS STATE, 
 
 DELIVERED BEFORE THE SUPREME COURT, AT THE 
 JULY TERM, 1839. 
 
 BY SAMUEL A. |F^()OT, 
 
 Of the city of New-York, Counsellor at Law. 
 
 GENEVA: 
 IRA MERRELL, PRINTER, SENECA-STREET. 
 
 1839. 
 

 \/ 
 
 
ADVERTISEMENT. 
 
 The history of judicial controversy, so far as my knowledge of 
 it extends, does not furnish a case, in which such an immense 
 amount of property and such vital interests of the community 
 were involved, as were brought into discussion and subjected to judi- 
 cial determination, by the argument of the cause of Anson Tho- 
 mas, President of the Bank of Central New-York, against Samuel 
 D. Dakin, at the last July Term of the Supreme Court of this 
 State, held at the city of Utica. The question raised, discussed 
 and submitted to the Court, in that cause, was, whether the Act of 
 our Legislature, entitled, " An Act to authorize the business of 
 banking," passed the 18th April, 1838, and commonly called the 
 *' General Banking Law," was constitutional or not. If it is not 
 constitutional, it is of course void, and gives the banking compa- 
 nies, formed under it, no legal authority to conduct banking business. 
 Every one will readily see, the immeasurable amount of unmixed 
 evil which must flow from such a result. The contemplation of it, 
 even, is appalling. It became my duty to take a responsible part 
 in this grave discussion. 
 
 The tens of millions which have already been invested under this 
 Statute, and now actively employed, and the arrangements which 
 have been made for the investment of hundreds of millions, give 
 the subject an unparalleled importance as regards mere amount of 
 property. The peculiar moment too, at which the question arises, 
 is most inauspicious for the business and commerce of the country, 
 and the public credit of the States of our Union. The determina- 
 tion of the question will, moreover, have a material influence on the 
 future legislation of this State, so far as relates to private incorpo- 
 rations ; and, it is hoped, may have a beneficial effect upon it, and 
 check, if not entirely cure, many serious evils we now endure. 
 
 IVI186238 
 
These various aspects of the subject have created great anxiety 
 in the public mind, as I learn, to be informed of the grounds taken 
 in the argument, the precise questions raised and discussed, and the 
 views taken and suggestions made by the Court. 
 
 The passing of the present month at this place gives me an op- 
 portunity, and I have concluded to write out and publish my argu- 
 ment, in the hope, that its publication may be of some benefit, at 
 least, in allaying the anxiety felt to be informed of what occurred 
 on the discussion, and perhaps, in exhibiting the firm grounds on 
 which the rights of those rest, who have invested their property on 
 the faith of a public statute of our state. 
 
 SAMUEL A. FOOT. 
 
 Geneva, August 1, 1839, 
 
HEADS OF THE ARGUMENT. 
 
 Statement of the case — and how the question arises, respecting the constitutionali- 
 ty of the General Banking Law. 
 
 Preliminary remarks. 
 
 Propositions maintained in the argument : 
 
 First. The associations authorized by the Statute and organized under it, are not 
 corporations ; and, consequendy, the clause in the Constitution of this State, which 
 restricts the power of the Legislature in creating bodies corporate, does not 
 apply to it. 
 
 Second. But admitting that the associations are corporations ; still, this Statute is con- 
 stitutional ; because, the restrictive clause of the Constitution does not prohibit the 
 Legislature from passing a law, authorizing an indefinite and imlimited number 
 of corporations ; or, in other words, does not apply to a general act of incorpora- 
 tion ; and, consequendy, the Legislature may now provide, by a general law, for 
 the incorporation of an unUmited number of voluntary associations ; as it could 
 and did, in many instances, before the adoption of the present Constitution. 
 
 Third. Admitting that the constitutional restriction does apply to a general act of in- 
 
 ; corporation ; nevertheless, such an act may be passed by a two-thirds vote ; and 
 
 the Statute in question, having passed through the regular forms of authentication, 
 
 and appearing on the statute book, must be presumed to have been passed by the 
 
 reqtusite constitutional vote. 
 
 Supreme <a:ourt» 
 
 Anson Thomas, President of the Bank -v 
 
 of Central New- York, / 
 
 vs. y 
 
 Samuel D. Dakin.* \ 
 
 This is an action of Assumpsit, commenced by declaration in 
 the usual form, upon three drafts, amounting together to about 
 five thousand dollars, drawn by Dakin, the defendant, in the 
 
 * This cause was argued at Utica, before the Supreme Court, on the 22d, 23d and 
 24th days of July, 1839, by Ward Hunt, Esq., for the defendant, and by C. P. Kirk- 
 land, Esq., and the writer of these pages, for the plaintiff. 3Ir. Hunt made a full and 
 strong argument. Having evidently studied the cause thoroughly, he presented his 
 propositions and sustained them with propriety, clearness and force. 
 
 Mr. Kirkland op>ened the argument for the plaintiff, in a speech of upwards of three 
 hours in length ; and during the whole of its delivery, he had the undivided attention 
 of the Court and audience. He appeared to realize the very great importance of the 
 question under discussion, and fuUy met it. His reasoning was forcible and conclu- 
 sive, and his manner, as usual, remarkably appropriate. 
 
 I hope [ may be indulged the remark, that the Bar of this State is in no great dan- 
 ger of declining in usefulness or pubUc estimation, while genUemen like Mr. Kirkland 
 are rising into its first ranks. 
 
months of February and March last, and of which the Bank of 
 Central New York became the owner and holder, by regular 
 indorsement, and which, being dishonored, were regularly pro- 
 tested for non-payment. The defendant having neglected to pay 
 them, this suit was instituted by the plaintiff, the President of 
 that Bank, to enforce their collection — and a demurrer to the 
 declaration has been interposed. On this state of the pleadings, 
 a question is raised respecting the constitutionality of the Statute, 
 entitled, " An act to authorize the business of banking;" passed 
 April 18, 1838, and usually called the " General Banking Law ;" 
 and under which the Association of which the plaintiff is presi- 
 dent, was organized as a Banking Company. 
 
 ' '^he defendant's Counsel contends, that the Statute is uncon- 
 stitutional, because the associations which it authorizes, and which 
 are, or may be organized under it, are corporations ; and as 
 the Statute provides for the creation of an indefinite number of 
 them, it is in violation of the ninth section of the seventh arti^ 
 tide of the Constitution of this State ; which is in these words: 
 "The assent of two-thirds of the members elected to each branch 
 "of the legislature, shall be requisite to every bill appropriating 
 " the public monies or property, for local or private purposes, 
 " or creating, continuing, altering, or renewing any body politic 
 *'' or corporate," 
 
 ^TemSk!7, I* ^s ^ source of deep regret, that the defendant, either 
 to delay or defeat the collection of what appears to be a just de- 
 mand, should, at this inauspicious moment, in the progress of our 
 Country, its commerce and business, attempt to raise a doubt of 
 the validity of a law, which, thus far, has produced a most benign 
 and beneficial influence and effect, upon our embarrassed affairs 
 and depressed community. Numerous banking institutions have 
 been established under it, which are now in successful operation ; 
 and especially, in our commercial metropolis, several have been 
 
organized with large and increasing capitals, furnished by do- 
 mestic and foreign capitalists, relying on the faith and sound- 
 ness of our institutions and laws, which are now in full and 
 successful operation, conducted by citizens distinguished for their 
 patriotism, moral worth and financial experience and talents. 
 These institutions are already identified with the business of 
 the City ill which they are located ; have extensive connections 
 with the monetary affairs of our State and Country ; are daily 
 engaged in large financial transactions with the different States 
 of our Union ; and with foreign houses of wealth and credit, 
 with whom they have already formed large and substantial 
 arrangements, highly beneficial to our struggling commerce, 
 which is now seeking new foreign associations, to supply the 
 place of those destroyed by our late commercial misfortunes. 
 
 Should the defendant succeed in his defence, or even raise a 
 serious doubt of the constitutionality of our General Banking. 
 Law, those beyond the reach and direct influence of the activity 
 and excitement of our commercial emporium, engaged in their 
 libraries, or taking refreshing walks in their quiet villages or 
 fields,* can scarcely realize the extent or depth of the injury 
 and distress produced, by destroying, or paralyzing fianancial 
 agencies, so powerful and active, as the banks established in the 
 city of New York under this Statute. 
 
 The bare agitation of this question must, to some extent, im- 
 pair confidence, but a real doubt will fly even swifter than the 
 wind across the Atlantic, defeat arrangements to draw foreign 
 capital to the aid and relief of our laboring and almost exhausted 
 Country ; will prolong and increase the feverish excitement in 
 wl^ich our monetary affairs are involved ; still farther dirpinish 
 and phstruct the energies qf our s;lowly and fitfully recovering 
 coipmerce and business. 
 
 *^ AU the Justices of our Sopreme Cq\^ r^de in v^l^ges ia th^ CfHiotrj^ o^d ,M>lb 
 Chief Justice cultivates a farm. . • ^ - 
 

 8 
 
 If the defence prevails, a deep and almost irreparable wound 
 will be inflicted upon our own citizens. All the banks ere* 
 ated by our General Law will fall directly within the highly 
 penal provisions of the Restraining Act, and all the securities 
 held by them will, consequently, be void ; and especially the 
 bonds and mortgages taken and transferred to the Comptroller, 
 and forming the basis and security of the most convenient and 
 safe currency ever devised. The bills will fall valueless on 
 a confiding and innocent community, and those least able to 
 bear, will sustain the greatest losses. Humble, but bright hopes 
 will be blighted ; fair prospects of reasonable gains, and just 
 rewards of virtuous industry, destroyed. The associations 
 will be compelled to wind up their affairs ; prosecutions will 
 multiply, and litigations flood our courts. The morals of our 
 citizens will become corrupted by holding out to them strong 
 temptations to dishonesty. Every debtor to the associations or- 
 ganized under the law, who is unable or unwilling to pay his 
 debt, will be invited, by the strong motive of interest, to delay, 
 if not defeat his creditor. The unprincipled will take advantage 
 of the misfortune, to increase his gains by plundering the meri- 
 torious. Confidence will be lost in the security which our laws 
 profess to give. Mistrust will take the place of confidence, vio- 
 lence that of peace, and we shall be carried rapidly, by this tor- 
 rent of dishonesty and crime, far towards anarchy and ruin. Fa- 
 cilities for business will also be materially curtailed. Those 
 who survive the shock will be discouraged. Enterprize, and 
 active talent will leave the State, and seek a more secure and 
 auspicious theatre for effort. 
 
 Safety or security from our laws can no longer be hoped for, or 
 promised. This Act was passed on the recommendation of our late 
 Chief Magistrate, and in all its features is^in exact accordance 
 with his recommendation. It was passed by a Senate consisting 
 of a large majority of his political friends, and by an Assembly con- 
 
taining a like majority of his political opponents. The bill un- 
 derwent a full discussion in each House, was passed by a large 
 majority in each, and received the cheerful approbation of the 
 Governor. It was given to the community under the highest 
 sanctions that our institutions and public opinion could bestow. 
 It commanded and received the wary confidence of the wealthy 
 capitalist, as well as the freer faith of the enterprising man of bu- 
 siness. It has gone to Europe with the recommendations of all ; 
 is highly approved by her most distinguished financial talent ; 
 has and is drawing millions of foreign capital to our shores; and, 
 if it should now be prostrated, not only would the measure bring, 
 in foreign judgment, great discredit on our institutions, and thus 
 check the progress of liberal government, but it would literally 
 destroy all confidence in our monied institutions and financial 
 legislation ; withdraw from our country, to a great extent, the 
 foreign capital now here, and entirely prevent for years, the 
 investment of any more. Such a catastrophe will, moreover, 
 injure, if not seriously impair, the public credit of our State ; she 
 will lose her most powerful and willing supporters in carrying 
 through the several large and extensive works of internal im- 
 provement which she has already, and must soon, undertake. 
 She has already had substantial evidence of what she may expect 
 from the banks, which have sprung up, at once, into full stature, 
 from the ashes of the extinguished spirit of banking monopoly, 
 which has so long oppressed all our citizens, except a favored 
 few.* 
 
 These views are not presented with the wish or expectation, 
 that they will deter this Court from a fearless discharge of its 
 duty, in considering and determining upon the constitutionality 
 of this Law, but for the purpose of awakening a profound and 
 anxious attention to the momentous question presented for their 
 
 * The Bank of Commerce has already made large loans to the State, by accepting 
 those offered to the public by the Canal Bi ard. 
 
10 
 
 decision, and in the hope, that they may induce the Court to form 
 and announce t!:eir judgment at the earliest day possible, consist- 
 ent with a just regard to the grave character of the subject. 
 
 My intention is to present and fairly meet every argument or 
 suggestion, which has, or can be made against the validity of 
 this Statute, whether insisted upon by the Counsel for the de- 
 fendant, or not ; with the hope, that this discussion may not only 
 satisfy this Court of its constitutionality, but that the public mind 
 may be composed, so far as my humble efforts can accomplish 
 that end, by exhibiting, in a clear light, the firm basis on which 
 the institutions rest, which have been organized under, and are 
 protected by it. 
 
 R^lfrSnrAct. We have in this State prohibited by statute for sa 
 many years, both individuals, and companies incorporated and 
 unincorporated, not specially authorized by law, from carrying 
 on the business of banking, and permitted it to be done only by 
 corporations created specially for that purpose ; that we have 
 come to regard banking as a franchise, an attribute of sovereign 
 political power, which a citizen cannot exercise, or acquire, ex- 
 cept by legislative grant. This is a great error. The direct 
 converse of the proposition is the truth. The States of this Union 
 are prohibited by the Constitution of the United States from 
 emitting bills of credit. (Con. U. S. Art. 1, Sec. 10.) Although 
 the bills of credit, in the mind of the Convention who framed that 
 Constitution, and intended to be prohibited, were unlike, in many 
 material respects, bank bills of the present day, yet the Supreme 
 Court of the United States have held, that " bills of credit" are 
 general terms of broad import, and do embrace bank bills, issued 
 by a State, on the faith of the State, to circulate as money ; and 
 consequently have decided, that a State has not authority to issue 
 such bills. (Briscoe and others, vs. The President and Direct- 
 ors of the Bank of the Commonwealth of Kentucky, 11 Peters' 
 
11 
 
 R. 257.) As issuing bills to circulate as money is the most im- 
 portant and valuable feature of our system of banking, this deci- 
 sion of the Supreme Court of the United States effectually re- 
 strains the States from engaging in it. 
 
 We commenced our restraints upon private banking in this 
 State at an early day. On the 26th of May, 1781, Congress 
 incorporated the " Bank of North America," and recommended 
 to the several States of the Confederation to provide by law, " that 
 no other bank or bankers shall be established or permitted within 
 the said States during the war." In pursuance of this recom- 
 mendation, this State passed an act on the Hth April, 1782, in- 
 corporating the " Bank of North America" within this State, and 
 declaring, " that no other bank, public or private, shall be estab- 
 lished within this State during ihe present war with Great Bri- 
 tain, on pain of the forfeiture of one hundred pounds for every 
 offence by every person concerned in such bank or banks." — 
 (1 Green, 50.) After the treaty of 1783, which secured our 
 independence, there was no necessity for restraining banking ; on 
 the contrary, I have understood, it was difficult to induce capi- 
 talists to invest their funds in such business ; and so much so^ 
 that when " The Bank of New York" was incorporated, on the 
 21st March, 1791, which was the first bank incorporated in this 
 State after the war, it was diflScult to obtain subscriptions for the 
 stock, and appeals were made to the patriotism of the citizens to 
 come forward and take it up, as a measure of public benefit. Af- 
 ter incorparating the Bank of Albany, on the 10th of April, 1792; 
 the Bank of Columbia at Hudson, on the 6th March, 1793 ; the 
 Manhattan Company, on the 2d April, 1799 ; and the Farmers' 
 Bank of Troy, on the 31st March, 1801 ; and pressing applica- 
 tions for several others having been made, the Legislature, on 
 the 11th April, 1804, passed an act entitled, " An act to restrain 
 unincorporated banking companies," generally denominated the 
 « Restraining Act." (3 Web. 615, 27th Sess. ch. 117.) This 
 
12 
 
 statute prohibits, under heavy penalties, all persons, associations, 
 or companies, from banking, unless specially authorized by law. 
 This statute has been continued to the present time and is still 
 in force, having been strengthened and its severity increased from 
 time to time by amendments. (2 R. S. 234 ; Laws of 1818, p, 
 242, 41st Sess. ch. 236, Sec. 1—2 ; 1 R. S. 712.) But for these 
 laws, every citizen, association, copartnership or company, would 
 have an unqualified right to commence and carry on the business 
 of banking ; and the very passage of the acts shows the existence 
 of that right. Let it then be distinctly understood and remem- 
 bered, that banking is no franchise, no attribute of sovereign 
 power, to be granted by the Legislature to her citizens, either as 
 individuals or members of associations ; but a right that belongs 
 to them, unless taken away by legislative enactment. Even in 
 England, where privilege and monopoly are rife, and where the 
 very existence of the government almost depends on sustaining 
 the Bank of England, the business of banking is permitted to 
 all, except in a comparatively small district around London. 
 
 of^iVa?lue ^'^ ^^^ ^^^^ ^^ *^® statute under consideration ope- 
 assaiiabie. ^^^^^g ^^ ^ mere repeal of our restraining acts, it is not 
 only unobjectionable, but meritorious ; for so far, it is a restora- 
 tion of our citizens to their former rights. Those sections, or 
 parts of the Statute only can be assailed, which confer powers 
 on the associations which it authorises, analagous to those usual- 
 ly conferred on corporations. 
 
 ^^SS^ An examination of the statute will direct us at once 
 to those parts of it, which are supposed to confer corporate pow- 
 ers. They are the following : 
 
 " § 15. Any number of persons may associate to establish offices 
 of discount, deposite and circul ition, upon the terms and conditions, 
 and subject to the HabiUties, proscribed in this act. 
 
 " § 16. Such persons, under their hands and seals, shall make a 
 certificate which shall specify : 
 
13 
 
 "1. The name assumed to distinguish such associatioD, and to 
 be used in its dealings : 
 
 "5. The period at which such association shall commence and 
 terminate. 
 
 " § 18. Such association shall have power to carry on the busi- 
 ness of banking, by discounting bills, notes and other evidences of 
 debt ; by receiving deposites ; by buying and selling gold and sil- 
 ver bullion, foreign coins and bills of exchange, in the manner spe- 
 cified in their articles of association for the purposes authorized 
 by this act ; by loaning money on real and personal security ; and 
 by exercising such incidental powers as shall be necessary to carry 
 on such business ; to choose one of their number as president of 
 such association, and to appoint a cashier, and such other officers 
 and agents as their business may require, and to remove such pre- 
 sident, cashier, officers and agents, at pleasure, and appoint others 
 in their place. 
 
 " § 19. The shares of said association shall be deemed personal 
 property, and shall be transferable on the books of the association, 
 in such manner as may be agreed on in the articles of association ; 
 and every person becoming a shareholder by such transfer, shall, 
 in proportion to his shares, succeed to all the rights and liabilities 
 of prior shareholders ; and no change shall be made in the articles 
 of association, by which the rights, remedies or security of its ex- 
 isting creditors shall be weakened or impaired. Such association 
 shall not be dissolved by the death or insanity of any of the share- 
 holders therein. 
 
 " § 21. Contracts made by any such association, and all notes 
 and bills by them issued and put in circulation as money, shall be 
 signed by the president or vice-president and cashier thereof; and 
 all suits, actions and proceedings brought or prosecuted by or on 
 behalf of such association, may be brought or prosecuted in the 
 name of the president thereof; and no such suit, action or proceed- 
 ing shall abate by reason of the death, resignation or removal 
 from office of such president, but may be continued and prosecuted 
 according to such rules as the courts of law and equity may di- 
 rect, in the name of his successor in office, who shall exercise the 
 powers, enjoy the rights and discharge the duties of his predecessor. 
 
 "§22 All persons having demands against any such associa- 
 tion, may maintain actions against the president thereof; which 
 suits or actions shall not abate by reason of the death, resignation 
 or removal from office of such president, but may be continued and 
 prosecuted to judgment against his successor : and all judgments 
 and decrees obtained or rendered against such president, for any 
 debt or liability of such association, shall be enforced only against 
 the joint property of the association, and which property shall be 
 
14 
 
 liable to be taken and sold by execution under any such judgment 
 or decree. 
 
 " § 23. No shareholder of any such association shall be liable 
 in his individual capacity for any contract, debt or engagement of 
 such association, unless the articles of association by him signed 
 shall have declared that the shareholder shall be so liable. 
 
 " § 24. It shall be lawful for such association to purchase, hold 
 and convey real estate for the following purposes : 
 
 " 1. Such as shall be necessar}^ for its immediate accommodation 
 in the convenient transaction of its business ; or, 
 
 " 2. Such as shall be mortgaged to it in good faith, by way of 
 security for loans made by, or monies due to, such association ; or, 
 
 " 3. Such as shall be conveyed to it in satisfaction of debts pre- 
 viously contracted in the course of its dealings ; or, 
 
 " 4. Such as it shall purchase at sales under judgments, decrees 
 or mortgages held by such association. 
 
 " The said association shall not purchase, hold or convey real 
 estate in any other case or for any other purpose ; and all convey- 
 ances of such real estate shall be made to the president, or such 
 other officer as shall be indicated for that purpose in the articles of 
 association ; and which president or officer, and his successors, 
 from time to time may sell, assign and convey the same, free from 
 any claim thereon, against any of the shareholders, or any person 
 claiming under them."— [Laws of 1838, ch, 260, p, 245.] 
 
 COT?o"ra!ionf The Ordinary incidents to a corporation are well 
 stated by Chancellor Kent in his Commentaries. They are : — 
 "1. To have perpetual succession, and, of course, the power of 
 electing members in the room of those removed by death or oth- 
 erwise ; 2. To sue and be sued, and to grant and to receive by 
 their corporate name ; 3. To purchase and hold lands and chat- 
 tels ; 4. To have a common seal ; 5. To make by-laws for the 
 government of the corporation ; 6. The power of amotion or re- 
 moval of members.'^ [2 K. Com. pp. 277, 278, 2d ed.] 
 
 Although these are the ordinary powers of a corporation, they 
 are by no means peculiar to it. Every one of them probably, 
 and most of them certainly, may be, and often are possessed and 
 enjoyed by voluntary associations, in the form of copartnerships, 
 or joint stock companies. And in this respect the associations 
 
15 
 
 authorized by the Statate are like all other voluntary associations 
 or copartnerships. For it must be admitted, that they have, 
 substantially, many of the powers ordinarily possessed by corpo- 
 rations. But that circumstance is far from constituting them 
 technically, legally, or really, bodies corporate. The members 
 of a strict copartnership may agree in their articles of association 
 to have succession, perpetual, or for a designated number of years ; 
 by admitting the representatives of every member who should 
 die, or otherwise cease to be a member ; or by electing a person 
 in his place ; or in any other mode their fancy or interest should 
 suggest. They may also agree to have a common seal, and that 
 it shall be affixed to all contracts, and that they will not he bound 
 unless it is so affixed. And such an agreement would doubtless 
 bind all the members fo the copartnership, and all persons who 
 dealt with them and had knowledge of it. They may also, by 
 agreement, make, or provide for making, by-laws for the govern- 
 ment of themselves, their successors and agents ; and provide for, 
 and regulate the manner, and declare the cause of removal of 
 the members of the copartnership. Yet copartnerships are not 
 corporations. When viewed and compared in general, they are 
 easily distinguished ; but the task, I apprehend, is difficult, to 
 ascertain satisfactorily, the unequivocal indicia, and the pecu- 
 liar and distinctive characteristics of a corporation, which mark 
 it, and distinguish it from every other legal or natural being. 
 And the difficulty is increased by the consideration, that any 
 one, more, or all, of the ordinary powers of a corporation, may- 
 be conferred by statute on a joint stock company, and still not 
 give it the character of a corporation ; and, on the contrary, a 
 corporation may be created by statute, which has only one, or 
 even none of the ordinary corporate powers, but others which 
 better subserve the end of its creation. 
 
 Difficult, however, as the duty is, to ascertain and present 
 the peculiar features and essential requisites of a corporation, 
 its performance must be attempted in the course of this argument. 
 
16 
 
 In this Country, there is only one mode of creating corpora- 
 tions, and that is by statute, or in other words, by grant, from 
 the sovereign power. This is a well settled principle in our 
 jurisprudence. Whatever diversity of opinion there may have 
 been and still is, respecting the power of the Federal Govern- 
 ment to create corporations, for purposes within its acknow- 
 ledged powers and duties ; all agree, that the several States 
 have full authority to create them for all objects within the 
 range of their legislative action. They have exercised this 
 portion of sovereign power freely, and in some instances perhaps 
 too freely ; but an ample apology for this is found in the reflec- 
 tion, that strength lies in union, and emphatically so in this 
 Country, yet in its youth and comparatively without capital. 
 It has been only by uniting and combining our means and efforts, 
 that the resources of the country have been so rapidly developed ; 
 and corporations have furnished a natural, safe and easy form of 
 association. 
 
 The usual, and I think it may safely be said, the only mode 
 of creating corporations in this country, is by clear and direct 
 legislative enactment ; declaring that certain persons thereby are, 
 and shall be a body corporate ; or, that if any persons shall per- 
 form certain prescribed acts, then they shall be a body corporate. 
 In either case, the corporation is brought into being by the de- 
 clared will of the sovereign power, it may be stated, without 
 qualification, that there is not a corporation in this State, (and 
 it is believed there is not one in this Country,) which has not 
 been created by statute, containing a direct and explicit decla- 
 ration of the will of the Legislature to that effect ; and it may 
 well be doubted, if not directly asserted, that a court ought not 
 to hold an association to be a corporation, which the Legislature 
 has not clearly declared shall be one. This view of the subject 
 will be hereafter adverted to and more fully enforced. 
 
17 
 
 As it is not pretended, however, that the associations under 
 the General Banking Law are corporations, by virtue of a direct 
 and unequivocal legislative enactment, but are so, in conse- 
 quence of the Legislature having conferred on them corporate 
 powers ; let us meet the question, first, in this aspect. 
 
 The proposition being undeniable, that in this Country, and 
 especially in this State, corporations can only be created by Sta- 
 tute, it is evident, that the Legislature must call them into be- 
 ing, either by a direct act, or, by conferring on voluntary asso- 
 ciations the peculiar characteristics and essential requisites of a 
 corporation. And the Counsel for the defendant contends, that 
 the Legislature has, in the latter mode, constituted the associa- 
 tions authorised by the General Banking Law, corporations. 
 
 This leads directly to an inquiry after the peculiar features 
 and essential requisites of a corporation. 
 
 The result of my reflection and investigation is, that there are 
 only four distinctive indicia which mark an aggregate corpora- 
 tion, and separate it from every thing else. 
 
 They are, 
 
 First: A collective existence by namCy created by the 
 sovereign power, exercised directly or mediately. 
 
 This characteristic is often expressed in different language. 
 Chancellor Kent calls it, "a capacity to have perpetual succes- 
 sion, under a special denomination, and an artificial form." [2 
 K. C. 2T7, 2d ed.] This phraseology indicates mere being by 
 name, to which may be attached the qualities of beginning, end, 
 pepetuity, enjoyment of rights and the performance of duties. 
 Chief Justice Marshall, who always appears, when discussing 
 a subject, to have his mind constantly fixed on the principles 
 3 
 
and true nature of things, speaks of this feature of a corporation 
 in this way : " A corporation is an artificial being, invisible, 
 intangible, and existing only in contemplation of law. Being 
 the mere creature of law, it possesses only those properties which 
 the charter of its creation confers upon it. * * * Among 
 the most important are immortality^ and, if the expression may 
 be allowed, individuality; properties, by which a perpetual 
 succession of many persons are considered as the same, and 
 may act as the single individual.'^ [Dartmouth College vs. 
 Woodward, 4 Wheat. Rep. 636.] 
 
 The existence of a corporation enables many persons to have 
 succession in the enjoyment of the franchise conferred ; and if its 
 existence is perpetual, then perpetual succession. Succession, 
 however, is a property of the individuals who exercise the corpo- 
 rate rights. They succeed each other. But to say that the corpo- 
 ration itself has perpetual succession, which is the expression in 
 general use, and sufficiently accurate for general purposes, ap- 
 pears to be a solecism. Besides, there may be aggregate corpo- 
 rations which have no succession. Twenty individuals may be 
 incorporated on the principle of tontine, or in other words, till the 
 death of all the corporators but one ; and the share of each, instead 
 of being transferable, to belong to the survivors, and the last one, to 
 take the whole corporate fund. And in a great variety of other 
 forms, aggregate corporations may be created, without giving to 
 them the property of succession. Every corporation will be 
 without it, whose charter confines the exercise of its corporate 
 rights to certain designated individuals. Perpetual succession 
 is wholly inapplicable to corporations created for a given time. 
 It can only apply to those which have perpetuity, of which there 
 are many, but not near so many as there are, whose existence 
 is to continue for a definite period. Whatever there is of suc- 
 cession, connected with a corporation which has a fixed period 
 for its termination, is continued succession. 
 
19 
 
 But succession is not peculiar to corporations. It often is, 
 and may always be, a property of voluntary associations, if 
 the associates choose so to agree in their articles of association. 
 Strict partnerships are frequently formed under an agreement 
 to admit succession of membership. Almost allthe voluntar}' 
 associations which have been formed in this Country, within 
 the last four or five years, and there have been not a few, for 
 the purchase of, and speculation in lands, have contained provi- 
 sions for succession of associates. The joint stock companies in 
 England, for banking and other purposes, also have succession. 
 
 When, therefore, we apply the term succession, to a corpo* 
 ration, as a property peculiar to it, we express no more than 
 mere continuation or being. A corporation has an existence 
 independent of succession, and is known to the law without 
 that property. In grants of lands to corporations, the word, 
 *' successors," though usually inserted, is not necessary to con- 
 vey a fee simple. (Ang. and Am. p. 89, ch. 5, sec. 5.) An 
 aggregate corporation includes the idea of an association of 
 two or more individuals ; and hence it is, a collective existence. 
 And as its existence is only in contemplation of law, it can 
 only be known by name ; and hence is a collective existence, 
 by name. And as it can only be created by the sovereign 
 power, exercised directly in calling it into being, or more cir- 
 cuitously, by prescribing certain acts, the performance of which 
 shall constitute a body corporate, embracing those who perform 
 them, it is, created by the sovereign power exercised directly 
 or mediately. 
 
 Creation by sovereign power, is the peculiar feature of the 
 existence of a corporation, A partnership, joint stock com- 
 pany, and every other voluntary association, has a collective 
 existence, and by name. But such existence and name rest on 
 ""infract: thev arise from the voluntary agreement of the asso- 
 
20 
 
 ciates : they have their origin in the will of individuals. Not 
 so with a corporation. It derives its being from a higher source, 
 — from the sovereign power. The Legislature, in which that 
 power rests, speaks, and the corporation comes into being, with 
 the properties of beginning, continuance and end, unless the 
 creating power declares its existence shall be perpetual — and 
 then, with the properties of beginning and perpetual continu- 
 ance. Not only the being itself, but the name also, by which it 
 shall be known, must come from the same source, to distinguish 
 a corporation from other associations. This name, too, in the 
 language of the books, must be a common name ; that is, fixed, 
 uniform, unchangable, not dependent on the will of individuals. 
 And although a corporation may have two names, one, " by 
 which it may take and grant, and another, by which it may 
 plead and be impleaded," (Ang. and Am. 56,) yet whatever 
 name it has, must come, I apprehend, from the creating power, 
 and be conferred by it. It is impossible to conceive of a legal 
 entity, taking, giving, and enforcing rights, without a name. 
 With its creation, therefore, must be given its name — they are 
 inseparable. This intangible, invisible existence, can only be 
 known by its proper designation, and the name must represent 
 the collective existence, not an officer of the corporation, not 
 an individual, not any thing, except the corporation. It is the 
 name of the corporation. 
 
 Second : A standing in Court as a collective existence^ 
 by a given name or designation^ with the rights and liabili- 
 ties of a party litigant. 
 
 This is obviously an essential requisite of a corporation. It 
 can neither have nor maintain a legal existence, unless it is 
 able to resort to the judicial tribunals of the State to enforce its 
 rights ; nor could the community tolerate a being, which had 
 power to enforce rights in its favor, and yet was not amenable 
 
21 
 
 to the courts of justice, so that rights might be enforced against 
 it. As parties cannot litigate in our courts without names, 
 every corporation must have a name by which it can sue and be 
 sued. This is a feature which clearly distinguishes corporations 
 from voluntary associations. No such association can sue or 
 be sued in its assumed name ; but the parties, who compose it, 
 must appear before the Court, or those in whom their property 
 is vested in trust for them. The distinction is between the col- 
 lective existence appearing by its name, and individuals appear- 
 ing by their names. In the former case, the Court recognizes 
 the body corporate as a legal existence, having a right to be 
 heard ; and in the latter, it recognizes individuals, who claim to 
 be heard in their own right, or as trustees for others. The idea 
 should be kept distinctly in view, that this peculiar feature of a 
 corporation consists in the right of the corporation itself to ap- 
 pear in Court by its ownname, and not in the name of one of its 
 officers, or of any other person as a trustee for it. Voluntary 
 associations, often, and municipal corporations, occasionally, 
 are permitted by statute to sue and be sued in the name of some 
 officer or trustee. The joint stock companies in England, I 
 believe, are all permitted to sue and be sued in the name of 
 any of their registered officers ; and several of our cities and 
 villages, which are municipal corporations, are allowed to sue 
 in the names of their officers ; but I am not aware that any pri- 
 vate corporation in this State can sue or be sued, except in its 
 corporate name. While a voluntary association may be allow- 
 ed, by statute, to sue and be sued in the name of one of its offi- 
 cers, without thereby becoming a corporation ; so, a corporation 
 may, by a statutory provision, sue or be sued in the name of one 
 of its officers, without losing its* corporate character. But a 
 collective existence, irrespective of individuals, suing and being 
 sued by its name, is a peculiar property of a corporation, and 
 belongs to no other kind of association. 
 
22 
 
 Third : Power to take and convey title to property, ac- 
 quire and give rights as a collective existence, and by its 
 given name or designation. 
 
 This is another distinctive characteristic of a corporation, 
 which separates it from all other associations. When a co- 
 partnership, or any other unincorporated company, takes a title 
 to real or personal property, that title is conveyed to, or vests in 
 the individual members of the company, or some of them, de- 
 signated by agreement to receive it for t!:e benefit of all. And 
 when title is transferred by such an association to a third per- 
 son, it is not conveyed by the company in its collective capa- 
 city, but by the individuals who compose it, or by those who 
 hold the title for them. While the company buy with the com- 
 mon fund and sell to benefit it, and the transactions are, in fact, 
 those of the association, the title to their property comes and 
 goes, to and from, one or more individuals. A corporation, 
 alone, of all associated action, takes and conveys title, acquires 
 and gives rights, collectively and by its collective name. 
 
 Fourth : Power conferred by statute to make by-laws, or 
 in other words, to prescribe rules of action for persons, 
 without their consent. 
 
 This power is always enumerated among the ordinary inci- 
 dents to a corporation ; but two distinguished writers have not 
 considered it among the essential requisites. Chancellor Kent 
 has not mentioned it, when stating the essence of a corporation ; 
 (2 K. C. 277, 2 ed.) and Mr. Kid expressly says, it " is not 
 so inseparably incident to a corporation aggregate, that it can- 
 not subsist without it ; for there are some aggregate corpora- 
 tions to which rules and ordinances may be prescribed, and 
 which they are bound to obey." (1 Kid. on Cor. 69.) 
 
2S 
 
 The Legislature may, ufldoubtedly, when creating a corpo- 
 ration, enact its by-laws, and prohibit it from making any others. 
 So the Legislature may mould these artificial beings into any 
 form, which the public interest may require, or even the fancy 
 of a committee suggest ; and give them all, or none of the pe- 
 culiar features of a corporation, as has been already remarked. 
 But when inquiring, as we now are, for the distinctive charac- 
 teristics of a corporation, without reference to direct and effec- 
 tive legislative action, the question is not, what the Legislature, 
 which has unlimited authority in this respect, can do, or might 
 have done, in any given case ; but what is the essence of a cor- 
 poration, independent of the creative action of the sovereign 
 power ? — and we are not aided in the latter, by ascertaining the 
 former. Hence, the remark of Mr. Kid, that the power to 
 make by-laws is not an inseparable incident to an aggregate 
 corporation, because rules and ordinances may be prescribed for 
 some aggregate corporations, which they are bound to obey, ap- 
 pears to be unsound in principle, and his reason^ to be wholly 
 insufficient for his proposition. 
 
 The point of inquiry is, can a corporation exist, without by- 
 laws ? and if they are not made for it, by the power which cre- 
 ates it, must not the corporation itself have authority to make 
 them .? Chancellor Kent takes his statement of the essence of 
 a corporate body from Mr. Kid, and cites him as his authority ; 
 (2 K. C. 277, 2d ed.) We have then only Mr. Kid's assertion, 
 for he cites no authority, that power to make by-laws is not an 
 inseparable incident to a corporation. 
 
 A corporation acts wholly by agencies. It can do nothing 
 itself. It is a collective being, invisible, intangible, and exists 
 only in contemplation of law. It is neither seen nor felt, ex- 
 cept by its agents. Those agents are its officers and servants : 
 they act under authority, and their duties and liabilities are re- 
 
24 
 
 gulated and tested by the rules which regulate the relation of 
 principal and agent. These are well established principles. 
 
 How can a corporation have an effective existence, without 
 power to prescribe rules of action for its officers and servants ? 
 Let it have existence, a right to sue and be sued, and to take 
 and convey title : can it then act efficiently ? Does it not yet 
 want one more requisite of life ? Does it not want power to 
 regulate and direct its action ? And as it acts through the in- 
 strumentality of agents of all grades, from the president down 
 to the servant, must not that power be one, which enables the 
 corporation to prescribe rules of action for persons without their 
 consent ? The acts of every corporation in ' this State may be 
 appealed to for the purpose of showing, that the exercise of this 
 power is universal ; and I doubt, whether thefe is a corporation 
 in the State, which, if all its by-laws were repealed, and the 
 power taken from it of enacting others, could fulfil the object 
 of its creation ; and if not, it must, of course, cease to exist. 
 This power, too, must be exercised irrespective of the consent 
 of the persons affected by it : otherwise, every member or agent 
 of a corporation must express his consent to be bound by its by- 
 laws ; and when their efficacy depends on consent, their charac- 
 ter is entirely changed. They then become matters of contract ; 
 they cease to be laws and become agreements. 
 
 Of the latter character, are all the rules and by-laws of vo- 
 luntary Associations. Their whole basis is contract, and the 
 superstructure is the same. Herein lies the difference between 
 corporations and all incorporated companies. The former have 
 authority from the sovereign power to make by-laws, and may, 
 therefore, prescribe rules of action for persons without their 
 consent ; the latter have no such authority, and can only pre- 
 scribe rules of action for their members, agents or others, with 
 their consent ; and thus the power to make by-laws which con- 
 
25 
 
 trol the action of individuals without their consent, is a peculiar 
 feature of a corporation. 
 
 The four requisites above stated, when united, constitute an 
 effective being, which can perform the functions of legal life ; 
 and without either is helpless ; unless the defect is supplied or 
 other powers given by statute. But to give a voluntary asso- 
 ciation the character of a corporation, by reason of its possessing 
 corporate powers, we must be satisfied, that it has all these four 
 requisites. 
 
 Other properties have been said to be peculiar to corporations ; 
 but do not appear to be so, on reason or authority. 
 
 One of those is a Seal, Formerly it was held, that a corpo- 
 ration could only be bound by its seal ; and when that was the 
 rule, a seal was, of course, of the essence of a corporation. But 
 that rule has been abrogated for years. And now, a seal, though 
 an ordinary and very important incident to a corporation, is no 
 longer an essential requisite. [Steel vs. The Oswego Cotton 
 Manufacturing Company^ 15 Wend. R. 265.] We must not, 
 however, undervalue it. It may be stated, without the fear of 
 contradiction, that the Legislature of this State has never incor- 
 porated a company by special or general act, without giving it 
 a right to have a common seal. It is a universal index of a cor- 
 poration, and will aid materially in the inquiry, hereafter to be in- 
 stituted, respecting the intention of the Legislature, to constitute 
 the associations in question, corporations. 
 
 Another, is the right " of enjoying privileges and immuni- 
 ties in COMMON.'^ 
 
 Mr. Kid, in his introduction, [1 K. on Cor. 13,] specifies the 
 properties of a corporation, and among them mentions this one. 
 But in the body of his work, when enumerating the capacities, 
 4 
 
m 
 
 ^*^ necessarily and inseparably incident to every corporation/^ 
 does not mention this as one. [1 K. on Cor. 69.] Chancellor 
 Kent, also, in his statement of the essence of a corporation, 
 which, in this particular, is evidently taken from Mr. Kid's intro- 
 duction, mentions the capacity to " receive and enjoy, in com- 
 mon, grants of privileges and immunities." [2 K. C. 277, 2 ed.] 
 The right to receive and enjoy grants q/" privileges and immu- 
 nities, is, in the opinion of all, an essential requisite of a corpo- 
 ration. It is but a different mode of expressing the right to take 
 title to property ; and to this leading idea, the Chancellor's mind 
 was doubtless directed. The quality of enjoying privileges and 
 immunities in common, to which Mr. Kid appears to have at- 
 tached importance in his introduction, is incidentally thrown in 
 by Chancellor Kent, and evidently without intending to present 
 it as a necessary incident. No other author, and no adjudged 
 case mentions this property, as peculiar to corporations ; and it 
 certainly is not, for every voluntary association enjoys all its 
 rights in common. Common enjoyment, common advantages arq 
 incident, and necessarily incident to every association. Nor is 
 there any thing in the character of the objects enjoyed, viz : pri- 
 vileges and immunities. For the enjoyment of them is not pe- 
 culiar to corporations. Chancellor Kent, in the sentence next 
 to the one just quoted, thus expresses himself. " According to 
 Ae doctrine of Lord Holt, neither the actual possession of pro- 
 perty, nor the actual enjoyment of franchises, are of the essence 
 cif a corporation." [2 K. C. 277, 2 ed.] 
 
 Another, is the exemption of the members of a company 
 from personal liability for its debts. 
 
 This is said, by some, to be peculiar to a corporation, and to 
 distinguish it from a partnership. That is a mistake. Members 
 of corporations arc often made personally liable, by the acts of 
 incorporation, for the debts of the company. Sometimes in 
 whole, and sometimes in part. We have many instances of this 
 
27 
 
 kind in our State, both in om general and special acts of incor- 
 poration. We have also a striking instance of members of a co- 
 partnership being liable, only to a qualified extent, for the co- 
 partnership debts. I allude to our Statute concerning limited 
 partnerships. 
 
 The members of all voluntary associations may, by agreement, 
 regulate the extent and nature of their liability for the company 
 debts, and such agreement will certainly bind the parties to it, 
 and, probably, all persons dealing with the association and hav- 
 ing knowledge of it. 
 
 It may doubtless be safely assumed, that exemption, in whole 
 or in part, of the members of a company from personal liability 
 for its debts, is not an essential requisite of a corporation. 
 
 Another J and the last, is the transferability of shares with- 
 €mt any restriction, at the mere will of the holder. 
 
 Were it not, that some English cases countenance the idea, 
 that unqualified transferability of shares is a peculiar feature of 
 a coporation, it would be unnecessary to dwell long on this 
 topic. For it must be evident to all, that this is a matter which 
 may be regulated by contract in all voluntary associations ; and 
 may exist, or not, in corporations. Partnerships and joint stock 
 companies not only may, but do in fact, regulate the transfer of 
 stock ; sometimes permitting them, without any restriction j at 
 others, restraining them to transfers on the books of the compa- 
 ny ; at others, until the debts due by the holder to the company 
 are paid. And the like provisions are often made in our acts of 
 incorporation ; but more frequently the transfer of stock is left to 
 the discretion of the corporation, with power to regulate it in 
 their by-laws. 
 
 The cases referred to arose under an English Statute, which, 
 with the decisions upon it, furnish the strongest judicial light I 
 
have discovered on the subject of the essential requisites of a 
 corporation ; and, although the Statute is now repealed, the light, 
 which it elicited, still shines, to aid and direct the search for 
 truth. I will pass for the present, therefore, the subject of the _ 
 transferability of stock j and endeavor by authority to show, that 
 there are four, and certainly not more than four, essential requi- 
 sites of a corporation, and that they are the same which I have 
 already stated and attempted to illustrate. 
 
 The Statute and decisions are given by Collyer, near the close 
 of his excellent Treatise on the Law of Partnership. [Coll. 620 
 to 625.] The Act, (6 Geo. 1 c. 18, s. 18,) after reciting, among 
 other things, in substance, that several undertakings or projects of 
 diflferent kinds have, at times, been publicly contrived and prac- 
 tised to the common grievance of great numbers of subjects, and 
 the persons who contrive them, presume '' to open books for pub- 
 lic subscriptions, and draw many unwary persons to subscribe 
 therein, towards raising great sums of money." " And, whereas, 
 in many cases, the said undertakers or subscribers have pre- 
 sumed to act as if they were corporate bodies, and have pretended 
 to make tlieir shares transferable or assignable without any legal 
 authority," &c. ; for remedy enacts, among other things, that all 
 such undertakings, " and more particularly the acting, or pre- 
 suming to act, as a corporate body, the raising, or pretending to 
 raise, transferable stock, transferring, or pretending' to transfer, 
 or assign, any share in such stock, without legal authority, &c., 
 shall be deemed illegal and void." A subsequent section declares 
 these offences public nuisances, and subjects the offenders to the 
 penalties o{ prcemunire, to fines and punishments. 
 
 A single case occurred under the Act about two years after it 
 was passed ; a person being found guilty on an information, " for 
 setting up a bubble called the North Sea." From that time un- 
 til 1808, an interval of about eighty-seven years, the Statute 
 
appears to have been forgotten. In that year a case occurred 
 under it, and soon afterwards several others. 
 
 " The ofiences," says Mr. Collyer, " which are more particularly 
 pointed out by the Statute, are, the presuming to act as a corpo- 
 rate body — the raising transferable stock — the transferring such 
 stock ; * * * * ^ 
 
 "With regard to the specific ofTcnees mentioned by the act, it 
 seems to have been universally agreed, that the acting as a corpo- 
 rate body is an offence very difficult to be defined. It may perhaps 
 be inferred, from other parts of the statute, that this enactment was 
 directed against persons who pretended to be in possession of some 
 charter of incorporation, and not against every species of society. 
 But, however this may be, it seems to be unquestionable, that there 
 are particular offences of this nature for which an indictment will 
 lie, not only under the statute, but even at common law. It is ap- 
 prehended, however, that the more general charge of acting as a 
 corporation would not be sufficient to support an indictment at com- 
 mon law, but that there must be additional averments, stating with 
 particularity the nature of the offence.* 
 
 " As to the particular offences alluded to, it seems more easy to say 
 what is not, than what is an act of assuming a corporate capacity. 
 It is clear, that the assuming a common name, for the purpose of 
 designating the society, the using a common sealj and making regu- 
 lations by means of committees, boards of directors, or general meet- 
 ings, were not illegal within the statute, arid are not illegal at com- 
 mon law. In the King v. Webb, Lord Ellenborough said — '* As to 
 the fourth point, that the subscribers have presumed to act as if 
 they were a body corporate, \\ow is this made out ? It was urged 
 that they assumed a common name, (which, however, does not ap- 
 pear to have been the case,) that they have a committee, general 
 meetings, and power to make bye-laws ; but are these the unequivo- 
 cal indicia and characteristics of a corporation ? How many unin- 
 corporated insurance companies, and other descriptions of persons, 
 are there, that use their common name, and have their committees, 
 general meetings, and bye-laws 1 Are these all illegal ? or which of 
 these particulars can be stated, as being of itself the distinctive and 
 peculiar criterion of a corporation. So, in the case of Ellison v. 
 Bignold,-\ where it appeared that the directors of an insurance com- 
 
 * See MCaUum v. Turtoii, 2 Younge & Jerv. 183. 
 
 1 2 Jac. & Walk. 503 : and see Pearce v. Piper, 7 Ves. 1 ; Carlen v. Dmry, 1 Ves. 
 & Bea. 157. But Lord Eldon's opinions in these cases seem to have been guided by 
 his own notion of the utility or inutility of each association as they passed in review 
 before him. He seems to have considered, that the mischievous tendency of the as- 
 sociations was a question for tlie Judge and not for the jury. See Lloyd v. Loaring^ 
 6 Ves. 776. 
 
30 
 
 pany had, by their deed of settlement, the power of making orders 
 and bye-laws, and that a seal was to be fixed upon for the use of 
 the company, it was urged that this amounted to an assumption of 
 a corporate character ; but Lord Eldon appears to have taken no 
 notice of this objection, and to have considered the legality of the 
 association as depending entirely on the manner in which the shares 
 were made transferable. In addition to these authorities we may 
 add, that the numerous acts of Parliament for enabling certain com- 
 panies to sue and be sued by their secretary, seem to assume the 
 legal existence of the various powers of which we have just been 
 
 " It seems clear, therefore, that whether we view this subject with 
 reference to the repealed statute, or the existing common law, they 
 alone are to be considered as assuming to act as a corporate body, 
 who usurp the " unequivocal indicia and characteristics which form 
 the distinctive and peculiar criterion of a corporation." It is not 
 to be doubted, however, that they who are parties to proceedings of 
 this nature are guilty of an offence in law. Thus, corporate bodies 
 alone can use a common name for the purpose of suing, contract- 
 ing, conveying, or accepting conveyances ; and to affect the use of 
 a common name for these purposes, would, perhaps in every case, 
 be contrary to law. Again, corporate bodies have the power of 
 binding their members by the acts resolved upon in the manner pre- 
 scribed by their charters, which power they derive from their cor- 
 porate character, and not from contract and agreement between 
 themselves ;* on the other hand, voluntary associations are governed 
 entirely by the rules which the parties have themselves agreed to. 
 Hence, if the committees or meetings of an unincorporated society 
 were to assume to exercise, independently of any contract or agree- 
 ment for that purpose, a general power of binding their members, it 
 might reasonably be contended that such an act was illegal and in- 
 dictable. The only act, however, which has been expressly stated 
 to be an assuming to act as a corporation, is that of making the 
 shares transferabUf without any restriction, at the mere will of the 
 holder. 
 
 " The wm'ver^anilegality of this proceeding was doubted, as we 
 have before observed, by Lord Ellenhorough. But, in Joseph v. 
 Pebrer,^ it was held to be universally illegal, not only, as it should 
 seem, under the words of the statute on that particular point, but 
 with reference to the more general offence of acting as a corpora- 
 tion. This manner of treating the subject leads to the conclusion, 
 that, since the statute has been removed, a proceeding of this nature 
 
 * See Adley v. Whitstaph Company, 17 Ves. 315. 
 t3 Bam. & Cres. 639; 5 Dowl. & Ryl. 512. 
 
31 
 
 is to be considered as an ofTence at common law ; and the words of 
 Best, C. J., in a subsequent case, are confirmatory of this opinion. 
 " There can be no transferable share of any stock, except the stock 
 of corporations, or of joint stock companies created by acts of Par- 
 liament. Indeed, the members of corporations cannot assign their 
 interest, and force their assignees into the corporation, without the 
 authority of an act of Parliament. Such authority is expressly 
 given by the Bank acts, the South Sea acts, and by other statutes, 
 creating companies that possessed stock, which it was deemed pro- 
 per to render transferable. The pretending to be possesed of trans- 
 ferable stock, is pretending to act as a corporation and pretending 
 to possess a privilege which does not belong to many corporations.* 
 " But where the shares are not transferable at the mere unre- 
 stricted option of the holder, the association, as far as relates to that 
 matter, will be legal. In the case of The King v. Wehh, which has 
 been so often referred to, the shares could not be transferred to any 
 person who would not enter into the original covenants : nor could 
 more than twenty be held by the same person, unless they came to 
 him by operation of law ; and the object of the society, which was 
 to supply the inhabitants of Birmingham, being shareholders, with 
 bread and flour, virtually limited the transfer of shares to persons 
 residing in the neighborhood. And the Court of King's Bench glad- 
 ly availed themselves of these circumstances, in order to hold the 
 association legal. So, in Pratt v. Hutchinson, '\ which was the case 
 of a building company, no person could become a member of the 
 company until he had made himself a party to the partnership arti- 
 cles, nor until he had been proposed and approved by a certain ma- 
 jority of persons present at the meeting of the society. And the 
 Court held, that these restrictions on the transfer of the shares pre- 
 served the legality of the association." 
 
 From these cases, the diflSculty is evident, of ascertaining, 
 satisfactorily, the peculiar characteristics of a corporation. Aside 
 from the transferability of stock, which will be hereafter exam- 
 ined, it would appear, that " corporate bodies alone can use a 
 common name for the purpose of suing, contracting, conveying, 
 or accepting conveyances ;" and that they ** have the power of 
 binding their members by the acts resolved upon in the manner 
 prescribed by their charters, which power they derive from their 
 corporate character." 
 
 *4Bing.267. 
 
 tl5 East, 511 ; and see Davies v. Hawkins, 3 Mau. & Selw. 488. 
 
3r 
 
 These are, substantially, die second, third, and fourth requi- 
 sites before stated. The first, viz., collective existence by name, 
 is not alluded to in these cases, and doubtless because, the Sta- 
 tute did not declare it illegal to assume to 6e, but to act, as a 
 body corporate, and the attention of the Court, consequently, was 
 not turned to that feature of a corporation. 
 
 There is some further, though less direct light on the subject, 
 in our own state. 
 
 This Court in the case of The People vs. Morris, [13 Wend. 
 335,] speak of the properties of a corporation in this manner — 
 " They (towns) possess every requisite to constitute them corpo- 
 rations, besides being declared to be so by statute. Each town, 
 as a body corporate, has capacity to sue and be sued ; to purchase 
 and hold real estate ; to make such contracts, and hold such per- 
 sonal property as may be necessary to its corporate and admin- 
 istrative powers ; and to make such order for the disposition, 
 regulation and use of its public property as may be conducive 
 to the interests of the inhabitants." 
 
 The Legislature declared, by statute, in 1830, what should be 
 the. incidents to all corporations thereafter created. 
 The Act is as follows : 
 
 "§ 1. Every corporation, as such, has power, 
 
 " 1. To have succession by its corporate name, for the period 
 limited in its charter ; and when no period is limited perpetually : 
 
 " 2. To sue and be sued, complain and defend, in any Court of 
 law or equity : 
 
 " 3. To make and use a common seal, and alter the same at 
 pleasure : 
 
 " 4. To hold, purchase, and convey such real and personal estate, 
 as the purposes of the corporation sliall require, not exceeding the 
 amount limited in its charter : • 
 
 " 5. To appoint such subordinate officers and agents, as the bu- 
 siness of the corporation shall require, and to allow them a suitable 
 compensation : 
 
 " 6. To make by-laws, not inconsistent with any existing law, 
 
33 
 
 for the management of its property, the regulation of its affairs, and 
 for the transfer of its stock." [1 R. S. 599—600.] 
 
 The first, second, fourth, and sixth incidents are essential ; 
 the third and fifth, ordinary and convenient. 
 
 The counties and towns of this State have, by statute, the es- 
 sential requisites of corporations. [1 R, S. 364 ; 337.] The 
 laws giving them are in the following words : 
 
 " § 1. Each county, as a body corporate, has capacity, 
 
 " 1. To sue and be sued in the manner prescribed by law : 
 
 " 2. To purchase and hold lands within its own limits, and for 
 the use of its inhabitants ; subject to the power of the Legislature 
 over such limits : 
 
 "3. To make such contracts, and to purchase and hold such per- 
 sonal property as may be necessary to the exercise of its corporate 
 or administrative powers : And, 
 
 " 4. To make such orders for the disposition, regulation, or use 
 of its corporate property, as may be deemed conducive to the inter- 
 ests of its inhabitants." ^ 
 
 "§ 1. Each town, as a body corporate, has capacity, 
 
 "1, To sue and be sued, in the manner prescribed in the laws of 
 this State ; 
 
 " 2. To purchase and hold lands within its own limits, and for 
 the use of its inhabitants, subject to the power of the Legislature 
 over such limits : 
 
 " 3. To make such contracts, and to purchase and hold such per- 
 sonal property, as may be necessary to the exercise of its corporate 
 or administrative powers : And, 
 
 " 4. To make such orders for the disposition, regulation or use 
 of its corporate property, as may be deemed conducive to the inte- 
 rests of its inhabitants." 
 
 The counties and towns, having been previously created, and 
 then existing by name, became possessed, on the passage of 
 these sections of the Statute, of all the essential features of cor- 
 porations ; and yet they are not considered, strictly, corpora- 
 tions. Chancellor Kent denominates them Quasi Corporations. 
 [2 K. C. 278, 2ded.] And this Court, in the case of The Peo- 
 ple vs. Merris, (13 Wend. R. 335,) holds them to be political, 
 or municipal corporations. They are, certainly, not private cor- 
 
34 
 
 poratlons ; for, although they have all their essential requisites, 
 they have other characteristics, so important and controlling, as 
 to place them in another class of legal entities. They do not 
 embrace a few individuals and exclude the many. They cover 
 the whole community. All may come within their jurisdiction. 
 They have legislative, judicial, and executive properties. Their 
 powers are exercised for the public benefit, and not for the ad- 
 vantage or profit of a few. Their existence and properties show 
 the uncontrolled power of the Legislature to create legal beings 
 and cast them from any mould, new or old, and the impossibility 
 of confining the exercise of that power to any known forms of 
 legal existences. 
 
 Chancellor Kent has given the essence of an aggregate corpo- 
 ration with more accuracy than any other author. He says, 
 " And the essence of a corporation consists only of a capacity to 
 have perpetual succession, under a special denomination, and an 
 artificial form, and to take and grant property, contract obliga- 
 tions, and sue and be sued, by its corporate name, and to receive 
 and enjoy, in common, grants of privileges and immunities." 
 [2K. C. 277, 2ded.] 
 
 No controversy has ever arisen, within my knowledge, ex- 
 cept the present, which turned on the single question, what are 
 the essential features of a corporation ? The cases on the En- 
 glish Statute, blend that with other subjects, and not one of them 
 is placed entirely on that ground. It is not strange, therefore, 
 that there should be looseness of thought and inaccuracy of ex- 
 pression on the subject. 
 
 After giving to it the fullest reflection and examination in my 
 power, I submit to the better judgment of the Court, the four es- 
 sential requisites above stated, as the only ones which enter into 
 and form the essence of a corporation. 
 
35 
 
 The next step in the argument, is to examine our Statute 
 which authorizes the business of banking, and see if the associa- 
 tions which it permits have these essential features of a corpo- 
 ration. Before proceeding to that, however, I will revert io^ 
 and dispose of, the alleged corporate feature, which consists of 
 the transferability of stock. 
 
 It will be observed, that this property is not mentioned by 
 any author, nor in any case, except the English cases, as a cor- 
 porate attribute. It appears to have originated wholly from the 
 English Statute ; and the error of considering it a corporate 
 property, has arisen, I apprehend, from a want of care in judg- 
 ing of it, as a distinct offence, which it is by that Statute, in- 
 stead of judging of it as a corporate act, and as such, an offence 
 by the Statute. A few references to the language of the Ac^ 
 and the decisions upon it, will show this. 
 
 The recital is — " And whereas, in many cases, the said under- 
 takers and subscribers have presumed to act as if they were cor- 
 porate bodies, and have pretended to make their shares trans- 
 ferahle or assignable without any legal authority,'^ &c. And 
 the enactment is, that such undertakings, " and more particular- 
 ly the acting or presuming to act as a corporate body, the rais- 
 ing, or pretending to raise^ transferable stocky transferring^ or 
 pretending to transfer^ or assign any share in such stock, with- 
 out legal authority, §*c., shall be deemed illegal and void."^ 
 
 " The offences," says Mr. CoUyer, " which are more particu- 
 larly pointed out by the Statute, are, the presuming to act as a 
 corporate body ; the raising transferable stock ; the transferring 
 such stock." 
 
 The transferring of stock is thus obviously a distinct offence 
 from that of presuming to act as a corporate body. Either might 
 
be committed and punished without the other. Yet says Mr. 
 Collyer, in a subsequent page — " The only act, however, which 
 has been expressly stated to be an assuming to act as a corpora- 
 tion, is that of making the shares transferable ivithout any re- 
 striction, at the mere ivill of the holder. ^^ He adds — " The 
 universal illegality of this proceeding was doubted, as we have 
 before observed, by Lord EUenborough. But in Joseph v. Pre- 
 her, [3 Barn. & Cres. 639 ; 5 Dowl. & Ryl. 542,] it was held 
 to be universally illegal, not only as it should seem, under the 
 words of the Statute on that particular point, but with reference 
 to the more general offence of acting as a corporation." C. J. 
 Best, in a subsequent case, [4 Bing. 267,] says : " There can 
 be no transferable shafe of any stock, except the stock of corpo- 
 rations, or of joint stock companies created by acts of Parlia- 
 ment.'^ 
 
 This language is loose and confusing, and clearly shows, that 
 the minds of these distinguished jurists were far from being di- 
 rected to the question, whether transferability of stock is an es- 
 seiitial property of a corporation. C. J. Best states it in sub- 
 stance, as an unqualified proposition, that shares of stock are not 
 transferable, except by act of Parliament. With great respect, 
 that is an error. The stock in every voluntary association, by 
 agreement of the associates, may be transferable at the will of 
 the owner, as has been already stated and illustrated ; and daily 
 practice confirms it. 
 
 But from whatever source the notion came, that transferabili- 
 ty of stock was an exclusive attribute of a corporation, or how- 
 ever well it is sustained by authority, one position respecting it 
 is clear, and in that all the cases concur, viz : that to render the 
 transferability of shares, a corporate property, the shares must 
 be transferable at the mere unrestricted option of the holder. 
 And where the shares could not be transferred to a person who 
 
37 
 
 would not enter into the original covenants : and where the same 
 person could not hold more than twenty shares ; and where the 
 transfer of shares was limited to persons residing in the neigh- 
 borhood ; and where a person could not become a member of a 
 company till he had signed the partnership articles, nor until 
 he had been approved by a certain majority of persons present 
 at a meeting of the society — the Court of King's Bench gladly 
 availed themselves of these circumstances, to hold the associa- 
 tions valid, under the English Statute, and of course, that such 
 restricted transferability was not a corporate attribute. [CoU- 
 yer 624, 625, and cases there cited.] 
 
 There is only one clause in our General Banking^ Law which 
 regulates the transfer of stock ; and that, instead of permitting 
 the shares of the associations, to be transferred at the mere, unre- 
 stricted option of the holder, subjects them to two statutory re- 
 strictions, and also to as many others as each association may 
 think proper to impose. The words of the clause are, "The 
 shares of said association shall be deemed personal property, and 
 shall be transferable on the books of the association, in such 
 manner as may be agreed on in the articles of association ; 
 and every person becoming a shareholder by such transfer, shall, 
 in proportion to his shares, succeed to all the rights and lia- 
 bilities of prior shareholders." 
 
 First : The shares are transferable on the books of the asso- 
 ciation. 
 
 Second : The transferee succeeds, not only to the rights, but 
 to the liabilities of the prior shareholders. These are imposed 
 by law upon him. 
 
 Third : The shares are transferable on the books of the as- 
 sociation, in such manner as may be agreed on in the articles 
 of association. This enables each association to impose just 
 
38 
 
 such restrictions as it pleases ; and so obviously is the holder of 
 stock in the associations restrained from transferring his stock at 
 his mere unrestricted option, that it seems unnecessary to oc- 
 cupy more time with this topic. 
 
 ^^hlTstatut" °^ '^^^® ^^^y "^^^^ appears open, to examine those parts 
 of our General Banking Law, which are supposed to confer cor- 
 porate powers on the associations which it authorizes, and ascer- 
 tain, whether the associations have all, or any of the four essen- 
 tial requisites of a corporation before stated. 
 
 FiKST : Has every association a collective existence by name, cre- 
 ated by the sovereign power, exercised directly or mediately ? 
 
 There are only parts of two sections of the Statute which re- 
 late to this corporate feature, viz : the first clause of the fifteenth 
 section, and the first and fifth sub-divisions of the sixteenth sec- 
 tion. They are, 
 
 « § 15. Any number of persons may associate to establish offices 
 of discount, deposit and circulation," &c. 
 
 " § 16. Such persons, under their hands and seals, shall make a 
 certificate which shall specify : 
 
 " 1. The name assumed to distinguish such association, and to be 
 used in its dealings." 
 
 " 5. The period at which such association shall commence and 
 terminate." 
 
 The force and true meaning of the clause of the fifteenth sec- 
 tion cannot be fully apprehended, without reading it in connec- 
 tion with the act to restrain unauthorized banking. That act is 
 as follows: 
 
 "§ 1. No person unauthorized by law, shall subscribe to, or be- 
 come a member of, or be in any way interested in, any association, 
 institution or company, formed, or to be formed, for the purpose of 
 receiving deposits, making discounts, or issuing notes, or other evi- 
 dences of debt to be loaned or put in circulation as money." &c. — 
 (1 R. S. 711.) 
 
39 
 
 Who can fail to see, that the object of passing this clause of 
 the fifteenth section of the General Banking Law, was to repeal, 
 in effect, the first section of the Restraining Act, and open bank- 
 ing to the community? The Legislature evidently intended to al- 
 low any person, who chose, to become a member of an association 
 to conduct the business of banking. And when they say, " any 
 number of persons may associate to establish," &c., is it not, a 
 perversion of their language^ to insist, that they thereby call 
 into being an indefinite number of corporations ? The enactment is 
 merely permissive. It only removes a previous legal restraint, and 
 allows free action. It creates nothing ; but allow^s parties to con- 
 tract with each other to accomplish an object theretofore unlawful. 
 This will appear the more evident, by comparing the language 
 with that of our general acts of incorporation. Take, for exam- 
 ple, the Act relative to incorporations for manufacturing pur- 
 poses. The first section directs, that " any five or more persons, 
 who shall be desirous to form a company ,^^ &c., " may make, 
 sign, and acknowledge, before a justice of the Supreme Court,^' 
 &c., " a certificate in writing, in which shall be stated the cor- 
 porate name of said company," &c. And the second section 
 enacts, " that as soon as such certificate shall be filed as afore- 
 said, the persons who shall have signed and acknowledged the 
 said certificate, and their successors, shall, for the term of twenty 
 years next after the day of filing such certificate, be a body poli- 
 tic and corporate, in fact and in name, by the name stated in 
 such certificate, and by that name," &c. [3 R. S. 310.] 
 
 Under this law, a corporation is brought into existence by le- 
 gislative enactment. Under the General Banking Law, an associ- 
 ation is formed by contract, by agreement of the parties. By that 
 law, any number of persons may associate — and if they do asso' 
 ciate^it is their own voluntary act ; and their association derives 
 its being from their mutual consent — and in like manner, may 
 be dissolved at their pleasure. They are allowed by agree- 
 
ment to fix the period of its commencement and termination, 
 as in all other cases of voluntary associations — time of com- 
 mencement and dissolution, like a strict co-partnership ; and if the 
 parties are dissatisfied with each other, or the business, they may 
 by general consent dissolve at any time before the period fixed 
 for the termination of the association. In these respects, the 
 associations are wholly unlike corporations. The latter always 
 have a period fixed by law for their commencement and termi- 
 nation, unless they are perpetual ; and then, their perpetuity is 
 likewise declared by law, and it is not in their power to dissolve 
 themselves. They may commit acts which forfeit their exist- 
 ence, but cannot dissolve at pleasure. 
 
 • Furthermore : it is understood to be the true construction of 
 this Statute, and that such construction was deliberately given to 
 it by the late Comptroller and Attorney-General, after full and 
 mature examination, to authorize any individual to conduct the 
 business of banking according to its provisions. And it is a well 
 known fact, that several individuals have deposited their respect- 
 ive securities with the Comptroller, received bills, and are now 
 prosecuting the business of banking in their respective offices, and 
 on their respective accounts. If this is the true construction of 
 the Act, and there appears to be no reason to doubt it, there 
 would seem to be an end of all pretence even, that those who 
 avail themselves of its provisions are corporators. The Statute 
 certainly does not constitute each of the individuals referred to, 
 a corporation, or, in other words, give each of them a corporate 
 existence. 
 
 Nor does the statute give a name to the association formed 
 under it, as is always the case, when a corporation is created ; 
 nor does it adopt any selected by the parties, as in the general 
 act of incorporation for manufacturing purposes. The name of 
 each association is given by agreement of the associates. They 
 
4L 
 
 determine and agree what it shall be. It is given by contract 
 and not by Statute. It comes from the will of individuals, and 
 not from the one sovereign power. Besides, the associations 
 have no common name by which they are known ; by which 
 they take and give title and make contracts, and by which they 
 sue and are sued. Nor have they two names, one by which 
 they may take and grant, and another, by which they may sue 
 and be ^ued. They have only one name, and that for a single 
 purpose, viz : " to be used in their dealings." They neither 
 take, nor grant, nor make contracts in that name, nor do they 
 sue, nor are they sued by it, as will be more distinctly seen when 
 other sections of the Statute are examined, ' 
 
 Second : Hcls every association a standing in Court, as a coUec. 
 five existence by a given name or designation, with the rights and lia- 
 bilities of a party litigant 1 
 
 The clauses of the Statute which relate to this part of the 
 subject, are found in the twenty-first and twenty-second sections. 
 These are as follows : " and all suits, actions and proceedings 
 brought or prosecuted by or on behalf of such association, may 
 be brought or prosecuted in the name of the president thereof.^' 
 " All persons having demands against any such association, may 
 maintain actions against the president thereof." 
 
 The ground taken by the Counsel for the defendant is, that the 
 suits permitted by these provisions of the Statute, are to be 
 brought and prosecuted in the name of the office of the president 
 of the association, and not in the name of the person who fills the 
 office — and that each association has, therefore, a name given to 
 it by Statute, by which it sues and is sued. 
 
 This is obviously an erroneous construction of the Act. The 
 title of this very cause is a practical evidence of the error. It is 
 in the name of Anson Thomas, president, &c. ; and not in the 
 6 
 
42 
 
 name of The President of the Bank of Central New York. 
 The language of the Statute shows, that the office of president is 
 referred to as a mere description of the person, in whose name the 
 suit may be bronght, and against whom it may be maintained. 
 The words are ; " all suits, &;c., ** may be brought or prosecuted 
 in the name of the president thereof," and not in the name of 
 the office of president thereof. So, *' all persons" ^c, " may 
 maintain actions against the president thereof,'' and not against 
 the office of president thereof. But there are other clauses in 
 these same two sections of the Statute which are conclusive of 
 its construction. 
 
 If the suits may be brought in the name of the office of presi- 
 dent, or maintained against the office of president ; then no suit, 
 brought in the name of that office, or against it, would abate by 
 the death, resignation, or removal of the officer. But in the 
 twenty-first section, the Legislature provide ; that no " suit, ac- 
 tion, or proceeding," "brought or prosecuted in the name of the 
 president thereof," " shall abate by reason of the death, resigna- 
 tion, or removal from office of such president^ but may be con- 
 tinued and prosecuted according to such rules as the courts of 
 law and equity may direct, in the name of his successor in of 
 fice,^^ So also, in regard to suits against the president, the 
 twenty-second section contains the following provision ; " which 
 suits or actions shall not abate by reason of the death, resigna- 
 tion, or removal from office of such president, but may be con- 
 tinued and prosecuted to judgment against his successor,^^ 
 
 After reading these provisions, argument surely is unnecessa- 
 ry to show, that the suits are to be brought in the name of, and 
 against the person holding the office of president ; and that the 
 office is used in the Statute merely as a description of the person. 
 
 Another consideration arises in this connection ; and that is. 
 
43 
 
 that when a president, who ik either plaintiff or defendant, dies, 
 the suit, though not abated, is suspended, until a successor is 
 appointed ; and when so appointed, the suit does not proceed, 
 of course, against him without any proceeding in court, but 
 " according to such rules as the courts of law and equity may 
 direct.'^ Which proceeding would naturally be, a suggestion on 
 the record of the death of the president in whose name the suit 
 was pending, and the appointment of his successor, and an 
 order thereon, that the suit proceed in the name of the successor. 
 
 How unlike is all this to a corporation ! A corporation never 
 dies ; that is, if not perpetual, it lives out its known and appoint- 
 ed day. It has, as we have already seen, a continued existence^ 
 or, in other words, a continued succession. A suit in its name 
 never abates ; for it never dies, resigns, or removes. What sort 
 of a corporation, therefore, must that be, which has not a contin- 
 ued existence by name, so as to have a continued standing in 
 court ? 
 
 But again : The Statute in respect to suits brought in the 
 name of, or against the president, is only permissive. The lan- 
 guage is, " all suits,'' &c., " may be brought,'^ &c. ; "all per- 
 sons,'' <Sz;c., ^^may maintain actions," &;c. 
 
 Hence, any association, or individual, who is banking under 
 the law, may sue, the former, in the name of the association, and 
 the latter, in his own name. In like manner, any creditor of 
 any such association, or individual, may sue the associates, or in- 
 dividual. Either course would undoubtedly be attended with 
 great difficulties in respect to parties, when such a suit should be 
 attempted in favor of, or against, the members of an association; 
 ajid probably would be impracticable for any useful end ; but 
 still, the right so to sue remains. 
 
44 
 
 Here, it may be said, how entirely unlike a corporation! 
 There is not even an approach to an analogy. A right to sue 
 in the name of the individual members of a company is an ex- 
 clusive attribute of a voluntary association ; it has not the most 
 distant resemblance to a corporate power. 
 
 A suggestion was made by the Counsel for the defendant, in 
 the course of his argument, that the statutory provision in the 
 twenty-second section, that " all judgments and decrees obtained 
 or rendered against such president for any debt and liability of 
 such association, shall be enforced only against the joint property 
 of the association, was analogous to the legal effect of a judg- 
 ment against a corporation. And so it is. But what of that. 
 Many rights and liabilities of voluntary associations are analo- 
 gous to those of corporations. The question is, whether it is a 
 peculiar feature of a corporation. If it is, then several other 
 statutory provisions in regard to judgments upon joint liabilities 
 may be said to have the same effect. 
 
 Our Statute declares that on the arrest of one of several joint 
 debtors, a judgment may be rendered against all, and enforced 
 against the joint property of all. [2 R. S. 377.] The statutory re- 
 gulation of suits by and against a limited partnership is, that " suits 
 in relation to the business of the partnership, may be brought 
 and conducted, by and against the general partners, in the same 
 manner as if there were no special partners." [1 R. S. 766. §14.] 
 The effect of the judgment, of course, is to bind the copartner- 
 ship property. This legislative enactment, respecting suits by 
 and against limited partnerships, is very similar in form, and 
 cannot be distinguished in substance, from that respecting suits 
 by and against the banking associations ; and yet, I apprehend, 
 that no one ever seriously thought a limited partnership had any 
 thing in common with a corporation ; except, perhaps, that in 
 Chancery, the general partners, as lately held by the Chancel- 
 
45 
 
 lor, ami the directors of a corporation, are responsible as trus- 
 tees of their respective common funds. But such responsibility 
 is far too general, to be called a peculiar corporate attribute. 
 
 Third : Has every association power to take and convey 
 title to property J acquire and give rights as a collective exist- 
 ence, and by its given name or designation ? 
 
 The parts of the Statute supposed to be applicable to this fea- 
 ture of a corporation, are in the twenty-fourth section. That 
 section, after specifying the purposes for which an association 
 may purchase, hold and convey real estate, enacts ; " and all 
 conveyances of such real estate shall be made to the president, 
 or such other officer as shall be indicated for that purpose in 
 the articles of association ; and which president or officer, and 
 his successors, from time to time, may sell, assign, and convey 
 the same," &c. 
 
 On comparing this provision of the Statute, with what has 
 been said concerning, and in illustration of this third corporate 
 feature, the wide difference will be seen, between a corporation's 
 taking and granting, by its corporate name, and taking and grant- 
 ing in the manner directed by this Act. 
 
 There is no room to doubt, but that every conveyance is to be 
 made to the person w^ho fills the office of president, or to some 
 other person who holds some other office in the association. The 
 associates of each association have, therefore, a right of selecting 
 a trustee of their real property from the whole body of their 
 agents, from their president down to their porter. The Legis- 
 lature has not even designated the trustee. They have only 
 said, if you select none for yourselves, then we will select for 
 you, your president 3 but, as we allow you to elect your presi- 
 dent and other officers, we give, you unrestricted choice. The 
 right of selection, therefore, is uncontrolled ; and is as full, as 
 
 # 
 
46 
 
 the right of the members of any voluntary association, to select 
 a trustee for themselves, to take the title to their real property 
 for their benefit. 
 
 It appears to be so clear, that the associations do not take or 
 grant real estate by their collective name, if they can be consid- 
 ered as having one for any purpose, that it seems unnecessary to 
 spend more time with this branch of the argument. 
 
 The next question is, where is the title to the personal prop- 
 erty of the associations? The answer is obvious. The Statute 
 having made no provision on the subject, it is where the com- 
 mon law places it, viz : in the members of the respective asso- 
 ciations ; and subject to such custody, control and management, 
 as they have designated and agreed to, in their respective articles 
 of association. And this shows, that the right, still belonging 
 to the associations, to sue in the names of their members, is no 
 shadow, but a practical reality. 
 
 The vesting of the title of the real property of the associations 
 in a trustee, who is always selected by themselves ; and of their 
 title to their personal property, in the members of the associa- 
 tions, shows how impossible it is, to hold them to be corpora- 
 tions. 
 
 Fourth and last : Has every association power conferred 
 by the Statute to make by-laws^ or in other words^ to prescribe 
 rules of action for persons without their consent '^ 
 
 The only expression in the Statute, which, by the greatest 
 stretch of imagination, can be said to have any relation to this 
 power, is found in the eighteenth section ; that section gives and 
 prescribes the power of the associations^ and states it to be, "to 
 carry on the business of banking, by discounting bills,'^ &c., vn 
 
47 
 
 the manner specified in their articles of association, for the 
 purpose authorized by this act. 
 
 On this part of the subject, it seems sufficient to say, that 
 whatever authority is given to the associations by these words 
 of the Act, such authority is merely permissivey and that, what- 
 ever regulations or rules it authorizes the associations to make, 
 such regulations and rules are to be specified in their articles 
 of association ; and, of course, are purely matters of contract, 
 and derive their whole force and authority from the consent of 
 the parties to be bound by them. 
 
 This, as we have seen, is a feature peculiar to the by-laws of 
 voluntary associations, and distinguishes them from corporations. 
 The by-laws of the latter, deriving their force from the Statute, 
 and emanating from the sovereign power, bind those subject to 
 them without their consent ; while those of the former, deriving 
 their force from consent, and emanating from contract, only bind 
 those subject to them with their consent. Tl:e very terms em- 
 ployed, show the difference between incorporated and unincor- 
 porated companies ; and terms are no unimportant indication of 
 thought. The former is a corporation, the latter a voluntary 
 association ; the former, exists by force of a statute — the latter, 
 by force of a contract ; and so their respective by-laws : one 
 binds by contract^ and the other by Statute. 
 
 In concluding this analysis and examination of the Statute, one 
 remark seems to be required in regard to these associations ha- 
 ving, in different forms, several of the general powers of corpo- 
 rations. It is true that they have ; and so have all citizens of 
 full age, all voluntary associations, and every being, who has 
 and exercises legal rights, and prosecutes judicial remedies. 
 
 Franchises are rights which can only emanate from the sove- 
 reign power, and are generally granted to corporations, but often 
 
48 
 
 to individuals, and companies not incorporated ; and the Legisla- 
 ture oftentimes confers the privilege of possessing and enjoying 
 property, and exercising rights, upon persons and associations, 
 not otherwise allowed by law — and such privilege is also gene- 
 rally conferred in the form of an act of incorporation : hence, at 
 an early day, the idea was suggested, that these were incidents 
 to corporations ; but they are not peculiar to them, and so it has 
 been decided in England. Lord Holt, in the case of the The 
 Kingy vs. The City of London^ (Skinner's Rep. 310,) held, 
 that neither " the actual possession of property, nor the actual 
 enjoyment of franchises, are of the essence of a corporation :" 
 and this position has received the sanction of Chancellor Kent, 
 in his valuable commentaries. [2 K. C. 277, 2 ed.] 
 
 Had these associations been authorized in the very form they 
 now are, but to carry on some other business than banking, 
 hitherto conducted in this State solely by corporations, it. proba- 
 bly would never have entered into the mind of any man to think 
 they were corporations, or even like such bodies, though his in- 
 genuity may have been on the rack, for some plausible ground 
 for a dilatory defence to a just demand. 
 
 The Statute must be considered, as a modified repeal of the 
 Restraining Act, and in thus repealing it, the Legislature have 
 thought proper, and for the very best reasons and most laudable 
 motives, to protect the community from injury, while they re- 
 stored to every citizen, his unquestioned right to use his funds 
 for banking purposes. In doing this, the Legislature thought it 
 judicious, to require from the associations, full serai-annual 
 statements of their affairs; [Section 26, of the Act,] as the law 
 then and still requires like annual statements from the incorpo- 
 rated banks of this State, [1 R. S. 593, §19, 20 ; 3 R. S. 287, 
 §31 ;] to keep a certain amount of specie on hand, [§33, of the 
 Act ;] and other like regulations for the public security ; and 
 
49 
 
 these have been alluded to by the Counsel for this defence, as 
 showing that the associations are corporations. With equal 
 soundness and cogency might he argue, that because a corpora- 
 tion can maintain a suit by its corporate name, and an individual 
 can maintain one by his name, therefore, a corporation is an in- 
 dividual. 
 
 One proposition is self-evident, and although alluded to here- 
 tofore, should be distinctly stated in this place, and that is ; if 
 these associations are corporations by reason of possessing their 
 essential requisites, they must have aU those requisites, what- 
 ever they are — or in other words, must have the essence of cor- 
 porations. If there are four essential requisites, and they have 
 but three ; or there are three, and they have but two ; or there 
 are two, and they have but one ; they cannot be corporations. 
 
 On the whole, we insist, that these associations, judged of solely 
 by the power and attributes given to them by the Statute, do 
 not possess the essential requisites of corporations, and, of course, 
 are not for that reason, corporations. 
 
 It is admitted, as has already been stated, that they are not 
 so by explicit legislative enactment — and as corporations can 
 only be created in one or the other of these modes, the argu- 
 ment seems conclusive. 
 
 But there is yet another and controlling argument against 
 these associations being adjudged corporations, and that is derived 
 from the manifest intention of the Legislature. 
 
 ' L^iSre.**^ The first evidence of that consists, in not only the 
 entire omission of the Legislature to declare, by direct and ex- 
 plicit enactment, that the associations shall be corporations, as 
 they have done in every case, without exception, where corpora- 
 7 
 
50 
 
 tions have been created by special or general acts; but in their 
 caution, manifested throughout the whole Statute, to avoid every 
 expression which might countenance such an idea. No person 
 can read this Statute and hesitate for a moment in saying, that 
 the Legislature never intended to constitute these associations 
 corporations. If they had, how obvious the course. They had 
 only to adopt the forms of some of our other general acts of in- 
 corporation ; but, instead of that, they have studiously avoided all 
 of them. There is a single provision in the Law, which of itself 
 is decisive of the intention of the Legislature. I allude to the 
 clause in the nineteenth section, that, no association shall " be 
 dissolved by the death or insanity of any of the shareholders 
 therein". Why such a provision, if these associations are thought, 
 or intended to be corporations ? But if voluntary associations, 
 then it was pertinent and proper; and like similar provisions 
 often introduced into articles of co-partnership and joint stock 
 companies, where there are numerous members, and conse- 
 quently frequent deaths. 
 
 '^^ffiute.*^ '^^® history of the origin, progress, and final pas- 
 sage of the Statute, also shows, with unvarying light, the inten- 
 tion of the Legislature. 
 
 It may not be time mispent, to give a pretty full account of 
 this important Statute, which already exercises a great, and 
 must hereafter, a far greater influence on the business, morals, 
 and destiny of this State. By reason of my professional con- 
 nection with one of the principal institutions organized under 
 it, on a cash capital, and the very first of that character which 
 was organized in the State,* I have bestowed great attention on 
 this Law, and feel an unwavering assurance, vastly increased by 
 the argument of this cause, that it will confer unnumbered bless- 
 
 * I allude to " The American Exchange Bank," estabHshed in the city of New York, 
 the project of which was formed and presented to the public by the Board of Trade of 
 thatx>ity. 
 
51 
 
 ings, not only on the people of this State, but on the whole Coun- 
 try ; that it will form an era in our legislation and business, 
 which will be remembered and felt for good, as long as the insti- 
 tutions of the Country shall stand. [It has already destroyed 
 banking monopoly, and purified our legislative halls — of them- 
 selves a sufficient eulogy — but it furnishes the people a safe and 
 convenient currency ; opens the business of banking to fair com- 
 petition ; encourages industry, commerce, and the mechanic arts, 
 and holds them in steady courses. I must not, however, dwell 
 on these topics, pleasing and full of hope and cheering anticipa- 
 ti on as they are. 
 
 The project of a General Banking Law was first brought fully 
 to the attention of the Legislature in 1837. During the session 
 of that year, numerous petitions were presented from different 
 parts of the State, praying for such a law. 
 
 Mr. Cutting,* a member of the Assembly that year from the 
 city of New York, has the honor of introducing the first bill for 
 legislative action on this important subject. On the 11th Feb- 
 ruary, 1837, he gave notice of his intention, on some future day, 
 to ask leave to bring in a bill, *' to amend the act relating- to li- 
 mited partnerships ;" and, accordingly, on the 23d of that month, 
 he introduced a bill, on leave, entitled, " An Act in relation to 
 limited partnerships, and to authorize assignable interests there- 
 in." I have not seen this bill, as introduced by Mr. Cutting, 
 but there is no doubt it was a bill, in substance, to authorize the 
 business of banking. On the same day, and after Mr. Cutting 
 had introduced his bill, and after it had been read the first and 
 second time, the Assembly directed their " committee' on the in- 
 corporation and alteration of the charters of banking and insur- 
 
 * Francis B. Cutting, Esq., a member of the Bar in the city of New York. Although 
 Mr. C. is vet classed wath the junior members of his profession, he is rapidly advan- 
 cing in usefulness and reputation, and must soon enjoy the highest honors of the Bar. 
 He is ab-eady entrusted with the management of causes of the greatest importance, 
 which he always conducts with distinguished ability. 
 
53 
 
 ance companies, as soon as practicable, to report, for the action 
 of the House, a general bank law." On the 3d of March' fol- 
 lowing, Mr. Robinson, from that committee, reported a bill, 
 entitled, ''An Act to authorize associations for the purposes of 
 banking." These two bills were referred together to a com- 
 mittee of the whole, on the 14th of that month. They were 
 often before that committee, until the 22d of that month, when 
 the committee, not having acted definitively on the bill introdu- 
 ced by Mr. Robinson, reported onjhat introduced by Mr. Cut- 
 ting, that they had amended and agreed to it. The House ac- 
 cepted this report by a vote of sixty-five to forty-one, and ordered 
 the bill engrossed. It came up for a third reading, and was read 
 the third time, the next day, when a motion was made to lay it 
 on the table, which carried by a vote of sixty-six to forty-three. 
 On the 6th of April following, the committee of the whole again 
 took up the bill introduced by Mr. Robinson, and after having 
 had it before them on several different days, reported to the 
 House, on the 11th of that month, that they had amended and 
 agreed to it. The report Was laid on the table. On the 13th, 
 this bill was referred to the Attorney-General, " with instruc- 
 tions to report his opinion as to the constitutionality of the pro- 
 visions thereof; and also, whether, in his opinion, the passage of 
 the said bill requires the assent of two-thirds] of the' members 
 elected to each branch of the Legislature, to pass the same ; 
 and if, in his opinion, ariy of the provisions of the bilFare un- 
 constitutional, that he specify in what respect particularly." On 
 the" following day, the bill introduced by Mr. Cutting was also 
 referred to the Attorney-General, with substantially the same 
 instructions. He reported upon both bills four days afterwards, 
 viz., on the 18th of April. His opinion on the bill " to author- 
 ize associations for the purpose of banking," is more full than 
 on the other, as in that, he states at large his reasons for his opin- 
 ion on both. That opinion was, that both bills were unconstitu- 
 tional, and that each required a two-thirds vote to pass it. I 
 
53 
 
 shall hereafter examine fully the principles and reasons of his 
 opinion on these bills ; but at present, it is sufficient to state the 
 facts, and his conclusions upon them. 
 
 In his opinion on the bill first referred to him, he says : 
 
 "The bill referred to the Attorney. General, declares that asso- 
 ciations for banking, may be formed by twenty or more persons, 
 * with the rights and powers, and subject to the conditions and lia- 
 bilities' in said bill prescribed. (§1.) The capital stock of the as- 
 sociation is to be divided into shares, and which shares are to be 
 personal property. (§3,31.) It shall continue for twenty-five 
 years, and * be composed of persons who shall from time to time be 
 stockholders.' (§ 4.) It shall not be < dissolved by the death or act 
 of any stockholder.' (§ 31.) Its concerns are to be conducted by 
 directors, and to whom the capital stock is to be paid.' (§ 2, 8.) 
 The * association shall have power to carry on the business of bank- 
 ing' in all its branches, including ' the issuing of bills, notes and 
 other evidences of debt, and may exercise such other incidental 
 powers as shall be necessary to carry on such business. It may 
 make by-laws for the management of its property, the regula- 
 tion of its affairs, and for the transfer of its stock. (§11.) It 
 may purchase, hold and convey real estate for particular purposes, 
 and under particular circumstances : but not " in any other case 
 or for any other purpose." (§ 12.) It shall take a name and by 
 which it must contract, but it must sue and be sued in the name of 
 the office of president of the association, " without naming the in- 
 dividual." Suits by and against the " company" are to be prose- 
 cuted " in the same manner and with the like effect as suits and 
 proceedings by and against corporations," and judgments and de- 
 crees therein shall be executed in the same manner. (§ 3, 14.) 
 Officers and stockholders shall be liable and answerable in the 
 same cases, to the same extent, and in like manner, as the officers 
 and stockholders of incorporated banks created since the year 1828. 
 (§ 15.) The obligations and contracts of the association <' shall 
 be obligatory on the association, and be assignable and negotiable 
 in like manner as if made or issued by a private person.' (§ 17.) 
 These associations are declared to be subject to the provisions of 
 the safety fund law of 1829, and to all general laws in force in re- 
 lation to incorporated banks. (§ 27, 1, 37.) Their capital is to be 
 taxed like that of incorporated banks, and the stockholders, are in 
 like manner exempt from taxation. (§ 34.) 
 
 " The bill was manifestly designed to confer on banking associa- 
 tions, which may be organized under its provisions, every essen- 
 tial attribute of a corporation. 
 
54 
 
 *' Every such association is to have succession hy the name it 
 takes, for twenty-five years. It 'shall he composed of the persons 
 who s!iall,yrom time to time, he stockholders in the same/ 
 
 " It may sue and he sued, complain and defend, in the name of 
 the ofiicc of president of the association. 
 
 ♦' It may hold personal property, and also hold and convey cer- 
 tain real estate, in the name it assumes. 
 
 " It may appoint suhordinate officers and agents to transact the 
 business of the association. 
 
 " It may make by-laws for the management of its property and 
 the regulation of its affairs. 
 
 " It may enter into contracts, incur debts, and carry on the busi- 
 ness of banking in all its branches. 
 
 '• It is taxable like a monied corporation. 
 
 " An artificial legal person is thus created. As a person it has 
 the ordinary rights of property. It may enter into contracts, pro- 
 secute and defend suits, and do all other things contemplated by 
 the bill, as a natural person may. 
 
 " Title to property and rights of action, can vest only in natural 
 or artificial persons : there is no intermediate state or condition in 
 which they can exist. An unincorporated association has none 
 of the attributes or capacities of a legal being ; it cannot sue ; as 
 an organized assemblage it is unknown to the law. The individu- 
 als of which it is composed, have rights, but the association, as 
 such, has none." [Assembly Doc. 1837 : No. 303, pp. 5, 6, 7.] 
 
 His conclusions were : 
 
 " 1. That the associations which this bill assumes to authorize, 
 would be bodies corporate ; 
 
 " 2. That as it thus assumes to create corporations, it requires 
 the assent of two-thirds of the members elected, to its passage ; 
 
 " 3. That the bill is unconstitutional, as it assumes to author- 
 ize the creation of an indefinite and unlimited number of bodies 
 corporate, and should it pass into a statute, and associations be 
 formed under it, they would, for the purposes contemplated, be 
 absolutely null and void. [lb. p. 9.] 
 
 Mr. Beardsley's opinion on the other bill is more brief. He 
 
 barely states the contents of the bill in detail, shows what they 
 
 are, as he understands them : and then, his two conclusions — as 
 
 follows : 
 
 " 1. That such partnerships as are contemplated by the bill 
 would be bodies corporate, and that the assent of two-thirds of all 
 
55 
 
 the members elected, is requisite to the passage of. a bill for tlieir 
 creation. • ' 
 
 *♦ 2. As the bill assumes to provide for the creation of an unlim- 
 ited and indefinite number of these crrporations, at the mere plea- 
 sure of individuals, it is for that reason unauthorized by, and in de- 
 rogation of the constitution." [lb. Doc. No. 304, p. 7.] 
 
 On the 2oth of April, the Assembly, on motion of Mr. Rob- 
 inson, " Resolved, that the General Banking Law, together with 
 the opinion of the Attorney-General thereon, be referred to a se- 
 lect committee, to consider and report thereon." Messrs. Rob- 
 inson, Clinch, and Patterson, were the committee. 
 
 On the 29th of April, that committee, by Mr. Robinson, re- 
 ported : 
 
 "That they have carefully examined the different sections of the 
 bill under consideration, and compared its several provisions with 
 the constitutional objections raised by the A.ttorney-General ; and 
 have made such amendments thereto as, in their opinion, deprives 
 th?. bill of those attributes which, in the view of the Attorney. Ge- 
 neral, would require the assent of two-thirds of the members elected, 
 to its passage. Your committee are also of opinion, that the bill, 
 as now amended, will not conflict in any other particular with the 
 ninth section of the seventh article of the constitution as construed 
 by the Attorney-General. 
 
 " Your committee have not deemed it a necessary part of their 
 duty to investigate the validity of the objections raised by the At- 
 torney-General to the bill on which his opinion was required ; they 
 therefore do not report any conclusion thereupon. 
 
 " The bill, as amended by your committee, is herewith presented, 
 and this report respectfully submitted." [lb. Doc. No. 318.] 
 
 This report was unanimous, having been signed by all the 
 committee. 
 
 Two days afterwards, viz., on the first day of May, the House 
 went into committee of the whole on the bill, amended it, as re- 
 commended by the committee, and agreed to it; and the report 
 of the committee was accepted by a vote of forty-nine to twenty- 
 six, and the bill ordered to be engrossed. It was read the third 
 time the next day, and referred to the Committee on two-thirds 
 
56 
 
 bills, to consider and report upon it. That committee reported 
 the day following, that, in their opinion, it was not a two-thirds 
 bill, and it was ordered to a third reading, passed, and sent to 
 the Senate. 
 
 Some very early movements, of a general character, \vere made 
 in the Senate in 1837, on the subject of a general banking law. 
 
 On the 20th of January, Mr. Loomis, a Senator from the 
 Seventh District, offered a resolution, " That the committee of 
 the whole be discharged from the further consideration of the 
 petition praying for the passage of a law authorizing a general 
 system of banking within this State ; and that the said petition 
 be referred to^a select committee, to consist of one Senator from 
 each Senate District, with instructions to report a bill for that 
 purpose.'' On the same day, Mr. Dickinson, a Senator from the 
 Sixth District, offered a resolution, " that the committee on banks 
 and insurance companies, be instructed to inquire into the ex- 
 pediency of passing a general banking law," to contain certain 
 principles and provisions, which were specified in the resolution, 
 of rather an ultra character. This resolution was laid on the 
 table, and does not appear to have been called up afterwards. 
 
 On the 27th of January, the Senate took up the resolution 
 offered by Mr. Loomis, passed it, after striking out the instruc- 
 tions, and appointed a committee under it, consisting of Mr. 
 Loomis, Mr. Young, from the Fourth District ; Mr. Hunting- 
 ton, from the Sixth ; Mr. Tracy, from the Eighth ; Mr. Sterling, 
 from the Fifth ; Mr. Livingston, from the First ; Mr. Johnson, 
 from the Third ; and Mr. Van Dyck, from the Second. 
 
 This committee reported by Mr. Young, on the 18th of April 
 following ; at which time, the Assembly were engaged almost 
 daily upon the two bills before it, on the same subject. The re- 
 port is full, on the whole subject of banking, and shows that the 
 
57 
 
 committee had given it great attention. With their report, the 
 committee presented a bill, '' to authorize associations for the 
 purposes of banking." 
 
 A few extracts from this able report, will exhibit the views 
 of the friends of the measure in the Senate, 
 
 " The committee feel themselves called upon, under the reference 
 which has been made to them, to allude to the origin of the pre* 
 sent system of bank corporations, and to point out some of the 
 most prominent evils which are necessarily connected with the 
 monopoly character of those institutions. 
 
 " These evils have been experienced by the community for many 
 years ; and the time seems to have arrived, when it is proper to 
 devise, if possible, a system which is more free and more equal in 
 its operation ; and which, unshackled by useless restraints, and 
 unprotected by chartered privileges, shall permit the flow of a cir- 
 culating medium through all parts of the State, as the exigencies 
 of trade and the pulsations of business require. [Sen. Doc. No. 55, 
 1837, p. 1.] 
 
 " But however onerous the exactions wl.ich monopolies ever im- 
 pose, there are other objections to the system of a more formidable 
 character, some of which are inseparable from it, and put all pal- 
 liation at defianc3. The provision in the Constitution, requiring 
 two-thirds for the passage of a bill creating a corporation, adds to 
 the difficulty of procuring a charter. This difficulty can be ob- 
 viated only by securing, in both houses, the requisite number of 
 votes. Applicants for bank charters, are thus induced to ascertain 
 all the projects that are pending, to cultivate an alliance with each 
 other, and to make themselves acquainted, if possible, with every 
 member who is charged with any favorite topic of legislation. A 
 reciprocation of mutual aid is the necessary consequence. A 
 league of interest is thus formed, strengthened and cemented by 
 the most mercenary motives ; and the inmates of the temple of le- 
 gislation are thus converted into vile * money changers.* [lb. p 3.] 
 ** Like the leprosy, the monopoly system, from a single spot, has 
 increased and spread itself over the whole body politic. There are 
 now in operation in this State, one hundred banks, including two 
 branches, with which no citizen, or association of citizens, is allow- 
 ed by our laws to compete. [lb. p. 6.] 
 
 "The system of joint-stock banking, by private associations, has 
 been successfully conducted in Scotland, on a scale regulated alone 
 by competition, and by demand and supply, for more than one hun- 
 dred years, without a single failure in the whole of that period up 
 to the present time." [lb. p. 13.] 
 8 
 
58 
 
 Speaking of the evils of an inflated currency, the Committee 
 propose, as one remedy for them, " subjecting the issue of such 
 bank paper as is authorized by law, to full, free and open com- 
 petition,'^ 
 
 " On this second topic," say the committee, " which is the only 
 one with which the committee are specially charged, they earnestly 
 recommend the organization of a system of private banking asso- 
 ciations, which shall be wholly unconnected with each other, so 
 that they may freely compete among themselves, as well as with 
 the existing bank corporations, [lb. p. 18.] 
 
 "The committee have prepared a bill, combining in a detailed 
 form, the foregoing suggestions, which their chairman will ask leave 
 to introduce." [lb. p. 20.] 
 
 An effort was made by Mr. Young, for the Senate to take up 
 this bill on the 27th of March, but it failed by a vote of twenty 
 to eight. It was occasionally before the Senate, in committee of 
 the whole, during the month of April, and, as I understand, was 
 fully discussed : but on the 5th of May, the Senate rejected it 
 by a vote of fifteen to ten ; and on the same day, rejected the 
 bill from the Assembly, by a vote of sixteen to nine. 
 
 Thus the measure was defeated for the present, though it num- 
 bered among its real friends, many of the most intelligent and 
 influential members of the Legislature, and was loudly and ge- 
 nerally called for by the people. 
 
 Their voice was at last, not only heard, but regarded ; — and 
 the measure appeared before the Legislature of 1838, in a more 
 imposing form. Gov. Marcy recommended it explicitly and ear- 
 nestly, in his message of that year, to the Legislature. 
 
 Before I proceed, however,.to the occurrences of 1838, let me 
 call attention to the particular matter now in hand, viz., the in- 
 tention of the Legislature in respect to creating corporations y to 
 carry out this measure of general banking. 
 
59 
 
 The report of the Committee of the Senate, clearly exhibits 
 the views of that branch of the Legislature on this subject. In- 
 stead of increasing corporations, it is obvious that one of the 
 leading motives, if not the leading one, of the friends of the 
 measure in that House, was to curtail, restrain and regulate the 
 banking corporations already existing, and prevent the creation 
 of any more. 
 
 The Assembly had evidently framed both their bills in such 
 form as, in their opinion, would not render them obnoxious to 
 the charge, that they were bills to create corporations ; and the 
 Attorney-General, to whom they were referred, is obliged to re- 
 sort to a close argument, particularly in respect to the bill intro- 
 duced by Mr. Cutting, to prove that the associations which they 
 authorized were in fact corporations, though not declared to be 
 so by the bills. Instead of passing the bill, " to authorize asso- 
 ciations for the purposes of banking," which, it appears, at last 
 they preferred, of the two, the Assembly sent it to a special com- 
 mittee, amended it, so as to remove the grounds of the Attorney- 
 General's objections, and passed it, under a report from their 
 standing committee on two-thirds bills, that it was not one of that 
 class. From these facts, the inference is irresistible, that the 
 Assembly intended the very opposite of creating corporations to 
 conduct the business of banking. 
 
 W In this aspect, the measure was presented to the mind of Go- 
 vernor Marcy, when preparing his message for 1838 ; and he 
 expresses his views on the whole subject. As his message will 
 be frequently referred to in the course of the argument, I will 
 here give all he says on the subject : 
 
 " While the Legislature has been engaged in giving to these in- 
 stitutions the attributes of permanency and usefulnees, an increas- 
 ing unfriendliness has been exhibited towards them principally on 
 account of their exclusive privileges. ^Monopolies are andoubtedly 
 
60 
 
 incompatible with the equality of civil rights, which it is the great 
 object of a free government to secure to all its citizens. Although 
 the banks of this State are not strictl. monopolies, yet they possess 
 privileges withheld from individuals, and in consequence thereof 
 have hitherto shared, and will probably continue to share, in the 
 odiousness with which monopolies are justly regarded. To obviate 
 this objection, it is desirable to discontinue the present mode of 
 granting charters, and to open the business of banking to a full and 
 free competition, under such general restrictions and regulations as 
 are necessary to insure to the public at large a sound currency. 
 This can be done, either by passing a general banking law, or by 
 an entire repeal of the restraining act. Doubts have been enter- 
 tained as to the constitutional competency of the Legislature to 
 pass a General Banking Law, conferring corporate powers. With- 
 out entering into the argument on this question, I will only say, that 
 I am inclined to the opinion that the Legislature have the power to 
 paso such a law ; but the spirit of the Constitution requires that it 
 should be passed as a two-thirds bill. It is proper that I should also 
 say, that this opinion is entertained with much diffidence, and is 
 not expressed without duly considering the respectful deference just- 
 ly due to the high authority by which it is opposed. If, how- 
 ever, you should conclude that the constitution interposes an insur- 
 mountable obstacle to the passage of such an act, then it is sug- 
 gested that you should regulate and limit, by a general law, partner- 
 ships which may be forn ed to conduct the business of banking, in 
 such a manner as to secure to them the essential advantages now 
 conferred by special charters, and subject them to such restric- 
 tions and regulations as the public good may require. 
 
 " In recommending to the last Legislature a repeal of the restrain- 
 ing law, I felt it to be my duty to urge them to retain that part of 
 it which prohibits the issue of notes or other evidences of debt to be 
 put in circulation as money. The objections I then entertained to 
 an unqualified repeal still have great force with me. I fear the in- 
 jurious consequences to our currency that would result from grant- 
 ing to individuals and associations the unrestrained license to issue 
 paper, and put into common use as a circulating medium ; but if 
 this permission could be made to depend on an ample fund to be 
 provided for the redemption of the paper which might be put in cir- 
 culation — if the issues could be graduated by the amount of this 
 fund ; and if it could be certainly and immediately available when- 
 ever required for the purpose of redemptiom, the objections to an 
 unqualified repeal of the restraining law would be removed." [As- 
 sembly Doc. 1838, No. 2, pp. 7, 8.] 
 
 Here is presented for the first, so far as I have observed, the 
 Taluable feature of our General Banking Law, which provides 
 
61 
 
 a safe and ample fund to secure the currency which it authorizes. 
 With this addition, the plan recommended by the Governor is the 
 same, substantially, as the one adopted by the Assembly the year 
 before. 
 
 The Senate this year originated no bill on the subject ; but 
 awaited the action of the other House. All they did, till a late 
 day in the session, was to appoint a committee on this part of the 
 Governor's message, which consisted of Mr. Young, Mr. Willes, 
 and Mr. Lacy. 
 
 The Assembly took up the measure in earnest and with spirit. 
 They appointed a committee of five, as early as the 6th of Jan- 
 uary, on so much of the Governor's message as related to the 
 restraining laws and a general banking law, consisting of 
 Mr. J. Miller, Mr. G. W. Patterson, Mr. Bostwick, Mr. Nellis 
 and Mr. Wallace.* 
 
 Mr, Patterson, from this committee, reported on the 3d Feb- 
 ruary, and presented a bill, " to authorize associations to carry 
 on the business of banking." The committee disclaim an inten- 
 tion to discuss at large the subject of currency and banking, 
 but give, in a brief report, filled with good sense, the principal 
 reasons in favor of the bill. A few extracts will suffice : 
 
 " The system of banking, as at present established in this State, 
 under the provisions of the safety fund law, is considered by many 
 as a monopoly, and as such, has beconne odious to a large class of 
 our fellow- citizens ;" * * * * "it cannot be de- 
 nied, that a privilege is enjoyed by the few, which the great body 
 of the people do not, and, under the existing laws, cannot enjoy." 
 " By throwing open the business of banking to all who will give the 
 bill-holder the necessary security, the jealousies now existing, will, 
 in a great measure, be overcome, and capitalists will seek invest- 
 
 ♦ Mr. Jedediah Miller, of Schoharie ; George W. Patterson, of Livingston ; William 
 F. Bostwick, of Madison ; Jeremiah Nellis, of Montgomery and Hamilton ; and James 
 Wallace, of Rensselaer. 
 
63 
 
 ment for their capital where it can be most profitably employed ; 
 and thus the business of banking will be rendered secure to the pub- 
 lie, and the competition sufficient to afford to the borrower, all the 
 accommodations he can reasonably desire." 
 
 " The committee are well aware of the objections urged by the 
 Attorney-General against the constitutionality of a bill for a general 
 banking law that was before the last House of Assembly ; but the 
 committee, without attempting to decide whether the opinion of the 
 Attorney. General was well founded or otherwise, know that many 
 eminent individuals of the legal profession are clearly of opinion 
 that the bill above referred to was constitutional, and might have 
 become a law with the assent of a majority of the Legislature ; still 
 in preparing a bill for the consideration of the House, the commit- 
 tee have studiously avoided every thing that would constitute asso- 
 ciations to be formed under its provisions, corporations^ and they 
 therefore think the constitutional objection cannot, with any pro- 
 priety, be raised." [Assembly Doc. 1838, No 122, p. 3.] 
 
 The Assembly took up this bill, in committee of the whole, 
 on the 14th of February, and were engaged almost daily upon 
 it until the 28th of that month, when, on motion of Mr. Ogden, 
 the committee of the whole were discharged from the bill, and 
 it was referred to a select committee of nine. That committee 
 consisted of Mr. G. W. Patterson, Mr. Ogden, Mr. J. Miller, 
 Mr. Barnard, Mr. Ruggles, Mr. Mann, Mr. Kurd, Mr. Culver 
 and Mr. Hoard.* 
 
 * This was, in many respects, a remarkable committee. Mr. Patterson and Mr. 
 Miller were on the committee who reported the bill. The other gentlemen were Mr. 
 David B, Ogden, of the City of New York; Daniel D. Barnard, of the City of Albany; 
 Samuel B. Ruggles, of the City of New York; Abijah Mann, jun., of Herkimer; Da- 
 vis Hurd, of Niagara; Erastus D. Culver, of Washington; and Charles B. Hoard, of 
 Jefferson. 
 
 Mr. Patterson, the Chairman, had already distinguished himself as a friend of the 
 measure. He was in the Assembly the year before, as we have seen, and one of the 
 Select Committee to whom was referred the bill of that year, with the opinion of the 
 Attorney General thereon. He aided in stripping it of all corporale attributes. He 
 read, and doubtless wrote, the sensible report of 1838, from which extracts have been 
 given. A mechanic by trade, he is self-educated, and the builder of his own fortime. 
 Although hardly yet, 1 should suppose, in middle age, he is the Speaker of the As- 
 sembly for the present year, and lately was selected from a body of four hundred of 
 the most respectable citizens of this State to preside over their deliberations, in a con- 
 vention, held at Ithaca, to promote the construction of the New York and Erie Rail- 
 road. He is a striking instance of the fostering influence of our institutions, in elevat- 
 ing to distinction and usefulness, natural talents and worth, It is to be hoped, that the 
 pubhc will continue to enjoy the benefit of his services. 
 
 David B. Ogden, who moved the appointment of this committee, and of course, 
 by parliamentary etiquette, entitled to be its chairman, I venture to say from my 
 knowledge of the generosity of his nature, though I know nothing of the fact, gave 
 
63 
 
 A committee could scarcely have been formed, with the whole 
 State to select from, better qualified and assorted for the duty 
 assigned them. 
 
 On the 10th of March following, the committee reported, by 
 
 way, and requested that Mr. Patterson should fill that place, A note like this, were 
 the time and occasion proper, could not even approach a just notice of the character 
 of this truly distinguished gentleman. 
 
 He is well know n, not only in this State, but the United States. He has for many 
 years stood near, if not at the ver>- head, of the Bar of this State, and in the very first 
 rank of the Bar of the United States. His practice has been principally in the Su- 
 preme Court of the U. S., for several years, and he is the only member of our Bar, who 
 attends regularly the sessions of that Court at Washington. His professional engage- 
 ments have directed his attention particularly to constitutional questions, and he may 
 jusdy be considered, the constilutional lawyer of this State. Of all the men in the 
 State, who could have been selected, for the revision and construction of such a bill 
 as our General Banking Law, none could have been found better qualified than Mr. 
 Ogden. It was most fortunate, that we had his services that year in our Legislature. 
 He approved of the Statute, and it has, consequently, the full sanction of his deliber- 
 ate judgment. 
 
 Daniel D. Barnard. This gentleman is also well known in this State, by severed 
 forensic efforts, of great beauty and power, in our higher courts, and by numerous lite- 
 rary addresses and other classical publications, which display ripe scholarship, and a 
 highly cultivated taste. 
 
 Mr. Barnard is also distinguished for his political services and paj>ers. He was a 
 Representative in Congress from this State some years since, and is also a Represen- 
 tative, in the present Congress, of the District, in which he resides. The Assembly 
 of 1838 committed the important subject of the surplus revenue and public instruc- 
 tion to a select committee, of which he was chairman, and during the session, received 
 from him a report, which was universally admired, and greatly added to the high re- 
 putation he already enjoyed, for correct scholarship, and liberal and enlightened viewa 
 on the subject of education. He took an active part in all the debates in the Assem- 
 bly, on the General Bankinsr Law. 
 
 Samuel B. Ruggles. Few gentlemen, of Mr- Ruggles' age, have a higher reptt- 
 tation, or enjoy more fully the pubUc confidence. His report on the financial resour- 
 ces of this ^tate, made to the Assembly of 1838, as chairman of their committee of 
 ways and means, has deservedly given him an enviable fame, in this Country and 
 Europe. He is now one of our Canal Commissioners, and has charge of one of our 
 most diflJcult and important public works- Though several years short of the fiill ma- 
 turity of middle age, it was dehghtful to observe the general satisfaction which waa 
 expressed, on his appointment to his present oflice. That appointment was singularly 
 honorable to him He supphed the place left vacant by the death of the Hon. Ste- 
 phen Van Rensselaer. And this honor was not the humiliating and hard-earned re- 
 ward of political management, but the spontaneous offering of a grateful community. 
 
 He was an ardent and persevering friend of the General Banking Law, and he and 
 his friends have taken large pecuniary interests in several o( the associations, but prin- 
 cipally in the Bank of Commerce. His views of banking and finance, are admitted to 
 be enlarged and sound, and to him the Public are greatly indebted, for the Uberal and 
 enhghtened provisions of that Statute. 
 
 Mr. R. is, besides, a well educated and good lawyer. Though not distinguished as 
 an advocate, he deservedly commanded a large practice while engaged in his profes- 
 sion. His professional opinions were always treated with great respect, and received 
 their full share of confidence. This State has good right to expect valuable services 
 from such an officer. 
 
 Abijah Mann, Junior. There is not, probably, a gentleman in this State more 
 familiar with our legislation than Mr. Mann. He has been many years hi the Assem- 
 bly, and once, certainly, if not oftener, a Representative in Congress. He has en- 
 joyed the confidence of his political friends for a Icoig time, and received maoy evi- 
 dences of their approbation. 
 
64 
 
 their chairman, that they had gone through the bill, amended, 
 and agreed to it. It was then committed to the committee of the 
 whole, and restored to its former place in the order of business. 
 Four days afterwards, the committee of the whole took it up, and 
 were engaged nearly every day upon it until the third of April 
 following, when they reported to the House, that they had gone 
 through the bill, amended it, altered its title, to " An Act to au- 
 thorize the business of banking," (the one it now bears,) and 
 agreed to it. The House then took up the bill by sections, and 
 adopted them separately, after amending two or three of them, 
 and at last approved the whole bill, by a vote of seventy-nine to 
 twenty-two, and ordered it engrossed for a third reading. On 
 the fifth of April, it came from the committee on engrossed bills, 
 and was passed by a vote of eighty-six to twenty-nine, and sent 
 to the Senate. 
 
 As the Assembly of 1838, is admitted by all, to have possess- 
 ed an unusual amount of talent and moral worth, and especially 
 of juridical talent, it seems proper that this Court should know, 
 what gentlemen, in that House, and particularly the profession, 
 gave their sanction under oath to this bill. They were the fol- 
 lowing : 
 
 Edmund Raynsford, 
 Seth H. Pratt, 
 Samuel Russel, 
 James Stoddard, 
 Isaac S. Miller, 
 Henry R. Filley, 
 Nathan G. Morgan, 
 Abner Lewis, 
 George A. French, 
 Thomas I. Allen, 
 Hiram White, 
 Henry Balcom, 
 Justus Parce, 
 William H. Toby, 
 William A. Dean, 
 Abraham Bain, 
 
 Albany, 
 Allegany, 
 
 John Osgood, 
 David Mathews, 
 
 Cortland, 
 do. 
 
 do. 
 
 Cornelius Dubois, 
 
 Dutchess, 
 
 Broome, 
 
 Lewis F. Allen, 
 
 Erie, 
 
 Cayuga, 
 do. 
 
 Cyrenus Wilbur, 
 Asa Warren, 
 
 do. 
 do. 
 
 do. 
 
 Gideon Hammond, 
 
 Essex, 
 
 Chautauque 
 do. 
 
 , Luther Bradish, 
 John Head, 
 
 Franklin, 
 Genesee, 
 
 do. 
 
 Andrew H. Green, 
 
 do. 
 
 Chemung, 
 Chenango, 
 do. 
 
 Thomas B. Cooke, 
 Peter Hubbell, 
 Daniel Wardwell, 
 
 Green, 
 
 do. 
 Jefferson, 
 
 Columbia, 
 do. 
 
 Benj. D. Silliman, 
 Cornelius Bergen, 
 
 Kings, 
 
 do. . 
 
 Geo. W. Patterson, 
 
 Livingston, 
 
65 
 
 Azariah Smith, Onondaga, 
 
 HeDry W. Taylor, Ontario, 
 Jonathan Buell, do. 
 
 David Hudson, do. 
 
 Hudson M'Farlan, Orange, 
 Goldsmith Denniston, do. 
 Stephen W. Fullerton, do. 
 Horatio Reed, Orleans, 
 
 Arvin Rice, Oswego, 
 
 John M. Richardson, do. 
 
 Queens, 
 Rensselaer, 
 
 do. 
 Richmond, 
 Rockland, 
 Saratoga, 
 
 Schoharie, 
 Seneca, 
 Tioga, 
 Tompkins, 
 
 William Scott, Livingston, 
 Wm. F. Bostwick, Madison, 
 Oncsimus Mead, do. 
 
 William Lord, do. 
 
 John P. Patterson, Monroe, 
 Ezra Sheldon, jun. do. 
 
 Marcellus Weston, f <»''^<«"f ^ 
 & Hamilton, 
 Abraham V. Putman, do. 
 Jeremiah Nellis, do. 
 
 David B. Ogden, New Yorh 
 John I. Labagh, do. 
 
 Adoniram Chandler, do. 
 Willis Hall, do. 
 
 Alfred Carhart, do. 
 
 John B. Scoles, do. 
 
 Garret H. Stryker, do. 
 Evan Griffith, do. 
 
 Heman W. Childs, do. 
 Anson Willis, do. 
 
 Samuel B. Ruggles, do. 
 David Hurd, Niagara, 
 
 Peter B. Porter, jun. do. 
 Russell Fuller, Oneida, 
 
 Fortune C. White, do. 
 Henry Hearsey, do. 
 
 Phares Gould, Onondaga, 
 
 James R. Lawrence, do. 
 
 The Senate received this bill from the Assembly, on the 16th 
 of April, and read it a first and second time. 
 
 Three days afterwards, viz., on the 9th of April, Mr. Young, 
 from *' the select committee, to which was referred that part of 
 the Governor's message which relates to the repeal of the re- 
 straining law^ and the introduction of free competition in the 
 business of banking,^^ made an elaborate report, which is prin- 
 cipally occupied with a history of the fluctuations of trade in 
 England and this Country, and a discussion of the elementary 
 principles of currency.* A few quotations from it will answer 
 the purposes of this argument. 
 
 * This report is written with great spirit and force ; and exhibits extensive research, 
 and a familiar acquaintance wiQi the subjects treated; but the imagination of Senator 
 
 9 
 
 John A. King, 
 
 Hezekiah Hull, 
 
 Jacob A. Tenyck, 
 
 Israel Oakley, 
 
 David Clark, 
 
 Calvin Wheeler, 
 
 Walter Van Veghten, do. 
 
 Silas H. Marsh, Schenctady, 
 
 Mitchell Sanford, 
 
 Nathan Wakeman, 
 
 John Coryell, 
 
 Robert Swartwout, 
 
 Benjamin R. Bevier, Ulster, 
 
 Esbon Blackman, Wayne, 
 
 Nicholas Cruger, Westchester, 
 
 Francis Barretto, do. 
 
 Niles Benham, Yates, 
 
After referring to the report of the committee of the Senate, 
 made the previous year, on the subject of a general system of 
 private banking, and, adopting the opinions of that report, the 
 committee say : 
 
 "The subject of free competition in banking has, for some time 
 past, very much occupied the pubUc mind." [Senate Doc. 1838, 
 No. 68, p. 2.] 
 
 "Impressed by the current of the public will, the Governor has 
 recommended to the Legislature, * to discontinue the present mode 
 of granting charters, and to open the business of banking to a fuU 
 and free competition, under such general restrictions and regula- 
 tions, as are necessary to ensure to the public at large, a sound cur- 
 ency.'" [lb.] 
 
 In conclusion, they say : 
 
 " The security, responsibility, checks and restraints which ought 
 to be imposed upon banking associations, are indicated in the report 
 to which reference has been made, and need not be repeated. '* [lb. 
 p. 39.] 
 
 The Senate took up the bill, in committee of the whole, on 
 the 16th of April, and again on the I7th, when it was reported 
 to the Senate, with amendments. The Senate then proceeded 
 to consider and determine several other amendments, offered by 
 different Senators, all of which failed, except one offered by 
 Senator Beckwith, which was to add a new section at the end 
 of the bill, in substance the same as the present thirty-third sec- 
 tion, except fixing the specie basis of circulation at fifteen^ in- 
 stead of twelve and one-half ^qx cent., as it now is. 
 
 Thus amended, the bill was approved, and ordered to a third 
 reading, by a vote of twenty-four to eight. It was read the 
 third time the same day, and after being so read. Senator Pow- 
 ers offered a resolution, that it required a two- thirds vote to pass 
 it. This resolution was decided in the negative, by a vote of 
 seventeen to ten. The bill, when this vote was taken, was the 
 
 Young was, evidently, greatly excited on iliose subjects, when he wrote it. His views 
 are certainly too extravagant and ultra for the practical wisdom of the present day. 
 
same precisely, as the Law now is, except the difference men- 
 tioned in the amount of the specie basis ; for the Assembly, as 
 we shall soon see, adopted all the amendments of the Senate, 
 except the new section respecting the specie basis, and finally 
 agreed to that, modified as to the amount of the per cent., as it 
 now stands. 
 
 Hence, the vote of the Senate, was the expression of the di- 
 rect opinions of the Senators upon, not only the general ques- 
 tion of the constitutionality of the Statute, but upon the question, 
 whether the associations were corporations. 
 
 The Senators who thus gave their solemn opinions in favor of 
 the constitutionality of this Law, were : 
 
 Frederick A. Talmadge, 1st DisLhaurena Hull, 6th District, 
 
 Gulian C. Verplanck, do. Chester Loomis, 1th District, 
 
 Henry A. Livingston, 2d District,John Beardsley, " " 
 
 David Spraker, 4:th do. Samuel L. Edwards, " " 
 
 Samuel Young, " » John Maynard, " " 
 
 Martin Lee, " " Isaac Lacy, &th District, 
 
 Micah Sterling, 5th " Samuel Works, " " 
 
 Levi Beardsley, 6th " William A. Moseley. " " 
 
 Daniel S. Dickinson, " " 
 
 On the same day the Senate passed the bill by a vote of twen- 
 ty to eight. All the Senators who expressed opinions in favor 
 of the constitutionality of the bill, and that it was not a two-thirds 
 bill, voted for it on its final passage, except Senator Young ; 
 and three of those, who were of opinion that it was a two-thirds 
 bill ; viz., Coe S. Downing, from the First District ; John P. 
 Jones, from the Second ; and Edward P. Livingston, from the 
 Third ; voted for it on its final passage ; as did also, Henry A. 
 Van Dyck, from the Second District, who did not vote on the 
 other question. 
 
 The bill was sent the same day, viz., the 17th of April, to the 
 Asesmbly, who referred it and the amendments of the Senate, to 
 
68 
 
 a special committee, of which Mr. Patterson was chairman, who 
 the next day reported, and recommended, that the Assembly 
 agree to all the amendments of the Senate, except the one re- 
 specting the specie basis ; which was accordingly done. The 
 Senate adhered to its amendment, and the Assembly insisted up- 
 on its resolution of non-concurrence. Each House then appointed 
 a committee of conference, who agreed on the section as it now 
 stands. Both Houses approved of the compromise, and the bill 
 was sent to the Governor and approved by him the same day. 
 
 No Statute of this State, I presume, ever underwent a fuller 
 discussion, or elicited more legislative and financial talent and 
 research. The attention of the whole State was directed to the 
 Subject, from the Chief Magistrate to the humblest citizen. The 
 Assembly went into committee of the whole on this bill Twen- 
 ty-Six different times, and on nearly as many different days ; 
 and took upon it, and its different sections. Fourteen divisions, 
 and the Senate Eight. The Governor approved of the bill, 
 knowing it had been passed as a majority bill ; for it had not 
 the certificate required by statute to be attached to two-thirds 
 bills. [1 R. S. 156, § 3.] Had his opinion been, that it was 
 either an unconstitutional, or a two-thirds bill, it would have 
 been his unquestionable duty, to withhold his approbation. 
 
 The origin, progress, and final passage of the bill, and espe- 
 pecially, the Message of the Governor which recommended it, 
 the reports of the committees of the Senate and Assembly, and 
 the vote of the Senate relative to its being a two-thirds bill, all 
 concur in furnishing conclusive evidence, that the Legislature 
 did not intend, by it, to create corporations. 
 
 The fact has already been mentioned, that the Legislature of 
 this State has never passed an act of incorporation, general or 
 special, without giving the corporate body a seal. If there 
 
69 
 
 was any <loubt, about the intention of the Legislature in this 
 instance, the omission, to give the associations seals, would 
 solve that doubt. 1 have not felt at liberty to omit a reference to 
 this circumstance, though I cannot but regard it as comparative- 
 ly unimportant, when there are so many other decisive proofs of 
 the intention of the Legislature. 
 
 The intention of the lawgivers being known, and I might add, 
 admitted by the Counsel for the defendant, how can a court of 
 justice, which expounds, but does not make the law, disregard 
 that intention ? 
 
 If it is done at all, it can only be on the ground, that the Le- 
 gislature designed to evade the Constitution, and have passed a 
 Statute in fraud of its provision. This, in other language, is 
 saying, that the ninety -six Senators and Members of the As', 
 sembly who voted for it, have disregarded their oaths. That, 
 instead of supporting " the Constitution of the State of New 
 York," as those oaths required, they have deliberately violated 
 it. When we recall the names, characters and services of those 
 gentlemen, the thought is revolting. No, the true and correct 
 view of the subject is, that those distinguished public servants, 
 and honest men, did not intend one thing and express another ; 
 but, that seeing the necessity of a change in our system of bank- 
 ing, determined to open it to our citizens generally, and permit 
 them to prosecute it, if they chose, in the form of associations, 
 which neither had corporate powers, nor would be subjected to 
 corporate odium ; yet under such regulations as would secure to 
 the people a safe and convenient currency. These associations 
 may be called, limited partnerships, joint stock companies, or 
 whatever else any one chooses, so long as they are not corpora- 
 tions. 
 
 In discussing this branch of my subject, I would call the atten- 
 tion of the Court to the proposition, that the only safe evidence 
 
7D 
 
 of the intention of the sovereign power to create a corporation, 
 is an explicit legislative enactment. If that is wanting, it is 
 almost, if not quite certain, that the sovereign will is not, that a 
 corporation shall exist ; and probably in this country, the safest 
 and best rule would be, that nothing but a clear and unequivo- 
 cal legislative declaration shall constitute a corporation. But 
 whether that is the preferable rule or not, at least, this is clear, 
 that in the absence of such declaration, nothing but the strongest 
 reasons and most unequivocal evidence, should be considered suf- 
 ficient to authorize a judicial opinion in favor of a corporate ex- 
 istence. 
 
 Let the subject then, be viewed in what light it may, the con- 
 clusion appears to be the same ; viz., that the associations au- 
 thorized by this Statute are not corporations. 
 
 My second position is, that, admitting that the associations 
 authorized by this Statute are corporations, still the Statute is 
 constitutional. 
 
 tut1inai!\h'o"ugh ^^ ^^^ ^^^ ^^^t bc prcsumcd to have been cor- 
 cSpoTatious. "^ rectly passed, as will be hereafter, I trust, most sa- 
 tisfactorily shown ; that is, by a majority of a quorum of each 
 house, if the bill is a majority bill, and by " the assent of two- 
 thirds of the members elected to each branch of the Legislature," 
 if the bill is a two-thirds bill ; the question arising under my se- 
 cond position is, whether the Legislature can pass a law by any 
 vote, majority or two-thirds, authorizing the formation of an in- 
 definite and unlimited number of bodies corporate, or in other 
 words, whether the Legislature can now provide by a general 
 law, for the incorporation of an unlimited number of voluntary 
 associations, as it could, and did in many instances, before the 
 adoption of the present Constitution. 
 
71 
 
 It is admitted by all, that, previous to the adoption of the pre- 
 sent Constitution, the Legislature had unquestionable authority 
 to pass general laws of incorporation, and the power had been 
 exercised in five prominent instances, viz. : 
 
 "An Act relative to the university," passed April 5, 1813, 
 (2 R. Laws, 263,) which authorized the incorporation of an in- 
 definite and unlimited number of colleges and academies. 
 
 "An Act to provide for the incorporation of religious socie- 
 ties," passed April 5, 1813, (3 R. S. 292,) which authorized 
 the incorporation of a like number of religious societies. 
 
 *' An Act to incorporate such persons as may associate for the 
 purpose of procuring and erecting public libraries in this State ;" 
 passed April 1, 1796, (3 R. S. 288,) which authorized the in- 
 corporation of the like number of libraries. 
 
 " An Act to incorporate medical societies, for the purpose of 
 regulating the practice of physic and surgery in this State," pass- 
 ed April 10, 1813, (3 R. S. 304,) which autliorized the incor- 
 poration of a medical society in each of the counties in this State. 
 
 " An Act relative to incorporations for manufacturing purpo- 
 ses," passed March 22, 1811, which authorized the incorporation 
 of an indefinite and unlimited number of voluntary associations 
 for manufacturing purposes. 
 
 I will here repeat the clause in the Constitution, which it is 
 contended has deprived the Legislature of the power to pasa 
 general laws of incorporation. It is in the following words : 
 
 " Sec. 9. The assent of two-thirds of the members elected to 
 each branch of the Legislature, shall be requisite to every bill ap- 
 propriating the public monies or property for local or private pur- 
 poses, or creating, continuing, altering, or renewing, any body poli- 
 tic or corporate." [Const. Art. 7, § 9. ] 
 
 The first proposition, for which I contend, on this branch of 
 the discussion is, that this clause in the Constitution is not ap- 
 plicable to a general law, which authorizes all our citizens to 
 unite in companies, and incorporate themselves to carry on any 
 
72 
 
 business, or manufacture, vvhich the Legislature may think can 
 be more usefully and beneficially for the community, conducted 
 in that way, than by individual effort ; but on the contrary, was 
 intended to apply to every separate act of incorporation, which 
 the Legislature might thereafter pass, conferring privileges on a 
 few, to the exclusion of the many ; and thus restain and impede 
 the granting of monopolies, which are exclusive privileges, and 
 produce inequalities of rights ; giving to a few citizens, advan- 
 tages, which are refused to all others. 
 
 Two official opinions on this subject have been delivered by 
 two successive Attorney-Generals of this State, viz., Messrs. 
 Bronson and Beardsley, one on a call from the Senate, and the 
 other on a call from the Assembly. 
 
 The acknowledged talents and respectability of these officers, 
 entitle their opinion to great consideration.* When we reflect, 
 however, that those officers have not the aid of arguments by 
 Counsel, and are frequently obliged to give their opinions to the 
 Legislature, without full time for examination and reflection, 
 and in the midst of other pressing professional and official en- 
 gagements, we can hardly expect from them, the matured and 
 cautious judgment of a judicial decision. These private acts of 
 incorporation are also often blended with the attachments, inter- 
 ests, and struggles of political partizanship, and that man is 
 more than human, who can wholly guard against their influence, 
 while surrounded by them, and enjoying honors and distinction, 
 which are, to some extent, at least, the reward of partizan fidel- 
 ity. One of these opinions were delivered in 1835, and the 
 other in 1837 ; both, unfortunately, since the policy of creating 
 incorporations, especially for banking purposes, had become in 
 
 * Mr. Justice Bronson here remarked tliat his opinion, alluded to, ought not to be 
 regarded as an authority. It was formed without the benefit of argument by Counsel, 
 and was worth no more than the reasons it contained, and he should be happy to hear 
 them fully examined. 
 
73 
 
 some measure, a beacon light, by which to rally and direct party 
 zeal. We know the learned and upright Judge who now fills 
 one of these seats, too well, to doubt, that he is not only willing, 
 but happy to have recalled, on this occasion, any incident or in- 
 fluence, which may perchance have imperceptibly exposed him 
 to error, when, as Attorney-General, he gave the opinion allu- 
 ded to. Knowing our danger, we may escape, and that voice 
 is friendly, which gives us warning. 
 
 Attorney General Bronson gave his opinion on the 6th of Jan- 
 uary, 1835, on the call of the Senate. [Senate Documents of 
 1835, No. 4.] After a pretty full discussion of the subject re- 
 ferred to him, which was a proposed amendment of the general 
 act authorizing incorporations for manufacturing purposes, he 
 arrives at several conclusions, of which the third is as follows : 
 
 " The Legislature cannot now provide by general laws for the 
 incorporation of voluntary associations, but must act directly in 
 every grant of corporate privileges ; creating some one or more cor- 
 porations in particular." [lb. p. 13.] 
 
 Attorney-General Beardsley gave his opinion on the 18th of 
 April, 1837, on the call of the Assembly. [Assembly Doc. of 
 1837, No. 303.] After a more limited discussion, than that of 
 his predecessor, he states several conclusions on the subject re- 
 ferred to him, which was, the "Act to authorize associations for 
 the purpose of banking," which the Assembly proposed to pass in 
 1837, and which I have mentioned in the former part of my ar- 
 gument, the third of which conclusions is in these words : 
 
 " That the bill is unconstitutional, as it assumes to authorize the 
 creation of an indefinite and unlimited number of bodies corporate, 
 and should it pass into a statute, and associations be formed under 
 it, they would, for the purposes contemplated, be absolutely null and 
 void." [lb. p. 9.] 
 
 The resolution of the Assembly calling for this opinion was 
 passed on the 13th of April, and the opinion was delivered on 
 the 18th. A brief space for forming an opinion, fraught with 
 10 
 
n 
 
 such a momentous result. A result, which strips the Legislature 
 of our State of a power, exercised repeatedly from almost the 
 commencement of our government, with the happiest and most 
 beneficial effects. 
 
 Mr. Bronson, in the fore part of the same opinion, in which he 
 states his conclusion against the power of the Legislature to 
 '' provide by general laws for the incorporation of voluntary as- 
 sociations,^' in answer to the first interrogatory from the Senate, 
 states the following as his answer: 
 
 *' First The Attorney-General can see no substantial ground 
 for doubt, that the Legislature may, by one act, create two or more 
 corporations. The Constitution says nothing on that subject. It 
 only prescribes the number of votes which shall be necessary to 
 every bill creating a corporate body ; leaving all other questions 
 about the passing of such laws, as they stood before, to the discre- 
 tion of the Legislature." [lb. p. 4.] 
 
 In other words, an act may be passed, creating any given num- 
 ber of corporations, from one to one hundred thousand, provided 
 each company is distinctly and directly incorporated by the act. 
 
 Both of these conclusions are formed on the same section of 
 the Constitution. It seems impossible to reconcile these two 
 constructions of it. What is there in the language, or spirit of 
 the Constitution, which will prohibit the Legislature from pass- 
 ing a general law for the incorporation of an unlimited number 
 of voluntary associations ; that is, from incorporating as many 
 companies as our citizens choose to form ; and yet permit the 
 Legislature by a law, to incoporate as many companies as our 
 citizens choose to apply for. The only difference is, that in the 
 one case, the Legislature anticipate the applications, and pass a 
 general law to meet them ; in the other, they wait till the appli- 
 cations are made, and then, by one law, incorporate them alL 
 But I submit, that the mode of legislation proposed, is far less 
 safe, than the one condemned. For a law containing ten, one 
 
^5 
 
 hundred, or any given number over one, of distinct incorpora- 
 tions, cannot so readily or conveniently, nor will be likely to be 
 so thoroughly scrutinized, by the members of the Legislature, as 
 a general law of incorporation, plainly designating the object of 
 associating, and placing distinct landmarks, and strong barriers 
 around the incoporations permitted. 
 
 In truth, the Constitution neither directs as to one or the other 
 mode. It is silent upon both ; and as Mr. Bronson says in his 
 first conclusion : 
 
 " The Constitution says nothing on that subject. It only pre- 
 scribes the number of votes which shall be necessary to every bill 
 creating a corporate body, leaving all other questions about the 
 passage of such laws, as they stood before, to the discretion of the 
 Legislature." 
 
 This view of the Constitution has been taken also by every 
 Legislature since its adoption, as appears by a joint rule of the two 
 houses, which has been in force for years. It is in these words : 
 " The same bill shall not create, renew, or continue more than 
 one incorporation, nor contain any provisions in relation to alter- 
 ing more than one incorporation." [See Joint Rules.] And 
 Mr. Bronson, after quoting this rule, adds: "This rule must 
 have been adopted, on the ground, that the subject had not been 
 regulated by the Constitution, but rested in the discretion of the 
 Legislature." [p. 5.] 
 
 Mr. Beardsley also holds this language in his opinion, [p. 8.] 
 
 Speaking of the Constitution, he says : 
 
 " In its strict terms, the clause is confined to bills which assuTne 
 to create corporate bodies, and does not extend to one which au- 
 thorizes their creation by the voluntary association of individuals." 
 He adds : " But this, in the opinion of the Attorney-General, would 
 be too narrow a construction of that instrument : it would disregard 
 its spirit and object, and adhere, with rigid technicality, to the let- 
 ter. As understood by the Attorney-General, it requires, that all 
 corporations, thereafter to be formed by the Legislature, should re- 
 ceive the direct assent of two- thirds of the members, in the passage 
 of bills, indicating and creating each particular institution. This 
 is the spirit of the provision, and is consistent with the letter." 
 
The Court will at once see, that Mr. Beardsley does not prove, 
 but assumes, that the spirit of the Constitution is different from its 
 language. He refers to nothing in the context ; to no other parts 
 of the Constitution ; nor to cotemporaneous history, which are the 
 usual sources of light in giving construction to doubtful clauses of 
 a constitution ; to nothing, to justify his assumption, that the spirit 
 and object of the Constitution are different from its language. And 
 yet, on such untenable ground, he gives it a construction, which de- 
 prives the Legislature of an otherwise unquestionable power ; and 
 that too, in direct violation of a well settled rule of construction, 
 viz., that when the language of such an instrument is plain and in- 
 telligible, a court is not at liberty to depart from it. 
 
 Both of the gentlemen direct their efforts, far more to proving 
 what the Constitution should be, than what it actually is. A peru- 
 sal of their opinions will fully justify this remark. They appear to 
 be deeply impressed with the idea, that the State is in great danger 
 of receiving irreparable injury from the increase of corporations ; 
 and they seem to regard it as their duty, to find some constitutional 
 mode of checking their multiplication. 
 
 Mr. Bronson says : 
 
 " It is impossible to read the clause, without perceiving, that the 
 design of the Convention was to impose a check on the increase of 
 corporations." (page 9.) 
 
 "When such grants are made with an exclusive reference to the 
 interests of the applicants ; and when, however laudable may be the 
 object, they are multiplied beyond the public wants, a positive in- 
 jury is done to the whole community." 
 
 « The subject must have been regarded in this light by the fra- 
 mers of the Constitution ; and without wholly prohibiting future 
 grants, they imposed such a check on the Legislature, as was deem- 
 ed best calculated to secure the people against the unnecessary in- 
 crease of corporate franchises." (page 10.) 
 
 The remedy Mr. Bronson proposes, for the evil, is indicated by 
 the following extract from his opinion : 
 
 " The construction, which more certainly than any other, will at- 
 tain this end, is that, which requires the Legislature, in cases not 
 
already provided for by law, to act directly on every question of this 
 description ; and which requires the assent of the members — not to 
 a bill under which an indefinite number of corporations may spring 
 into life — but to a bill, creating some one or more corporate bodies 
 in particular. This construction, while it is not inconsistent with 
 the letter of the Constitution, is best calculated to give full effect to 
 the intention of the Convention, and secure the public against the 
 unnecessary increase of corporate franchises." (pages 10, 11.) 
 
 Mr. Beardsley also says : 
 
 " The mischief which the Constitution designed to prevent, was 
 the inordinate increase of private corporations." (page 8.) "The 
 restraint is upon their undue multiplication." (page 11.) 
 
 The remedy which he indicates for this evil, is the same as that 
 proposed by his predecessor. He says : 
 
 " The Constitution demands, that the legislative discretion and 
 judgment shall be applied to every corporation, which must be created 
 by bill. If the contemplated institution is approved by the requi- 
 site number of members, the bill should pass into a law. But the 
 discretion and judgment which are thus invoked, and the exercise of 
 which is thus enjoined, can, in no sense, be exerted in the creation 
 of institutions which spring into existence at the bidding of indi- 
 viduals." (page 9.) 
 
 Who does not see ; and I ask these gentlemen themselves, if now, 
 when the incidents and associations of the moment have passed, if 
 they do not see, that they were laboring under an undue apprehen- 
 sion of evil, in regard to the increase of corporations 1 The reme- 
 dy, too, which they propose, all must see was entirely fallacious, as 
 an obligatory constitutional restriction on the Legislature. For 
 what legislature; who had deliberately resolved to authorize pros- 
 pectively one hundred, or an unlimited number of corporations, to 
 promote and favor a particular branch of trade or business ; would 
 refuse any number of separate applications for the same purpose ? 
 Besides, the history of the State for the last fifteen years, during 
 which, the new Constitution has been in operation, shows, that 
 while no evils, political or moral, have been experienced from the 
 many corporations, formed under our general laws, we have suffered 
 deep and abiding evil, from our legislation, in favor of private cor- 
 
* 
 
 79 
 
 porations, and their subsequent action. The lobby of our legislative 
 .* halls has become a by-word and a reproach. How have corporate 
 
 rights been stealthily obtained from the Legislature ? What acts 
 of incorporation have savored of, and raised high through the State, 
 the notes of alarm and indignation against undue influence, if not, 
 disgusting corruption ? It may certainly be said, not general 
 acts of incorporation. Both the gentlemen appear to have supposed, 
 that if the Legislature was deprived of the power to pass laws, which 
 did not directly, and in terms, incorporate a specific company, or 
 companies by name, and were thus obliged to look directly upon 
 each corporation created, the evil they so greatly apprehended, would 
 be checked. For they well concluded, both from the past history 
 of our legislation, the operation of the joint rule before mentioned? 
 and the fitness of things ; that it was highly improbable, that our 
 Legislature would directly incorporate, by one law, more than one 
 specific corporation, and thus, they were led, the one to propose, and 
 the other to approve, an entirely new idea, which was ; that by no 
 Yote, either majority or two-thirds, could the Legislature pass any 
 bill of incorporation, which did not, in the language of Mr. Bron. 
 son, " create some one or more corporate bodies in particular," by 
 direct legislative action on the question — and in the language, sub- 
 stantially, of Mr. Beardsley, which did not receive the direct assent 
 of two-thirds of the members elected to each branch of the Legisla- 
 ture, and indicate and create a particular institution. The history 
 of our legislation aud of the adoption of the Constitution shows, that 
 this, in the broad form presented, was fresh ground. While it is 
 not the usual mode of creating corporations, by a separate and dis* 
 tinct bill for each act of incorporation, inasmuch as it permits 
 any given number of corporations in particular to be created by one 
 bill ; so, neither is it, the other mode, by general act. Yet, as it 
 were, by a side wind, it takes from the Legislature the well known 
 and understood power of enacting general laws of incorporation in 
 the ordinary form. I hazard nothing in saying, that the Conven- 
 tion which adopted the constitutional provision, never even ap. 
 proached its conception. What a new form our incorporating laws 
 would assume, if it was carried into practice? How the Conven. 
 tion would have been startled ; and with what surprise would our 
 
79 
 
 > 
 
 Kents, Spencers and others, who were members, been struck ; had ^ 
 
 the new legislative offspring, to which they were unconsciously 
 giving existence, appeared in the full stature, in which it is proposed 
 to us : and if informed, that while yet in youth, some years short of 
 majority, it would control our Legislature, restrain its action, strip 
 it of a beneficial power, they would have strangled it past hope. It 
 descends to, and rests on the forms of the bills which the Legisla- 
 ture are to pass, and drives us to the inquiry, whether the Conven- 
 tion intended to place their restriction, solely, on so slight and 
 changeable a basis. The mere statement of the inquiry furnishes 
 the answer. It may be said, that a bill which creates at once, and 
 without further action, one, or any given number of corporations in 
 particular, is no more in substance, a bill creating bodies corporate ; 
 than a bill which authorizes, regulates the manner, and designates 
 the object of an unlimited number of corporations. They are both 
 in one sense, bills creating bodies corporate, but by different modes 
 of legislation. One accomplishes the object in one way ; and the 
 other in another. In either case, the corporations may be said to bo 
 created by bill. And the legislative action is substantially, as direct, 
 in one case as the other — for there is no efficient action in either 
 case, except in passing the bill. The true difference is — that in one 
 case, the corporation is created at once, and the only act remaining 
 to be done, is acceptance by the corporators — in the other, the cor- 
 porators are to perform certain acts prescribed by the Statute* 
 There is more or less action by individuals in each case. And the 
 Convention embraced and acted upon two ideas, fairly indicated 
 by its language, viz., 1st, full and direct creation at once by bill ; 
 and 2d, separate enactment — which two ideas are the distinguishing 
 features of the mode of corporate legislation, intended to be prohibit- 
 ed as will hereafter be more fully illustrated. 
 
 And the question recurs, what does the clause in the Constitution 
 prohibit ? Does it prohibit the passage of general laws of incorpo- 
 ration, or not ? Before discussing the question on its merits, let us 
 settle the matter of authority upon the one side, as well as the other. 
 
 Directly opposed to the opinions of Messrs. Bronson and Beardsley, 
 
is the unanimous opinion of the revisors of our Statutes — Messrs. 
 Jno. Duer, B. F. Butler, and John C. Spencer. They were clearly 
 and unequivocally of opinion, that this clause of the Constitution 
 did not apply to a general law authorizing the creation of corpora- 
 tions ; and that the Legislature had the same power to pass such 
 laws after the adoption of the present Constitution as they had be- 
 fore. In their revision, they proposed to revise and amend all the 
 five general laws of incorporations before referred to. [See Revi- 
 sors Reports, chapter 15, of the first part. Title 1. Articles, 2, 3. of 
 colleges. Articles, 4, 5. of academies. Report of chapter 18, of 
 the first part, Title 1. of religious corporations. Title 2. of the in- 
 corporation of library societies. Title 3. of medical societies, and 
 Title 4. of manufacturing corporations.] They also proposed an 
 entirely new general law of incorporation, authorizing an indefi- 
 nite and unlimited number of corporations of " Obituary Societies." 
 [Revisors Report, chapter 18, of the first part, Title 6.] 
 
 Mr. Bronson, in his opinion, states, in reference to the opinion of 
 the revisors, that he " is aware, that there is high authority for a 
 contrary opinion" to his own. The Legislature also which enacted 
 our Revised Statutes, concurred in opinion with the revisors, and 
 approved and enacted their revision of the general law authorizing 
 the incorporation of academies. [2 Rev. Laws, 263. Revisors' Re- 
 ports, chap. 15, Title, 1, Articles, 4, 5. 1, R. S. 461.] And a sub- 
 sequent Legislature has materially altered and amended the same 
 act by a majority vote, as the Journals will show. [Laws of 1835, 
 ch. 34.] 
 
 It will be remembered, that the prohibition in the Constitution, 
 whatever it is, extends to every law, "continuing, altering, or re- 
 newing, any body politic or corporate," as well as creating it. The 
 revisors, consistent throughout, were of opinion, that this clause in 
 the Constitution did not apply to amendments and alterations of our 
 general laws of incorporation, any more than to the enactment of 
 other laws like them ; and so Mr. Bronson, in his opinion, says. 
 This is his language : 
 
 "From these reports it will be seen, that the revisors, who were 
 gentlemen of high standing in the legal profession, entertained n* 
 
81 
 
 doubt upon two points ; first, that the existing general laws, for 
 creating corporate bodies, were still in force ; secondly, that they 
 might be revised and amended in the same manner as other public 
 statutes." [page 7.] 
 
 Mr. Bronson, however, stated the following as one of his conclu- 
 eions : 
 
 "Fourth. The existing laws for the incorporation of voluntary 
 associations, may be amended ; but not in such a manner as to au- 
 thorize associations which are not now provided for by law." [p. 13.] 
 
 This opinion is formed on the constitutional clause we are con- 
 sidering, and I would respectfully inquire, how it can be held to ap- 
 ply to a law, altering or amending a body politic or corporate in 
 some particulars, and not to a law, amending or altering it, in other 
 particulars. 
 
 The thirteenth section of the seventh article of the Constitution 
 contains a provision ; that all the acts of the Legislature of this 
 State then in force, and such parts thereof as were repugnant to the 
 Constitution, were abrogated. Yet in the opinion of all, Messrs. 
 Bronson and Beardsley included, not only were our general laws of 
 incorporation then in force, unaffected by the provision, but all 
 corporations, formed under them since its adoption, were in like 
 manner unaffected by it, and were legally and constitutionally in- 
 corporated. If the Legislature cannot pass general laws of incor- 
 poration ; on what principle can those already passed be amended 
 or altered ? And if they cannot be altered, they are eternal ; and 
 we must be content to have laws that no earthly power can toucb« 
 improve, or modify. 
 
 We have also the opinion of the late Governor of this State, the 
 Hon. Wm. L. Marcy, in opposition to the opinion of Messrs. Bron. 
 son and Beardsley. In his message of 1838, before quoted, he says : 
 
 " Doubts have been entertained as to the constitutional compe- 
 tency of the Legislature to pass a general banking law, conferring 
 corporate powers. Without entering into the argument on this 
 question, I will only say, that I am inclined to the opinion, that the 
 Legislature have the power to pass such a law ; but the spirit of the 
 Constitution requires that it should be passed as a two-thirds bill." 
 11 
 
He adds : " It is proper I should also say, that this opinion is 
 entertained with much diffidence, and is not expressed without duly 
 considering the respectful deference justly due to the high authority 
 by which it is opposed." 
 
 To this may be added the deliberate opinions, after full discus- 
 sion, of the distinguished members of the profession of law, who 
 were in the Senate and Assembly in 1838 ; and the opinion of a great 
 number of the soundest lawyers in this State, who have been consulted 
 on this subject by the different associations which have been organ- 
 ized under this law ; and many of whom have given high evidence 
 of confidence in their own opinions, by investing their funds in those 
 associations.* 
 
 When we consider the high general professional attainments of 
 the revisers of our laws, and their peculiar qualifications to give a 
 sound and correct construction to our Constitution ; the high judi- 
 cial reputation of our late Governor, and his unquestioned qualifi- 
 cations to judge correctly upon the true construction of the Consti- 
 tution ; the high professional reputation of a large number of emi- 
 nent lawyers who voted for this Statute in the Senate and Assem- 
 bly, and of those who have given their opinions to the associations, 
 and vested their funds in them ; it may be said, without any impeach- 
 ment of the acknowledged and high professional acquirements of 
 
 ♦ I will mention'two'prominent instances. Chancellor Kent, and George Grif- 
 fin, Esquire ; both of whom are hberal subscribers to the Bank of Commerce, and 
 the former, a large subscriber. The labors and reputation, of Chancellor Kent belong 
 to the country; and notliing, which I can say, will enhance the value of the former, 
 or add to the latter. It is sufficient to mention liis name, to inspire all the confidence 
 that human worth commands. I tnay be allowed, however, to remark, that although 
 he has now entered upon his seventy-seventh year, his faculties of mind and body ap- 
 pear to be unimpaired, his step is yet elastic, and liis mind active. Since liis retire- 
 ment from the office of Chancellor, in consequence of having arrived at the age luni- 
 ted by the Constitution, which, if my memory serves me, was on the 30th of July, 
 1823, he has vmtten his Commentaries, which have already passed through tliree edi- 
 tions, each of which he has enlarged, improved and corrected himself. He has also done 
 a very large amount of professional busmess at his chambers, in giving and writing opin- 
 ions, preparing vmtten arguments, and drafting special conveyances ; and although his 
 charges are always very reasonable, he has thus made a hberal provision for his family ; 
 and stUl unimpaired, by such a long and steady course of useful and honorable em- 
 ployments thus happily ended, now waits liis hour with cheerfiU serenity. 
 
 George Griffin, Esq. This gentleman is also well Imown to the profession. He 
 is in its very first rank — and when age, lengtli of active practice, ripened experience, 
 natural talent, the powers of the wary and watchful advocate, and the importance and 
 extent of professional engagements are considered, perhaps I should say, at the head 
 of the practicing Bar of this State, especially at Nisi Prius. 
 
83 
 
 Messrs. Bronson and Beardsley, that the unanimous and concurring 
 opinions of the three revisers, (supported as they are by the opin- 
 ions of others,) upon all the propositions we have just been discuss- 
 ing, should rather command our assent, than the opinions of those 
 two gentlemen which we have been considering. 
 
 Tested, therefore, by the weight of authority, it must be deter- 
 mined, that the Constitution does not apply to general laws, creating, 
 or authorizing the creation of corporations ; and that our Legis- 
 lature may now, as they could before its adoption, pass such laws. 
 
 One reflection here occurs. By holding the construction of the 
 Constitution for which we contend, the course of legislation is clear, 
 wholesome and safe. By taking the other ; we meet with diflicul. 
 ties ; are involved in counter currents, if not inconsistencies ; legisla- 
 tion is driven into devious courses ; doubts are cast upon private 
 rights ; and hoqest industry alarmed and checked. 
 
 Let us now direct our attention to the determination of the true 
 construction of the clause of the Constitution under discussion. 
 
 The first, most usual, and natural mode, is to look into the previ- 
 ous and cotemporaneous history of the State, and ascertain the evils 
 which this constitutional provision was intended to guard against 
 for the Future. In an uncompromising search for truth, the fact 
 cannot be disguised, that the circumstances attending and con- 
 sequent upon the incorporation of the Bank of America, on the 
 2d June, 1812, gave rise principally, if not wholly, to this clause 
 of the Constitution.* The prorogation of the Legislature by the 
 Governor of this State, for the avowed object of preventing the in- 
 corporation of that bank by corrupt means ; (the vote upon which 
 showed a settled majority of one in its favor ;) the subsequent in- 
 dictment, for bribing, or attempting to bribe members of the Le- 
 gislature ; and the public trial of two gentlemen, who had theretofore 
 
 *The charter of that bank has since its incorporation been materially amended, its 
 capital reduced, and it is now imder the management of our most respectable citi- 
 zeng, none of whom, it is beUeved, were actively concerned in procuring its charter. 
 It now stands among the first monied institutions of our State, and its officers receive 
 and deserve the full confidence and respect of the community. 
 
84 
 
 stood high in public estimation ; been repeatedly honored with offi- 
 ces of high public trust, and both of whom were then in office, and 
 discharging the duties of their respective stations ; the alarm which 
 was felt by the community, lest, our institutions should fall a prey 
 to a daring thirst of gain, which sought its gratification by cor- 
 rupting tho very fountain of our laws ; were all yet held in vivid 
 remembrance. And down to the very time, and during even the ses- 
 sion of the Convention which framed our present State Constitution, 
 the public press was the vehicle of charges, criminations and re- 
 criminations, against many of our public men, for their alleged 
 agency in procuring the charter of that bank. And some of those 
 gentlemen were members of that Convention. And it was probably 
 owing to this circumstance, that the clause underwent so little dis- 
 cussion in the Convention as it. did, and to the same circumstance, 
 that Mr. King, the chairman of the .committee who reported it, as- 
 signed his reasons for its adoption, in brief and general terms. [De- 
 bates of Conv. p. 446.] And doubtless to the fact, that some of the 
 gentlemen, charged with delinquency in regard to the chartering of 
 that bank, and many of their relatives and friends were still on the 
 theatre of action in this State, is to be attributed, the guarded 
 though still explicit language of Chief Justice Nelson, when speak- 
 ing of the evil which this clause in the Constitution was intended 
 to check, in his opinion, delivered in the case of The People, vs. 
 Morris, [13 Wend. 336,] and to which I shall hereafter call par- 
 ticular attention. 
 
 That this section of the Constitution owed its origin to the cause 
 mentioned, more evidently appears from the fact, that as first pro- 
 posed and reported by Mr. King, it only required the assent of 
 two-thirds of the members, « in both houses, to the passage of any 
 act of incorporation'^ And it was afterwards amended in the Con- 
 vention, by extending it to acts, " appropriating public monies for * 
 local purposes." [Debates of Convention, p. 446.] Chief Justice 
 Nelson, who was a member of the Convention from Cortland county, 
 hafl also added his authority in favor of my position in respect to 
 the true origin of this constitutional provision. Speaking of the 
 
85 
 
 time when the present Constitution was formed, and of the evil 
 which it was intended to remedy, ho says : 
 
 " But private corporations had multiplied to an extent that had 
 attracted public attention, especially banking institutions. These 
 had been sought for with zeal, and their enactment attended with 
 circumstances that awakened public suspicion and alarm. So 
 extreme had the evil become at one period of our history, that 
 the Chief Magistrate of the State felt it his duty to exercise the 
 power then existing in the Constitution, of proroguing the Legis- 
 lature, and was triumphantly sustained by the people in the exe- 
 cution of ihis high and delicate trust. The fact affords strong 
 evidence of the deep impression .made upon the public mind as 
 to these and similar private corporations, and of the scope and 
 purpose of the clause on this subject. If we resort to the history 
 of its introduction into the new Constitution, the above view 
 will be confirmed. Mr. King, chairman of the committee of the 
 Legislative department, reported the section ; and when it came 
 under consideration, said that the committee had looked upon the 
 multiplicaiton of corporations as an evil ; they had been created 
 for a variety of purposes ; they were exceptions to the common 
 law ; they could -not be proceeded against in the ordinary way of 
 prosecutions against individuals in courts of justice ; they ought 
 not to be increased, but should be diminished as far as could be 
 done consistently with the preservation of vested rights. It is ob- 
 vious, though the language used in the clause in question is general, 
 that the honorable chairman had in his mind, (and he spoke for the 
 committee,) the case of private corporations ; that the great in- 
 ducements to the adoption of the clause was a check upon them ; 
 and that the organization of communities, and the investing them 
 with the privileges of mere munincipal jurisdiction and author- 
 ity, were not at all in contemplation." [The People vs. Morris, 13 
 Wend. 336, 337.] 
 
 It will be observed that the Chief Justice in speaking generally 
 of the evils which the Constitution intended to remedy, remarks, 
 " Private incorporations had multiplied to an extent that had at- 
 tracted public attention, especially banking institutions.^^ A re- 
 currence, however, to the history of the times will satisfy him, that 
 the idea of a repeal of the Restraining Act, or the passage of a 
 general law of incorporation for banking purposes, was the farther- 
 est possible from the mind of the Convention. That no one at 
 that day, even in his wildest dreams, thought of opening the busi- 
 
86 
 
 ness of banking to all our citizens. The evil that pressed the Con- 
 vention and the public was, the frequency of the enactment of sep- 
 arate acts of incorporation, each of which thronged our capitol, and 
 legislative halls with their agents, who found their reward in ob- 
 taining exclusive privileges, principally for banking, which were 
 withheld from our citizens generally. Opening at once, to a whole 
 community, the business of banking, allowing all to bank who 
 choose, is a very different measure, rests on entirely different prin- 
 ciples of policy, and must be followed by entirely different results ; 
 from increasing from time to time, under a strong external pressure 
 upon the Legislature, stimulated by individual interest, private 
 and exclusive corporate privileges for banking. Nothing more 
 clearly shows the difference between the two, than the history 
 of the enactment of our present General Banking Law, and of 
 the separate incorporation of the other banks of the State. Nor 
 does any thing more satisfactorily prove the certainty of the over- 
 throw of the banking monopolies of this State, and the suppression 
 of their spirit, than the early, steady, active and persevering oppo- 
 sition of the holders of the exclusive charters, to the new general 
 system. 
 
 The debates of the Convention, though very brief, general and 
 unsatisfactory, also show that the evil aimed at was the multiplica- 
 tion of monopolies — ^partial and unequal laws — exclusive privileges, 
 which benefit a few to the injury of the many. [Debates of Con. 
 446.] 
 
 As there never was any complaint against the corporations cre- 
 ated under general laws ; there would seem, therefore, to be no 
 doubt, but that this provision in the Constitution was intended to 
 remedy the evil of partial legislation, and to remove the temptations 
 to corruption which such a course of legislation necessarily draws 
 after it. The obvious and natural remedy was the one adopted, viz., 
 not to allow the enactment of a law ; either " appropriating the 
 public monies or property for local or private purposes ;" by which 
 the few would be benefitted at the expense of the many ; or " creating, 
 continuing, altering, or renewing any body politic, or corporate," by 
 
87 
 
 which privileges would be conferred on a few, to the exclusion of 
 the many ; by the vote of a bare majority ; but that when cither of 
 those objects were sought through the agency of the Legislature, 
 it should be so clear a case, that two to one should be in favor of 
 it ; and besides, if another case like the Bank of America should oc- 
 cur, in which the applicants for an exclusive privilege should be 
 so reckless in regard to the means of effecting their object, as to 
 use the criminal and subduing power of gold, they should be com- 
 pelled to conquer two-thirds of all the members elected to each 
 branch of the Legislature — a much moie difficult, hazardous, and 
 expensive cnterprize, than drawing into their interest a bare ma- 
 jority of each House. 
 
 There was at that time, and still is, only two modes of Legislation 
 known or understood for incorporating companies. One, by a gener- 
 al law, allowing all who choose, to take an act of incorporation for 
 conducting a particular business or trade. The other, by a spe- 
 cial act, incorporating a single and specific company. 
 
 Is it not then obvious to all, that this clause in the Constitution, 
 so far as it relates to corporations, was intended to apply to that 
 mode of corporate legislation, by which one act incorporated a sin- 
 gle and separate company, and not to general laws, conferring the 
 same privileges upon, and affecting all our citizens alike. 
 
 Although Governor Marcy's remark in his message of 1838, 
 that the spirit of the Constitution required, that a general banking 
 law should be passed as a two-thirds bill, was made, as he said, with 
 much diffidence, his high political and judicial standing demands 
 a notice of it. He appears to have made the remark, without re- 
 curring to the origin and cause of the constitutional provision ; or 
 to the two modes of corporate Legislation then in use. He makes 
 the remark apparently under the general impression, that banking 
 institutions are within the spirit of the clause, without reflecting 
 upon the great difference between opening banking to all, and re- 
 stricting it to a few ; or that a general banking law, conferring cor- 
 porate powers, is no more within the spirit of the Constitution, 
 than a general manufacturing law; a general insurance law; a 
 
88 
 
 general whale fishery law ; or any other general law conferring 
 like powers. If one general law, creating corporations for a par- 
 ticular purpose, is within the Constitution, than every other gen- 
 eral law, conferring corporate rights for whatever purpose, is also 
 within it. I cannot but persuade myself, that if the Governor had 
 looked at the question in all its bearings and effects, he would have 
 concurred with the revisors of our Statutes, in this particular, as 
 he did in the more general proposition, that the Legislature had the 
 same power now, as before the adoption of the Constitution, to pass 
 general laws of incorporation ; and that the restrictive clause was 
 only applicable to private and exclusive legislation. 
 
 The language of the Constitution fairly and naturally indicates 
 and covers this special legislation. It is : 
 
 " The assent of two-thirds of the members elected to each branch 
 of the Legislature, shall be requisite to every bill appropriating the 
 public monies or property for local or private purposes, or creat- 
 ing, continuing, altering or renewing, any body politic or corporate." 
 
 Does not the section, tested by its language, apply, and only ap- 
 ply to that mode of creating corporations, then in general use, by a 
 separate act for each incorporation ? The assent required shall be 
 " to every bill," &c., " creating, &;c., any body politic or corporate.'* 
 The language indicates separateness and directness of legislation, 
 and must be strained, to embrace general laws and indirect incorpo. 
 ration. 
 
 I do not mean to be understood as contending, that if a law in- 
 corporates more than a single company, it is not therefore era- 
 braced by the Constitution. I contend for the great and manifest 
 distinction, between general and private legislation ; between a law 
 that confers the same privileges on all, and one, which confers pri- 
 vileges on a few to the exclusion of the many. It may be difficult to 
 mark the exact line ; but not more so, than to determine the old 
 line between public and private acts ; between internal improve- 
 ments for general, and those for local benefit ; and between bills 
 appropriating public monies for local and private purposes, and 
 tbose appropriating them for general purposes. There is a broad 
 
89 
 
 distinction between them, founded on reason and principle. One 
 is, and the other is not, within the evil provided against.;^ One is, 
 and the otlier is not, within the letter or spirit of the Constitution. 
 
 Neither Mr. Bronson, nor Mr. Beardsley claims, that the words 
 of the Constitution naturally and freely apply to general acts of 
 incorporation. All they contend for, in respect to the language, 
 is, that it is not directly inconsistent with their construction of the 
 clause. Mr. Bronson says : 
 
 " This construction, (that is, his construction,) while it is not in- 
 consistent with the letter of the Constitution, is best calculated," 
 dec, " Such laws, (that is general laws,) if not in direct conflict 
 with the letter of the Constitution, would be plainly calculated," 
 &;c. [page 4.] 
 
 Mr. Beardsley says : 
 
 " In its strict terras, the clause is confined to bills which assume 
 to create corporate bodies, and does not extend to one which author- 
 izes their creation by the voluntary association of individuals. 
 But this, in the opinion of the Attorney-General, (that is, his opin- 
 ion,) would be too narrow a construction of that instrument." 
 
 And then, after stating it as his opinion, that the correct con- 
 struction of the Constitution is to consider it applicable to laws au- 
 thorizing the incorporation of voluntary associations, he says : 
 
 " This is the spirit of the provision and is consistent with the 
 letter." [page 8.] 
 
 Governor Marcy also distinctly intimates his opinion, that a 
 general hanking law is not within the words of the restrictive clause. 
 He remarks, however, yet with much diffidence, as we have seeD^ 
 that " the spirit of the Constitution requires it should be passed as 
 a two-thirds bill. 
 
 The framers of the Constitution were well aware of our general 
 laws of incorporation, and of the frequency with which such laws 
 were passed. Some of them were even alluded to in the few re- 
 marks that were made in convention on adopting the restrictive 
 section. Had it been the intention of the Convention to include 
 within this provision of the Constitution general laws of incorpo- 
 ratioD, would not other and appropriate language for that purpos 
 13 
 
90 
 
 hare been used? and especially, if the Convention had intended 
 to prohibit altogether the passage of any more general laws of in^ 
 corporation, either by a majority or two-thirds vote ; (for let it be 
 kept steadily in mind, that that is the position contended for by 
 our opponents and sanctioned by the opinion of Messrs. Bronson and 
 Beardsley,) would not other language have been used ? would not 
 another and a distinct section have been introduced into the Con- 
 stitution ? The manifest object of this section was to declare hy 
 what vote, certain laws thereafter should be passed, and not what 
 laws should or should not be thereafter passed. Besides ; if the 
 Convention had supposed, that the effect of this section would be 
 entirely to prohibit thereafter the passage of all general acts of in- 
 corporation, there would certainly have been opposition ; the policy 
 of the measure would at least have been doubted by many ; a debate, 
 and a full and protmcted one, would have ensued. The public 
 would have been alarmed by such a proposition, and the Press would 
 doubtless have been heard. And had the Convention intended to 
 prohibit the passage of general laws of incorporation for conduct- 
 ing the business of banking, or insurance, or any other trade or bu- 
 siness ; would there not have been in the Constitution an appropriate 
 clause ? or had the Convention intended to do anything except reg- 
 ulate the mode of legislation in respect to the vote to be given ; 
 would they have left their intention in doubt ? 
 
 Seeing then, that the language of the section does not call for» 
 but on the contrary, repels the construction claimed by the Counsel 
 for the defendant ; seeing also that it was not the intention of the 
 framers of the Constitution to prohibit thereafter the enactment 
 of general laws of incorporation ; let me inquire briefly, if the light 
 of experience should induce this tribunal, to extend this constitu- 
 tional provision by construction, beyond the natural and fair pur- 
 port of its language. 
 
 I think it far from rashness to assert, that if this section of the 
 Constitution could be submitted now to the people of this State, it 
 would be repealed almost unanimously.* Instead of promoting pu- 
 
 * C& Jus. Nelson remarked in this stage of the argument, that it was universally' 
 
91 
 
 rity in our legislation, or restraining exclusive and unequal grants 
 of corporate privileges, it has the directly opposite tendency, by en- 
 abling a few members in each branch of the Legislature to con- 
 trol its action, and thus force through the forms of legislation, ma- 
 ny measures, as unjust as they are unwise. 
 
 Mr. Beardsley, in his opinion, uses quite as strong language on 
 this subject as could be expected from him in the position and re- 
 lations he then stood. He says : 
 
 " The restraint imposed by the Constitution may be an unwise 
 one, and unsuiled to the present condition and wants of the com- 
 munity. It may have been imposed without adequate cause, and 
 have proved to be illusory and mischievous. These are all possi- 
 ble, (page 9.) 
 
 I do not hesitate to add, that they care all true ; and that such is 
 the opinion of this community. 
 
 The report of the committee of the Senate made in 1837, and 
 from which I have already given extracts for another purpose, 
 holds the hold and direct language of truth on this subject ; and 
 shows the lamentable and humiliating influence which this provis- 
 ion of the Constitution has had in practice on our legislation. 
 
 The question then arises ; is it the duty of this Court to extend 
 this constitutional provision by construction ; or is it rather their 
 duty to restrict its influence ? The answer is obvious. 
 
 There is a single other idea which ought to be stated in this con- 
 i^ction ; and^that is, that there is no danger from any source, in 
 permitting a legislature to legislate for the general benefit of the 
 community ; which must always be the case, with all general laws 
 of incorporation. They create no distinctions; they confer no 
 exclusive privileges ; they benefit all alike. Such a power, surely, 
 ought not to be taken from our Legislature, by implication or con- 
 struction. 
 
 admitted, that the provision of the Constitution had entirely failed to effect the object 
 intended. Instead of remedying, it had increased the evil. 
 
 Mr. Justice Bronson expressed his full concurrence in this remark of the Chief 
 Justice ; and added, that every one must be sensible of ita truth, who had been Au 
 miliar for some years past with our legislation. 
 
This Court in the case of the People vs. Morris, (13 Wend. 325,) 
 decided, under an opinion delivered by the Chief Justice, in respect 
 to which it is bare justice to say, that it challenges an equality with 
 any one contained in our Reports, that laws, both general and spe- 
 cial, incorporating, or altering the acts of incorporation of our cit- 
 ies and villages, were not within the operation of this clause of the 
 Constitution, and might be passed by majority votes ; although the 
 Court admitted that they were within its letter. The great princi- 
 ple, on which this decision rests, is that these corporations, being 
 bodies politic, were created for the general benefit of the communi- 
 ty, and were not wiihin the evil intended to be remedied by this 
 constitutional provison, and that it would be dangerous, and could 
 not have been intended by the Convention, " to restrict the action 
 of the Legislature in the municipal regulations of the State." The 
 Chief Justice thus expresses himself: 
 
 " Are they within the evil this provision was designed to remedy ? 
 No one, I think, acquainted with the history of the times, or with 
 the introduction of this clause into the Constitution, will venture 
 upon this ground. It may be fortunate for truth, and what is 
 deemed a sound exposition of this provision, that all who may de- 
 sire to examine it, can recur to his own recollection, and challenge 
 that of others upon this point. We think we hazard nothing in 
 asserting, that the multiplication of cities or villages by the Legis- 
 lature has at no time been a subject of complaint." (lb. p. 336.) 
 
 How fully and forcibly this language covers the whole ground 
 occupied by the present discussion. Who, acquainted with the 
 history of the times, will venture to assert, that the passing of gen- 
 eral acts of incorporation has at any time been the subject of com- 
 plaint ! As such acts were not within the evil intended to be 
 remedied, they should be excluded from the operation of the con- 
 stitutional restriction, even if within its words, on the principle of 
 the decision just cited ; a fortiori, they should be excluded, not be- 
 ing within its words. 
 
 This great principle has been acted upon in this state ever since 
 the adoption of the present Constitution, in respect to bills "appro- 
 priating public monies or property for local or private purposes." 
 Our legislation has b^en uniform in passing bills of this kind by the 
 
93 
 
 ordinary majority vote, where the benefit was general, though the 
 appropriation was confessedly local. 
 
 I conclude this branch of my argument by stating the answer to 
 the question proposed, viz., that this constitutional provision is not 
 applicable to general acts of incorporation, and that the legisla- 
 ture can pass a law by any vote, majority or two-thirds, authori- 
 zing the formation of an indefinite and unlimited number of bodies 
 corporate; or in other words, that the Legislature can now provide 
 by a general law for the incorporation of an unlimited number of 
 voluntary associations, as it could and did in many instances be- 
 fore the adoption of the present Constitution. 
 
 But if the Court is not fully satisfied with this conclusion, and 
 their minds are still in doubt, let me present one other rule of con- 
 struction applicable to these great constitutional questions ; a rule 
 founded in the purest wisdom, and supported by the highest au- 
 thority. It is, that no statute should be declared unconstitutional, 
 unless it is clearly and unquestionably a violation of the Constitution. 
 
 This Court, in the case. Ex Parte M^ Collum, (1 Cow. 564,) said, 
 " Before the Court will deem it their duty to declare an act of the 
 Legislature unconstitutional, a case must be presented in which 
 there can be no rational doubt." And the Supreme Court of the 
 United States, in the case of Dartmouth College vs. Woodward, (4 
 Wheat. R. 625,) held, " That in no doubtful case would it pro- 
 nounce a legislative act to be contrary to the Constitution." 
 
 If then the argument, which has been presented, has failed to 
 produce conviction, and only brought the Court into doubt, as to 
 the constitutionality of the Statute, that doubt must be resolved in 
 favor of its validity ; and thus protect the immense amount of pro- 
 perty invested under its sanction, and secure to the community the 
 great benfits which have and must flow from its enactment. 
 
statute Is ]\f y third and last position is, that admitting that the 
 
 constitution- "^ ' o 
 
 ally passed, constitutional restriction is applicable to general acts 
 of incorporation ; then I insist, that such a law may be passed by 
 a two-thirds vote, and that this Law will be presumed to have been 
 
 One of the propositions stated, and I trust satisfactorily proved, 
 in the course of the argument in support of my second position, is, 
 that the constitutional provision was only intended to prescribe the 
 vote by which each act should be passed, which appropriated public 
 monies to local or private purposes, or created, or altered any body 
 politic or corporate, and left every thing else to the discretion of 
 the Legislature. This manifestly appears from the section itself, 
 and might probably have been safely assumed without any argu- 
 ment. The only question then remaining is ; whether this Court 
 is not bound to presume, that this as well as every other act of the 
 Legislature, which has passed through the office of the Secretary of 
 State to the State Printer, and been published according to law, has 
 not been constitutionally passed ; or in other words, whether this 
 Court can inquire beyond the certificate of the Secretary of State, 
 and institute an investigation respecting the manner in which any 
 given law has passed the Legislature. 
 
 I hold with confidence the negative of this proposition. 
 
 Our Statutes declare : 
 
 " § 10. He, (the State Printer,) shall print, in volumes of oc- 
 tavo size, so many copies of the laws of each session, with the con- 
 current resolutions and indexes that shall be delivered to him for 
 that purpose, by the Secretary of State, as shall be annually directed 
 by the Secretary, who shall also revise and correct the proof sheets. 
 
 "§ 12. All laws passed by the legislature, may be read in evi- 
 dence from the volumes printed by the State Printer, in all courts 
 of justice in this State, and in all proceedings before any officer, 
 body, or board, in which it shall be thought necessary to refer there- 
 to. [1 R. S. p. 184.] 
 
 **§ 10. The Secretary of State shall receive every bill which shall 
 have passed the Senate and Assembly, and have been approved and 
 signed by the Governor, or which shall have become a law notwith- 
 standing the objections of the Governor, or which, not having been 
 
95 
 
 returned by the Governor within ten days, shall have become a law ; 
 and shall deposit such laws in his office. 
 
 " § 11. He shall certify and endorse upon every such bill, the day, 
 month and year, when the same so became a law, and such certifi- 
 cate shall be conclusive evidence of the facts therein declared." 
 [Ibd. p. 157.] 
 
 " § 3. No bill shall be deemed to have been passed by the assent 
 of two-thirds of the members elected to each house, unless so certi- 
 fied by the presiding officer of each house." [Ibd. p. 156.] 
 
 It has been supposed by some, that two-thirds bills must have the 
 certificate provided in this last section attached to them, or they are 
 not valid. This has never been the practical construction put upon 
 the section, as such certificates have not been published to my know- 
 ledge with the two-thirds acts, which they would have been, if they 
 were considered essential to the validity of those acts. The object 
 of the certificate would appear to be that, for which it has hereto- 
 fore been used, to apprise the Governor how the act has been passed, 
 that he may understandingly exercise his power of veto. For if in 
 his opinion, a two-thirds bill has been passed by a majority vote, it 
 is undoubtedly his duly to withhold his approval. 
 
 Other sections of the Statute appear to indicate this, as the ob- 
 ject of the certificate. 
 
 The fourth section is in these words : 
 
 " § 4. Every bill thus passed and certified, must, before it be- 
 comes a law, be presented to the Governor ; if he approves, he must 
 sign it ; and he shall endorse thereon a certificate of his approba- 
 tion, and deliver the same so endorsed to the Secretary of State." 
 [1 R. S. p. 157.] 
 
 By this section, when the Governor approves a bill, he must en- 
 dorse on it a certificate of his approbation, and deliver it to the Sec- 
 retary of State. His certificate, it would appear, is the evidence 
 on which the Secretary of State is to make his certificate, as di- 
 rected by the eleventh section above quoted. 
 
 If the Governor does not approve a bill, and it is afterwards passed 
 by two-thirds of the members present in each House, the presiding 
 officer of each House must certify the vote thereof, on the bill, and 
 
96 
 
 the presiding officer of the House which last passes it, must deliver 
 the bill so certified to the Secretary of State. [See sections 5, 6, 
 7. 1 R. S. p. 157] 
 
 These certificates, appear to be the only authentication in such 
 a case, on which the Secretary of State acts in indorsing his cer- 
 tificate. 
 
 If we give to the certificates, which the third section requires 
 upon two-thirds bills, the same force and effect which are given to 
 the certificates required upon bills disapproved by the Governor and 
 afterwards passed by two-thirds present, they then, are no more than 
 authentications upon which the Secretary of State acts when he 
 endorses his final certificate ; and certainly they can be entitled to no 
 greater force, nor furnish any higher evidence of legislative action. 
 At all events, they are acts anterior to the act of the Secretary of 
 State, which, the Statute declares, shall be conclusive of the month 
 and year when the bill becomes a law. 
 
 Does not this necessarily shut out all inquiry beyond the certifi- 
 cate of the Secretary of State? — And ought it not to do so? The 
 consequences of permitting an investigation before a jury, of the cir- 
 cumstances under which a law was passed, for the purpose of as- 
 certaining whether it had been constitutionally passed ; or in other 
 words, whether the members of the Legislature had kept their oaths 
 of office, and regarded the Constitution, would seem to be dangerous, 
 and certainly would, in many cases, be unjust, and might be fatal 
 to the public peace. 
 
 The Constitution declares, that, " A majority of each House shall 
 constitute a quorum to do business. (Const. § 3, 1 R. S. 43.) The 
 presence, therefore, of a majority is essential to the transaction of 
 any business, and especially to pass a law. This constitutional re- 
 quirement is just as explicit and binding, as the one which requires 
 the assent of two-thirds of the members elected to each house, to a 
 two-thirds bill. If our Courts of law may inquire, by a jury, how 
 a two-thirds bill was passed, in the like manner, they may inquire 
 how a majority bill was passed. And thus statutes, which may 
 
m 
 
 hare been rules of action for years, and under which large amounts 
 of property have been'vested, and numerous titles taken, may be in 
 effect abrogated by a court and jury, and declared void. Can a 
 principle with such a consequence, be tolerated ? The mere state- 
 ment of it, produces its condemnation. 
 
 If there is no reason for it to rest upon ; much less is there any 
 authority. I presume such an extraordinary investigation has ne- 
 ver been witnessed in any country, where the distinction is recog- ^ 
 nized between statute and common, or written and unwritten law. 
 
 Besides : Every Bill after being endorsed by the Secretary of 
 State, as required by the Statute, is filed in his oflSce and becomes 
 a record. A record imports verity, and can only be tested by 
 itself. As a general rule, no inquiry in pais is permitted, which 
 may destroy it. It stands or falls by itself. This rule, so just and 
 reasonable, should secure us from exposure to the hazard of losing 
 the protection of statutes, we have lived under for years. 
 
 This point, it is true, does not directly arise on these pleadings, 
 but a full discussion of the subject required its consideration. 
 
 We trust this Court is satisfied of the truth and soundness of 
 the three propositions which I have attempted to prove, viz., 
 
 First: That the associations authorized by our General Bank- 
 ing Law are not corporations. 
 
 Second : That if they are, the Legislature had power to pass 
 the Law in the ordinary way, by a majority vote ; and 
 
 Third : That if the Law required a two-thirds vote to pass it, 
 such vote will be presumed to have been given. 
 
 In conclusion, the Court will permit me to express an earnest 
 wish, that they will find it consistent with their duty, to announce 
 their decision at an early day ; and with permission I will mention 
 one other fact, which I have been requested to state,* to induce the 
 
 ♦Isaac GarroWi Esq., of the City of New York, was present at the argument and 
 made this request. He is largely mterested in the Bank of Commerce, and next to 
 
 13 • 
 
Court to adopt that course. It is, that the Bank of Commerce 
 have called in one million of its capital on the first of October next, 
 a very large portion of which, is to be paid by foreign sharehold- 
 ers. And I will add, on my own responsibility, that it must be a 
 source of deep unhappiness to the high minded Directors of that 
 bank, to see large sums coming from Europe on the credit of 
 their names, for investment in the institution which they conduct, 
 while a question like this is pending. 
 
 The country, and especially the mercantile community, have 
 been agitated and afflicted for so many years, by sudden and unex- 
 pected events connected with the enactment and execution of our 
 laws, that their pursuits have become a burthen, and their spirits 
 faint. They long for quietness and peace ; and I can render them 
 and my clients no greater service, than to entreat this Cpurt to give 
 them rest. 
 
 Samitel Ward, Esq., the President of it, took, as I understand, the most active agency 
 in organizing it. These gentlemen are well known in this country and in Europe, aa 
 stanmng at the very head of the mercantile and financial interests of the United 
 States ; and how deeply mortifying it would be, to have them, and others like them, 
 
 placed in a position, where they' would be obliged to confess to their European ' 
 
 pendents, that no reliance could be placed on our institutions and laws. 
 
APPENDIX 
 
 The present seems not an unfit occasion, to take a brief view of 
 the powers possessed by, and of the restraints imposed upon, the as- 
 sociations authorized by the General Banking Law. 
 
 Their means and mode of action have been fully considered in 
 the preceding argument, and although not corporations, it is obvi- 
 ous, they are fully competent to conduct the most extensive banking 
 operations, with as great benefit to, and as little personal liability 
 from the shareholders, as our incorporated banks. But unless my 
 views of the Act are entirely erroneous, they will prove decidedly 
 more advantageous, both to the public and the shareholders, than 
 the incorporated banks. 
 
 The Legislature hcis placed them on the broad principles of free 
 trade. They have unrestricted powers to bank, loan monies, and 
 deal in personal securities, in all ways ipermitted by the general 
 laws of the State. 
 
 FmsT : " By discounting bills, notes, and other evidences of debt.'' 
 This authorizes the associations not only to discount in the ordina- 
 ry way, but to discount any chose in action ; as a bond and mort- 
 gage ; a simple bond ; an agreement for the payment of money ; an 
 account stated ; in a word, any legal engagement to pay money ; 
 or evidence of debt. All of which may be safely discounted, by 
 receiving assignments of them when the discounts are made. 
 
100 
 
 Second : By " receiving deposits." The power on this subject 
 being general, it, of course, includes the right to agree on the terms 
 upon which deposits shall be received ; with or without interest, with 
 or without security, or in any other manner, or on any other legal 
 condition the parties may think proper to make. 
 
 Third : By " buying and selling gold and silver bullion, foreign 
 coins and bills of exchange." These are ordinary banking opera- 
 tions and need no comment. 
 
 Fourth : By " loaning money on real or personal security." 
 This is a broad power, and the same which is possessed by all the 
 citizens'of this State, and is not possessed, at least to the same ex- 
 tent, by the incorporated banks. It enables the associations to 
 transact all the business usually transacted by trust companies, and 
 even farther, to lend on an hypothecation of choses in action and 
 goods and chattels. 
 
 This is a valuable power, and one which may be exercised with 
 great benefit to the public, as it enables the associations, if they see 
 fit to do so, to advance on any kind of property, real or personal. 
 This would be a dangerous power, if belonging to corporations, and 
 exclusive ; but as it may be exercised by the whole community, in 
 the form of these associations, it is harmless. It is only unrestrict- 
 ed trade. 
 
 But, Fifth : All these things may be done, " in tlie manner spe- 
 cified in their articles of association ;" " and by exercising such 
 incidental powers as shall be necessary to carry on such business." 
 This is free indeed. The manner may be agreed on in their arti- 
 cles of association : that is, the manner of doing all these kinds of 
 business. It may hence, I think, be done by a board of directors ; 
 by a president and cashier, or by one ; by branches or agencies, 
 one, or more. In fine, in any manner, the interest or fancy of the 
 parties may devise. 
 
 The associations may also exercise alljpowers incident to these 
 various kinds of business. This leaves nothing unpossessed. The 
 
101 
 
 associations are untrammeled, as they ought to be, except by the 
 general laws of the State. And one of the greatest benefits 
 which the State may expect from them, arises from their liberty 
 to deal in public stocks, which the incorporated banlis have not. 
 The Bank of Commerce has already done the State good ser- 
 vice in this respect, and like services may be expected from the 
 other institutions, when their arrangements for business shall have 
 been completed. This too, will be found to be a source of great 
 profit to the new institutions, which is entirely denied to the char- 
 tered banks ; and will prove of immense advantage to the other 
 States in the Union, as it will give them a market for their stocks. 
 
 All these advantages cannot be expected from the Law, until ev- 
 ery question respecting its validity shall have been finally settled ; 
 active opposition from opposing interests ceased ; and public confi- 
 dence shall flow in a full and warm current upon the associations. 
 
 The people, however, after all, are the greatest gainers by the 
 new system. They have a convenient and perfectly safe currency ; 
 and also free competition among lenders — the (wo great ends of 
 banking, so far as the public at large is concerned. 
 
 The associations, will, moreover, be stable. They are out of 
 the reach of the fluctuations of popular legislation. Every asso- 
 ciation is a contract between the parties, which is protected by the 
 Constitution of the United States, which prohibits a state from 
 passing a " law impairing the obligation of contracts." These 
 associations, therefore, must continue for the periods fixed in their 
 articles of association, and enjoy the powers given by the Statute. 
 A repeal of the law will only prevent any more from being organ- 
 ized. Thus we have a system of banking permanently settled, and 
 no man can count the many blessings it will be the means of con- 
 ferring on this people. 
 

 ERRATA. 
 
 Page 24, line 6, from bottom, for incorporated read wnincorporated. 
 
 — 44, , of second paragraph, the quotation ends with the word association. 
 
 — > 50, — 13, from top, for are, read were. 
 
 — 72, — 15, from top, for opinion, read opinions. 
 
 The word in, on the last line of page 46, and the first two lines on page 47, to be 
 marked as quoted. 
 
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