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From the Globe.
MR. MADISON’S SPEECH.
The brief notes of Mr. Madison’s speech
i Against the old Bank of the United States,
are given in the volume of Bank Documents
Collated by the order of Congress. We pub
lish to-day from the Richmond Enquirer, the
speech as furnished, we understand, by Mr.
Madison himself lo that paper in June, 1811.
‘f be motive lor his giving this revised speech
at that time to the public, cannot be misunder
stood. We lay it before our readers at ibis
moment from the same motives which induced
Mr. Madison’s republicatimi of the extended
ttml improved sketch in 1811.
HOUSE OF REPRESENTATIVES.
Wednesday, February ”2,1791.
The Bink hill being under consideration,
Mr. Madison began with a general review
bf iheadvnntagesand disadvantages')!'Bunks.
The former he staled to consist in, first, the
aids they alliird to merchants, who ran there
by push their mercantile operations farther
With the same capital; second, the aids to
fnerehants in paving punctually the customs;
third, aids to Hie Government in complying!
punctually with its entraseuienis when defi
ciencies or delays happen in the revenue;
itoU’ th, in diminishing usury, fifth, in saving
ilie wear of the gold and silver kepi in the j
Vaults, ami represented by notes; sixth, in
hpcilnating occasional remittances from differ
bnt places where notes happen to circulate.
Tne effect of iheproposed Bank, in raising
Ihe value of stock, lie thought, had been
greatly overrated. Ft won and no doubt raise
that of the stock subscribed into the Bank,
hut could have little effect <•■ -u..ob in general.
Hs illc iilieiest on it would remain the same,
find the fjoautiiV taken out of the market
foil'd be replaced by hank slock.
Tne principal disadvantages consisted in,
ftr i; banishing llie precious metals, by sub
stituting another medium to perform their
ntfi e. Tlii§ efiect was inevitable. It was
admitted by tlie most enlightened patrons ot
hanks; particularly Smith on Wealth ofNa
-1 iidnd: The cdmmdn artsWer to the objection
was, that the nfoney banished was holy an ex
change for something equally valuable that
Would he imported in return. He admitted
the weight of this observation in general, hut
doubted Whether, ih the present habits of this
cmmtrv,’ the return Would not be in articles ot
ho permanent nee to it. Sefcond,expos-ng the
public and individuals to all the evils of a run
on thfc Bank; tohrfth would he particularly
fcalamdous in so great a country as this, and
might halp’pen from various Causes, as false
(Urttors, bail nranagfement of the institution, an
tmlWvo'rable balance of trade, fidm short crops,
it was proper to be considered, also, that the
Hi important of the ad vantages would be
b'ept-r obtained by several banks propeilv dis
tributed,’ than by a single one. The aids to
bommeree could only be a Horded a t or \ery
bear the seat of the Bank. The same was
true of aids to merchants in tlie payment of
tustoms. Anticipations of the Government
would also be most convenient at the differ
ent places where the interest of the debt was
to he paid. The casein America was differ
ent froiu-that in England; the interest there
was all due at one place, and the genius of
the monarchy favored the concentration of
wealth and influence at the metropolis.
He thought the plan liable to other objoc-;
lions, ft did not make so good a bargain for
the public as was due lo us interests. The!
charter to the Bank of England had been
granted lor eleven years only, and was paid
for bv a loan to the Government on terms bet
ter than could be elsewhere got. Every new
renewal of the charter bad, in like manner,
b'en purchased, in some instances at a. very
high price. The same had been done by tl e
banks of Genoa, Naples, and oil er like banks j
of circulation. The plan was unequal lo ihe i
public creditor® — it gave an undue preference j
to the holders of a particular denomination ol
the public debt, and to those at and within
resell of the seat ol Government. If ti e sub
scriptions should he rapid, the distant holders
of patteis would be excluded altogether.
In making these remarks on the merits es
the bill, lie hail reserved it* himself, he said,
the rioht to denv the authority >f Congress to
pass i?. He had entertained this opinion from
the date of the Constitution. His impression
,ni.r.rt perhaps be the stronger, because he
weTfrecollected that a power to grant charters
of incorporation had been proposed in the
general convention, and rejected.
Is the power of establishing an trtcorpo) a
ted bank among ihe powers vested hv the
Constitution in the Legislature of the United
Stales? This is the question to be examin
\fter some remarks on the limitations ol
nil political powers, he took notice of the pe
culiar manner in which the Federal Govern
ment is limited. It is not a general grant, out
of Which particular powers are excepted. It
is a .riant <*f p irticular powers only, leaving
H,e uencral mass in other hands. So it had
s e en understood by its friends and its foes,
gl ,d so it was tube iPerpreted.
•\s preliminaries to a rirtt interpretation,
he laid down the fdlowing rules:
An interpretation that destroys Ihe very
characteristic of tlie Government, cannot be
Where the meaning is clear, the conse
„ ... .whatever thrv mav he, are to be ad
>• .3 fair* Wilt’ll b.
THE COLUMBUS TIMES.
VOLUME I.]
t its consequences.
In controverted cases, the meaning of the
I parlies to the instrument, if to be collected by
reasonable evidence, is a proper guide.
Cotemporary and concurrent expositions
I are a reasonable evidence ot the meaning ol
j the parties.
I! In admitting or rejecting a constructive au
thority, not only the degree of ns mcidei.taliiy
| to an express authority is to he regarded, but
ihe degiee of its importance also ; since on
this will depend the probability or rmproba-
I bility of its being left to construction,
r Reviewing the Constitution with an eye to
these positions, it was not possible to discover
in it the power to incorporate a Bank. The
| only clauses under which such a power could
l be pretended, are either—
1. The power to lay and collect taxes, to
j pay the debts, and provide tor the common
!defence and geneial welfare; or*
3. The power to borrow money on the
!credit of the United States; or,
3. The power to pass all laws necessary
aid proper to carry into execution those pow
ers. -
The bill did not come within the first power.
It laid no tax to pay the debts, or provide for
the genera! welfate. Ft laid no tax what
ever. It was altogether foieign to the sub
ject.
No argument could be drawn from the
terms “common defence and general welfare.”
i he power as to these general purposes was
limited to acts laying taxes for thmi; and the
general purposes themselves were limited and
explained by the particular enumeration sub
joined. To understand these terms in any
sense that would justify the power in question,
would give to Congress an unlimited power;
would render nugatory the enumeration ol
particular powers; would stqierßede all the
powers reserved to the State Government.
These terms are copied front the Articles of
Confederation. Had it ever been pre ended
that they were to be understood otherwise
than as are here explained ?
Ft had been said that “general welfare”
meant cases in which a general power might
be exercised hv Congress, without interfering
with the powers of Rte Siutts; and that the
establishment of a National Bank was of this
sort. There were, he said, several answers
to this novel doctrine. 1. The proposed bank
would interfere so as to indirectly defeat a
Btaie Bank at the same place. 2. It would
d.n cilv interfere with the rights of the States
to prohibit- as well as to establish hanks and
the circulation of bank notes. He mentioned
a law of Vjrginia, actually prohibiting the
circulation of notes payable to hearer. 3
Interference with the pop, er of the States was
no constitutional criterion of the power ol
Congress. If the power was not given,
Congress could not exercise it; if given, they
might exercise it, although it should interfere j
with the laws or even the Constitution of the
Stales. 4. If Congress could incorporate a
Bank merely because the act would leave the
States free to establish banks also, any other
incorporation might he made by Congress.
They could incorporate companies of manu
lacturers, or companies for cutting canals, or
even religious societies, leaving similar incor
porations by the States, like State banks, to
iln-mselves. Congress might even establish
religious teachers in every parish, and pay
them out of the Treasury of the U. Slates,
leaving other teachers unmolested in their
limclu'iis. These inadmissible consequences
condemned the uncontroverted nrincple.
The rase of the Bank established bv the
former Congress had hern cited as a prece
<l<-n. T'tiio was known, he said, to have
been the child of necessity. It never could
be justified by the regular powers of the Ar
ticles of Confederation. Congress betrayed
a consciousness of this in recommending to
the Stales to incorporate the Bunk also.—
They did not attempt to protect the hank notes
hv penalties against counterleiters. These
were reserved wholly to the authorities of the
States.
The second clause to be examined is that
which empowers Congress to borrow money.
Is this a hill to borrow money ? It does not
borrow a shilling. Is there any fair construc
tion bv which tne hill can he deemed an ex
ercise of the power to borrow money ? The
onvious meaning of ihe power to borrow
money is that of accepting it from, and stipu
lating payment to, those who are able and
Willing to lend.
To say that the power to borrow involves
a power of creating the ability where there
may be the will to lend, is not only establish
ing a dangerous principle, as will be immedi
ately shown, but is asiorceda construction as
to say that it involves the power of compel
ling the will wheie there may be the ability to
lend.
The third clause is that which gives the
power to pass all laws necessary and proper
lo execute the specified powers.
Whatever meaning ibis clause may have,
none can be admitted that would give an un
limited discretion to Congress.
Its meaning must, according to the nalural
and obvious lorce of the lerms and the context,
he limited to means necessary to the end and
incident to the nature ol the specified power.
The clause is in fact merely declaratory of
what would have resulted by unavoidable im
plica ion, as the appropriate, and, as it were,
technical means Ol executing those powers.
In this sense it had been explained by the
friends of the Constitution, and ratified by the
Stale Conventions.
The essential charactcrlst c of the Govern
ment, as composed of limited and enumera
ted powers, would l>e destroyed, it, instead of
direct and incidental means, any means could
be used which, in the la nonage of the pream
ble lo ihe bill, “might be conceived to be con
! ducive to the successful conducing ol the fr
| nances; or might be conceived to lend to give
facility to ihe obtaining of loans. ” He urged
an attention to the diffuse ami ductile terms
which lad been hum 1 requisite to cover the
stretch of power contained in the bill. He
compared them with the terms necessary and
proper, used in the Constitution, and asked
whether it was poss ble to view the two de
scripti >ns as synonymous, or the one as a lair
and safe commentary on ihe oilier-
If, proceeded he, Congress, by virtue of the
power to borrow, can create the means of
lending, and, in pursuance of these means,
can incorporate a Bank, they may do any
thing whatever creative of like means.
The East India Company has been a lender
to the British Government, as well as the bank,
and the south Sea Company isagrcatercreditor
thai*either. Congress, then, may incorporate
similar companies in the United States, and
that, too, not under the idea of regulating
trade, but under that of borrowing money.
Private cesitals are the chief resources for
loans to the British Government. Whatever
then, may be conceived to favor the accumu
lation of capitals, may lie done by Congress.
They may incorporate manufactures—they
may give monopolies in every branch of do
mestic industry.
If, a train, Congress, by virtue of the power
to borrow money, can create tlie ability to lend,
they may, by virtue of the power to lend mon
ey, create the ability to pay it. The ability to
pay taxes depends on the general wealth of
society, and this, on the general prosperity of
agriculture, manufactures, and commerce.—
Congress, then, may give bounties and make
COLUMBUS, GEORGIA, THURSDAY MORNING, JULY 22, 1841.
regulations on all of these objects.
The States have,it is allowed on all hands,
a concurrent right to lay and collect taxes.—
This power is secured to them not by its being
expressly reserved, but by its not being ceded
by the Constitution. The reasons for the bill
cannot be admitted, because they would in
validate that right. Why may it not be Con
ceited by Congress that an uniform and exclu
sive imposition of taxes, would, not less than
the proposed banks, “be conducive to the suc
cessful conducting of the national finances,
and tend to give facility to the obtaining of rev
enue for the use of Government]”
The doctrine of implication is always a
tender one. The danger of it has been felt
in other Governments. The delicacy was felt
in the adoption of our own ; the danger may
also be felt, if we do not not keep close to our
chartered authorities. Mark the reasoning
on which the validity of the bill depends. To
borrow money is made the end , and the accu
mulation of capitals implied as the means. —
The accumulation of capitals is, then, the end
and a bank implied as the means. The BanK
is, then, the end, and the charter of incorpo
ration, a monopoly, capital punishments &tc.
implied as the means.
If implications, thus remote and thus mul
tiplied, can be linked together, a chain may
be formed that will reach every object of leg
islation, every object within the whole com
pass of political economy.
The latitude of interpretation required by
the bill, is condemned by the rule furnished
by the Constitution itself.
Congress have power “to regulate the value
of money,” yet it is expressly added, not left
to be implied, that counterfeiters may be pun
ished.
YVe have the power to “ to declare war,” to
which armies are more incident than incorpo
rated banks to borrowing; yet it is expressly
added, the power to “raise and support ar
mies;” and to this again the express power “ to
make rules and regulations lor tne govern
ment of armies ;” a like remark is applicable
to the powers as to a navy.
The regulation and calling out of the militia
are more appurtenent to w.-.r, than the pro
posed Bank to borrowing, yet the former is
not left to construction.
It is not pretended that every insertion or
omission in the construction, is the effect of
systematic attention. This is not the charac
ter of any human work, particularly the work
of a body of men. The examples t iled, with
each other that might be added, sufficiently
inculcate, nevertheless a rule of interpreta
tion very different from lhat on which the bill
rests. They condemn the exercise of any
power, particularly a great and important
power which is not evidently and necessarily
involved in an express power.
It cannot he denied that the power,
proposed to be exercised is an important pow
er.
Asa charter or incorporation the hill creates
an artificial person previously not existing in
law. It confers important civil rights ard at
tributes which could not otherwise be claimed.
It is, though not precisely similar, at least e
quivalent, to the naturalization of an alien; by
which certain new civil characters are acquired
by him. W ould Congress have had the pow
er to naturalize if it had not been expressly
given 1
In the power to make by-laws, the hill del
egated a sort of legislative power,-which is
unquestionably an act of a high and important
nature. lie took notice of the only restraint
on the by-laws, that they were not to be con
trary to the law and the constitution of the
Bank, and nehed what law was intended. If
the Jaw of the United States, the scantiness
of their code would give a power never be
fore given to a corporation—and obnoxious to
the State, whose laws would then be superse
ded not only by the laws of Congress, but by
the laws of a corporatiou within their own lim
its. If the law intended was the law of the
Stale, then the States might make laws that
would destroy an institution of the United
States.
The bill gives a power to purchase and hold
lands. Congress themselves could not pur
chase lands within a State “ withont the con
sent. of the Legis ature.” llow could they
delegate a power to others which they did not
possess themselves 1
It takes from our successors, who have
equal rights with ourselves, and with the aid
ot experience will be more capable of deci
ding on the subject, an opportunity of exerci
sing that right, for an immoderate term.
It takes from our constituents the opportu
nity of deliberating on the untii’d measure,
all hough their hands are to be tied by it lor
the same term.
It involves a monopoly, which affects the
equal rights of every citizen.
It leads to penal regulations, perhaps cap
ital punishment, one ot the most solemn acts
ot sovereign authority.
From tins view of the power of incorpora
tion, exercised in the bill, it could never be
deemed an accessary or a subaltern power,
to be deduced by implication, as a means of
executing another power. It was in its na
ture a distinct, an independent and substantive
prerogative, which not being enumerated in
the Constitution,could never have been meant
to be included in it, could never be rightfully
exercised.
He here adverted to a distinction, which lie
said, had not been sufficiently kept in view, be
tween a power necessary and proper for the
Government or Union,’and a power necessa
ry and proper for executing the enumerated
powers. In the latter case the powers inclu
ded in each of the enumerated powers, were
not expressed,-but to be’ drawn from the nature
of each. In the former, the powers compo
sing the Government were expressly enu
merated. Th s constituted the peculiar na
ture of the’ Government No power, there
fore, not enumerated, could be inferred from
the general nature of Government Had the
power of making treaties,* for the example,
been omitted, however necessary it might
have been, the defect could only have been
lamented, or supplied by au amendment of the
Constitution.
But the proposed Bank could not even be
called necessary to the Government; at most,
it could be but convenient. Its use to the
Government could be supplied by keeping the
taxes a little in advance—by loans from indi
viduals—by the other banks—over which the
Government would have equal command; nay,
greater, as it may grant or refuse to these
the privilege, made a free and irrevocable gift
to the proposed Bank, of using their notes in
the Federal revenue. He proceeded next to
the cotemporary expositions given to tlie
Constitution.
The defence against the charge, founded on
the wants of a bill of rights, presupposed, he
said, that the powers not given were retained
and that those given, were not to‘be extended
by remote implications. On any other sup
position, the power of Congress to abridge
the freedom of the press or the rights of con
science, &c. could not have been disproved.
Tlie explanations in the State Conventions
all turned on the same fundamental principles
and on the principle that the terms “necessary
and proper,“ gave no addtional powers to those
enumerated.
[Here behead sundry passages from the
debates of the Pennsylvania, Virginia, and
North Carolina Convention*, showing the
grounds on which the Constitution had been
,l THE UNION OF THE STATES, AND THE SOVEREIGNTY OF THE STATES.”
vindicated by its principal advocate, against
a dangerous latitude of its powers, charged
on it by its opponents.]
He did not undertake to vouch for the accu
racy or authenticity of the publications wholi
he quoted; he thought it probable that he
sentiments delivered might, in many ins&n
ces, have been mistaken, or imperfectly nod;
but the complexion of the whole with what
he himself and many others must recollect,
fully justified the use he had made of them.
The explanatory declarations —the amend
ments accompanying the ratifications of the
several States, formed a striking evidence,
wearing the same complexion. He referred
those who might doubt on the suoject, to the
several acts of ratification.
The explanatory amendments proposed by
Congress themselves, at last wmld be good
authority with them. All these renunciations
proceeded on a rule of construction, excluding
the latitude now contented fcr. These ex
planations were the more to le respected, as
they had not only been proposed by Congress,
but ratified by nearly three-fourths of the
States. He read several of the articles pro
posed, remarking particularly on the Ilth and
12th, the former as guarded igainst a latitude
of interpretation; the latter as excluding every
source of power not within the Constitution
itself. With all this evidence of the sense in
which the Constitution was understood and
adopted, will it not be said, if the bill should
pass, that its adoption was brought about by
one set of argument,s and that it is now
admisistered under the influence of another
set 7 And this reproach will have the keener
sting, because it is applicable to so many, in
dividuals concerned in both the adoption and
the administrations.
In fine, if the power were in the Constitution
the immediate exercise of it cannot be essen
tial; if not there, the exercise of it involves
the guilt of usurpation, and establishes a
precedent of interpretation, levelling all the
barriers which limit the powers ol the General
Government, and protect those of the State
Governments. If the point be doubtful only,
respect for ourselves, who ought to shun the
appearance of precipitance and ambition; res
pect for our successors who ought not lightly
to be deprived of the opportunity of the rights
of legislation; respect for our constituents,
who have had no opportunity of making
known.their sentiments, and who are them
selves to be bound down to the measure for
so a period; all these considerations
require that the irrevocable decision should at
least be suspended until another session.
It appeared, on the whole, he concluded,
that the power exercised by the bill Was con
demned by the silence of the Constitution ;
was condemned by the rule of interpretation
arising out of the Constitution; was condem
ned by its tendency to destroy the main char
acter of the Constitution; was condemend by
the exposition of the friends of the Constitu
tion, while depending before the public; was
condemned by the apparent intention of the
parties which ratified the Constitution} was
condemned by explanatory amendments, pro
posed by Congress themselves to the Consti
tution, and he hoped it would receive its final
condemnation by the vote of the House.
From the Independent Monitor, July 7.
SUPREME COURT OF ALABAMA,
June Term, 1841.
Alexander Hill vs Thomas P. Norris.—Writ
of Error to the circuit court of Bibb county.
1. An officer of court may determine for
himself the genuineness of an instrument,
eitiier from his own knowledge of the hand
writing, or from the representations ofanother
person.
2. The attestation of a Notary Public will
not be received as evidence of any fact, except
such as is pointed out by statute, or coming
within the rules of the lex mercatoria.
3. A mere acquittance or release from the
payment of a debt, or an unliquidated liability,
is not such an instrument the execution of
which a notarial certificate will establish, in
dependent of other proof.
This was a proceeding by scire facias in the
circuit court ol Bibb, to reverse a judgment
which the defendant in error recovered against
the plaintiff at the Fall term of that court hol
den in 1832. The judgment was by confes
sion, and centained a stipulation as follows :
“ The plaintiff doth agree that no execution
shall issue on this judgment, until he shall
file in the clerk’s office a release signed by
James Taylor, of all damiges by reason of
his having accepted the hill of exchange which
is the foundation of this suit.”
The scire facias recites, that the defendant
in error did, on the 29th day of August 1837,
file the release of Taylor as contemplated by
the judgment; alleges that the judgment is
in full force and unsatisfied, save only as to
the sum of four hundred dollars, which was
paid in October 1832 ; and calls upon the de
fendant below to show cause why execution
should not issue on the judgment.
The defendant demurred to the scire facias,
which being overruled, he pleaded several
pleas, but the only one on which a question of
law was raised, is, that w lich denies the ma
king of the release by Taylor.
At the trial, the presiding Judge sealed a
bill of-exceptious at the instance ot tlie defen
dant below, which sets out the release of
Taylor, attested by a subscribing witness,
with a certificate of a notary public attached
in the following words:
*• The State of Alabama —Mobile county,
Before me, John F. Everett, a Notary Public,
duly commissioned and sworn, and dwelling
in the City of Mobile, personally appeared’
James Taylor, and acknowledged that he had
signed and sea'ed tlie foregoing release for
the purposes therein mentioned.
In testimony wherePf I have hereunto set
my hand and affixed niv notarial seal
[seal] at Mobile, this 28th day of November,
A. D. 1832. John F. Everett,
Notary Publ c.”
To the admission of the release in evidence
without further proof, the defendant objected,
but iiis objection was overruled, and he there
fore excepted.
The defendant then offered three witnesses
Who stated that they were acquainted with
the hand-writing of James Taylor,- and from
their knowledge of his hand-writing, they did
not believe the signature to the release, to be
his.
Tlie court charred the jurv that to avoid the
release, “ the defendant must impeach tfle
Notary Public as well as the signature ot
Taylor,” to which charge the defendant ex
cepted, &c. Andi verdict and judgment be
ing rendered in fare? of the plaintiff’ below,
the defendant has prosecuted a writ of error to
this court.
J. L. Martin, for the plaintiff in error.
Mr. Peck, contra.
Collier, C. J. There can be no question
but it was competent for the clerk of the cir
cuit court to determine in the first instance
upon the genuineness of the release, and if
satisfied that it was made by Taylor, issue an
execution. But the certificate of a notary or
other public officer would not tie indispensable
to enlighten his understanding ; —he might,
had he thought proper, acted upon his - own
knowledge of Taylor’s hand-writing, without
proof, or he might have received as sufficient
the representation of the’ plaintiff below, or
other third person as to the genuineness of
the paper. The decision of the clerk, howev
er, could not conclude the plaintiff in error,
but it would be competent for him to shew,
that the writing filed as a release} was not a
compliance with the stipulation in the judg
ment.
The scire facias called upon the defendant
to shew cause why the plaintiff should not
have execution of his judgment, and the cause
shewn is, that a paper agreed to be filed a‘s a
condition on which execution \va9 to issue,
though filed, is not genuine. The question
then is, did the court err in its requisition as
to the proof by which the release was to be
disproved. This makes it necessary to con
sider, to soriie extent, the nature of the office,
duties and powers ot a Notary Public
The office of a Notary is of very ancient
origin and perhaps is recognized in all civilized
countries as intimately connected with com
merce. Independent of any statutory regula
tion extending the powers of a Notar}’, his
certificate is only evidence of such acts as he
does under the lex mercatoria. And under
the influence of this principle it has been
held, that a deed of partition rrlade and ac
knowledged in Alabama; before a Notary; was
not proved in Louisiana by such acknowledg
ment. Phillips vs Flint, 3 Miller’s I/t>u. Rep.
146. And in Exparte Church et al; 1 Dowl
& Ryl. Rep. 324. The certificate of an
American Notary under his seal} that a power
of attorney had been executed in his pres
ence, which certificate was attested by the
British Consul, was held in England to be no
evidence of the execution of the power.—
There was a subscribing witness to the pow
er, the court said—•• Probably in a court of
civil law, the notarial certificate would be
sufficient ; but in a court of common law, we
can only act upon the affidavit of a subscri
bing witness. YVe know of no instance in
which the court have dispensed with such
evidence of the execution hi such an in instru
ment.” And in Maryland it has been held,
that the protest of a master of a vessel made
before a notary, is not evidence. Patterson
vs Marylard Ins, Cos. 3 liar. & Johns. Rep.
71.
A consideration of the office of a Notary,
together with the decisions which have been
made touching,his duties, will show very sat
isfactorily, that in taking the acknowledg
ment or probate of instruments, so as to dis
pense with formal proof of execution in other
States oT countries, he has no more au
thority than any private individual. His cer
tificate as to foreign protests it is said is ac
credited upon general principles of commer
cial policy and convenience ; hut even the
lex mercatoria , does not recognize him as pos
sessing authority to certify the execution of
instruments either upon acknowledgment of
the party, proof of witnesses, or otherwise.—
3 PliilL Ev, 1259 C. & IPs ed.
But it is agreed, that the third section of the
act of 1803 “concerning Notaries public,”
Aik. Dig. 330, has extended the powers of
Notaries, and that enactment made the cer
tificate offered in the case at bar, evidence of
the genuineness of the release. The section
referred to, is in these words : ** The said no
taries and each of them shall have power to
receive the proof or acknowledgement of all
instruments of writing relating to commerce
or navigation, such as bills of sale, bottomries,
mortgages and hypothecations of ships, ves
sels or boats, charter parties of affreightment,
letters of attorney and such other writings as
are commonly proved orjacknowledged before
Notaries within the United States ; and also
to make declarations and testify the truth
thereof under their seal of office, concerning
all matters by them done ill their respective
offices.”
It is very clear that a mere acquittance or
release from the payment of a debt or some
unliquidated liability, is not an instrument re
lating to commerce or navigation, within the
meaning of the act cited ; and we think, that
it is not such a writing as is “commonly proved
or acknowledged before notaries in the United
States.” At least the statutes of the different
States, or perhaps a single one of them, show
no such extension of notarial authority / and
‘if there exists a custom in the States ot’ the
Union, which makes the proof or acknowl
edgment of such a paper, by the ceriificate of
a notary, evidence in a court of justice, it was
incumbent upon the plaintiff below to have
shown it. Such a departure from the common
law mode of proof cannot be presumed.
The certificate of the Notary,’ then, impar
ted no additional validity to the paper filed as
a release, but the : proof of its genuineness
should have been adduced at the trial. It
will therefore follow that the circuit court
erred in requiring the defendant “to impeach
the Notary as well as the signature of Tay
lor and the judgment is consequently re
\ersed, and the cause remanded.
WrLLfAM IIAII, vs William Lay.
?. The judges of the county court of this
State have no authority to appoint guardians,’
either for the persons or the estates of minors,
whose fathers are living.
1, Where it appears from written memo
randa signed by counsel, that they have con
sented that a commission to take the testimony
of witnesses,* may issue’ without the names of
the commissioners being therein inserted; and
the commission is filled up afterwards, no ex
ception can be taken for tliis irregularity.
Writ of Error to the circuit Court cf Cher
okee county.
Action of Detinue for seven slaves. The
defendant pleaded non detinet and other pleas.
Verdict for the defendant and judgment there
on.
In the progress of the trial, a bill of cxcep-1
tions was taken by the plaintiff which disclo
ses that several questions were made with
respect to the admission of the copy of the
will of Mary Half. This copy is certified by
one who styles himself sole ju.dge and also
clerk of one of the courts of Ordinary of the’
State of South Carolina. A* particular des
cription of the certificate is unnecessary,’ as
the court considered the question arising out,
of it to be the same as those’determined inj
lluff vs Cox.
The defendant gave in ervidence the ex-j
einplification cf certain proceedings by the j
judge of the county court of Cherokee county,
from’which it appears that the defendant was
appointed guardian of certain minor children
of the plaintiffs’. Alfof these children except
one, were more than fourteen years old, .and
the record of the appointment sets fort li that
such of the children as were over that age,
desire the court to appoint the delendant
their guardian.
The plaintiff moved the circuit court to ex
clude the depositions of certain witnesses
which were taken by virtue of a commission
which was issued without inserting therein
the names of the commissioners by whom it
was afterwards executed and returned. Ap
pended to the commission are interrogatories
I and cross-interrogatories : in the caption of
the interrogatories is tlie following memoran
dum :—“by virtue of authority from the cir
cuit court of Cherokee county, and by con
sent of parties, you will proceed to take the
testimony of (naming certain witnesses) to
whom you will propound the following inter
rogatories.” At their conclusion is another
memorandum in these words:—“The com
j missioners who may take the depositions will
i please propound the same interregatories to
j the other witnesses.’* These memoranda are
signed by the defendants counsel, and mmre-
I diately after, follow the plaintiffs mss-inter
rogatories signed by his counsel. The circuit
[NUMBER 24.
court considered these memoranda as evidence
of a consent that the commission should he
filled up after it was issued, and refused to
exclude the depositions from the jury. The
plaintiff excepted to the several matters before
mentioned.
He now prosecutes this writ of error, and
assigns that the circuit court erred in the sev
eral points excepted to.
Goldthwaite, J. 1. It is evident from the
constitution of society that the relation ol
Guardian and Ward must have existed fora
ges beyond the Written history of mankind ;
and from this it would seem reasonable to in
fer that there chuld not be much difficulty in
ascertaining, at the present time, the precise
rules by which the relation is to be governed.
But this is so far from being easy, that there
is no subject more involved in obscurity when
it becomes necessary to trace this relation a
step beyond our statute books. Nor is it alone
with respect to Guardian and Ward/ in the
more interesting relation of Parent and Child
it at this day is a question of profound diffi
culty whether the father may not be divested
of the most necessary means to control his
children, and compelled to yield his natural
rights to another, whenever his children hap
pen to be invested with an estate.
Neither time nor the pressing duties which
now devolve on us, allow of more than a briet
examination of this interesting subject; and
that only so far as is immediately connected
with the case before us.
If a child is induced to regard any other
than his father, as the cuftodium of his prop
erty, it is certain that the parental influence
must be greatly weakened, it not entirely de
stroyed ; and whatever may be considered as
the rule at this day, wo cannot doubt there was
a period once known to the common law when
the father had the right to the custody and
control of his childs estate in the same man
ner as he now has of his person. Thus it iS
said by Lord Coke, it an estate is left to an in
fant, his father, by the common law is the
guardian, though he must account for the
profits. Coke on Litt. 83. And this doctrine
s cited by lllackstone with seeming acqui
escent 1. niack.com 461* Longbef >re per
sonal property acquired that relative iinpor*
tance it now sustains, the custody of the per
son and lands of a male child under fourteen
years descended, on the death ol the father,
to the next-kin who could never by any possi
bility inherit the estate in the event of the
death of the child, Littleton, p, 123. 1
Black, comm. 461. The custodmm was
termed a guardian in sockage, and he stood
to the child in loco parentis. It would be rea
sonable to conclude that one from whom a
right is derived by descent, must have pos
sessed the power which at his death descen
ded to another; in other words, that the fa
ther possessed at least as much’ power over
the person and estate of his child as a guar
dian in sockage does wer that of his ward.—
But on the contrary of this we find it fre
quently stated in the books, that the father as
a natural guardian has no control over the es
tate of his ward. May vs. Coldv, 2 Mass. Rep.
53- And in Dagley Taifen yvs. (1 P. W’ms
355) it was held that an executor, is not dis
charged from his liability to account to an in
fant,°if he pays the legacy to the father who
proves to be involvent. A more reasonable
doctrine, however, has been held in Lngland,
in comparitively recent cases, which declare
that a widow is guardian in socage to her
daughters until they attain the age of four
teen vears, of their freehold and copy-hold
estates, and that she is entitled to elect
whether she will let the estate, or occupy it
for their benefit. - King vs. Oakly, 10. East
409. King vs. Wilhyi 2 M S 594.
It is not our intention now to examine how
far the doctrine/ that the father has no authori
ty over the estate of his child, is correct; or
when it arose and was engrafted on our law,
if indeed such be the law. It will probably
be found to be sustained mainly on the fact
I that a court of equity will sometimes inter
| pose its aid to prevent the personal estate of
an infant from being squandered, and require
the father to give security to have it forthcom
ing when the child becomes of age ; but even
then, we apprehend, no case can be found
where the lather has been divested of the cus
tody of the estate, if he was willing to give
the requisite security; and if the father is
unable to give such security, and another is
invesied witli the custody ot the estate, we
very much doubt if he has any claims to he
considered in the place of a guardian. See
Exparie Hopkins 3P. IV ms 152. It amain
tainance is necessary to be allotted to the child
Where his estate is held under such circum
stances, we think no chancellor would direct
it to be expended, independent of the control
of the father, unless, indeed, under very pecu
liar circumstance's not affecting the principle
that tlie father Itias the legal right to control
his children/whether with or without a separ
ate estate.
Ijet us now examine our statutes to ascer
tain liow far the common law has been nxxli
fied.
The act of 1300, (Aik in's Dig. 2 20,5 TANARUS) pro
vides “that the chief justice of the orptrans
court in each county,’ when and so often as
tiiere shall be occasion/is hereby empowered
to allow of guardians that shall be chosen by
minors of fourteen years of age : and it shall
be lawful tor the said court to appoint guar
dians for such as shall be within or under that
age.” . .
The’ samfe’ section also authorises the chief
justice to cite any minor above that age to ap
pear before him; and choose a guardian ; and
if lie neglect or refuse to appear, or when ap
pearing lie refuses to choose a guardian, in
every such case, the Orphans court shall have
the same power to appoint the guardian as if
such minor were under the age of fourteen
years. -
By another section of the same act it is pro
vided that any guardian in socage, or other
guardian, shall within three months after his
appointment, make an inventory of the estate
oi his ward, and shall once in every year ex
hibit an account, and that he may be displaced
it he remain in default, or on good and suffi
cient cause being shown. Ail these powers
are now vested in the judges of the county
court.
Although these enactments speak of minors
generally, they evidently were never intended
to control or abridge the natural rights of the
father, because it is clear they contemplate
the custody by tire guardian- 1 ot the person as
we'l as the estate of the ward r hence if they
stood alone cm the statute-book, we should
conclude without hesitation that no power is
or was intended to be conferred on the judges
of the county courts to appoint guardians to
minors whose lathers are living. But if this
was ever, doubtful, 132‘2, (the del of Atkin's
Digest. 221, 5 10) which authorises the ap
po ntments ol guardians by the will of tne
f ither it amounts to a demonstration that he is
the natural guardian. This act provides that
any father may, although be is not himself ol
th? age of twenty-one yea-?, by his will devise
the custody and tuition of his child, to whom
soever he will. And tlris guardian is to have
the custody also of the estate of his ward, il
he will give the necessary ‘security.
It would l>e most absurd - to imagine that
the father is not invested with- the power du
ring his life, tliat he may devise to whotnso
: ever lie will, to lie*executed after his death.
That a court of chancery, under some ve
ry peculiar circumstances, may interfere to di-
vest the father of his natural right to the cus
tody and control of his children, may be con
ceded, as may also be that the same court has
the power to provide for the security of the
infants estate. But that is the only court on
which the law has hitherto conferred this ex
traordinary power.
The record shews in this case that the fa
tlier of the minors for whom a guardian was
appointed by the judge of the county court,
was living and is yet living. The consent of
the minors can give no authority to the court
in such a case as this : the judge had no war
rant in the laws of the land/ to make any
guardian for minors thus circumstanced ; his
act is simply void, and Conferred no authority
on the defendant to assume the rights or not
perform the duties of guardian.
On this point,’ the judgment of the circuit
court is reversed, and the case is remanded.
ft is possible that the judge of the county
court may have been led into this error by the
manner irf which the case of IJine vs. Nixon,
(6 Porter 77, j is reported. What is stated
in the head note as the decision of the court,
in the opinion is nothing more than an illustra
tion ot the powers of the county court over
the subject of guardianship. The question
then was whether the Another had a paramount
right to the wardship of her child, its father
being dead. We then said the assertion of
such a right could not be supported, because it
would no’ dcnfbt be competent for the county
court to set aside the claim of the father to the
wardship of its child’s estate in favor of a
stranger, when it appeared that the father was
unfit for that responsible station. It is appa
rent now that no such point was decided as is
stated in the note of the case, aud the illus
tration was used, incorrectly we admit, to
shew that the mother had no such right as
was claimed for her.
We consider the written memoranda at
tacked to the interrogatories and cross-inter
rogatories, as shewing tire consent of the
plaintiff's counsel that the commissioners
should be named, and their names inserted af
ter the commission was forwarded to be exe
cuted. ‘l’he direction is to the commissioners
who niay take the deposition to do certain
acts / if the coirimission was riot intended to
be blank as to the names of the commissioners,
the direction would probably have been to the
commissioners named in the commission. At
all events, we feel authorised to presume that
the commission was attached to tiie interro
gatories; and that the consent applied to the
then .condition of it. The other questions
raised by the assignments of error, were de
cided by this court at its last term in the case
of Huff’ vs. Chc.
Let the Judgment be reversed and the case
remanded.
T vleu and a National Bank.— The Fed
eral portion of the Whig party, with Web
ster and Clay at their head, are bent on a Na
tional Bank; but Tyler has declared again
and again that lie deems a National Bank
unconshutional. He has voted in Congress
against one on’ this ground. He has taken an
oath to support the Federal Constitution.—
This he will support, if he obeys his oath, un
der all circumstances. Neither the requisi
tion of party, nor any .implied construction, can
reach him. As for the latter, it is perfectly
idle to pretend that the people—even the
Whigs—have given such instruction. At the,
South it was stoutly denied that a change
would bring a national Bank, and Tyler’s ovvii’
repeated declarations w r ere citied to prove this.
How then, even on this ground, can he sign
a bill ? But this is a case instruction cannot
reach. John Tyler said, in 1836, to the Vir
ginia Legislature : “It is known to you, gen
tlemen, that on my elitering the Senate, the only
(Kith which I took was an oath to support the
Constitution of the United Slates; to support
it in all Us provisions; to yield it neither to force
persuasion, nor expediency. No matter what
the object: should its attainment confer upon
me the greatest possible advantage, to remain
unseduced—not to touch the forbidden fruit
I entered into a covenant with my creator—to’
break which would not fail to place in my bos
om a promethean vulture, to tear and devour
me, The obligation/ then/ to obey an in
struction which calls upon me to break com
mand, can not possibly exist and I should be un
worthy the confidence of all honorable men, if
I could be induced, under any circumstances/
to commit an act of deliberate perjury.”
This, one would think, w'as enough in all
conscience, to forbid the Whigs even harbor
ing the thought of getting such a man to sign
a hill. But, says the Atlas, he will soon be
instructed by Congress. “We doubt not he
will obey their instructions or resign .” A
President of the United States resign because
he will not sign an unconstitutional bill!—
And yet put there so the express purpose to
“protect and defend this Constitution!!”—
Resign just at the moment when his services
are wanted to save it from violation! Is not
this insulting absurdity ?—Boston Post.
. . . . Erom the Globe.’
THE SECRETARY OP THE TREASURY
DISCOVERING HIS MISTAKES.
?t Will be recollected that Mr. Woodbury,
in’ his reply io Mr. Evans,’ told him that in his’
attempt to relieve the Secretary of the Trea
sury Ironi one blunder, he had disclosed ano
ther in hrs annual report. Mr. Woodbury
then Went on to point out the fact that the
Secretary’s annual report had omitted to ex
hibit among his receipts upwards of a half
million paid by the Bank of the United States
—in this way diminishing the means of the
year,’which he wished to reduce, and adding
a heavy item towards the creation of that
debt which he wished to create. Mr. Evans
bold y denied the statement of Mr. Woodbu
ry, and endeavored, by some guess work
explanation, to relieve Mr. Ewing. Now, it
will be .seen that the honest Secretary, finding
exposure at hand, from the fact that a call for
the monthly statements put detection in the
hands ot the keen-sighted Democratic Sena
tors, comes out and says that the mis-state-,
mient, which was reported in’ the monthly
statement made on special call, was “a cleri
cal error,” “which in the hurry of business,
escaped his notice.” Now, What apology
does he offer tin* the existence of the same
error in his own annual report ? In that it was 1
first detected by Mr. Woodbury, and denied
by My. Evans to'exist. But ihere it is, and
hoW is it accounted for ? The clerical error
may be accounted tor in the exacted monthly
.statement, on other grounds than hurry. The
clerk possibly made it to correspond with the
Secretary’s annual report.
Treasury Department, )
June 90, 1841. \
Sir—frr the communication front this De
partment,‘dated the ITih instant, in Compli
ance With the resolution of the S. nate, direct
ing ihe Secretary ol the Treasury to “lay be
fore thfe Senate a statement of the amounts’
of money received in each of the months of*
March, April, and May last, front.cush rh*,
lands, and other sources,” &c. I have to slate
that a clerical error Occurred, which, in the
hurry of business, escaped my notice, and
Which I take the earliest opportunity to cor
rect.
Certain payments made by the Bank of* the 1
United Stales oil’ account of the War De
partment in the west, in 1940, not having been
entered on the books'of this Department un
til March, 1841, shObld have been included nv
the receipt of that month. This was inad
vertently omitird to he done, although the
amount was included’ in the expenditures lor
that month. With this correction the amount
received in March, fB4l , will be $1,709,152’
48, instead ol SI,OOO 000, as slated in the
cnmmnmcahon referred to.
I have tl*e honor to remain, vour obedient
1 >ervatrt, T. EM INC.
Secretary of the Treasury,
The lion. President ot the Sentrie.