Thomas v. Dakin. ion of all, Messrs. Bronson and Beardsley included, not only were our general laws of incorporation then in force unaffected by the provision, but all corporations formed under them since its adoption were in like manner unaffected by it, and were legally and constitutionally incorporated. If the legislature cannot pass general laws of incorporation, on what principle can those already passed be amended or altered? And if they cannot be altered, they are eternal; and we must be content to have laws that no earthly power can touch, improve or modify. We have also the opinion of Governor Marcy, in opposition to the opinion of Messrs. Bronson and Beardsley. In his message of 1838, before quoted, he says; "Doubts have been entertained as to the constitutional competency of the legislature to pass a general banking law conferring corporate powers. Without entering into the argument on this question, I will only say, that I am inclined to the opinion, that the legislature have the pow er to pass such a law; but the spirit of the constitution requires that it should be passed as a two-thirds bill." He adds, "It is proper, I should also say, that this opinion is entertained with much diffidence, and is not expressed without duly considering the respectful deference justly due to the high authority by which it is opposed." Tested, therefore, by the weight of authority, it must be determined, that the constitution does not apply to general laws, creating, or authorizing the creation of corporations; and that our legislature may now, as they could before its adoption, pass such laws. Let us now enquire as to the true construction of the clause of the constitution under discussion. The first, most usual, and natural mode, is to look into the previous and contemporaneous history of the state, and ascertain the evils which this constitutional provision was intended to guard against for the future. In an uncompromising search for truth, the fact cannot be disguised, that the circumstances, attending and consequent upon the incorporation of the Bank of America on the 2d June, 1812, gave rise principally, if not wholly, to this clause of the constitution. The prorogation of the legislature by the governor Thomas v. Dakin. of this state, for the avowed object of preventing the incorporation of that bank by corrupt means; (the vote upon which showed a settled majority of one in its favor;) the subsequent indictment, for bribing, or attempting to bribe members of the legislature; and the public trial of two individuals who had theretofore stood high in public estimation; been repeatedly honored with offices of high public trust, and both of whom were then in office, and discharging the duties of their respective stations; the alarm which was felt by the community, lest our institutions should fall a prey to a daring thirst of gain, which sought its gratification by corrupting the very fountain of our laws; were all yet held in vivid remembrance. And down to the very tinie, and during even the session of the convention which framed our present state constitution, the public press was the vehicle of charges, criminations and re-criminations, against many of our public men, for their alleged agency in procuring the charter of that bank; some of whom were members of that convention. And it was probably owing to the circumstance, that the clause underwent so little discussion in the convention as it did, and that Mr. King, the chairman of the committee who reported it, assigned his reasons for its adoption, in brief and general terms. Debates of Conv. p. 446. And doubtless to the fact, that some of the individuals, charged with delinquency in regard to the chartering of that bank, and many of their relatives and friends were still on the theatre of action in this state, is to be attributed, the guarded though still explicit language of Chief Justice Nelson, when speaking of the evil which this clause in the constitution was intended to check, in his opinion, delivered in the case of The People v. Morris, 13 Wendell, 336. That this section of the constitution owed its origin to the cause mentioned, more evidently appears from the fact, that as first proposed and reported by Mr. King, it only required the assent of two-thirds of the members, "in both houses, to the passage of any act of incorporation." And it was afterwards amended in the convention, by extending VOL. XXII. 8 Thomas v. Dakin. it to acts," appropriating public monies for local purposes." Debates of Conv. p. 446. Chief Justice Nelson, who was a member of the convention from Cortland county, has also added his authority in favor of my position in respect to the true origin of this constitutional provision. Speaking of the time when the present constitution was formed, and of the evil which it was intended to remedy, he says: "But private corporations had multiplied to an extent that had attracted public attention, especially banking institutions. These had been sought for with zeal, and their enactment attended with circumstances that awakened public suspicion and alarm. So extreme had the evil become at one period of our history, that the chief magistrate of the state felt it his duty to exercise the power then existing in the constitution, of proroguing the legislature, and was triumphantly sustained by the people in the execution of this high and delicate trust. The fact affords strong evidence of the deep impression made on the public mind as to these and similar private corporations, and of the scope and purpose of the clause on this subject. If we resort to the history of its introduction into the new constitution, the above view will be confirmed. Mr. King, chairman of the committee of the legislative department, reported the section; and when it came under consideration, said that the committee had looked upon the multiplication of corporations as an evil; they had been created for a variety of purposes; they were exceptions to the common law; they could not be proceeded against in the ordinary way of prosecutions against indi viduals in courts of justice.; they ought not to be increased, but should be diminished as far as could be done consistently with the preservation of vested rights. It is obvious, though the language used in the clause in question is general, that the honorable chairman had in his mind, (and he spoke for the committee,) the case of private corporations ; that the great inducements to the adoption of the clause. was a check upon them; and that the organization of communities, and the investing them with the privileges of mere municipal jurisdiction and authority, were not at all in contemplation." The People v. Morris, 13 Wendell, 336, 337. Thomas v. Dakin. It will be observed that the chief justice in speaking generally of the evils which the constitution intended to remedy, remarks, “Private incorporations had multiplied to an extent that had attracted public attention, especially banking institutions." A recurrence, however, to the history of the times will show that the idea of a repeal of the restraining act, or the passage of a general law of incorporation for banking purposes, was the fartherest possible from the mind of the convention. That no one at that day, even in his wildest dreams, thought of opening the business of banking to all our citizens. The evil that pressed the convention and the public was, the frequency of the enactment of separate acts of incorporation, each of which thronged our capitol and legislative halls with their agents, who found their reward in obtaining exclusive privileges, principally for banking, which were withheld from our citizens generally. Opening at once, to a whole community, the business of banking, allowing all to bank who choose, is a very different measure, rests on entirely different principles of policy, and must be followed by entirely different results, from increasing from time to time, under a strong external pressure upon the legislature, stimulated by individual interest, private and exclusive corporate privileges for banking. Nothing more clearly shows the difference between the two, than the history of the enactment of our present general banking law, and of the separate incorporation of the other banks of the state. Nor does any thing more satisfactorily prove the certainty of the overthrow of the banking monopolies of this state, and the suppression of their spirit, than the early, steady, active and persevering opposition of the holders of the exclusive charters, to the new general system. The debates of the convention, though very brief, general and unsatisfactory, also show that the evil aimed at, was the multiplication of monopolies-partial and unequal lawsexclusive privileges, which benefit a few to the injury of the many. Debates of Conv. 446. As there never was any complaint against the corporations created under general laws, there would seem, there Thomas v. Dakin. fore, to be no doubt, but that this provision in the constitution was intended to remedy the evil of partial legislation, and to remove the temptations to corruption which such a course of legislation necessarily draws after it. The obvious and natural remedy was the one adopted, viz: not to allow the enactment of a law, either "appropriating the public monies or property for local or private purposes ;" by which the few would be benefitted at the expense of the many; or "creating, continuing, altering or renewing any body politic or corporate," by which privileges would be conferred on a few, to the exclusion of the many, by the vote of a bare majority; but that when either of those objects were sought through the agency of the legislature, it should be so clear a case, that two to one should be in favor of it; and besides, if another case like the Bank of America should occur, in which the applicants for an exclusive privilege should be so reckless in regard to the means of effecting their object, as to use the criminal and subduing power of gold, they should be compelled to conquer two-thirds of all the members elected to each branch of the legislaturea much more difficult, hazardous and expensive enterprise, than drawing into their interest a bare majority of each house. There was at that time, and still is, only two modes of legislation known or understood for incorporating companies. One, by a general law, allowing all who choose, to take an act of incorporation for conducting a particular business or trade; the other, by a special act, incorporating a single and specific company. Is it not then obvious that this clause in the constitution, so far as it relates to corporations, was intended to apply to that mode of corporate legislation, by which one act incorporated a single and separate company, and not to general laws, conferring the same privileges upon and affecting all our citizens alike. Although Governor Marcy's remark, in his message of 1838, that the spirit of the constitution required that a general banking law should be passed as a two-thirds bill, was made, as he said, with much diffidence, his high political and judicial standing demands a notice of it. He appears to have made the remark, without recurring to the origin and |