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PUBLISHED BV E R V THURSDAY HORNING, BY JAMES VAN NESS, In the “Granite Building,” on the corner Os Oglethorpe and Randolph Streets. ► TERMS: Subscription —fhree dollars pt*r annum, payable in advance, three dollais and a half at the end of six months. or four dollars, (in all cases) where pay ment is not mi le before tne expiration of the year. I No subscription received for less than twelve months with 1 it payment in advance, and no paper discon tinued, except at the option of the Editor, until all arrearages are paid. Advertisements conspicuously inserted at one dol lar per one hundred words, or less, for the first In I aertion, an I fifty cents for every subsequent contin uance’ Those sent without a specification of the number of insertions, will be published until ordered out, and charged accordingly. lv Advertisements. —For over 24 and! , ndt exceeding 3> lines, fifiy dollars per annum ; for over 12 and not exceeding 21 lines, thirty-five dol lars per annum ; lor less than 12 I’nea, twenty dol lars per annum. 2> All rule and figure work double the above prices. L‘L to st. Advertisements published at the usual J 9 rates, and with strict attention to the requisitions of the law.’ * ALI St ees regulated by law, must be made before the c > trt house din-, between the hours ot 10 in the morning and four in the evening—'hose of !snd in i the county where it. is situate ; those of personal 1 property, where the letters testamentary, of admin- I tstration or of gtiardiassqip were ob’ained—and are I requited to be previously advertised in some public B gazette, as follows : BitEßtrrV S iles un<lef regnlir executions for thir- I ty and lys ; under mortgage li fas sixty days, before V the day of sale. 8u.r.1 of land and negroes, by Executors, Admitiis ■ trators or Guardians, for sixty days before the day I of sale. 15 ai.es of personal property (except Negroes) forty I days, Btr s tions by Clerks of the Courts ol Ordinary, upon I application for letters of administration, must be pub- I lisiiod sot thirty days. BbtTATioNx upon application for dismission, bv Exec utors, Administrators or Guardians, monthly for six months. lUrdeks of Courts of Ordinary, (accompanied with a Copy of the bond or agreement) to make titles to land, must be published three months. IPTotices by Executors, Administrators rtf Guardians, ; of application to the Court of Ordinary for leave to sell the lin I or negroes of an estate, f.ur months. N otices by Executors or Administrators, to the debtors and creditors of an estate, for six weeks. BriEßirrs’, Clerks ofCourt &c. will be allowed the usual deduction. fcri letters on business, must be post paid, to I entitle them to attention. 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.