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J
q (JOINT COMMITTEE OF BOTH HOUSES
THE GEJVERAL ASSEMBLY
OF OHIO,
ON THE COMMUNICATION OF THE
AUDITOR OF STATE
I3ponthe subject of the proceedings
OF THE
BANK OF THE UNITED STATES,
AGAINST
THE OFFICERS OF STATE,
IW THX BKITKD STATES' d i C U I T COURT.
COJVJfU.YICATED
BTTHB
V'1-
Governor of O\\io^ for l\\e cotvsidevatiau
"'-.
OF THE
NEW-HAMPSHIRE LEGISLATURE.
£f
CONCORD:
*
FBHTTBD B T HILL AND MOOR*,
JtrNs, 1W1*
J A i / ^ . / v>w-
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From the papers submitted to the committee,
it appears, that in the month of September 1819,
the Bank of the United States exhibited a bill in
chancery, before the circuit court of the U. S.
then sitting at Chillicothe, against Ralph Osbon>
Auditor of the state of Ohio, and obtained, in that
court an order of injunction against him, prohibiting him as Auditor from performing the duties enjoined upon him by the " Act to levy and collect a
tax from all banks and individuals and companies
and associations of individuals, that may transact
banking business in this state, without being authorised te do do by the laws thereof."
It further appears, that the Auditor not being
satisfied; before the time appointed by law for
him to act, that an injunction had been ordered, issued his warrant ie conformity to the law, under
which the tax imposed by law was collected and
paid into the state treasury;
It further appears, that the circuit court of the
U. States, at their last term, adjudged that this act
of official duty was a contempt of court, for committing which they awarded a writ of attachment
against the Auditor, returnable to Jan. term next
It appears, also, that at the September term
last, upon the application of the. bank of the Uni*
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ted States, an order 'was made, allowing them to
file an amended and supplemental bill, making
Samuel Sullirafl, the Treasurer of state, a defendant, " 05 present Treasurer efOhio, and in his pri~
vate <md individual character ;" and also making
Hiram Mirick Curry, late Treasurer, and John L»
Harper, the officer that collected the tax, defendants* Upon the filing of which amended and supplementary bill, a further order of injunction wa$
made, prohibiting the Treasurer of state from "negotiating, delivering over, or in any manner parting
with op disposing of'1 the money collected for tax,
and paid into the state treasury according to law*
And it further appears, that besides these proceedings, an action of trespass at the suit of the
iBank of the Uaited States, was commenced and
made returnable to the last September term of
the same circuit court, against Ralph Osborn,
iohn JL Harper, Thomas Orr, James M'Collister,
John C. Wright and Charles Hammond, in which
the plaintiffs have filed a declaration, charging,
»moog other things, the taking and carrying away
the same sum of money in the proceedings in chancery specified, under color and pretence of the
law of Ohio.
Whatever attempt may be made to character-*
ise this proceeding as a controversy between individuals, it is evident that its practical effect is to
make the state a defendant before the circuit
court of the United States. In every thing but
the name, the state is the actual defendant No
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other interest but that of the state is involved. In
every stage of the enquiry, the rights, interests and
powers of the state only are presented for adjudication. The final process must operate direct up*
6n the state, and, if effectual, must derange totally
the official accounts both in the Auditor's and
Treasurer's departments ; for if there be a specific
decree, as prayed for in the supplemental bill, *
specific execution may be sent into the state treasury, to carry that decree specifically into effect.
Nor is it only in its practical effect, that the real character of this proceeding is to be perceived.
ft is distinctly Avowed in the body of the bill, both
by naming the General Assembly of Ohio, as the
offending party, and by calling on the court to re*
strain the Auditor of state from performing official acts in his official character. And, in fact, it
Would seem, from the foundation upon which the
injunction was allowed, both on the first and second application, that the court must have regard*
ed it as substantially a proceeding against the
state.
AH judicial proceedings are founded upon facts
established judicially* The transactions of individuals are verified by testimony judicially taken.
But the proceedings of states and governments are
regarded as of public notoriety, to be received upon the evidence of general h story. When an individual applies for an injunction against another
individual, his application is never regarded, unless
the matter alleged in his petition be established
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by hid own affidavit, or that ofothers. The court
never restrains an individual in the exercise of hi&
supposed rights? upon the naked suggestion of another. The law of Virginia, of Kentucky and of
Ohio alike requiresr that before any injunction shall
be granted, the judge or cpurt granting it, shall be
satisfied by affidavit, at th? foot of the bill,, or by
other means, that the allegations in the bill are
true. The practice of the federal court, and fed*
eral judges in Ohio, has been to require proof.
No injunction has been granted upon mere suggestion, until that against Ralph Qsbern, Auditor of
state ; no otjber injunction has been granted upon
mere suggestion, but that against Samuel Sullivan,
Treasurer of fetatfe. Both these injunctions were
granted instantly, upon application by bill alone
without any proof being offertd or required, that
*m? single allegation contained in, the bill,, was true.
This 4e]parturb from the common course of proceeding tan be accounted for and vindicated upon
but one ground: that the party*substantially a defendant was a sovereign state, all of whose proceedings Were matters of public notoriety, of which
the court was informed without proof io the ordinary mode.
By the original provisions of the constitution of
the United States, the federal judiciary were empowered to take cognizance of controversies be*
tween a state and citizens of another state : but
by the "same instrument this jurisdiction was vest,
ed exclusively in the supreme court. A state nev-
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er could be held to answer or made amenable be*
fore a circuit court of the United States. By the
eleventh amendment to the constitution, this power to call a state to answer before the supreme
court; at the suit of a citizen was wholly taken
from the federal jiiidiciary.—It is perfectly clear
that before this amendment to the constitution was
made, the circuit court of the United States could
Ttot have.entertained jurisdiction of a suit in equity,
. enjoining the state officers from executing the state
laws, in a case of the direct action of the state
sovereignty, like that for the collection of taxes.
The principal, and not the ministerial agent is always the proper defendant in such a suit That
principal, being directly and personally amenable
in the supreme court, his case could pot be drawn
to a tribunal that had no jurisdiction ov^er the
principal, by instituting a suit against the agetit
alone* The state, before the amendment, couM
be sued in equity before the supreme cburt of the
United States, and could, in a proper case, be
there enjoined. In that court only, could a state
be prohibited ffem carrying her laws into operation. For that very reason her officer could not
be enjoined in a circuit court. It would be to subject the interest and rights of the state to the decision of a tribunal that had no jurisdiction to decide upon them, and where the state could not be
admitted a defendant to defend them- It is therefere a strange doctrine, to maintain that an amend,
aent to the constitution, expressly forbidding the
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judge* so to construe the conatitutioD* as tQ call
state* before tbe supreme courts as. defendants,, at
tbe suit of individuals, is to operate as Testing the
circuit courts with power to do that indirectly
which they never had any direct power to do*
The amendment was intended to proteot the. states
from a direct responsibility, upon process before
the supreme court; the oply tribunal before
which they were then liable to be called to answer
By the construction now attempted* this amendment is macje to vest the circuit c^urt with a jurisdiction equally effective against the state, though
indirect in its form of proce&diag. It effects oathing but the degradation and huxniliation of the
states. Instead of the di&Haction of being called
to defend its rights before the highest judicial tribunal of the nation, the state is reduced to the faxel of the most ordinary citizen, and made an&werable in an inferior tribunal Instead of enjoying tj*e
privilege of managing directly itt oym '
apd absolutely cortfroliqg it
muat submit to tho co^equq^oe^ of bl«odi«g i& interests, with thefcipaklityw trift^hoi^ o | ^ e r » ,
and muftt be coocUvfed hy it dexUiw made, ,ia a
east, which it is jn th* power of tfhcw tft «MPH|e
as they please. The compaiUee art
that s^b was sot ^o^JAPtof tte
and that such is m
constitution.
It k afsorted, that tbifr
aft dftfewbois } :thtt
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although thp state cannot be sited* yet persons remain responsible, and may be made subject to every proper process* It has heretofore been deemed a sound maxim in ethics* that whatever could
not be lawfully done directly, coold not bo justly effectedi by indirect means* If this maxim
be regarded* as the state never could bcf directly proceeded against in the circuit court,
without a violation of the constitution ; every indirect mode of proceeding ought to be considered
inadmissible ; but io fact, and substantially, this is
not a proceeding against individuals.
A csart of chancery proceeds against the per-*
6oo, and against the subject: in technical language,
tit personam titd in rem. The proceeding in this
case, is not against Ralph Osborn, and Samuel SulTivatf, for any matter ia which they have an individual or personal concern. It is only in the performance of official duties, that the process of the
tourt interferes to control them; it Was not for
himself, orapoft his individual account, that Ralph
Osbarn, issued his warrant, to collect a tax from
the bank ©f the United States. It was for the
state? and: in his character as Auditor, that he act^ d ; it is trot in the transaction of individual business, or upon bis owfr contracts, that Samdel Sullivan w forbler to* dispose of, or part with, particular
fondsi He is inhibited from paying away money
received by him as treasurer, held by him atfsucny
and for the disbursement of which he is officiafTy
responsible! to the state.
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A state in the abstract is an intangible entity
like a corporation ; in substance, it is a community
of individuals; it can only act by individual agents?
and its power of action is completely destroyed,
when these agents are restrained from acting. It
is solemn trifling to admit that a state cannot be
sded in the circuit court, and at the same time insist, that every agent that the state employs may
be controlled and restrained from performing his
official functions, by the same circuit court.
The auditor of state is a ministerial.agent in the
executive department of the government; it is his
duty to superintend the collection of the revenue ;
he acts direct for the whole people upon each;
in every one of his official acts, be exercises a portion of the sovereign power ; and when he is restrained from acting officially, it is the sovereign
power of the state that is restrained.
Injunctions to stay proceedings in the courts of
law, are founded upon a different principle. They
act upon the party and not upon the court, and call
in question the conduct of the party, not the justice, or integrity of the judges. The people, too
frequently called the government, never iatend
that one individual shall use their power to do injustice to another. Courts of chancery are instituted, not to control the courts of law, but to con.
trol individuals, who may have obtained unconscionable advantages in the law courts. The proceedings of the chancery courts, is the act oi the
people 5 but it does not operate upon the people
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themselves, in and through the courts of law. It
only withdraws the subject from the judgment of
the people in their law court, to their judgment in
their court of chancery, upen the principle that
adequate justice cannot be administered elsewhere.
This injunction operates through the Auditor,
upon the whole people of the state. He is their
agent; his acts are their acts; he proceeds under
their direction, and for their sole benefit. They
are responsible for his errors, and are bound t o .
protect him from unjust responsibility.
If the injunction was intended, and did in fact*
operate upon Ralph Osborn alone, his resignation
or removal from office, would render it unavailing.
His successor in office, would be at liberty to act,
notwithstanding the injunction. But that this was
not the intention, and is understood not to be the
effect of this injunction, is placed beyond all doubt.
The bill prayed not only, that Ralph Osborn, Jluditor of state, but that all others whom it coBcerned, should be enjoined—and so the order of injunction was made. The court have judicially de \
dared, that this order did not extend to Ralph
Osborn and his agent alone ; but to all who might
act upon the subject By resigning his office, after notice of an application for tbo injunction,
Ralph Osborn would have ceased to have any concern in the subject of it. Yet we are distinctly
given to understand, that his successor in office was
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ebjoined, as well as everj other agent or officer
whom the law might appoint to perform any duty
connected with the collection prohibited j This
fact, alone, would seem decisive, that the proceeding is not personal against Ralph Osborn, but is direct against t|re Auditor of state.
It is charged in the supplementary biH, that the
money collected was delivered to Hiram Mirrick
Currey, to keep upon deposit, and by him delivered to Samuel Sullivan, to keep in like manner *, it
is also charged, that at the time of receiving the
money, Currey was treasurer of the state of Ohio,
and at the time of delivering it to Sullivan, he was
the successor of Currey; and the bill prays that
Currey, as late treasurer, and Sullivan, as present
treasurer, and also in their individual capacities,
may be made defendants ; the bill also prays, that
Sullivan may be enjoined from disposing of the
specific monies, received by him upon account of
the tax. This injunction too, is granted, upon the
suggestions contained in the bill without. any evidence that the money was paid to Sullivan, as alleged.
This proceeding is not merely personal against
the treasurer, it is direct against the subject; and
that subject is money in the state treasury, received by the treasurer as revenue of the state ; receipted for as such, and as such carried into • his
official accounts. But this is not a proceeding
against the state ; because the complaints allege,
that the ( nature and character of the whole trans <
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action, forbids the supposition that the money was
received by the defendants, in the capacity of
Treasurer.' Thus the court are called to determine the whole transaction, to be illegal; and then
to invest themselves with jurisdiction to reach the
specific funds, by shutting their eyes to the real
facts of the case, and supposing a state of things
that never did exist
When a state was liable to be sued' before the
supreme court, the process issued against the state,
and the court directed a service to be made upon
the governor, for the time being. If the proceedings in the present case are correct, it is now sufficient to issue process against the person who may
happen to be treasurer, • and name him both as
treasurer and as an individual, and upon such pro*
cess, at the mere suggestion of a complaint, prohibit him from using, for the benefit of the state,
any moneys paid to him officially, which it may be
alleged were collected illegally. In due' season a
decree may be passed, for the specific restitution
of the money thus claimed, and this decree will
bind the treasurer, that may be in office when it
is pronounced, and subject him to the responsibilities of a defendant. If he refuse to pay the money, the court may attach him for a contempt; if
he does pay it without a legislative appropriation*
he is liable upon his bond, and subject to impeachment. Such might have been the consequence of
a judgment against a state, in the supreme court;
and it was no doubt an apprehension of such result,
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that induced the amendment to the constitution*
forbidding the federal courts to call a state before
them as.a defendant, at the suit of an individual.
It is evident that the principle of the proceed*
ing secures to the federal tribunals every power
supposed to be taken from them b j the amendment If the Auditor of state can be enjoined
from acting officially; if the treasurer can be decreed to pay back money received as revenue, upon the doctrine that the court consider them wrong
doers, there is no case of the exercise of state
power that may not be [completely controlled.
The legislature levy a tax. The federal court are
called upon, and upon motion, adjudge it to be
contrary to the constitution of the United States:
they regard the collector as a wrong doer, and enjoin him from collecting it. The tax is collected and
paid into the state treasury; the federal court are
applied t o : they pronounce the tax unconstitutional : the collection a trespass: the state Treasurer
a bailee for the claimant, and decree a restitution
of the amount. The Legislature of the state
enact a law for the punishment of crimes : an individual is convicted under its provisions, and imprisoned in the penitentiary. He complains that,
the law under which he is convicted, is repugnant
to the constitution of the United States. He calls
upon the federal court for redress. The court
decide the law'to be unconstitutional, the conviction illegal, the keeper ef the penitentiary a trespasser, and order the prisoner to be discharged.
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Ib such a proceeding they keep the state entirely
out of view, and regard it as a mere personal matter. They shut their eyes to the real state of
facts, and assert' that the nature and character of
the whole transaction forbid the supposition9 that
the state cogld have had any 'agency or concern in
the imprisonment. In this manner the states may
be placed at the foot of the federal judiciary, as
well in its administration of criminal justice, as in
its fiscal concerns.
In granting an injunction against the Auditor of
state in the first instance, and in awarding an attachment against him for disobedience to that injunction, the federal circuit court in Ohio, have unequivocally asserted a jurisdiction over the state
and its officers, in the collection of revenue. The
circumstances, under which the attachment was
ordered, admonish us that the jurisdiction thus asserted, will be without reluctance enforced. The
Auditor will be fined or imprisoned, or both, for
executing his official duty ; and the state must either acquiesce in the correctness of the proceeding, and avert the consequence by retracing their
steps; or, regarding it as an encroachment upon
their just authority, must prepare to take such a
stand against it, as the constitution and a just regard to their rights may warrant.
The committee conceive that the proceeding in
this case by bill in chancery and injunction against
the Auditor and Treasurer, is to every substantial
purpose a process against the state. The Auditor
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and Treasurer are defendants in name and in form
only, and can only be made and regarded as defendants to evade the provisions of the constitution.
From the view they have taken of the subject, the
conclusion seems inevitable, that the federal court
have asserted a jurisdiction which a just construction of the constitution does not warrant. And the
committee conceive, that to acquiesce in such an
encroachment upon the privileges and authority of
the state, without an effort to defend them, would
be an act of treachery to the state itself, and to all
the states that compose the American Union.
The committee are aware of the doctrine, that
the federal courts are exclusively vested with jurisdiction to declare, in the last resort, the true interpretation of the constitution of the United States.
To this doctrine, in the latitude contended for,
they never can give their assent.
Eyery court of justice where they'have jurisdiction over the parties to the suit, and the subject of
controversy, are of necessity invested with power
to decide every question upon which the rights of
the parties depend. And their decision is conclusive, unless a superior court be invested with ju.
risdiction to review it. On this subject the pow*
ers of the federal and of the state judiciary are
precisely the satae. These powers are not founded upon any express constitutional provision; but
result from the very nature of written constitutions,
and judicial duty.
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Among other things, the constitution of the l i nked States declares, that * no state shall pass any
bill of attainder, eti post facto law, or law impairing the obligation of contracts.9 A defendant prosecuted for a crime before a state court, may insist
that the law upon which he is accused is ex post
facto. If the state court decide in his faror, it is
conclusive ; because there is no law authorising
the federal court to review it. If the decision be
against him, it is for the same reason conclusive*
N e person cap be criminally prosecuted before the
federal courts for the violation of a state law. No
appeal or writ of error from the decision of a state
court, in a state prosecution, lies to the federal
court. The interpretation of that provision of
the constitution of the United States, which declares that no state shall pass an ex post facto law,
is now exclusively vested in the state courts. Nor
can the federal courts ever be* vested, under the
constitution, as it now stands, with effective juris,
diction to interpret and enforce this provision.
They cannot be empowered to take the administration of criminal justice from before the state
courts, in the incipient stages of a prosecution.
And a writ of error after judgment, would clearly
be a suit at law, in which the state must be defendant, and would come directly within the terms
of the amendment.
In this case, then, the federal courts cannot now
pronounce an effective judicial decision.
They
cannot possess themselves of jurisdiction over the
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parties* upon whom an; decision the; might make,
cduld operate. Yet individuals ma; contrive some
feigned action, or make some feigned issue, and*
present to the federal court for decision a case,
calling upon tliem, and thus empowering tbem to
decide that upon a particular state offacts, the operation of a state law would be ex post facto within
tbe meaning of the provision of the constitution of
the- United States. A decision thus obtained,
Would be entitled to respect, as the opinion of eminent meo, but never could be regarded as a judicial declaration of the law of the land.
Bj: an express provision of the constitution'of
the United States, a provision introduced purposely to effect that object,, the states, in any controversies they may have with individuals, are placed beyond the jurisdiction of the federal courts.
It would seem, incontrovertible, that the amendatory article placed the states, and the United
States, in a relation to each other, different from
that in which they stood under the original constitution. Different in this, that, in all cases, where
the states could Dot be called to answer, in the
federal courts, these courts ceased to be a constitutional tribunal to investigate and determine
their pdwer and authority, under the constitution
of the United States. The duty of the courts to
declare the law, terminated with their authority
to execute it
Tfee committee conceive, that such is the true
and that such is the settled construction of the
.
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constitution; settled by an authority, paramount
td all ©thel^ and from which there daxijbe.no appeal ; tire authority of the peopfo thejmelves.
Soeariy as the year 1708, the states, yft .the
people, were called to declare their opinions'tipon
the question iavbhring the relative rights and powNhegoTennttefttrf fbe "United 'States, and
governments of the separate v*t*tes. JIn
the month *f iWamber, tff *hat;yew, ibt state of
1
" ^hat J the Beretal «tate^€ompdMng4h«a tTdfted
^States 6f Aurerica, are nbtiunitt-d on the princi^
govpaet mider the
constitatwfl'for^e^t
M
Vtii mevdaxtitts tifeftrto, tiiejr eori^titi^d a
*-«rtd ftftMtibiMt fobspedal purposes,
^tditfhat gchrcflrmneiit certain atffihite pt>ff ers, Te"hetifogV&h stttteitoitt^Hhe TfesSatiary ttaasi of
^ Hgfct to AMt t^wn stff ^dr^nmedt: atlfl 4faat
* ^hensw-rcrthe generalgdv^rDment afeum^firun" delegated powers, its acts are unauthotititfve,
•« f oj6 iBttd'-tf Ho^forcfe; tbaTto this cotapadt, e>ch
^ state acctfteS as arftate,and is an iriCegfal p a r ^
u
its co-states fornring, as to itself, the 6flier party;
"that the gorernment created by Ais compact
^ wan not ipaderthe etclusiye or'final judge'df'ttte
"extent of the powers delegated to lfgetf, since
u
that would have made its discretion, and not.'&e
«corifetifatioh, t]he mature of its power- Bat
"that as in all 6ttaafr dale^ rf cdm^Ct '«V0$ |>at-
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" ties haying no common judge, each party has an
"$qual right to* judge for itself, as well of infractions, as of the mode and measure of redress."
•In the month of December, of the same year,
1798, the legislature of Virginia resolved:
" That this assembly doth explicitly and per" emptorily declare, that it views the powers of
* the federal government, as resulting from the
u
compact to which the states are parties, as lim" ited by the plain sense and intention of the instrument constituting that compact; as no far*
" ther valid than they are authorized by the grants
" enumerated in that compact; and that in cas«
*4 of deliberate, palpable, and dangerous exercise
" of other powers, not granted by the said com".pacty the states who are parties thereto, have
" the right, and are in duty bound, to interpose,,
w
for arresting the progress of the evil and for
" maintaining within their respective limits, the
" authorities, rights, and liberties appertaining to
"tfaem."
It cannot be forgotten, that these resolves, and
other? connected with them, were occasioned by
tfye acts of congress commonly called the aliea
and sedition laws, and by certain decisions in the
federal circuit courts recognizing the obligatory
force of the common law, as applicable to federal
jurisprudence.
The resolutions of Virginia were submitted to
the legislatures of the different states—Delaware,
Rhode-Island, Massachusetts, the senate of New-
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York, Connecticut, New-Hampshire and Vermont,
returned answers to them, strongly reprobating
their principle, and all but Delaware and Connecticut, asserting, that the federal judiciary were
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exclusively the expositors of the federal constitu-,
tion. In the Virginia, legislature these answers
were submitted to a committee, of which Mr.
Madison was chairman, and in January, 1800, this
committee jnade a report, which has ever since
been considered the true text book of republican
principles. , .'
N
In that report, the claim that the federal judiciary is the exclusive Expositor of the federal
constitution is taken up and examined. The committee say :
" But it is objected that judicial authority is to
44
be regarded as the sole expositor ot the constitution, in the last resort; and it may be asked
44
for what reason the declaration by the general
44
assembly, supposing it to be theoretically true,
" could be required at the present day, and in so
" solemn a manner.
"On this objection it might be observed, first;
44
that there may be instances of usurped power,
41
which the forms of the constitution would never
"draw within the control of the judicial departm e n t ; secondly, that if the decision of the ju"diciary be raised above the authority of the sove44
reign parties to the constitution, the decisions of
44
the other departments, not carried by the forms
44
of the constitution before the judiciary, must be
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*equaHy*authoritative andfinal,with the decisions
of that department. Sut the proper answer to
" the objection 1s, that Jhe resolution of the Gener"al Assembly relates to those^ great and eitraor.
tt
dinarjr oases h which all the Tories of the conv
stitution may prove ineffectual against infractions
".dangerous to the essential rights of ihe parties
« to it 'the resolution supposes, that dangerous
^powers not delegated, may not only be usurped
** an& executed %j the other department?, but thstt
* the jutticidtdepartments also may exercise or sanc"Mondangcrous powers beyond the grant ofth* ?o*iu
^stitution;
and
uttlMATB
To'ttra dowsTrrirrfen, To
CONSEQUENTLY THAT THE
BRIGHT OP THE PARTIES
** JUDGE WHETHERTHE COMPACT HAS IJBftN DANGfiR^ OUSLT VIOtATEP, MUST EXTEND TO VIOLATIONS SY ONE
"l)EUl6ATEli AUTHORITY !AS WELL AS *Y
6
ANOTHER, BT
THE JUDICIARY AS WELL AS BY THE EXECUTIVE OR
'** LEGISLATWE!"
^"However true, therefore, it may be ihat the
^JuBicial 'department is, in afl fjueationfi subpitted
** to it *by the forms of ^tbe constitution, to decide
u
in the last resort; this resort must necessarily be
^deeiie3 the last in relation to the authorities of
^ ihet>tbei^ departments 6f the goYeTnment; mot in
" relation to the rights of the parties to the conu
stitutioiiai compact/from Which the judicral as
W
i
1
:
^
i
^
th^ir
tfceaathor«ity a^egdti^it; ^iril ftfe c^ridufrisnce of this
i
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be^on* the possiblo
oC any rightful' Pemadyy tb* ray consti.
eft Massa*hii«*t9> R M M b t a r i * . the
New-York, New-ftampshire and
and the answer tt»ttees# t^
of ?ii^ibiia% W^PS a £reqt aadconstitutioiral appeal
ta= tbe states an* t^ the people,, upoa i l » gnent
qo«stio»at iesuci Tb» appeal was eWided hy
Ae- presiifenfSttl dod othw «Jectibot of 14HXL
1%^ states and #ft& people reeogoiaetf and s^rawd
tfee doctrines of Kentucky aa* Virginia^ by affect
ing a Mttl ebaog« in the admiQktvatiw of tht
f&
«ral gw^Poraeftt. In tb« p»rfcw of ©J
conyicted under the se^rtioolaw, and in the
f«aee of hi* fiae, fbe new admrowtFatkw
q r
ocalfy recognized the. AecbTon and the authority of
the s<a!e^ and of th* poopkt. Thus baa the
quctetiefi, whether the fe^bral oourls are tbo sole
expositors o f the oonBtkutieo of the United
States in A e hmt resort, or whether the states,
u
as in all other cases, of compact among parties
IraTingiio common judjge^ have an eqaat right Jo
interpret that constitution for tbe4&sei?eg* where
their sovereign rights are mrafred, beefe decided
against the prevention of the federal judges by the
people thcTHselres, the true^source of all legitimate power.
In tile opinion of th« committee, the high au-
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thority of this precedent, as well as the clear right
of the case, imposes a duty upon the state, from
which it canoot shrink without dishonor. So Jon*
as one single constitutional effort can be made tosave them, the state ought not to surrender its
rights, to the encroaching pretentions of the cir*
cuit court
But justice should ever be held sacred. Pride
and resentment are alike poor apologies for perseTerance in error. If it were admitted that the
proceedings of the federal court against the state,
through iti officers, are not warranted by the constitution* still, if the state has commenced in error,
it should abandon the controversy. Before, therefore, we determine upon the course we ought to
pursue, it is necessary to review and examine the
ground upon which we stand.
The bank of the United States established an
office of discount and deposit, at Cincinnati, in this
state, which commenced banking in the spring of
the year 1817. The legislature met in December
following, and upon the 13th day of December, a
resolution was proposed in theHouse ot Representatives, and adopted, appointing a committee to enquire into the expediency of taxing such branches,
-as were, or might be established within this state.
The committee reported against the expediency
of levying such a tax ; but the house of representatives, reversed their report by a majority of 37
to 22. A substitute for their report was then offered, asserting the right of the state to levy such a tax,
I
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,
and the expediency of doing it at that time. The
constitutional right of the state to levy such a tax,
was carried by 48 to 12, and the expediency of
proceeding to levy the tax, by S3 to 27. A bill
assessing a tax, was reported to the house, and
passed to be engrossed for a third reading and final
passage, and upon the third reading, was postponed
to the second Monday of December, 1818.
After this solemn assertion of the right to tax,
and when a bill for that purpose wa« pending before the house of representatives, the bank proceeded to organize a second office of discount and
deposit, at Chiilicothe in this state* which commenced banking in the spring of the year 1818. In
January 1819, the legislature enacted the law levying the tax, and postponed its execution until the
September following, that the bank might have
abundant time so to arrange their business, as not
to come within the provisions of the taxing law.
At the period of adopting these measures, the
constitutional right of the state, to levy the tax,
was doubted by none, but those interested in the
bank, or those who expected to derive pecuniary
advantages, for themselves or their friends, by the
location of branches. It seemed impossible that
a rational, disinterested and independent mind
could doubt. During the existence of the old
bank of the United States, the state of Georgia
had asserted this right of taxation, and actually
collected the tax. The bank brought a suit, to
recover back the money, in the federal circuit
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court of Georgia. Thitsuit w*s bought before
the supreme c*urt, upon a question not directly
involving the power of taxation. The supreme
eotirtdcoidedthe" point before them, in favor of
the hank, but upon such grounds, that the wit was
abandoned and the tax submitted to. When th*
charter #f the present bank was enacted, it wa$
known that the states claimed, and had practically
asserted the power of taxing it, yet no exemption
from the operation of the power is stipulated
by Congress. The natural inference from the
silence of the charter upon this point, would seem
to be, that the fiower of the states was recognized, and that Congress were not disposed to inter-*
fdre with it.
* The Constitution of the United States had distinctly expressed, in what cases the taxing power
t>f the states should be restrained. No maxim of
legal construction is better settled, and more universally acknowledged, than, that express limitations of power, either in constitutions or in statutes,
are distinct admissions that the power exists, and
may be exercised in every other case, than those
expressly limited. With a knowledge of these
facts and doctrines in their minds, that a confidence in the power of the state, to levy this tax,
should be almost universal, is what every intelligent
man would expect. But after the law was enacted, that levied the tax, and before the time of its
taking effect, the Supreme Court of the U. S. in
the case of Maryland and ty'Colloch, decided, that
ed by G o o g l e
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the states itere debarred by the constitution %>f
thfe United States, from asseBsing or letyfag any
such tax. And upon tbe promulg&tron of this &&
ctsion it is maintained that it became thfe doty at
the stale and its officers to acqtfiefcce, atod trfeat
theactdfthelegislature a* a <tead letter. Tbe
committee hare e&nsiderfcd this portion, and aVe
riot satisfied that it is a cofifcct bfiei
It has been ah-eadyfehewn^tbat sobe t t e iiffi
amendment to the constitution tbe separate itati%
as partiefe to the compact «f umoB, ar^ dot subject
tb the jurisdictton 6f tbt federal cttltts, Uftod q d ^
tions involving their power awd alrtottrity as
reign states. Not being tobjtitt \6 th«k*
tiorij no state can be contfccted by tbe opirribtts of
these tribunal : but thefe ifrfe qtifeititttisJh respect
to which thefd isrtc*cbditrtoh judge, and therefor^
the state hafe a right to jttflje foi1 ftstelf. It by th^
management of a party, and through t&6 inadvertence of Cdnnivance f>( a ^ate, a: cfad* be
presenting to ttre supreme coirflt of tfc^
gtafeisfor4decwibh, im^o>tant and interesting queitioris of state power, aiid state" authdnty, upon no
just prniiciple, ought the stated to be concluded, By
atiy decfeittn hadtfpdtisuch a case. The committee art dfearfy of opinion, that such is the true'
character of the case, passed tipoh the world by
ttfetiUe of B^Cofloch is. Marylani
It wa^ 6hc6 remarked, by a most profound politician, that Words are things; and the observation is
most dn^WstiohaWy a correct one. This case, dig-
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nified with the important and high sounding title of
"MCollock vs* the state of Maryland" when looked into, is found to be an ordinary quitam action of
debt, brought by a common informer, of the name
of John James; and it is throughout an agreed
case, made expressly for ^the purpose of obtaining
the opinion of the supreme court of the United
States, upon the question, whether the states could
constitutionally levy, a tax upon the bank of the
United States. This agreed case was manufactured in the summer of the year 1818, and passed
through the county court of Baltimore county, and
the court of appeals of the state of Maryland, in
the same season so as to be got upon the docket of
the supreme court of the United States, for adjudication, at their February term, 1819. It is only
by the management and concurrence of parties,
that causes can be thus expeditiously brought to a
final hearing in the supreme court.
<
|? It must be, remembered, that through the extravagant and fraudulent speculations, of those entrusted with conducting the concerns of the bank,
it stood at the close of the year 1818, upon the
very brink of destruction. At this critical juncture of its affairs,it was a manoeuvre of consummate
policy to draw from the supreme court of the United States a decision, that the institution itself,
was constitutionally created; and that it was exempt from the taxing power of the states. This
decision served to prop its sinking credit; and if
it inflicted a dangerous wound upon the authority
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of the states, both with the haak, and with John
James this might be but a minor consideration. It
is truly an alarming circumstance, if it be in the
power of an. aspiring corporation, and an unknown
and obscure individual, thus to elicit opinions, compromiting the vital interests of the states that compose the American Union*
It is not however either in theory or in practice
the necessary consequence of a decision of the supreme court, that all, who claim rights of the same
nature with those decided by the court, are required to acquiesce. There are cases, in which
the decisions of that tribunal have been followed*
by no effective consequence.
In the case of Marbury vs. Madison, the supreme court of the United States decided, that
William Marbury was entitled to his commission
as a justice of the peace for the District of Columbia ; that the withholding of this commission by
President Jefferson, wasviolative of the legal vested right of Mr. Marbury. Nptwithstanding this
decision, Mr* Marbury never did obtain his commission: the person appointed in his place continued to act: his acts were admitted to be valid,
and President Jefferson retained his standing in the
estimation of the American people. The decision
of the supreme court proved to be totally impotent and unavailing.
So, in the case of Fletcher vs. Peck, the supreme court decided, that the Yazoo purchasers
from the state of Georgia, were entitled to the
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land*. * Bat the decision availed them npthing, tnr
lets as a make-weight in effecting a compromise*
These tfro cases are evidence, that in great
questions of political rights, and political powers,
a decision of the supreme court of the U. Stales*
is not eondusive *f the rights decided by it. If
the United States stand justified, in withholding a
commission, when the court adjudged it to be the
party's right j if the United States might, without reprehen&ioD, retain possession of the Yaaoo
lifter the supreme court decided that they
th* property ef the purchasers froiii Georgia, purely the state of Okio ought not to be condemned because she did not abandon her solemn*
legislative acts, as a dead letter, upbrt the promuU
gfartidn of an opinion of that tribunal.
This opinion is now btfot* as, and the committee cotfceivfc that it id the duty af this General Assembly, calmly to etamirte the principles and reasoning updw which it is founded. Much deference
is due to thd respectable individuals by whom it
way formed; and more tf> the high station they o«cojqr in the government. Although their opinion id
not admitted to have the force of absolute aothority, yet a course of proceeding pronounced by suck
eminent statesmen and lawyers to be unconstitutional, ought not to be lightly and unadvisedly adopted.
It is not perceived, that the power of the state
to tax the officers of the bank of the United States
established within their jurisdiction, is necessarily
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connected with the question, whether congress
have, or hare not, the qonstitutionai power
to create a corporation. This power may safely be admitted, if, at the time of making this *diiaissioa, we clearly comprehend tfae priociplfcs tipon which the corporation js to bei instituted.
44
A corporation," says chief justice Marshall, in
the case of Dartmouth College, u k an artificial
44
being; invisible, intangible, and existing only in
44
contemplation of Jaw. Being the mere creature
44
of law, it possesses only those properties, which
44
the charter of its creation confers upon it,'either
44
expressly, or as incidental to its very existence.
"These are such as are supposed-best calculated
4
* to effect the objects for which it was created.
." Among the most important, are immortality, and,
* if the expression may be allowed, individuality :
" properties by which a perpetual succession of
44
many persons are considered as the same, and
<f
may act as a single individual. They enable a
" corporation to manage its own affairs, and to hold
44
property without the perplexing intricacies, the
"hazardous and endless necessity of perpetual con" yeyances for the purpose of transmitting it from
44
hand to hand. It is chiefly for the purpose of
44
clothing bodies of men, in succession, with these
"qualities, and capacities, that corporations are in44
vented and are in use. By these means a per44
pe.tual succession of individuals are capable of
44
acting for the promotion of the particular object,
"like one immortal being. But this being does
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" not share in the civil government of the country,
" unless that be the purpose for which it was cremated. Its immortality no more confers on it
"political power, or a political character, than im." mortality would confer such power, or charter*
" upon a natural person. It is no more a state i&" strument than a natural person exercising the
"same powers would be."
To this definition of a corporation, the commit,
tee iee no reason to object: and when the true
character of a private banking company is correctly understood, there seems to be no cogent reason
why it may not be incorporated by congress upon
the principles here defined.
Banking, where the capital is owned by an association of individuals, is a private trade, carried on
by the individuals constituting the company, for
their own profit. A mercantile company trade in
produce and merchandize: a banking company
trade in money, promissory, notes and bills of exchange. Both may carry on their trade without
a charter of incorporation : the trade of both may
be regulated by the law of the state, in which they
are located ; and a charter of incorporation may
be conferred upon either, without changing the
character of their business, or clothing them with
any portion of political power.
It is competent for the government of the United States to make contracts with an association of
individuals, as well as with a single person. The
Secretary of the treasury may be . authorised to
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employ an unincorporated banking company, to
take charge o£ and transmit from place to place,
tb/public revenue. For the performance of this
service, he may stipulate a compensation; but he
cannot be authorised to barter a privilege inconsistent with the lams'of-the state, where the company is located, by way of compensation for services to be performed. If such banking association be prohibited by the laws of the state, a contract with the general government cannot suspend
the operation of those laws. If such banking association be subject to state taxation, they cannot be
exempted from tbeir responsibility by a contract
with the United States. But a capacity to transact its associate concerns in a legal and artificial
.name ; a capacity to exist by perpetual succession,
notwithstanding the natural death of the individuals.; a capacity to sue, and a liability to
be sued, without abatement, by the death of any
one of the parties ; an exemption from personal
responsibility for the company debts,and conferring
a separate character upon the company funds, 30
as to preserve them distinct from the individual
property of the members of the company, are not
privileges incompatible with state laws. And if
investing a private company with these privileges,
may conduce to the public convenience and the
public safety, in making contracts to receive and
transmit the public monies; conceding that congress are empowered, under the constitution, to
confer these privileges, as a consideration for the
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performance of the services agreed upon, and for
the purposes of public good, cannot possibly compromit the safety of the states. If their charter of
incorporation confer upon the Bank of the United
States no other privileges, than are here enumerated, it is manifest, that win every other respect,
their property and business "stand upon the same
footing with that of other* individuals.
It Was in this light, that a charter incorporating a
bank, was%contemplated by the first founders of
the Bank of the United States. The power of
establishing themselves where they pleased, without respect to the state authority, was not claimed by the old bank, nor did they arrogate to themselves any federal character or any privilege,
which did not appertain to them as individual
citizens. No new or Extended privileges are conferred, by its charter, Upon the present institution.
It is created a private corporation of trade, M as
much so as if the franchises were invested in a single person." But it has received its chartered
privileges from the government of the United
States, and therefore it is, that it is exempt from
state taxation.
If "the committee have been able to understand
the opinion of the supreme court, this consequence is deduced from the five following propositions ;
First-—The government of the Union, though
limited in its powers, is supreme within its
sphere of action.
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Second— It is of the very essence of supremacy, to
remove all obstacles to its action within its
own sphere, and so to modify every power
vested in subordinate governments, as to exempt its own operations from their influence.
Third—A power to create, implies a power to
preserve.
Fourth—A power to destroy, if wielded by a different hand, is hostile to, and incompatible
with, these powers to create and to. preserve.
Fifth—Where this repugnancy exists, that authority which is supreme must control,not yield to
that over which it is supreme.
These propositions are plausible and imposing :
but when carefully examined, and applied to
the subject under consideration, it is conceived,
tbat no one of them can be sustained, to the extent
here laid down.
At the threshold of the enquiry, we demand,
what is meant by the assertion, that " the governtnent of the Union is supreme within its sphere of
action ?" If this observation is applied to a subject, where no question of conflicting power arises,
its truth may be safely admitted; and the proposition is equally applicable to the states. In the
same sense, each state is equally, ( supreme within its sphere of action.' In regulating our foreign
trade, the government of the Union is supreme, and
in establishing the modes of conveyance and the
canons of descent, each state is equally supreme.
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But this proves nothing upon either side, when the
relative powers and authorities of the rgeneral and
state governments are drawn into discussion.
The power to establish light houses, beacons,
buoys and public piers, is within the sphere of action of the government of the Union: but,in practice, this power has never been considered supreme. It has always been exercised with the assent of the states, and within cessions of territory
made by them.
The Cumberland road was laid out and constructed by the government ot the Union; consequently the power to do it, is considered within
their sphere of action* Yet this power was not
claimed as supreme. It was only exercised with
the assent and approbation of the states through
which the road was made.
Murder is an offence against all government :
yet the government of the U. States cannot punish
murder, unless it be committed in the army or navy, upon the high seas, or within their forts and
arsenals, or other places where they exercise exclusive jurisdiction. Except in the cases specified,
the murder of an officer of the United States cannot be distinguished from an ordinary homicide.
A judge of the federal courts, a marshal, a collector of the revenue, a post master, a member of either house of congress,the President or Vice-President, may be murdered, and if the respective
states refuse to interpose their authority to punish
the perpetrator, he must escape' with impunity.
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This government,though supreme within its sphere
of action, cannot protect the lives of its public
functionaries, by the punishment of those who may
assail them. It can assert no jurisdiction, unless violence be offered to them in their official characters, and in the performance of official duties.
It may be answered to this, that the punishment
of murder is not within their sphere of action. True.
But how futile is it to talk of a government being
supreme ; which is not invested with this, the
most common and ordinary mode of preserving its
existence. It is supreme over individuals, in cases
entirely subject to federal cognizance. But is it
supreme over the states ? It cannot coerce them
either to elect senators in congtess, or electors of
President and Vice-President. A combination between one half of the states, comprising one
third of the people only, possess the power of disorganizing the federal government, in all its majesty of supremacy, without a single act of violence.
It is expressly inhibited by the constitution, front
which this supremacy is derived, from calling the
states as defendants before its courts. It cannot
save from punishment one single citizen whom the
state authorities have condemned. It is neither
supreme to save, or to punish; in what, then, doe's
this supremacy consist, in which the separate states
are not also supreme ? In one thing only; and that
is, the exercise, by the federal courts, of appellative jurisdiction, in cases, and between parties,
made subject to their jurisdiction, by the constitu-
tion* But the states, as parties, are not subject to
their jurisdiction ; but are expressly exempt from
it, and, therefore, over the states and upon questions involving the extent of their powers aqd authority, the government of the Union i$ not*supreme* It cannot according to the hypothesis of
the second proposition, remove u\l obstacles to its
action, and so modify the powers of the state governments, as to exempt its own operations from
their influence.
.
Is this second proposition sustainable upon any
acknowledged principle of constitutional law ? It is
certainly a doctrine of portentous import, when
connected, as it necessarily must be, with the proposition that precedes i t : It claims, as an attribute
of the government of the Union, a p*wer to MODIFY every power vested in the state governments,
so »B to remove all obstacles to its own action, and
exempt its own operations from their influence.
According to this doctrine, the states are not coparties to the compact of union, as asserted in 179S
by the states of Kentucky and Virginia, and established in 1800, by the American people*
The
rights, powers and authorities of the states are not
immutably established by constitutional provisions v
but are subject to modification, in order to give
scope for the action of the government of the Union.
The two propositions stand in a perfectly natural and logical connection, though not thus arranged
b the opinion :
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« The government of the Unioto, though limited,
in its powers, is supreme within its sphere of ftotion."
"It is of the very (essence of supremacj to re*
move all obstacles to its action within its own
sphere, afld so to modify every power vested in
subordinate governments, as to exempt its own operations from their influence."
Therefore, we may very properly add the c w sequent, it is competent for the government of the
union, to remove all obstacles to its action, by so
modifying the powers of the state governments, as
to exempt its own operations, from their influence.
If the postulates be admitted, this consequent is inevitable.
' This result will hardly be contended for id explicit terms; it asserts a supremacy no where recognized in the constitution. The powers retained
by the s'tates, cannot be modified by the government of the union. To modify, is to change, of
give a new shape, to the power modified ; and if
the«goverbment of the union can give a new char,
acter to the powers reserved by tbfe states, for the
purpose of Removing obstacles to their own power of action, there must soon be an ebd to the state
governments. The government of the union asserts, an exclusive authority in itself to determine
its own sphere of action. On this point it is as supreme, as upon any other. So soon as it has resolved that the exercise of any power appertains to
it, that power assumes the character of supremacy,
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and removes by modification, puts down before its
march, every power previously supposed to be
vested in the states, that may present any obstacle to its action. Thus the government of the
union, may, and undoubtedly will progressively
draw all the powers of government into the vortex of its own authority. Against these doctrines,
the committee conceive, that it is the duty of the
states to enter their most solemn protest.
The committee do not admit, that supremacy is
an attribute, either of the government of the union,
or of the state governments. Supremacy is an attribute of the people, and an attribute of the laws.
In relation to the governments, the people are supretoe,and the laws supreme over individuals. Government is tut the medium through which the supreme power acts: the government of the union
is the medium through which the American people
act, upon particular subjects, that concern their interests and their welfare: the governments of
the states are the medium, through which the
same people act, upon other subjects, equally interesting and important to them; these two mediums of a&ion, are only brought into collision by
the usurpations of one or the other. Neither is invested with power to render its encroachments
permanent, by a modification of the powers of the
other. While moving within its proper litpits,
neither can present an obstacle to the action of the
other: both must proceed harmoniously. In respect to each other, neither is supreme, neither
4i ^
1Fb<i gorermnt&nt off tire mron, tmd
rfie gorremttyentstrf tbe separate istates, aTe alike
flue property and the Agencies iof the wfcofe American people. "This "pritocipJe is t t e bk$e trad bouA
, *of f be Aiiierfcan'ltorotj.
* T h e itoird pt-oposiiliou is, *« Iteft a pow^r ^ tttfepower t»^sre«erve.*'
to iht %o\Trnment of ttre wtiott
and the incorporation of the bank tff Ihe ^JniteA
S t ^ e s , life pi«%pesitiotH k the broad sense *£ its
attempted 1q
%«nk rf t t e Gutted Statea
**>rpora*ioa tot tnad%.
ftolitfeat
political poif^er ; it gires ^HCHQH
t j , and w^httig Bawe, The prevteiofa
ttat the baok may esrtfeblifih branches in the Mate*
and territories wben <airiy construed, cab otdy to
regarded as giving corporate capkoity to *6 «O4
and tkis is the otiiy provtsiou «f the charier, that
by any colorable mterprelation, ean bewoderstood
to vest them trith ft setny aHFiee ^rf poitticil power*
Thelegiil fecirfty and capacity conferred fey the
cfeafter, if cofislittttiobaJfydrfifated^ are pt^s«rved
in existence by the r^ry law that originates thete*
They become prrrate vested rights, and are pTe^
se^fYed by the same utihrersal law^ that protect* in*
dividual rights, afld individual contracts.
But the trade and busmess of the bank ttttf the
franchises cobfetred to aid in carrying them oft, are
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separate and distinct matters. To lend money and
drive a trade in bills pf exchange, and gold and
silver bullion, are not corporate franchises. These
trades exist, independent of the charter* and may
be pursued by individuals, without an act of incorporation. It is nrot the business itself, but the
particular method of conducting it, that is created
by the act of Congress, incorporating the bank of
the United States,
Natural persons are clothed with an original^ in^
herent capacity, to make contracts, and to acquire
property. In a corporation, this capacity is artifi*
ciaL In ether respects, natural persons and corporations or legal persons, stand upon the same
.principles. The power of making contracts, enjoyed byracUviduals,is subject to the regulations of
law; the property acquired by individuals is liable
to taxation for the support of those laws, that originate and protect it; private corporations of trade, .
upon every maxim of justice and common sense^are
subject to the same regulations and exactions*
The employments, professions, business and
trade of natural persons may be taxed as such, and '
laws for this purpose, are not considered as violative of individual rights, or as incompatible with
the existence and preservation of trade, business
and employments. No just principle is perceived,
upon which these laws should receive a different
interpretation, in their application to the trade and
business of a private corporation.
According to the definition of corporation heretofore given, the corporate franchises of the bank
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of the United States, invest the stockholders witk
immortality and individuality, with a capacity to
act like one immortal being, to perpetuate their
existence ; to manage their own affairs, to hold
property, and transmit it from hand to hand as a
natural person could. These franchises are con-i
ferred by the government of the Union, to enable
the company to conduct the business of lending'
money, and the trade in bills of exchange, and
gold and silver bullion, with convenience and security ; but the business and trade to be conducted, are not corporate franchises, and are not cremated by an act of congress. A tax assessed upon
the business of the company, does not touch their
corporate franchises, however it may affect their
convenience or their profit. This power to preserve, as asserted by the court, and applied to the
subject before them, is not asserted for maintaining and preserving the corporate franchises of the
bank; but tor the purpose of giving to these corporate franchises action and employment every
where, independent of state laws, and beyond the
control of state legislation. Whep fairly traced t<\
its consequences, the doctrine asserted amounts to
this ; that a corporation created by the government of the Union is clothed with supreme authority, to conduct its business, without respect to the
existing laws of the states and free from any apprehension of those that may be enacted.
A most serious objection to this doctrine, is, that
it asserts the power to preserve, not as pertaining
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t* Ae g6*erw»*iit of tlfcuaioo* to fc* employed
QU not. at the discretion of coegress$ but 3* incidental to the eha*terr and to h* secured to, the
paaj tyt the jodjoial p*w*r aktne*
The committee cone**?* that thf ptwav
bj, special priviUge* apd cxemptk)Bst ar% power*
of the. sawae claas and descriptioa; both a w feyst
lalire powers.to be coivferre^ OF withheld afe ths
discretion of the kgislattwe^ m& tf^VQ & ehartec
of tDcorpoiajtiom stipulatoft BO ^ e i e l
and exemptions^ none cai> W s«ppoaei
" Being the. mere ercatwe of kt% il poseesaes « K
IJT those propertica-coai^red
^rwslf OR a* incidental ta iti r*igf
Had epngre^ iatended to o«empt tbe
from the taxing power of/ fcbe atatfi^aih^ eieaii^ of
preserving ft$ existence, a piroviaion Cor that piwpose: should, have been introduced iota thfc abarter.
The po^er to make this provision would hay*
Been examined before the charter was created,, and
the intention of congpesa would haye been, maor
ifeated. ThepeopWand t ^ att^ea VUNA(L havQ
been apprised of the pretei^iona «f t^he bant before it got foot hold among them, and .before it
iad T established a,monied influence le support itself ITverj privilege claimed by the
when inserted in the charter, has received
sanction of tjie legislative autbprity, and is open to
the, examination of all. But te invent them, with
unknown and latent privilege taauy. extent tha£
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the supreme court may deem eewement, to
serve, not only their corporate franchises, but the
most beneficial us<* of th*m» is undoubtedly a new
doctrine, as applied to corporations,ami as 4angei>
ous. aa it is poveL,
This Compaq have claimed that the states cannot tax their corporate operation or the profits
arising from them: and the stjpgem* <jourt have sustained their claim as * privilege aectissary t*
preserre their 'fgisteocd. By their charter,* they
ar$ authorised to employ officers, clerks, and «t*
vants. Should the company claim t© send slates
wto Ohio, itpd, employ them in their branches, as
9ervmt&, the committee woukj coneetve the ciaial
its well founded^ aod.as bkely to be sustained, as
the exemption froca taxation. It standa upon tto
sa^e principle. If th» states may control, the
company, m the einpjoys&erit of servants, they may
embarrass its apeFatione^ and impede a free and
unrestrained exercise and enjoyment of their corporate faculties* By the laws of Ohio, a promise
to pay the debt of another is Qot obligatory unless
made in writing : but the charter of this company
is silent as to the mode of binding parties that contoaet with them; they may ctaitn that this taw of
contracts applied to individuals only, and cannot
touch them without narrowing the beneficial use
of the faculty conferred upon them by congress ;
who shall say that this claim may not be sustained ? In short*, who can undertake, with any hope
of success, to enumerate the privileges and exemp-
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tions to which, upon this doctrine, the bask are entitled ?
• It is important to glance at ttte train of implications with which this doctrine is connected. The
power to create tfye bank, implies the power to
preserve it. This power to create is, itself, derived by implication. It is found among the subsidiary powers, as incident to the choice of means for
the administration ef the government. This implied power to create, is made the foundation for
further implication; it implies the power to; preserve ; and again, of.necessity, the power to pre*
serve, implies a choice in selecting the means of
preservation; and upon the doctrine of the courts
all these powers arc aupremd, to the operations of
mrbicb, the constitutioos and laws of the states can
oppose no obstacle. It is certainly, difficult to see
the point where these implications terminate, or
to name the power which they feaveto the states
unimpaired*
.
^
>
The government of the union have no authority,
by the express provisions of the constitution, to in.
terfere with the law of contracts. They have
found authority to institute a Bank, or .in other
words to create a private corporation of trade,
and with the power to create, they have possessed
themselves of power to preserve, not th^ corporation they have created, but the business in which
the corporation have engaged. This business ex*
tends over the whole region of vcontract, either direct in negociating loans of money,and purchasing
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and selling billsof exchange, and gold and silrer
bullion, or indirect in receiving and disposing of
merchandize and real estate, pledged or mortgaged
for debts previously contracted. From the aid of
this corporation, the states may withdraw their
law of conveyances, or, as applied to their dealings,
the states may introduce provisions regulating contracts, which the corporation may deem obstructions to the enjoyment of their corporate trade.
From this-doctrine,, t^hat the power to create, im*
pHes the power to preserve,.congress may derive a
power to frame a new law of contracts, and devise
a new system of conveyances, suitable to the beueficial enjoyment of the trade of this corperation;
and this new system in the supremacy of its action
may disregard both fundamental laws, and establish maxims of jurisprudence.
The government of the union wa^ not instituted
to protect individual rights,or to redress individual
wrongs; but this power to preserve the trade, business and property of a corporation created by
themselves, invests them with power to frame a
code of criminal law, for the punishment of those
who violate the property of the bank, and thus
draw into the federal courts, the ordinary administration of criminal justice. This is already attempted in the provision for punishing those wh6
counterfeit the notes of the bank, and upon the
doctrine asserted, may be extended to cases/of larceny, burglary, or robbery upon their corporate ,
property. No doctrine has ever yet been adyan-
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tbat draws to the government ol the umott
such a host of powers: node that contains such
potency for " rending info shreds * the author*.
ity of the states. Those who clairii for the government of the union, the power of creating cor*
porations, hold that u one may be created in rela*
tion to the collection of the taxes, or to the trade
with foreign countries,"of between the states, or with
the Indian tribes ; because it is the province of the
general government to regutate those objects, and
because it h incident to a general sovereign or le«
gislative power to regulate a thing to employ afl
the means which relate to its regulation to the
best advantage." The power to create all these
corporations, upon the principle asserted, implies
the power to preserve them. And the power to
preserve, implies a power in the government of the
union to bargain with eompanies for monopolies of
trade and exemptions from taxation : to place
such companies above the power of the states, as
means employed by themselves, which they have
a right to use to (he best advantage.
In the discussion of this subject, an extraordinary,
and the most miraculous efficacy, is given to the
terms "employment of means." And k is worthy td
remark that fro effort is made to explain their
true import, or the sense ia which they are used.
We are told that the collection of taxes, and the
safe keeping of, and transmission of money from
place to place, is an end, or object of government,
and thai the bank is a convenient means of attacking this end; but it is not the charter or corporate
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franchise that is used or employed for this purpose;
it ig the individuals that compose the company, as
an aggregate body, that are thus used, and the cor*
porate franchise bestowed upon them by the government i& conferred to enable them to transact
their own business, and perform this service for the
government, with greater security and convenience.
At this moment the government of the union employs the Franklin Bank of Columbus, to receive
and pay out the public monies, and while thus employed, this bank is used as a means of government, but being thus used, is not supposed / to invest if with any privilege peculiar to the public
functionaries.
The government, alHts machinery and officers,
are but the means of the people for attaining the
great ends declared in the preamble to the constitution. Every person employed under the, constitution, from the President of the United States to
the postboy that carries the mail, partakes of this
character of means: the law that the President
is bound to see faithfully executed, and the horse
that the pest-boy rides, are alike, in a certain
sense, means of the government: but. in respect
to privileges and exemptions, no man ever supposed them to stand upon the same footing. Those
who hold offices direct under government, may be
regarded as principal means ; those who are employed by contract, as incidental or subsidiary*
The first class compose, as it were, a part of the
government direct; are entrusted with the exer> 7 v
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tji&eof some portion of political power, and arfe
clothed with privileges and exemptions attached
to their official stations. Those engaged by contract to perform services, have no official character, and consequently cannot claim the exemptions attached to public office. Thus a deputy
postmaster is an officer under the government, invested witty privileges, and subject to disabilities
attached to his office : but a contractor to carry the
mail, has no such character ; yet both are means,
used by government under thc_constitutional authority," to establish post offices and post roads."
The bank of the United States is not a mean of
the government of the union, in the same sense
with the mint and the post office; but in the same
sense with contractors to supply public stores, or
tp carry the mail. The director, assayer, chief
coiner, engraver, treasurer, melter and refiner of
the inint are public officers, so are the postmaster
general, and deputy postmasters. They cannot
hold their offices and seats in congress at the same
tiwfe; they are appointed to* and take ao oath of
gffice* But the workmen employed in the mint,,
like contractors to carry the mail, and the drivers
and riders they employ, are not public officers,
nevertheless, they are necessary means in the em*
ployment of government The stockholders in
the bank of the United States, the president
and directors of that institution, arq not public ofc
ficers, even the directors appointed by the government, are destitute of public character. They are*
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eligible to seats in congress, which is conclusive ev»
idence upon this point: and it is a monstrous do<>
trine to maintain, that corporations created by the
government of the union, in point of privilege and
exemption, are principal means of government, not to be distinguished from the officers of
the mint, and the post office, while everj member
and officer of such corporations are eligible to
seats, both in the congress of the union, and the
legislatures of the several states. By this doctrine, the great principle of separating the departments of government is completely broken down.
Collectors of revenue, officers of the customs, In*
dian agents, receivers of public monies under the
government of the union, may become legislators J
and judges in their own case, both in the general
and state governments. This consequence alone
, would seem sufficient to expose the unsoundness of
the doctrine asserted. r
It is singular, that in the very elaborate opinion'
which the committee have been engaged in examining, no definition should be given of the true character of the bank : bat that, like the terms " employment of means,'9 it should be left to doubtful
and various interpretations. It is a public institution, or a private corporation of trade. If the forv
mer, with the privileges of office, the corporators
must be subject to the disabilities of office. If the
latter, like any other individual, or bank, employed by the government of the union, its trade and *
business must be regulated by state laws, and sub-*
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ject t* state exactions. In support of their position, that it is a private corporation of trade, the
committee can adduce a judicial opinion delivered
in the supreme court itself. " For instance, says
Mr. Justice Story, a bank created by the government for its own uses whose stock k exclusively
owned by the government, is, in the strictest sense,
a public corporation. So is an hospital>fcreated
and endowed by the government for general charity. But a bank whose stock is owned by private
persons, is « private corporation, although it is erect*
ed by the government and its objects and operations
partake of a public nature. TJie same doctrine
may be affirmed of insurance, canal, bridge, andl
turnpike companies. ID all these cases, the uses
may, in a certain sense, be called public, but the
corporations are private ; as much so indeed as if the
franchises were vested in a single person" ,
W e have seen that by the employment of natural persons or state banks, to perform,those services stipulated to be .performed by the bank ^of
the United States, they become to a certain ex*
tent, means employed by the government, and yet
have never .been regarded as public officers, privileged from the operation of state laws. M^y wo
not, therefore, paraphrase the language pf the
chief justice, and a»k,"i£ then a natural person o r
"state bank, employed by the government of the
"uni©n, to receive^kee'p, and pay out of the public
'* monies wouldjnot become a public officer, or be
* considered^ a member of
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"how is it that this artificial being, created by law,
" for the purpose of being employed by the same
"government, for [the same purposes, should be"come a part of the civil government of the coun" try ? Is it because its existence, its capacities, its
" powers, are given by law ? Because the govern" ment has given it the power to take and to hold
"property, in a particular form, and for particular
"purposes, has the government a consequent right,as
" overall members of the civil government it must
" have, substantially to change that form, ©r to va«
" ry the purposes to which the property is to be
" applied? This principle has never been asserted or
" recognized, and is supported by no authority."
Thus reasoned the judges of the.supreme court,
upon the 2d February 1819. The case of M*Colloch vs. Maryland, had not then been argued or
decided. And the doctrine that the government,
by chartering a private corporation of trade, placed the association upon the same foundation with
the mint and the post office, had then never been
recognized in a court of law, and was "supported ,
by no authority." If the public character of the
bank of the United States, stands upon other foundation than that expressly negatived in these quotations, the committee have been unable to discov- r
er i t : it is not explained or developed in the opin"
ion that places them on^ a level with the mint and
the post-office, and gives to their trade, in bills of
exchange, and gold and stiver bullion, the same
character as to the process of the federal courts.
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When the committee deny that, " a power to.
create, implies a power to preserve," they are to.
be understood as denying the application of this
principle, only by the case of creating corporations.
A power to create a public office, necessarily implies a power to preserve that office : but a power
to bestow a corporate franchise to carry on a private trade, is totally different from creating a public office; a distinction between the corporate franchise, and the business to be conducted under it,
must be always borne in mind ; the power that
creates a corporate franchise, for private purposes,
not only cannot preserve such franchise, but cannot
new-mpdel or impair it; its corporate character
and existence, are as secure as the existence and
personal rights of a natural person : but its trade
and business, like the employments of natural persons, remain subject to regulation, by the local authorities, where it seeks to locate them. Thus a
power in the states to tax, or even to prohibit a
trade in bills of exchange, andjjold and silver bullion, is not a power to destroy the corporate franchises of the bank of the United States. These
corporate franchisee remain, notwithstanding the
exercise of this power, just as the existence and
rights of an individual remain, though his business
is taxed, or he is forbid to engage in certain employments. The govecnment of the union have
conferred upon the bank certain capacities, for engaging in trade : but it has not and cannot confer
an absolute right and power to drive this trade, in
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, contempt of state laws. It is made capable, but
not sovereign; its capacity must be examined, net
with a single eye, to the supremacy of the power
that created it; but with a whole view, of what
that power could confer, and what it has conferred.
If the committee have succeeded in shewing,
that the power which created the bank of the U#
States, is not supreme, in the sense of the two first
propositions; but is limited in its powers and means
of preserving the bank, so as to render the third
proposition untenable, the fourth and fifth propositions, which arc founded upon, and consequences
derived frem the other three, must necessarily be
given up : As applied to the question under discussion, however, it has been shewn, that a power to
tax their trade, is not a power to destroy the corporation. It is not perceived how a power to dL
minish the profits of labor and capital, by exacting
a portion of their proceeds, for the support of gov.
ernic&it, can be construed into a power to destroy
human life, and annihilate capital. The power of
taxing the bank is denied, because it might be so
used, as to prevent the corporation from deriving a
profitable trade, and this is deemed a power to destroy the charter, which did not originate the trade,
but merely created a facility for conducting it.—
But what is most singular is this, that after arriving
at this conclusion, an admission is made, that at once
demolishes the whole doctrine upon which it is
founded.
It is conceded, that each state may tax the
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stock owned by its citizens in this bank. Then it
is not a public institution, exempt from state taxation, upon the great principle, that the states canpot tax the offices, institutions and operations of
the government of the union. It is not that the
states have no power to tax the bank ; but that
this power exists only over its capital, and does net
extend to its operations. What then becomes of
all the labored doctrines of the opinion ? The
government of the union, though supreme within
its sphere of action, removing all obstacles, and *o
modifying all powers, vested in subordinate governments as to exempt its ~own operations from their
influence, cannot [after all, preserve what it can
create. Those who advance this pretension, are
compelled to admit, that, upon their own principles, a power to destroy, may be wielded by the
state governments*
In its utmost extent, a state tax, upon the operations of the bank, .can produce no other ntyiry,
than a suspension of its business. By ceasing to
trade, a tax upon business can always be avoided.
Not so a-tax upon capital. Should the states of
Pennsylvania,^New-York and Massachusetts combine to tax the stock in the bank of the United
States, owned by their citizens, to an amount that
H)ust consume the annual profits, and"*encroach upon the capital advanced, the destruction of the
bank must be inevitable : for this tax upoe capital
may be exacted, whether it be productive or not*
The power of the states to taxrthe business of the
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bank, is denied upon the broad ground, that the
power to lc«ry suck a tax is tantamount to a power
to destroy the bank, and is incompatible with &
power of the government of the ubion to create it
Yet this power to tax the capita!, though incontestibly of greater potency to destroy the institution, is admitted to exist. x Between the point decided and tile point conceded, there is a palpable
contradiction, to which sound [argument and just
conclusions are never subject.
Another very absurd consequence results from
the decision and admission, when connected together as they are, in the opinion under consideration.
A state tax ypon the stock, or/ actual capital in?
Tested by its citizens in the bank, cannot reach or
affect the stock owned by foreigners, or by the other states: but a tax upon the business, operates
alike upon all the stockholders. Should Massachusetts tax the stock of her citizens, stock in tho
bank must be worth less in Massachusetts than
elsewhere. Should all the states tax the stock
owned by their citizens, stock held by foreigners
must be most valuable, Should one state tax the
stock so as to exhaust the capital, the citizens of
that state must sell oat to citizens of other states,
or to foreigners. Should all the states assess such
a tax, the whole stock fiiust be transferred to foreigners, or the bank annihilated. One consequence, therefore, of this admission, may be te
throw the institution into the hands of foreigners j
when our government will exhibit the strange speel
8
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tacle of a company of foreign* bankers regarded as
a national institution, and as such, protected by the
constitution of the Union, from any of the burthens to which citizens are subject.
It may be said, that this admission was unwarily made, and upon further consideration, would be
retracted as inconsistent with what had beeo previously decided
But the committee conceive,
that this explanation is quite unsatisfactory. It
has been already stated, that the constitution
does, in expiess terms, declare what subjects shall
be exempt from the taxing power of the states.
It was felt, that, indirectly to exempt other subjects, was unwarrantable upon all established principles of interpreting laws and constitutions. This
argument was pressed, and to escape its force, the
admission was made, so thai evidently it is part of
the decision^ and as sjich sweeps away the grand
pillar upon which the whole decision rested.
If the committee have taken a correct vi^w of
the subject, it would seem manifest, that in denying to the state^ a power to tax private corporations Af trade, incorporated by the government of
the Union, where no doubt exists of the power to
create the corporation, it becomes necessary to
maintain many doctrines of very doubtful character, and dangerous tendency; while conceding to
them this power, involves nothing either doubtful or
dangerous. It strips such corporations of all pretensions to be regarded as instruments of government,
in the same sense as the mint and the post office.
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But it preserves untouched their corporate fran*
chises, and concedes them every ri<*ht and privilege which a natural person is entitled to claim. It
presents no obstruction to the legitimate action of
the government of the Union; but places it, in the,
establishment of private corporations of trade, upon the same foundation, as in erecting light houses
and constructing roads.
It is in nothing derogatory to this corporation,
called the Bank of the United States, nor to the
government of the Union that created it, to place
its trade upon the same footing with that of a private citizen employed by the government* The
contractor, to transport the mail, must use horses
and carriages; without them he cannot comply
with his contract. They are' means, or instruments employedbj government;^ but they are subject to state taxation as other property of the same
description. This has been an universal practice,
and has never been deemed any obstruction to
the action of the government of the Union. The
State cannot tax the transportation of the maB,
without obstructing the action of the government:
but were an association incorporated to transport
the mail, all over* the union, with capacity to tr-ade
in live stock and agricultural products, there can
be no doubt but that their private trade and prop*
erty would be subject to state taxation.
The committee have not deemed it necessary to
examine any argument founded upon a supposed
abuse of power by the states.' As between states
every argument of this sort is inadmissible, because it may be urged with equal force against the
exercise of any power by either, and concludes to
the destruction of all authority. Therg can be no
doubt, but that the states will, at all times, be
ready to encourage rather than repress the introduction and employment of capital within their dominion, where it tnay probably be of any general
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advantage* Of this, the slate authorities are
much more competent judges than capitalists or
tfaeif agents sft a distance ean be. tt must always
fc>e unwise to force capital into a country, against
the sense of those who administer the government.
That the bank has sustained great losses, by sending branches into this state, is now notorious; that
their trade add loans hare been highly injurious to
all the best interests of the state, cannot be disputed. This loss on ©ne^. hand, and injury on the oth* «r, woulcl hare been avoided, had the bank consulted the authorities of the state, instead of holding counsel with money jobbers and speculators.
The committee have carefully examined t
subject, and without pretending to present it in a
ihe views of which it is susceptible, have urged only those w W h appear to them most prominent
The result of their deliberations is that the Bank
t>{ the United States is, in their opinion, ajnere priTate corporation of trade, and as such? its trade
afld business must be subject to the taxing power
<*f the state.
In considering wjiat course the committee should
recommend as proper to adopt at this time, one
gtoint of difficulty has presented itself. It is urged
by many, that toe tax levied and collected, is enormeus in araouit, and therefore unequal and unjust.
It is readily admitted, that this allegation is not
entirely unfounded, and all must agree, that it does
Hot comport with the character of a state to afford any coler to accuse her of injustice. Even in
the assertion o f a right, it is highly derogatory for
a state to act oppressively, and all injustice is oppression. It cannot be doubted, but that the tax
was levied as a penalty, ahd that it was not supposed the bank would venture to incur i t It was
an &0t of temerity in them to do so, and although
in this view the tax was. justly, and in the opinion
6f the committee, legally collected, yet under all
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the circumstances of the case, the committee conceive that the state ought to be satisfied with efItecting the objects for which the law was enacted.
At this time the bank can have little object in
continuing its branches except to maintain the
point of right, which may not be definitely settled
by th e controversy. The state having refused to
use the money collected, has no interest but that of
Character, and an assertion of the right. If an a o
commodation can be effected without prejudice
to the right upon either side, it would seem to be
desirable to all parties. With this view, as welt
as with a view to remove, all improper impressions*
the committee recommend, that a proposition of
compromise be made by law* making provision,
that upon the bant discontinuing the suits now
prosecuted against the public officers, and giving
assurance that the branches shall be withdrawn,
and onljr an agency left to settle its business and
collect its debts, the amount collected for tax shall
be oaid without interest.
But the committee conceive, that the General
Assembly ought not to stop here. The reputation
of the state has been assailed throughout the Uuited States, and the nature of the controversy, and
her true course of conduct have alike been very
much misunderstood. It behoves the General Assembly, even if a.compromise be effected, to take
measures for vindicating the character of the state,
and also for awakening the attention of the separate states, to the consequence that may result
from t the doctrines of the federal courts, upon the
questions that have arisen. And besides, as it is
possible that the proposition of compromise may
not be accepted, it is tho duty of the General Assembly to take ulterior measures for asserting and
maintaining the rights of the state, by all constitutional means within their power.
In general, partial legislation is objectionable.
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But this is no ordinary case ; and may therefore
call for, and warrant extraordinary measures.—
Sine* the exemptions claimed by fhe bank are sus*
tained, upon the proposition that the power that
created it must have the power to preserve it,
there would seem to be a strict propriety in putting the creating power to the exercise of this preserving: power, and thus ascertaining distinctly,
whether the executive and legislative departments
of the government of the union, will recognize,
sustain and enforce the doctrine of the judicial department.
For this purpose, the committee recommend;
that provision be made by 1 awr forbidding the
keepers of our jails from receiving into their custody, any person committed at the suit of the bank
of the United States, or for any injury done to
them; prohibiting our judicial officers from taking
acknowledgments of conveyances, where the bank
is a party, or 'when made for their use, and our recorders from receiving or recording such convey^
ances ; forbidding our courts, justices of the peace,
judges and grand juries, from taking any cognizance
of any wrong, alleged to have been committed upon any specie? of property, owned by the bank, or
upon any of its corporate rights^or privileges, and
prohibiting our notaries public from protesting any
notes or bills, held by the bank cr their agents, or
made payable to^them.
The adoption of these measures, will leave the^
bank exclusively, to the protection of the federal
government, and its constitutional power to preserve it in the sense maintained by the supreme
court, may thus be fairly, peaceably and constitutionally tested. Congress must be called to provide a criminal code, to punish wrongs committed
upon it, and to devise a system of conveyances, to
enable it to receive and transmit estates; and being thus called to act, the national legislature must
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be drawn to the serious consideration of a subject,
which the committee believe demands much more
attention than it has excited. , The measures proposed are peaceable and constitutional; conceived in no spirit of hostility to the government of
the union, but intended to bring fairly before the
nation great and important questions, which must
one day be discussed, and which may now be very
safely investigated.
The committee conclude, by recommending the
adoption of the following resolutions:
Resolved by the General .Assembly of the state of
Ohio) That in respect to* the powers of thegovernments of the several states, that compose the
American Uteion, aod the powers of the federal
government, this general assembly do recognize,
and approve! the doctrines asserted by the legislatures of Kentucky and Virginia in their resolutions
of November and December, 1798, and January
1800, and do consider that their principles have
been recognized and adopted, by a majority of the
American people.
Resolved further, That this General Assembly
do protest against the doctrines of the federal circuit court, sitting in this state, avowed and maintained in their proceedings against the officers of
state upon account of their official acts, as being in
direct violation of the J lth amendment to the
constitution of the United States.
Resolved further', That this General Assembly
do assert, and will maintain, by all legal and constitutional means, the right of the states to tax the
business and property of any private corporation
of trade, incorporated by the congress of the United States, and located to transact its corporate
business within any state.
Resolvedfurther, That the bank of the United
64
States, is a private corporation of trade, tlid p
tal and business of which, may be legally taxed in
any state where they may be found.
Resohedjurther, That this General AsSemEly
do protest against the doctrine, that the political
rights of th« separate states, that compote thp
American union, and their powers as sovereign
states, may be settled and determined in the supreme court of the United States, so ^s to conclude
and bind them, itt cases contrived between iodividuals* and where they are bo one of then*, parties
direct.
Resolved further, That the Governor transmit
the governors of the several states^ a copy of the
foregoing [report and resolutions, to be laid before
their respective legislatures, with a request from
this General Assembly, that the legislature of esch
state may express their opinion upon the matters
therein contained.
Resolved further^ That the Governor transmit
a copy of the foregoing report and resolutions to
the President of the United States, and to the
President of the£>eaate, and Speaker of the House
of Representatives of the United States, to be laid
before their respective Houses, that the principles
upon which this state has, and does proceed, may
be fairly and distinctly understood.
' House of Representatives^ Dec'28, 182&
foregoing report was approved and the resolutions adopted :
Attest,
4WM. DOUGHERTY,
Clerk Hguse Rep.
In Senate, January 3, 1821.
Report approved and resolutions adopted.
Attest,
RICHARD COLLINS,
>
. "• "
Clerk Senate,
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