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The legislature of Maryland passed an act to impose a tax on all banks, or branches thereof, in the state of Maryland, not chartered by the legislature. The Bank of the United States had placed a branch in the city of Baltimore, without authority from the state. The validity of this act of Maryland, was the question submitted to the court. In the foreground of the discussion stood the long contested question, Had Congress power to incorporate the bank? and the negative was argued, with great zeal, by the counsel for the state. There is an impressive solemnity in the opening of the opinion delivered by the Chief Justice, which every reader must feel and respect. He says,
“ In the case now to be determined, the defendant, a sovereign state, denies the obligation of a law enacted by the legislature of the Union; and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that state. The Constitution of our country, in its most interesting and vital parts, is to be considered ; the conflicting powers of the government of the Union and of its members, as marked in that Constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of hostile legislation : perhaps of hostility of a stíll more serious nature ; and, if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States, has the Constitution of our country devolved this important duty."
On the first question, has Congress power to incorporate a bank? The Chief Justice, preliminary to entering upon the main argument, observes—" It has been truly said, that this can scarcely be considered an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contended for, was introduced at a very early period of our history; has been recognised by many successive legislatures; and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation.”
- After showing that a question of this nature might be put at rest by the practice of the government”-he says—"an exposition of the Constitution, deliberately established by successive acts, on the faith of which an immense property has been advanced, ought not to be lightly regarded.” The Chief Justice then gives a concisc history of the incorporation of the old bank; of the expiration of the charter; and states that a “short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those, who were most prejudiced against the measure, of its necessity, and induced the passage of the present law.” He adds—“it would require no ordinary share of intrepidity to assert, that a measure adopted under these circumstances, was a bold and plain usurpation, to which the Constitution gives no countenance.” He had before admitted, that acquiescence would not protect such a case. With
these cogent introductory remarks, the Chief Justice takes up the argument on its original ground, independent of the long practiced and repeated recognitions by the government, and pursues it with great power, and a searching scrutiny, through all the provisions of the Constitution which have any bearing upon it. The result was, that it was the unanimous opinion of the Court, that the act of Congress, incorporating the bank, is a constitutional law; that the bank had a right to establish a branch in Maryland; and that the state could not, without violating the Constitution, tax that branch. Thus ended, as was supposed, this momentous controversy, and so it rested for more than ten years; until the late symptoms of a renewed agitation. Who does not see, that without the power of this Court to control state legislatures and state Courts, when they break in upon the Constitution, this indispensable institution would have been crushed ; and other valuable institutions, on the same principle, would have followed its fate. Let those, who, from old prejudices, or the pride of opinion, or state pride, are unwilling to surrender their objections to the constitutionality of this corporation, imitate the diffidence of the Chief Justice, and the respect he manifests for precedents and practices of long standing and high authority ; and consider well the whole argument of the Court. Before they put the torch of Eratostratus to this noble structure, let them look soberly at its dignity and usefulness; conducted with an honourable liberality to individuals, and the most extended advantage to the public. It is the great regulating power of all the business of our country. Every man feels a perfect confidence in his transactions with it; and enjoys by it an invaluable security and facility in his pecuniary operations. While it prevents or checks the indiscretions into which other banking establishments might be tempted, it affords them a generous protection and aid in the proper use of their privileges. It has been ever ready to accommodate and assist the government with its resources, without offering any undue subserviency to its influence. It belongs to the whole country, but to no portion of it; to the American people, but to no sect or party. It has become an element of health in our social existence; and cannot be withdrawn without a shock, which would be felt throughout the body politic. We will add but another word, on this interesting topic. If, before the opinion of the Court, above referred to, the question of the constitutionality of this corporation could “scarcely be considered as open,” how can it be so, after the tribunal which by the Constitution has alone the power to decide it, has passed a deliberate and solemn judgment upon it? What power of the government, or of any department of it; what right of a state or a citizen; what question of any description or bearing, can be considered to be settled in these United States, if this is not finally and conclusively decided ; not to be disturbed by any authority acting under the Constitution and respecting it? Mr. Jefferson, although the first and most formidable opponent of the incorporation of the bank, thought all question about it was determined and could not be moved again. Are our institutions to be forever floating on troubled waters ? Is there no resting place for them?
The case of “Dartmouth College vs. Woodward,” is the last we shall be able to give a particular attention to; and this will be but hastily reviewed. This also was a writ of error to the Supreme Court of the state of New-Hampshire, which had sanctioned un unconstitutional act of the legislature of that state. The leading points decided were, that a charter granted by the British crown to this college, in the year 1769, was a contract within the meaning of that clause of the Constitution of the United States which declares that no state shall make any
law impairing the obligation of contracts; and that this charter was not dissolved by the revolution : that, under this charter, Dartmouth College was a private, and not a public corporation, being originally founded by individuals, with their own funds, and under their own direction; and that a corporation established for purposes of general charity, or for education generally, does not, per se, make it a public corporation, liable to the control of the legislature. The result of these principles was, that an act of the state legislature of New Hampshire, altering the charter, without the consent of the corporation, in a material respect, is unconstitutional and void. The most material alteration in the charter was that by which the property and government of the corporation were taken, in effect, out of the hands of its founders and proprietors, and transferred to the direction and management of the state and her officers. Yet the state Court, having, probably, a common feeling with, or an uncommon deference for, the legislature, found nothing wrong and unlawful in this manifest invasion of private rights. Not so the Supreme Court of the United States. They pronounced the usurpation to be a violation of the sanctity of a contract, and of the security given by the Constitution to every citizen in his property. The property was restored to its rightful owners, as well as their privileges.
Without this guardian power of the federal judiciary, every association incorporated for the purposes of religion, charity, or learning, founded by private benevolence or private funds, to which the state had not contributed one dollar, would be at the disposal of a state legislature; and at the mercy of intriguing politicians.
Every day keeps the public in mind of the obligations they owe to this Court for their decision in the Steam-boat Case.
We have now completed, most imperfectly indeed, the execution of our design, to place before the people of the United States, some of the most prominent services rendered to them by the judicial department of their government; and we indulge a hope that our labour will not be without some influence in increasing the estimation which justly belongs to its learning, its diligence, its patriotism, and integrity.
ART. VI.-Journal of an Embassy from the Governor Gene
ral of India to the Court of Ava, in the year 1827. By John CRAWFORD, Esq. late Envoy. With an Appendix, &c. London : 1829.
In the eighth number of this Review, we gave to our readers a full account of Mr. Crawfurd's Embassy to Siam and Cochin China, and expressed there the very favourable expectations which that and the antecedent work of this author had induced us to form with regard to the Journal of his Embassy to Ava, which was already announced. At the same time, we described his general character and merits as a writer, in a way which renders superfluous any present notice of those topics. We have before us his second goodly quarto, possessing the same attractions as the first-novel, curious, and instructive matter, an elegant page, and illustrative engravings, suitable to the advanced state of the arts in England. The embassy to Ava was accomplished in the year 1827, but the book could not be prepared and issued earlier than last year. It is dedicated to the British king. Works of this kind are not reprinted in the United States, and are but seldom or slightly noticed in the British Reviews which circulate on this side of the Atlantic; yet they relate to subjects which should possess more interest for all liberal inquirers, than most of those which are principally discussed. They exhibit forms of human nature and action, of civilization and barbarism -quite different from the European, and serve to throw new light on the philosophy of man and government. We recollect that the war between the English power in India, and the Burman, excited some sensation in this country, where, as on the continent of Europe, it was thought to be likely to produce, or certainly to portend, very serious consequences to the British Indian empire. The result was, on the contrary, propitious; but the remembrance of that sensation may animate attention to the authentic details of Burman character and condition, which are furnished by the able envoy, who was deputed to conclude a commercial treaty soon after the conclusion of peace. There are, besides, two excellent narratives of the war, written by officers of the British staff, to which we shall occasionally resort for remarkable traits.
The Burman empire, before the war with the British power, comprised the countries of Ava, Pegue, Munnipoor, Arracan, and Tennasserim,formerly independent kingdoms. It was bounded on the north by Thibet, on the east by China and Siam ; on its extreme south, it touched Malaya, and the Bay of Bengal and British India formed its western line of demarcation. This vast tract of country has a fertile soil and healthy elimate, and is intersected by rivers rivalling the greatest and most celebrated of the East. The empire grew by conquest during the last century : it was arrested only by the Chinese boundary on the one side, and the British on the other. The government and people of Ava acquired the most extensive authority, and the highest military reputation of all the nations of India ultra Gangem. Conformably to the Eastern character, the pride of the conquerors increased in a much greater proportion than even the extent of their dominion. They fancied themselves superior in arms and arts to all the European as well as Asiatic races.When the Burmese troops invaded the British territory, their commander carried golden fetters, with which the Governor General of British India was to be bound when he should be led captive to Ava; and in the pockets of the Burmese officers, the British found letters from ladies, specifying how many slaves they expected to be reserved for them, out of the white Europeans at Calcutta. So little was known in that capital of the true character and strength of the Burmese; so exaggerated were the stories of their power and ferocity-that the native merchants were with difficulty persuaded to refrain from removing their families and property from under the very guns of Fort William, when intelligence was received of the invasion from Arracan. Consternation was, indeed, general throughout Bengal, and we remember that several of the London papers contained the most ominous predictions. All this has now almost a ludicrous character, when contrasted with the events and issue of the war. A few thousand British troops and seapoys beat the largest and best appointed armies of the Burmese, led by their favourite chiefs, on their own soil, and dictated a peace within a few leagues of their capital, which also, the victors could have occupied with but little additional bloodshed. The cessions which the Burmese government made to the British in 1826, contain an area of 48,800 English miles. This territory eonsists of the following parts;—the kingdom of Arracan divided into four provinces; a part of the province of Martaban, and the entire provinces of Ré or Yé, Tavoy and Mergui.
Mr. Crawfurd had resided six months at Rangoon, as civil VOL. VII.-No. 13.