After referring to the report of the committee of the Senate, made the previous year, on the subject of a general system of private banking, and, adopting the opinions of that report, the committee say:

"The subject of free competition in banking has, for some time past, very much occupied the public mind." [Senate Doc. 1838, No. 68, p. 2.]

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Impressed by the current of the public will, the Governor has recommended to the Legislature, to discontinue the present mode of granting charters, and to open the business of banking to a full and free competition, under such general restrictions and regulations, as are necessary to ensure to the public at large, a sound curency."" [Ib. ]

In conclusion, they say:

"The security, responsibility, checks and restraints which ought to be imposed upon banking associations, are indicated in the report to which reference has been made, and need not be repeated." [Ib. p. 39.]

The Senate took up the bill, in committee of the whole, on the 16th of April, and again on the 17th, when it was reported to the Senate, with amendments. The Senate then proceeded to consider and determine several other amendments, offered by different Senators, all of which failed, except one offered by Senator Beckwith, which was to add a new section at the end of the bill, in substance the same as the present thirty-third section, except fixing the specie basis of circulation at fifteen, instead of twelve and one-half per cent., as it now is.

Thus amended, the bill was approved, and ordered to a third reading, by a vote of twenty-four to eight. It was read the third time the same day, and after being so read, Senator Powers offered a resolution, that it required a two-thirds vote to pass it. This resolution was decided in the negative, by a vote of seventeen to ten. The bill, when this vote was taken, was the

Young was, evidently, greatly excited on those subjects, when he wrote it. His views are certainly too extravagant and ultra for the practical wisdom of the present day.

same precisely, as the Law now is, except the difference mentioned in the amount of the specie basis; for the Assembly, as we shall soon see, adopted all the amendments of the Senate, except the new section respecting the specie basis, and finally agreed to that, modified as to the amount of the per cent., as it now stands.

Hence, the vote of the Senate, was the expression of the direct opinions of the Senators upon, not only the general question of the constitutionality of the Statute, but upon the question, whether the associations were corporations.

The Senators who thus gave their solemn opinions in favor of the constitutionality of this Law, were:

Frederick A. Talmadge, 1st Dist. Laurens Hull,
Gulian C. Verplanck, do. Chester Loomis,
Henry A. Livingston, 2d District,John Beardsley,

David Spraker,
Samuel Young,
Martin Lee,

Micah Sterling,

Levi Beardsley,

Daniel S. Dickinson,

Samuel L. Edwards,
John Maynard,

6th District, 7th District,

4th do.

Isaac Lacy,

8th District,

5th

Samuel Works,

On the same day the Senate passed the bill by a vote of twenty to eight. All the Senators who expressed opinions in favor of the constitutionality of the bill, and that it was not a two-thirds bill, voted for it on its final passage, except Senator Young; and three of those, who were of opinion that it was a two-thirds bill; viz., Coe S. Downing, from the First District; John P. Jones, from the Second; and Edward P. Livingston, from the Third; voted for it on its final passage; as did also, Henry A. Van Dyck, from the Second District, who did not vote on the other question.

The bill was sent the same day, viz., the 17th of April, to the Asesmbly, who referred it and the amendments of the Senate, to

a special committee, of which Mr. Patterson was chairman, who the next day reported, and recommended, that the Assembly agree to all the amendments of the Senate, except the one respecting the specie basis; which was accordingly done. The Senate adhered to its amendment, and the Assembly insisted upon its resolution of non-concurrence. Each House then appointed a committee of conference, who agreed on the section as it now stands. Both Houses approved of the compromise, and the bill was sent to the Governor and approved by him the same day.

No Statute of this State, I presume, ever underwent a fuller discussion, or elicited more legislative and financial talent and research. The attention of the whole State was directed to the subject, from the Chief Magistrate to the humblest citizen. The Assembly went into committee of the whole on this bill TwENTY-SIX different times, and on nearly as many different days; and took upon it, and its different sections, FOURTEEN divisions, and the Senate EIGHT. The Governor approved of the bill, knowing it had been passed as a majority bill; for it had not the certificate required by statute to be attached to two-thirds bills. [1 R. S. 156, § 3.] Had his opinion been, that it was either an unconstitutional, or a two-thirds bill, it would have been his unquestionable duty, to withhold his approbation.

The origin, progress, and final passage of the bill, and espepecially, the Message of the Governor which recommended it, the reports of the committees of the Senate and Assembly, and the vote of the Senate relative to its being a two-thirds bill, all concur in furnishing conclusive evidence, that the Legislature did not intend, by it, to create corporations.

The fact has already been mentioned, that the Legislature of this State has never passed an act of incorporation, general or special, without giving the corporate body a seal. If there

was any doubt, about the intention of the Legislature in this instance, the omission, to give the associations seals, would solve that doubt. I have not felt at liberty to omit a reference to this circumstance, though I cannot but regard it as comparatively unimportant, when there are so many other decisive proofs of the intention of the Legislature.

The intention of the lawgivers being known, and I might add, admitted by the Counsel for the defendant, how can a court of justice, which expounds, but does not make the law, disregard that intention?

If it is done at all, it can only be on the ground, that the Legislature designed to evade the Constitution, and have passed a Statute in fraud of its provision. This, in other language, is saying, that the NINETY-SIX Senators and Members of the As sembly who voted for it, have disregarded their oaths. That, instead of supporting "the Constitution of the State of New York," as those oaths required, they have deliberately violated it. When we recall the names, characters and services of those gentlemen, the thought is revolting. No, the true and correct view of the subject is, that those distinguished public servants, and honest men, did not intend one thing and express another; but, that seeing the necessity of a change in our system of banking, determined to open it to our citizens generally, and permit them to prosecute it, if they chose, in the form of associations, which neither had corporate powers, nor would be subjected to corporate odium; yet under such regulations as would secure to the people a safe and convenient currency. These associations may be called, limited partnerships, joint stock companies, or whatever else any one chooses, so long as they are not corporations.

In discussing this branch of my subject, I would call the attention of the Court to the proposition, that the only safe evidence

of the intention of the sovereign power to create a corporation, is an explicit legislative enactment. If that is wanting, it is almost, if not quite certain, that the sovereign will is not, that a corporation shall exist; and probably in this country, the safest and best rule would be, that nothing but a clear and unequivocal legislative declaration shall constitute a corporation. But whether that is the preferable rule or not, at least, this is clear, that in the absence of such declaration, nothing but the strongest reasons and most unequivocal evidence, should be considered sufficient to authorize a judicial opinion in favor of a corporate existence.

Let the subject then, be viewed in what light it may, the conclusion appears to be the same; viz., that the associations authorized by this Statute are not corporations.

My second position is, that, admitting that the associations authorized by this Statute are corporations, still the Statute is constitutional.

Statute constitutional, though associations are

As the Act must be presumed to have been corcorporations. rectly passed, as will be hereafter, I trust, most satisfactorily shown; that is, by a majority of a quorum of each house, if the bill is a majority bill, and by "the assent of twothirds of the members elected to each branch of the Legislature," if the bill is a two-thirds bill; the question arising under my second position is, whether the Legislature can pass a law by any vote, majority or two-thirds, authorizing the formation of an indefinite and unlimited number of bodies corporate, or in other words, whether the Legislature can now provide by a general law, for the incorporation of an unlimited number of voluntary associations, as it could, and did in many instances, before the adoption of the present Constitution.