P.S.-I pray you to communicate this letter to the chairman of the committee on banks of the House of Assembly.

GALLATIN TO JOHN A. DIX.

NEW YORK, April 2, 1842.

SIR,-I did not, in the letter which I had the honor to address to you on the 30th ult., attempt to discuss the question which may arise on the constitutional power of the Legislature to pass an Act such as that respecting the replenishing of the safety fund, which has now received the sanction of the Senate. Permit me to submit to your consideration some observations on that subject.

It will not, it is hoped, be asserted that the Legislature is vested, under the words "legislative powers," with a general authority to take the property of any citizen or class of citizens, or, which is tantamount, to compel any citizen or class of citizens to pay debts contracted by other persons or associations and not guaranteed by him or them. Such assertion would lead to the monstrous doctrine that the citizens of New York hold their property subject to the will and pleasure of the Legislature. It is, moreover, expressly provided by the constitution of the State that "No person shall . . . be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation." Unless it be taken for public use and for a just compensation, no person can be deprived of his property without due process of law, of the law of the land, of a pre-existing law, and not, most certainly, by virtue of a special law passed for the special purpose of depriving him of his property.

The authority claimed on this occasion must therefore be derived from some specially reserved power applicable to the case. I am not aware of any other such reserved legislative power in relation to bank charters but that which the Legislature has to alter or repeal any such charter; and it is probably on account of some supposed inference from that power that the bill in question has been favorably entertained. In that case,

the first indubitable consequence is, that the bill requires the assent of two-thirds of all the members elected to each branch of the Legislature. But this is only a subordinate incident.

Certain powers and privileges have been granted to chartered banks, either by the general laws respecting moneyed corporations and banks, or by special provisions of the charters. All such powers or privileges may be abrogated altogether, altered, or modified, by the Legislature.

The authority thus reserved is applicable to a variety of objects, and may indeed be abused. It is undoubtedly on that account that it cannot be exercised without the assent of twothirds of the members.

The most important and dangerous of the privileges is that which releases the stockholders from personal responsibility. Thence arises the propriety of providing for the preservation of their capital, and of reserving to the Legislature the power at all times to restrain the objects to which and the manner in which it shall be applied. But the power thus to preserve the capital is not a power to take from its owners any part of it.

The power to annul, alter, or modify the privileges granted by the charters is not, and does not include, a power to deprive the parties to the charters of any portion of their property by applying it to the payment of debts contracted by others and not guaranteed by them. To be exempted from such payment is not a privilege, but a right enjoyed by all. It is a natural right, in no shape granted by or derived from the charters, but belonging to the parties antecedent to and independent of any charter or legislative act whatever. Any attempt, under color of the reserved legislative power, to alter the charters, to deprive the stockholders of that natural, antecedent, and indisputable right to their own property, is not an alteration of the provisions of the charters and of the privileges derived from them, but an attempt to exercise an arbitrary and illegitimate power in relation to a subject foreign to the charters.

That right has been abridged by the Safety Fund Act to the extent and in the manner prescribed by that Act. That Act was made by the Legislature the indispensable condition on which bank charters should thereafter be granted. All the banks sub

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sequently incorporated have assented to that condition, which has thus become, to all intents and purposes, a contract between the stockholders and the public. Neither party has the right to alter it in any manner whatever without the consent of the other party; and the State is expressly forbidden to pass any laws impairing the obligation of contracts.

The arguments appear to me conclusive, and will, I think, be sustained by every sound constitutional lawyer.

I have the honor to be, respectfully, sir, your obedient servant.

P.S.-Mr. Lawrence has returned from Albany, and informs [me] that on reconsideration the bill has been amended in the Senate so as to insert as the annual payment required from the bank one-half of one per cent. on their capital. If this be only a confirmatory provision of the condition which the banks are already by law bound to perform, if it amounts only to this, viz., that they shall pay one-half of one per cent. a year till the liabilities on the fund are paid, and till it amounts again to three per cent., it is all very well, and I would have supposed that no new law was necessary for that purpose; but if it be intended that the banks shall pay this annual one-half per cent. in addition to the half per cent. which they may already be called upon to pay; if on any account they are required to pay more than a half per cent. a year, the objection will still subsist, and I pray you to attend so far to the subject as that no misunderstanding may take place on the subject.

LORD ASHBURTON TO GALLATIN.

WASHINGTON, 12th April, 1842. DEAR MR. GALLATIN,-My first destination was to approach America through New York, but the winds decided otherwise, and I was landed at Annapolis. In one respect only this was a disappointment, and a serious one. I should have much wished to seek you out in your retreat to renew an old and highlyvalued acquaintance and, I believe and hope I may add, friend

ship; to talk over with you the Old and the New World, their follies and their wisdom, their present and by-gone actors, all which nobody understands so well as you do, and, what is more rare, nobody that has crossed my passage in life has appeared to me to judge with the same candid impartiality. This pleasure of meeting you is, I trust, only deferred. I shall, if I live to accomplish my work here, certainly not leave the country without an attempt to find you out and to draw a little wisdom from the best well, though it may be too late for my use in the work I have in hand and very much at heart.

You will probably be surprised at my undertaking this task at my period of life, and when I am left to my own thoughts I am sometimes surprised myself at my rashness. People here stare when I tell them that I listened to the debates in Congress on Mr. Jay's treaty in 1795, and seem to think that some antediluvian has come among them out of his grave. The truth is that I was tempted by my great anxiety in the cause, and the extreme importance which I have always attached to the maintenance of peace between our countries. The latter circumstance induced my political friends to press this appointment upon me, and with much hesitation, founded solely upon my health and age, I yielded. In short, here I am. My reception has been everything I could expect or wish; but your experience will tell you that little can be inferred from this until real business is entered upon. I can only say that it shall not be my fault if we do not continue to live on better terms than we have lately done, and, if I do not misunderstand the present very anomalous state of parties here, or misinterpret public opinion generally, there appears to be no class of politicians of any respectable character indisposed to peace with us on reasonable terms. I expect and desire to obtain no other, and my present character of a diplomatist is so new to me that I know no other course but candor and plain-dealing. The most inexpert protocolist would beat me hollow at such work. I rely on your good wishes, my dear sir, though I can have nothing else, and that you will believe me unfeignedly yours.

GALLATIN TO LORD ASHBURTON.

NEW YORK, 20th April, 1842. DEAR LORD ASHBURTON,-Your not landing here was as great disappointment to me as to you. I have survived all my early friends, all my political associates; and out of my own family no one remains for whom I have a higher regard or feel a more sincere attachment than yourself. If you cannot come here, I will make an effort and see you at Washington. Your mission is in every respect a most auspicious event. To all those who know you it affords a decisive proof of the sincere wish on the part of your government to attempt a settlement of our differences as far as practicable; at all events, to prevent an unnatural, and on both sides absurd and disgraceful, war. There are but few intrinsic difficulties of any magnitude in the way. Incautious commitments, pride, prejudices, selfish or party feelings present more serious obstacles. You have one of a peculiar kind to encounter. Our President is supported by neither of the two great political parties of the country, and is hated by that which elected him, and which has gained a temporary ascendency. He must, in fact, negotiate with the Senate before he can agree with you on any subject. It is the first time that we have been in that situation, which is somewhat similar to that of France; witness your late treaty, which the French Administration concluded and dared not ratify. It may be that under those circumstances our government may think it more eligible to make separate conventions for each of the subjects on which you may agree than to blend them in one instrument.

The greatest difficulties may be found in settling the two questions in which both parties have in my humble opinion the least personal or separate interest, viz., the right of visitation on the African seas for the purpose only of ascertaining the nationality of the vessel; and the North-Western boundary. I have no reason, however, to believe that the Administration, left to itself, will be intractable on any subject whatever; I hope that higher motives will prevail over too sensitive or local feelings, and I place the greatest reliance on your sound judgment,