ness 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 laws-exclusive privileges, which benefit a few to the injury of the many. [Debates of Con. 446.]

As there never was any complaint against the corporations created under general laws; there would seem, therefore, to be no doubt, but that this provision in the Constitution was intended to remedy the evil of partial legislation, and to remove the temptations to corruption which such a course of legislation necessarily draws after it. The obvious and natural remedy was the one adopted, viz., not to allow the enactment of a law; either "appropriating the public monies or property for local or private purposes;" by which the few would be benefitted at the expense of the many; or "creating, continuing, altering, or renewing any body politic, or corporate," by

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 Legislature—a much more difficult, hazardous, and expensive enterprize, 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 spe cial act, incorporating a single and specific company.

Is it not then obvious to all, that this clause in the Constitution, so far as it relates to corporations, was intended to apply to that mode of corporate legislation, by which one act incorporated a 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 cause of the constitutional provision; or to the two modes of corporate Legislation then in use. He makes the remark apparently under the general impression, that banking institutions are within the spirit of the clause, without reflecting upon the great difference between opening banking to all, and restricting it to a few; or that a general banking law, conferring corporate powers, is no more within the spirit of the Constitution, than a general manufacturing law; a general insurance law; a

general whale fishery law; or any other general law conferring like powers. If one general law, creating corporations for a particular purpose, is within the Constitution, than every other general law, conferring corporate rights for whatever purpose, is also within it. I cannot but persuade myself, that if the Governor had looked at the question in all its bearings and effects, he would have concurred with the revisors of our Statutes, in this particular, as he did in the more general proposition, that the Legislature had the same power now, as before the adoption of the Constitution, to pass general laws of incorporation; and that the restrictive clause was only applicable to private and exclusive legislation.

The language of the Constitution fairly and naturally indicates and covers this special legislation. It is:

"The assent of two-thirds of the members elected to each branch of the Legislature, shall be requisite to every bill appropriating the public monies or property for local or private purposes, or creating, continuing, altering or renewing, any body politic or corporate."

Does not the section, tested by its language, apply, and only apply to that mode of creating corporations, then in general use, by a separate act for each incorporation? The assent required shall be " to every bill," &c., "creating, &c., any body politic or corporate." The language indicates separateness and directness of legislation, and must be strained, to embrace general laws and indirect incorporation.

I do not mean to be understood as contending, that if a law incorporates more than a single company, it is not therefore embraced by the Constitution. I contend for the great and manifest distinction, between general and private legislation; between a law that confers the same privileges on all, and one, which confers privileges on a few to the exclusion of the many. It may be difficult to mark the exact line; but not more so, than to determine the old line between public and private acts; between internal improve. ments for general, and those for local benefit; and between bills appropriating public monies for local and private purposes, and those appropriating them for general purposes. There is a broad

distinction between them, founded on reason and principle. One is, and the other is not, within the evil provided against. One is, and the other is not, within the letter or spirit of the Constitution.

Neither Mr. Bronson, nor Mr. Beardsley claims, that the words of the Constitution naturally and freely apply to general acts of incorporation. All they contend for, in respect to the language, is, that it is not directly inconsistent with their construction of the clause. Mr. Bronson says:

"This construction, (that is, his construction,) while it is not inconsistent with the letter of the Constitution, is best calculated," &c., "Such laws, (that is general laws,) if not in direct conflict with the letter of the Constitution, would be plainly calculated," &c. [page 4.]

Mr. Beardsley says:

"In its strict terms, the clause is confined to bills which assume to create corporate bodies, and does not extend to one which authorizes their creation by the voluntary association of individuals. But this, in the opinion of the Attorney-General, (that is, his opinion,) would be too narrow a construction of that instrument."

And then, after stating it as his opinion, that the correct construction of the Constitution is to consider it applicable to laws authorizing the incorporation of voluntary associations, he says:

"This is the spirit of the provision and is consistent with the letter." [page 8.]

Governor Marcy also distinctly intimates his opinion, that a general banking law is not within the words of the restrictive clause. He remarks, however, yet with much diffidence, as we have seen, that "the spirit of the Constitution requires it should be passed as a two-thirds bill.

The framers of the Constitution were well aware of our general laws of incorporation, and of the frequency with which such laws were passed. Some of them were even alluded to in the few remarks that were made in convention on adopting the restrictive section. Had it been the intention of the Convention to include within this provision of the Constitution general laws of incorporation, would not other and appropriate language for that purpos

have been used? and especially, if the Convention had intended to prohibit altogether the passage of any more general laws of incorporation, either by a majority or two-thirds vote; (for let it be kept steadily in mind, that that is the position contended for by our opponents and sanctioned by the opinion of Messrs. Bronson and Beardsley,) would not other language have been used? would not another and a distinct section have been introduced into the Constitution? The manifest object of this section was to declare by what vote, certain laws thereafter should be passed, and not what laws should or should not be thereafter passed. Besides; if the Convention had supposed, that the effect of this section would be entirely to prohibit thereafter the passage of all general acts of incorporation, there would certainly have been opposition; the policy of the measure would at least have been doubted by many; a debate, and a full and protracted one, would have ensued. The public would have been alarmed by such a proposition, and the Press would doubtless have been heard. And had the Convention intended to prohibit the passage of general laws of incorporation for conducting the business of banking, or insurance, or any other trade or business; would there not have been in the Constitution an appropriate clause? or had the Convention intended to do anything except regulate the mode of legislation in respect to the vote to be given ; would they have left their intention in doubt ?

Seeing then, that the language of the section does not call for, but on the contrary, repels the construction claimed by the Counsel for the defendant; seeing also that it was not the intention of the framers of the Constitution to prohibit thereafter the enactment of general laws of incorporation; let me inquire briefly, if the light of experience should induce this tribunal, to extend this constitutional provision by construction, beyond the natural and fair purport of its language.

I think it far from rashness to assert, that if this section of the Constitution could be submitted now to the people of this State, it would be repealed almost unanimously.* Instead of promoting pu

*CH. JUS. NELSON remarked in this stage of the argument, that it was universally