Iowa territorial gazette and advertiser. [volume] (Burlington, Iowa Territory [Iowa]) 1840-1846, 1843-03-11
E,on the Io,ra Capitol Reporter.
COUNCIL REPORT ON THE MI
NER,S BANK.

COUNCIL REPORT ON THE MI
NER'S BANK.
The doctrines Of the English Law in
relation to corporations, should be Of very
little more force and authority in this
country than the doctrines of tho same
law in regard to governmental regard
to preroga,iyc--in regard to privilege
1t is in fact a question Of privilege, and
no other than is involved in The creation
and dissolution Of corporations. Our
banking incorporatons, in particular, are
an express grant OF privileges, which. by
law, are expressly denied to The individa-
al c,izcn. The English doctrine OF cor
porations is no more fitted TO be adopted
in this country, than The laws regulating
.he descent Of real property, or the laws
touching royal prerogativc or the priyi-
leges Of peers. II is equally repugnant
10 our institutions. 1t has, however, becn
adopted by some Of the courts in this
country, in srme instances, to its full ex
tent, and even carried beyond the utmost
limit Of the English Law. Still though
adopted by the highest judicial authority.
il cannot be considered as established
law, nor will the people Of this country
ever allow it 10 be established here. As
soon as it is known and understood it will
be overturned.
But what is the English law in regard
10 the dissolution Of corporations? Black
Stone expressly says that they may be
dissolved by &c, Of parliament. Though
they may be created in that countryby char
ter }ro,a the King, yet they may be dis
solved by act Of parliament, which had
no hand in their creation. Here all our
corporations are crented by the Legsla-
ture, and yet the doctrine is attempted to
be established, that the legislature which
created cannot destroy them. And 10
support this mtnstrous doctrine, the act
Of sovereignty by which i; is created is
attempted to be reduced to mere private
contract, and the sovereign power to be
subject to the laws snd obligations con-
trolling an individual party to private
contract. Thus though the reason is
much stronger in this country, both in
the different nature Of our institutions,
and in the score which the corporate
charter eliminated, in favor Of the author-
~ Of tho legislature TO annul the charter,
yet the favorers Of those monopolies are
striving to restrict the legislative power
in this respect for the purpose Of making
the corporations so much stronger.
Every person acquainted with paria,
mentary and judicial history in this coun
try, and in England, knows that there has
always Eecn struggle between the Judi
cia'y and the legislature, in relation to
certain doubtful powers, or those falling
on the borders Of the two departments,
legislative and judicial, as to which Of
the TWO departments should exercise
them. While the legislature has ire
qucntly encroached on the judiciary, the
last also has not been backward in all
cases in extending its jurisdiction. In all
questions, therefore, Of doubt, where the
decision Of court Of law 10 called in to
declare whether itself or q distinct branch
Of the government should exercise par
ticular prerogative; to say whether it
falls within Legislative or judicial powers,
the opinion Of the court must necessarily
fail Of carrying tina. weigh. Of authority
which it has in different cases.
In viewing those decisions uftho courts,
therefore, which are supposed TO sustain
the doctrine that the question Of forfeiture
o! the charter OF corporation, is to be
found judicially, before the legislature eau
be warranted in annulling ITS charter,
we must necessarily look upon them with
great caution and examine them with a
free spirit cf inquiry and d.strust. There
are two good causes for this distlust. LIST.
The difference in our institutions from
those Of the English, and the ditteren,
sources Of the grant in the two countries.
And, second, that it is question Of doubt
tul jurisdiction, between two departments
OF government, decided by one Of Tie
claimants IN toror Of itself.
With these precautions, let us look at
the doctrine rs rarely promulgated by the
American courts. In the great case Of
Dartmouth College, which is the leading
case on which the doctrine rests, which is
cited by Judge Kent, in his commentaries
rs authority for his broad statement OF
the doctrine, to which the Council report
refers, aud also for Mr.. Wilson'S argu.
ment, Judge Story said, that the Legis
lature could not annul the charters or pr.
vatc corporations so as 10 lake the proper
~ .tor the pnhlic use. II appears there
fore, there was most important question
beyond the mere repeal Of the charter
and mat was a FORFEITURE OF THE PRO
PERTY OF THE CORPORATION. This makes
a very different case, and would involve
very different doctrines. The property
did not como from the State. 1t was dc
rived from private bounty. And clearly
should not be forfeited without iudicia
intcrposition, Blu, our legislature propo
ses no such thing in relation to the Mi
ner's Bank. On the contrary, it was OK
Pressly provided that trustees should b.
nPpoin,ed to collect. save, manage ane
dispose Of the property for the benefit q
the bank.
1t is also known that the question o
corporate privileges aud immunities, Ina.
been and is, as it should be, question o
politics in this country. 1t is one that i.
involved in the grcat doctrine Of equa
rights, that is the very basis Of our grea
civil fabric. On this question. the divi