general government, but would roam at will through the states. They might be even banking corporations and as shown anything in the constitution squinting towards a bank suggested defeat in its adoption by New York and Pennsylvania. They would have little, perhaps nothing, to ask from the states; at least the question was so doubtful that those who framed the constitution declined to incur any risk on the subject. Besides the abstract right of local control was a touchstone in determining every grant of power which the constitution contained. So much power as was necessary to accomplish national purposes was intended to be given away; and all in excess of that was to be retained. It was perfectly obvious also that a corporation involved some form of special privilege, either by way of exceptions to the person interested, or by way of centralized power for corporate purposes. What sort of bodies would emanate from the general government under such a constitutional power? They could foresee great trading companies and great banks. The right to charter carries with it the right to grant privileges and franchises. And what state could protect itself against such an incorporeal creature when no state could control the power which gave it existence? Hence, as already shown, congress was denied the power to charter companies.

As congress possesses definite powers expressed with rhetorical precision, the creation of a corporation not only must raise the question of the expediency and justice of the particular act; it must also lead men to inquire what limit can be set to congressional action. If the constitution can be broken down for a good pur

pose it can be broken down for a bad purpose. And whether the purpose be good or bad, the methods essential to employ in levelling the constitutional barriers are among the most corrupt as they are the most dangerous that ingenious lawlessness can devise. To say, for instance, that congress can constitutionally impose a protective tariff under the general power “to promote the general welfare" or that it may incorporate a bank under the general clause empowering congress "to lay and collect taxes," because a bank may by possibility through its functions of deposit and transmission facilitate the collection of taxes, is a form of illogic, the danger of which cannot be estimated. Joseph Story, in writing upon the protective tariff, had occasion to advert to the pernicious subtleties with which these arguments are clothed. "The violation," wrote he, "consists in using a power granted for one object to advance another, and that by a sacrifice of the original object. It is, in a word, a violent perversion, the most dangerous of all, because the most insidious and difficult to resist."

In August of 1790 congress called upon Hamilton as Secretary of the Treasury to report further provision for establishing the public credit. On December 13, 1790, Hamilton responded by furnishing to congress his first report on a national bank. This report need not engage our attention because it related to the expediency of such an institution and the details of its formation. In conformity with the report the legislative bill of creation was formulated in congress and provoked instant and bitter hostility.

We have already seen that Madison was not opposed

to corporations of themselves, but on the contrary thought congress might have the power to charter them. But when the convention overruled him and the constitution went into force devoid of any such powers Madison evinced the courage and good faith to stand by the constitution as it was adopted. The congressional debates disclose that on February 2, 1791, Madison made a speech on the bank bill in opposition to it. "He then expressly denied the power of congress to establish banks. And this he said was not a novel opinion; he had long entertained it. All power, he said, had its limits; those of the general government were ceded from the mass of general power inherent in the people, and were consequently confined within the limits fixed by their act of cession."

Hamilton's elaborate argument contained in his report to congress in which he set out the constitutional provisions and deductions supposed to authorize the chartering of the bank is an adroit piece of fallacious reasoning. Thus his first proposition involves the fallacy of undistributed middle. It is this: that the United States are sovereign and as all sovereign nations can incorporate companies the United States as a sovereign nation can incorporate a bank. The major term here is: the United States are a sovereign nation; and the minor term is: a sovereign nation may incorporate a bank; and the conclusion is: the United States may incorporate a bank. But the minor premise which declares that a sovereign nation may incorporate a bank means a nation which is sovereign as to all subjects, while the major premise can only mean that the United States are sovereign with respect to some sub

jects, that is, it can exercise only a limited amount of sovereignty. Thus the fallacy consists in using the words "sovereign nation" and "United States" as equivalent terms. There is a play upon words using the terms first in one sense and then secondly in another. For the United States, while among the sovereign nations, e. g., exercising sovereign functions for the people-and this is all the major premise means-do not partake of all the attributes of sovereignty which those nations possess of which as a class the United States are a member; nor yet of those attributes by which banks may be chartered. Sovereignty may be limited or plenary. Russia is a sovereignty in which the Czar is the source of law bound by no limitation whatever; England is a sovereignty bound by a vague constitution known as the ethical law; Switzerland is a sovereignty bound by a written constitution of the utmost strictness. Therefore, although all are sovereign, some things can be predicated of Russia that cannot be predicated of England. Some things are possible to England which are impossible to Switzerland. As Mr. Lawrence points out in his essays: "All sovereign states are equal before the law, although some may be more powerful and influential than others." Any state is sovereign which is self-existent, which commands authority in civil society, which directs its citizens and moulds its institutions and which is a member of the family of nations. But it is a clear fallacy to use the term sovereignty in connection with those nations which have all power on all subjects and then use it in application to a nation which by its organic law has all power on a few subjects, and those to be constitu

tionally exercised, and no power whatever on a vast number of subjects.

Hamilton started out with this remarkable proposition that the definition of government, and the definition necessary to be used for the United States "essential to every step of its progress is that it is sovereign." Government may be an entity produced by compact; but that the definition of government is that it is sovereign is certainly novel. It would be just as scientific to say that the definition of government is that it is a democracy or an oligarchy. Sovereignty is an attribute or a quality, and does not comprehend the thing known as government. And if Hamilton meant to say that the United States were sovereign as much as any nation, he knew that the definition was untenable, because he knew that no government is sovereign in the sense in which he used the term which is limited in its operation by its charter of creation proceeding from its creators and enumerating its powers and limitations. While all nations possess sovereign powers, while all are on an equality with each other before the law of nations, they are sovereign in different degrees, in the same manner that all men possess strength, but are not all equally strong. And while Hamilton was reasoning from analogy it was necessary for him to keep in mind the principle that the United States might resemble all other nations in the quality of sovereignty without at all resembling them in the quantity of sovereignty. Analogy does not imply a resemblance of one thing to another, but only the resemblance of relations. Thus the Czar of Russia and the President of the United States are both execu