The Repeal of the Act for the Commutation of the Ton nage Tax, ROUSE QE REPEESENTATrVES WEDNESDAY, Feb. 26, 1862. An act to repeal the act approved 7th of March, A. D. 1861, entitled "An act for the commutation of ton nage duties." The bill was referred to the commit tee of the whole, Mr. Armstrong, (Ly-- coming,) in the Chair. After consid eration, the bill was reported back as committed. The House resumed the considera tion of the bill. Mr. Keine, (Fayette.) This is a, very important bill. That the Legislature has a right to repeal an act of the pre ceeding Legislature, unless on a partic ular circumstance, is not to be dispu ted or denied. The report of the Com mittee on the Judiciary General, im plies at least, that there were doubts hanging around this question. If the Legislature have not the right, there must bo something in the act of last session different from- ordinary Legis lation. If there is anything in that act that looks beyond the pale of the Legislature, it must contain something within itself, that is protected by the Constitution of the State. If it is, as is alleged, a solemn contract entered between the Commonwealth of Penn sylvania on the ono part, and the Penn sylvania railroad company in the other part, upon good and legal considera tion, it would be.a contract. A con tract 1 believe is defined to bean agree ment made between two parties, law fully to do or not to dosome particular act. The first position I take upon this question is,.that the act proposed to re peal by this act was illegal because it infringed a principle of public policy, and because it was in violation of the faith of this Commonwealth. I take it that the Legislature has a right to regulate the toll. No corpo ration is entirely independent of the Legislature. The Pennsylvania rail road company, at the time of the pas sage of the law, was in debt to the Commonwealth at least the entire amount of 8850,000. The money be longed to the Commonwealth of Penn sylvania; and was, or ought to have been, within its treasury. And, to dis robe this thing of all its surroundings, it was nothing more nor less than an appropriation $850,000 to ton railroad companies. Pennsylvania was giving the Pennsylvania railroad company $850,000, to be distributed after the passage of the bill by the Legislature. Is that any part of a contract, when it is agreed that the whole amount of this money, or nearly so belonged to Pennsylvania? The act of 1861 provided that these $850,000 should be divided among ten railroad companies. When certain work was done, when certain condi tions in this law were complied with, then it was made the duty of the com pany to appropriate this money. Yet, in their report, they say that to six railroad companies they have appro priated this money. At the same timo they admit that these railroads were not in a condition to receive the money. Speech of Mr. Scott. Mr. Scott. I agree with the gentle man from Fayette, (Mr. Kaine,) that this is perhaps one of the most impor tant questions that has come before the Legislature. The gentleman has made brief reference to what ho termed the "verbal report" (although it was a written report) made by the Judi ciary Committee, when the bill now under consideration was reported; and as no other gentleman seems desirous at this time of occupying the floor on this subject, I shall proceed briefly to discuss the question in the view in which it is presented to my mind. From much that has occurred in our deliberations upon this subject and upon subjects kindred to' it which brought the same question before us, I learn that the law of last session is sought to be repealed for two princi pal reasons. The first is that the law itself in its provisions is prejudicial to the interests of the people ; and the second is that whether prejudicial or beneficial- to the public interests, its Passage was procured by fraud. Now, sir, if the first of these reasons is well founded—if the law itself is prejudi cial to the public interests, tiro ought to repeal it if it is in our power to do so. It is our duty—a duty to which 'we ought always to be equal—to take care of the interests of the public com mitted to us, and to see that no power, whether it be corporate power, indi vidual power, or money power, shall trench upon those interests committed to our keeping. The first question which presents itself, then, is the ques tion which is suggested by the report - of the Judiciary Committee—whether it is within the constitutional power of the - Legislature to repeal the act of 1861. . There are many questions, sir, which would have been properly considered, and which ought to have boonconsid ered by the Legislature that passed that law, but which may have nothing to do with the question which we have now before us. The question whether the law itself would effect either pre judicially or beneficially the interests of the people—the question, whether it affected one portion of the State beneficially and another injuriously— the question whether it gave an undue advantage to the Pennsylvania railroad company, or to any other company, were all questions which ought to have been considered and weighed by the Legislature that passed the law; but if that Legislature, invested for the time being with the same powers with which we are now clothed, considered those questions in a light different from that in which we may sec proper to consider them, and if they, in the prop er exercise of their Legislative fune -I,ions, did pass a law which binds the Commonwealth, those considerations have gone by; they parmot constituto any argument, they cannot oven have place in an argument, for the repeal of the law, if the - act of the preceding legislature has placed that law beyond gwr power. I agree, sir, that there are arguments suggested by the law itself, that there are considerations which present them selves -to every mind upon reading that law, which would perhaps bring is to a different conclusion from that reached by th e lest Legislature. I agree, sip, that, looking at that law as lt stands, if I had been called upon to vote upon it. I Miry° I should herr voted against it. But sir, the question presented to us now is, not whether we would or would not have voted against the law in its present form, but whether the preceding Legislature, by its act, has placed that law beyond our power. It is true, sir, as a general principle that no Legislature can bind succeed ing Legislatures; it is true that we have the right to repeal the acts of prece ding Legislatures. But this is true, sir, only of those acts which proscribe general rules. It is true of every act which prescribes the rules to govern the people in their civil relations; it is true of every act which imposes a pen alty for crime, it is true of all acts which prescribe general rules; but it is not true of any law which constitutes a contract between the State and any party, either a corporation or an indi vidual. The State, sir, enforces upon every man the morality of observing his contracts. It does not place with in the power of either party to a con tract the right to determine for him self, after it is made, whether its pro visions are beneficial to him or not.— Whether it will be beneficial or not, is a proper consideratiod before the bond is signed and sealed; but when the parties have once made their contract, then the State steps in and enforces the morality of making each party comply with the terms of the contract. The State herself must act in like man- nor. It will not do for her to impose upon an individual a law which shall not govern the State as a mass. If you and I, as individuals, are bound to observe the contracts which we make with our neighbors—if the State lends the sanction of her judicial tribunals to compel us to do so—then, although the State may-not be brought before a judicial tribunal to her to ob serve her contracts, still she must ob serve the same rule, and she must be bound by her contracts. Consequent ly we find in the Constitution of the I United States a provision, that no State shall pass a law impairing the validity of contracts. This was neces sary. Under that federal Constitu tion, it is true, as originally formed, a State might be sued by citizens of oth er States; but a State cannot be sued by a citizen resident within her limits. Therefore, it was necessary that the Constitution of the United States should impose that prohibition upon the pow er of the States; otherwise, a State Legislature might, by an act of abso lute despotism, take away the rights of its citizens under any contract which might he made with them. Therefore, it is right that in our system a supreme law should be made, which will impose the same obligation of morality upon the State that is imposed upon the in dividual—a law acting like the law of gravitation, which governs alike the apple in its fall, and the planet in its orbit. This, sir, is the rule; and now the question coming before us in this case is this: has the State, by its sov ereign power, the Legislature, made such a contract as is within that con stitutional prohibition ? If the State has made such a contract, by its Leg islature, then, sir, the considerations which were properly urged by learned and able gentlemen upon the last Leg islature, and which ought then to have bad their influence, cannot be consid ered now. I propose, then, briefly to look at this law. And, sir, I wish it to be borne in mind, that I am taking the law as it stands upon the statute-book, because, sir, before I conclude these few remarks, I propose to consider the effect of what is alleged outside the statute-book upon this question. But taking the law as it stands upon the statute-book, as the act of the suprethe legislative power of the State, I pro pose to consider whether it, in terms, makes a contract. Ido not propose to consider, as I have before said, whether it is a good bargain or a bad bargain for the people of the State, be cause, as I have before indicated, I be. Hove I should have voted against the law; but whether good or bad, I wish to ascertain from the terms of this law whether it is a contract which binds the State. Now, sir, there are a number of sec tions in the preamble of this law; and I propose briefly to call the attention of the House to an abstract of the law; I will not take tho time of this body in reading the various provisions of the act. The preamble recites the imposi tion of a tonnage tax upon the Penn sylvania railroad company by its act of incorporation. It recites the re lease of that tonnage tax by the act of 1857, passed for the disposal of the Main Line of the public works. It re cites the decision of the Supreme Court in a case which, although not named, is, by the reference, clearly in dicated to every lawyer, as the case of Mott vs. The Pennsylvania railroad company, in which the provision of the law of 1857. which forever released the property of the company from taxa tion, was declared to be unoonstitution• al. It recites further, the - allegation, I believe, of the company, that it was the intention of that law to release the tonnage tax, and that the company be lieving that the tonnage tax bad boon released by the law, although the law itself had been declared to be uncon stitutional in consequence of the release of the general taxing power, litigation had ensued. It recites that litigation had ensued, and that litigation was likely to ensue with the citizens of other States. This, sir, is the preamble preferred by the Legislature to this law iii pass ing it; for, as Ibave already indicated, whatever may be said of the influen ces which were brought to boar to se cure the passage of this act, we must in the view which I am now taking, consider the act as it stands. The act, then, as it stands, is an act of the sov ereign power of the State, reciting this difficulty—reciting that litigation ex ists; reciting that further litigation is likely to ensue; reciting further that the Pennsylvania railroad company has proposed to adjust this litigation upon eertuin terms, I wish it - to be bore in mind that this preamble is in tbe view in which I am considering the matter, the declaration of the representatives of the Cidramonweaith. The right of the Commonwealth to collect those tonnage duties was questioned. That question, according to my recolleotion of the history of the transaction, was in a shape to go before the supreme tribunal of the United States ; It was in a shape to procure the determina tion of the question whether the Con stitution of the United States permit ted the Commonwealth of Pennsylva nia to impose a tonnage fluty at all That litigation was pending, Now, sir, I care not what the merits of the controversy wore; I care not what may be the opinion of eminent jurists of this State or of' other States, as to the final result of the litigation then pending; but I say that if the same case has existed between individuals ; and the individuals bad adju.ted that litigation upon terms of compromise, the termsof compromise would be bind ing upon them, and they would no longer be permitted to inquire into what the result would have been. If A sue B, even upon an unfounded claim, and, while the litigation is pending, B compromises the case and gives a note to A for any amount, B, when sued upon that note, is not permitted to go into the merits of the original contro versy; but our courts say (and I need not cite cases to legal gentlemen to establish this position)—the courts say that the very pendency of the litiga tion and its termination, constitute without regard to the merits of the original controversy, a sufficient con sideration for the contract, and that the courts, will enfore such a contract. Here, then, we have that state of facts existing. Litigation was pending, in which the right of the State to collect the tonnage tax was questioned ; and the .State by the only representative that can act for her in a legislative ca pacity, comes forward at that time, reciting this difficulty, saying that the Pennsylvania railroad company has proposed to adjust this litigation upon certain terms, and then proceeds to enact that, if the Pennsylvania rail road company will file within alimitcd time a contract in the Auditor Gener al's office, stipulating that that com pany will comply with certain condi tions therein set out—if they do so (this now is the contract on the part of the State) "in such case and in consid eration thereof" (that is in considera tion of the agreement of the company compromising this litigation and agree ing to do other things) "the Common wealth of Pennsylvania shall not at any time hereafter, lay, impose, levy or collect any tax or duty upon or in respect to freight or tonnage passing over the said to Pennsylvania railroad, or the Harrisburg, Portsmouth, Mount Joy and Lancaster railroad, or any part of them or either of them, unless a like tax shall at the same time be imposed, laid or levied upon all other railroads or railroad companies of this Commonwealth." Now sir, I have not adverted to all the terms that wore to be complied with by the Pennsylvania railroad company. There are other terms, such as a re duction of rates of toll, such as an agreement to permit shippers to break bulk atPittsburg and sell there. There are other particulars of this kind in the law, the propriety and expediency of which, or the beneficial effect of which, I do not propose to discuss; for, as I have already said, those were all ques tions for that Legislature, and not for this ono. Whether those provisions were proper or improper, it is not for us to determine. If they were within the constitutional power of that Leg islature, the policy of thorn was for that Legislature to determine, The binding effect of their not Is for us to determine here. There, then, is the contract upon the part of the Commonwealth, in consid eration of certain things to be done by the Pennsylvania railroad company, the policy of which I admit was deba table; and the very fact that the policy was debatable, the very fact that ad vocates could ho found on this floor, upon the ono side and the other, of that policy—the very filet that learn ing, and ability, and eloquence were all drawn out here in discussing the policy of those questions—shows us at once the impropriety of undertaking to re judge the questions of expediency on which that Legislature passed, upon an application to repeal the law which they made. It is not a question of expodioney, sir—it is a question of power—not whether certain provisions ought to have been enacted, but wheth er, having been passed, we have the power to repeal the act, Now, sir, I am aware that a ques tion similar in character to this was before the Supreme Court in the very case referred to in the preamble of this law—the question whether the State could part with the taxing power— , whether a law embodying such a pro vision was or was not constitutional. But the difference, (I may here inci dently allude to it, though it is per haps outside of the argument I am making,) the difference between the question there presented and the quos tion which would be presented were the constitutionality of this law con tested, (and it may be decided in the proper shape if it is unconstitutional,) the difference between that question and the one presented hero would be this: in that case the Legislature un dertook to part forever, not only with the power of re-imposing the tonnage tax, but with the power of all taxation, for any purpose, upon the property of the railroad company; and the court did decide that to do that was beyond the power of the Legislature—that the preservation of this power of taxation was essential to the vitality, the life of the Commonwealth. Here, sir, the taxing power is preserved ; there is a reservation of the right to impose the tax; and the only limitation which is im posed is a condition in the exercise of it, namely: that when the Legislature im pose such a tax, it shall not be confined to 'one railroad company, but shall, in the spirit of the Constitution, which makes taxation equal, be imposed equally up on all companies. This law does not embody a parting with, a surrendering of, the taxing power of the Common wealth; hut merely a limitation or a condition imposed upon its exercise, intended to secure equality, and not to give exemption, as was the case in the law which was declared to be uncon stitutional. Now sir, in this view of the erase, 1. coneeive that this law is e contract—, that whether the consideration was suf ficient or insufficient there was con sideration entering into the contract, the sufficiency or insufficiency of which was to be determined ripen by the Leg islature when considering the proppi oty of posing that law, If the consider ation wee by that legislature considered sufficient—if thieve was ally conetriera tion iu the adjustment of a litigation ov in the changing of the terms of the contract under the law of 1857, or in the incidental advantages to be secur ed to the citizens of this Common wealth by the proposed reduction of freight between Pittsburg and Philit, flelphis fir hr the proposed 114111000 n of local freight—if, I say, the consid eration held out by any one of these proposals was deemed sufficient by the Legislature of the last session to justi fy them in passing the law, then, sir, we have in this law all the elements of a contract. We have the consideration hold out by the company, be it ade quate or inadequate; we have the thing proposed to be dono by the Common wealth—an agreement to repeal the existing tonnage tax, and not to re impose it upon the road, unless it should be imposed upon other roads. Thus we have the parties, the consideration, the thing to be done, and the thing to be abstained from—all the elements of a contract between individuals. If there be in that law any provision which infringes upon the Constitution of the United States—if the Legisla ture transcended its power in underta king to pass such an act—in releasing the judgments then ,obtained—in set ting apart the money then .due in the manner provided in those sections—if there be an unconstitutional exercise of power in any one of' the sections of that law, it does not need a repealing act now to correct that unconstitution al exercise of power. The remedy is open ; the act can be declared uncon stitutional, just as the law of 1857 was declared unconstitutional, by an ap plication to the Supreme Court. Now, sir, this being the case, if that law be a contract, as I have underta ken briefly to show,' (and I might ex tend this argument by going into the details of the law,) if it be a contract, sir, however much we might be dis posed now to denounce its terms—how ever much we might be disposed to denounce the false pretence which has crept into that law in giving these com panies the money of the Commonwealth —however much we might be disposed to denounce the release of so large an amount of annual revenue for the pal try consideration, (as the gentleman from Fayette has termed it,) specified in that law—however much, sir, our indignation may be aroused by exam ining that law, and by coming to the conviction, as nearly every honest man will do, that it was deliberately pre pared for the purpose of making it a contract, and in order to ensure the benefit of the Pennsylvania railroad company, (and I confess, sir, when 1 read that law, I felt that indignation rising in my own mind)--I say, how ever, our indignation may rise upon this question, we are not, while sitting here as legislators, to permit our in dignation to take captive our judg ments; but wo are to act upon our reason; and if we believe that the act, as it stands upon the statute-book, is a I I contract—if we believe that it was procured by the means alleged, (which question I will consider presently,) we must not commit oho wrong hero for the purpose of getting at another, but let us get at the wrong to be remedied in the proper mode. Now, sir, there are numerous author ities which decide that a law of this character, passed by the Stato, is a contract. I do not intend to take up time in referring to them, or in read ingfrom them. Since the introduction into the House of the resolution for the repeal of this law, I have not had time to examine this question thoroughly; hut there are somie cases among the few which I have had time to examine, which aro so nearly analogous to the exercise of power in this respect that I refer to them for the purpose of per mitting the legal gentleman, who I have no doubt will follow me in the discussion of this question, to test the accuracy of the position which I have taken. That this law is a contract and that being a contract it is within the terms of the constitutional prohibi tion, has I think been fully adjudicated in the cases of Fletcher vs. Peck, C. Cranch, 133; New Jersey vs. Wilson, 7 Cranch, 164; Terrett vs. Taylor, 9 Cranch, 43; Town of Pawlett vs. Clark, 9 Cranch, 292; Gordon vs. Appeal Court, 3 Howard, 133; Bank vs. Knoop, 16 Howard, 369. There are other cases. I have not undertaken to exhaust the subject at all; for the engagements of any man in this House who is at all disposed to attend to the duties devolved upon him are of such a nature that an attempt to examine legal questions here is al most an absurdity. But, sir, from the examination of this question, which I have made, I am satisfied that, taking the law upon its face—taking it as the act of the Legislature, untainted with fraud—taking it as the expression of the will of the people, which is always presumed to flow from the Legislature, (however violent the presumption may be in these latter days)—taking it sir, in that light, I am forced to the con viction that there is upon the face of this law a contract embodied in it which is beyond the repealing power of the Legislature, unless there be something more in the ease than ap pears on the face of it. Now, sir, this brings us to perhaps the gravest question that could be pre sented to any body, either legislative or judicial. What is that? We can not shut either our oars or our eyes to the fact which is heard and seen all .over this Commonwealth—that the passage of that law is alleged to have been procured by fraud. Let us deal in plain towns; let as call things by their right names ; and lot us say that it is boldly avowed all over this Com monwealth, and believed too, that mon ey was need to buy up, and did buy up the power to pass that law, and that that money was used by the corpora tion for whose benefit the law is al leged to have been passed. That, sir, is the allegation; and the allegation has come from such high quarters, em hutting in the very House in which the law was passed—it has been reit erated so much in the nubile ear, and by the public press, that it matters very little what may ho the result of investigating committees, or of judi cial precoodings; it has settled down int() a conviction in the public mind of Pennsylvania, which the present gen eration tiyill continuo to entertain. Now, sir, I ant free to say that when I come to dismiss this part of the ques tion, I am again in danger of permit ting my indignation at the very alle gation to take captive my judgment. The question which is presented is, )vhether a fraud of that character can be reached, either in this body, or in the judiciary tribunals of the Conn-nen wealth; and that is the question to which I propose to address myself for a few minutes. I am perhaps speak ing longer than I intended, and may be wearying the House, [ego oil V'] hut I treat J shall be pardoned; for, con sidering the gravenm of thr limsst ion —its importance, both in the amount of money which is involved to the peo ple of Pennsylvania; and in the great principles involved, I conceive it to be the duty of every member of this House to give his most serious atten tion to this question, because a more important one could not be brought before any body, either deliberative or 'ndiciat. I must be permitted to say that in discussing this question, I feel that I am not actuated either by any blind admiration of the Pennsylvania rail road company, which would lead me to cover up its short-comings; . nor, on the other hand, am I animated by any inveterate hostility which would lead me to attack it in every quarter. I look upon it, sir, as a great enterprise, gotten up with credit to the public spirit of Philadelphia, to promote its own interest and carried out upon a scale of grandeur and prudence in its general management, which reflects credit upon the Commonwealth and upon the city of Philadelphia, and up on those who conduct it. I agree that it has been productive of great benefit in developing the resources of our Commonwealth; I agree that it has been of great service in the late exi gency in transporting troops to save your capital. But, sir, if this allega tion of fraud be •true—if all the re sources and profits ,realized by this company—all the position and influ ence which its workings give to its officers, are to be used only for the purpose of stabbing the bosom that gave it life—then, sir, no patriotic transportation of troops to save the capital—no development of your min , eral lands—no blossoming and bloom ing of harvests over your Common wealth can compensate for the evil which is to flow from the use of money in bribing any legislative, executive or other official. o, sir, all our prosper ity will be• but the means of deeper perdition, if we agree that those who reap the golden harvest from enter prises of this character may come in hero and sap the very foundation of our institutions. It is time, sir, that we should turn our attention in that direction. When this venality, as a prevailing crime, has commenced, as prevailing diseases often do, at the ex tremities, and is gradually traveling up, traveling up, traveling up to the great heart of the country, it is time now, sir, that we should put our hands upon this growing iniquity if we can reach it. I do not often indulge in literaryre ferences, but one just occurs to me.— Lord Macanley, in one of his brilliant essays, allows his fancy to look for ward to the time when, in England, some traveling artist may take his stand upon a broken arch of London bridge to sketch the ruins of St. Paul's. And, sir, unless we stop this use of money in public business—this prosti tution of power and place to money, we may transfer the image to our own shores; and it will not be many years ere some traveling artist may take his stand upon the unfinished shaft which we have reared to the honor of Wash ington upon the banks of the Potomac, to sketch the ruins of a crumbling Capitol. If sir, wo can get at this matter, then lot us scotch the snake now and here; and it is that question which I wish to approach. If there was fraud in the passage of this law—if the Pennsylvania railroad company or any of its officers have used frandulent means to secure that enactment—l care not, sir, much as I respect them as men, bow high their position may he—if we can got at the truth, and if it be true that money has been used for putting this bill through, sir, let those who have been engaged in this nefarious business, stand a blighted and blackened spectacle on the high way of time, as a warning to all coming generations to prevent such atrocities in the future• But, sir, that is the question—is it true that this corruption has existed ? How is that to be determined ? Are we to sit here and determine whether the previous Legislature was guilty of fraud? Have we been invested with judicial powers for that purpose ? Have we, sir, the right to determine whether our predecessors were guilty of such fraud, and to make it the basis of our Legislative action, in such a manner that it shall go out and be binding as constituting the end of the controversy. I conceive, sir, we can not do that as a Logisinture, Any law that we may pass upon this basis, any law we may pass upon this allegation, is subject to revision in the Supreme Court, and If; as Is alleged n one side of this argument, the Supreme Court will not consider the question whether fraud was used in obtaining the pas sage of the law, then we are no nearer our purpose than we were before. I understand the position to be that the Supremo Court will not consider whe ther fraud entered into the passage of the law. Now, it is to that point, that I am going to direct attention, and I trust that that position is not entirely tenable in the shape in which I think this case ought to be put. If there be fraud in this transaction, and the kind of fraud that Is alleged, I want to reach the truth, whether it be by a Legisla tive committee of inquiry or by a ju dicial proceeding. T. will join with any gentleman heart and hand, and go to any length to which we can go under the constitution and the laws, for tbe_purpose of reaching the ques tion, Now, par} we reach that (Ines tion ? What, sir, is the effect of fraud in private contracts? An analogy is sought to be applied here, founded On the effect of fraud in private contracts; and we must inquire, what is the effect in such eases? Why, sir, if 4 and B contract together, and 1, by fraudu lent means, by any fraud, procures the contract, the law declares that the contract is void—not voidable—it is absolutely void ; and it requires, as every lawyer well knows, a new con sideration for the purpose of infusing vitality into that- contract. If it re mains where it is, resting upon fraud, it is absolutely void; it binds nobody, Now, sir, if it bo true that fraud enter ed into the procuring of this law—if the men who sat, in those seats at the last session, or the officials who sit in other seats as co,ordinato par•t3 Of OP government, were bought wit 4 the money of the Pennsylvania railroad company, for Ow purpose of procuring the passage of that law, and if the same result follows that follows be tween iilaiylclllals , then the law is a dead letter on the statnte hook, and we might not to give II even the volor of vitality by seeking to repeal - it.. If we' repeal—revoke, (for that is the meaning of "repeal")—if we call back the law, we agree that from the time of its passage until the time of its re peal, it is a law. But I say, sir, that if this monstrous fraud entered into the procuring of that law, it is no law and cannot be enforced. If that law is founded upon fraud, we may issue our execution upon the' judgments which stood upon the records of this county at the time the law was pass ed. When that execution is issued, if the company contest the matter in court, on the ground that the law im posing tonnage was repealed, there we shall meet the very question which we are considering—will the court in any case look into the motives of the Legislature in the passage of a law— will they go behind the act? Now, sir, I am free to say that there has been enough in judicial decisions to raise a very grave doubt upon this question, whether in any - ease, a judi cial tribunal will look into the motives of a co-ordinate branch of the govern ment. But, sir, I trust that there will be no longer any doubt upon this question. • I. trust that the result of this proceeding will be to bring up the judicial tribunals of the country fairly and squarely to that point, so that there can be no backing out of it. We must have a decision one way or the other. If the presumption can be tol erated that our Legislatures are cor rupt, we must either have redress in the courts, or else we must, by turning the attention of the people to the fact that there is no such redress, that they are bound by the acts of their repre sentatives, we must teach the people the importance of attending to the preservation of their institutions—we must teach those men who, from a dis like of political strife, or from any other motive, stay at home and permit the public affairs of the nation to be conducted by blackguards and scoun drels, that they must give up that sys tem of sending here, laden with the interests of their hearts and homes, men whom they would not trust in private life with one hundred •dollars of their money. We must hate a re medy in one way or the other. If there be no remedy in the judicial tri bunals, then, sir, we must tell the peo ple that they must exercise due care and circumspection in order to send here men whose acts will not need to be impeached upon the ground of fraud. And to the judicial tribunals we must in one or the other event come. You cannot pass a law here and put it beyond the reach of the ju dicial tribunals. If the law which we aro now considering be passed, it can be taken before the courts and its con stitutionality determined. Our deter mining that there was fraud in the act of the last session, will not preclude the courts from inquiring into the fact, if they would inquire at all; and if they will not inquire, our decision that there was ft - and will not be taken by them as evidence of the fact. I now come to consider the cases—the only ones in which, so far as I am aware, this question has been considered. The first one is the ease of Fletcher vs. Peck, to which I have referred. That case arose out of per haps the most flagitious fraud that over was perpetrated on this continent. I will state briefly from memory the circumstances of that case, that we may see how nearly it bears upon the two questions which we are considering—loth upon the repealability of the law, taking it. as it stands, and upon the power of the court to inquire into the alleged fraud. The Legislature of Georgia in 170 passed a law ceding an immense tract of ter ritory, which afterward became famous in our history as the Yazoo country. That territo ryiweraesn c disposed is o P uZae d n?rs i f to oA i n i7s P o f tnow ossb " ur ; fi r ve s o a rs ix different how many. These companies paid their money into the treasury of the State of Geor gia, in pursuance of the contract, and the Governor made them deeds for the land.— After this was done, the public sentiment of Georgia was aroused by the revelation that every member in the House of Representa tives of that State, and a majority of the members of the Senate, were members of the very companies to which the land had been sold at perhaps one,fourtb its raluo. tiers was a case of gross corruption, such perhaps as has never been equalled, unless it has found a parallel in modern tittles in one of the western States—l w 11 not be invidious by mentioning any name. But, sir, the pub lic indignation in that State become on, in tense that a majority of the grand juries of that Commonwealth presented the net as IV fraud; and when the succeeding Legislature met, that body drew up a preamble reciting the unconstitutional character of the law, and reciting the fact that the previous Legislature had been corrupted, and that by thosecorrupt means the law had been passed ; and then they did not undertake to repeal the law. but they took the view of it, I suppose, which I have been endeavoring to unfold here in the analogy to a private contract tainted with fraud. They did not undertake in words to repeal the law, but they declared. that, for the reasons stated in the preamble, the law was entirely nail and void from the begin.: ping ; and it is 3 curious matter of history, as illustrating the into'nsp public indigntiun then prevailing, that in the second section of this act the Legislature provided that thelaw previously passed should be taken from the archives and be publicly burned. Well, sir, a title was derived through one of those companies, and in the deed made for the land between two citizens, there was a covenant that, the vender was seized of all the title which the State of Qeorgin had in the land. An action was brought upon that covenant; and it brought, up the question whether the individual was seized of the title which was in the State of qeorgia ; and that brought before the court, between those two parties, Fletcher and Peck, the rynestion— whether that repealing law was constitatiqn• al, and whether the court would, in qamin lug that 'question, inquire into the motives of its passage. The court decided in that in. stance that they would not go into the mo tives ; but they did- decide that the titlp hay ing passed under the law to an innocent par, ty, the subsequent repealing le,w could not divest the title. That is one me ; The latter ease is in our own books. It is the case of the Sunbury and Erie railroad company vs Cooper, in which that company sought to enforce a con tract made with Cooper for the sale of one hundred thousand dollars of the lands of the company. In an argument in that case made by the late Attorney General of the United States, with all the force for which his intel lect is celebrated, he took the ground that the law under which those bonds issued had been procured by fraud. The courts say, in deliv ering the opinion in that case, that they will not undorta4e to gq into the motives which induced the passage of the law. But now for the distinction in regard to these qua. The ease of Fletcher vs. Peck was a case between two individual parties in whiph the action of the Legislature of Georgia was brought up collaterally ; it was not a ease in whi - ph the State of Georgia went lrito court and asked that the contract should be declared void. The question came pp collaterally between third parties ; it wep not between the parties to the contract. In the case of the Sunbury and Erie railroad company vs. Cooper, the case came up collaterally between the com pany and Cooper, not between the State and the company. In both these cases an inquiry was started ns to whether the court would in quire into the motives that influenced the Leg hdotui P in the passage of the law. In the case of the Sunbury and Erie railroad vs. Coo per, it is, I believe, expressly stated in the opinion delivered by Chief Justice Lowrey, that the court will not say that the party who procures an net of the Legislature by fraud shall be permitted to have the benefitof it with, out any redress to the public. There is sir, ihe broad distinction which I am endeavoring to point out. Now, as I take It, in those cases in which the question has been presented whether the court' will take judicial cogni zance'ef fraud in n co-ordinate branch of the government, the question has never been raised at the instance of the State; it has al ways been between other parties. In the opin ion delivered in the case of the Sunbury and Erie railroad company vs. Cooper, it is certain. ; ly left an open question whether or not, at the instance 'of the State, the la* would not be declared void. Grants by the Common Wealth are declared void. In the case of Harris vs. McHenry a grant obtained from the Lord Pro prietary of Maryland was declared void, on a bill filed in chancery. Our courts Inivideclared patents ,from the Commonwealth void upon similar ground. Now. sir, if when the Surveyor Generator the Commonwealth, the servant of the pew ple, has been imposed upon, and his official seal thus obtained, a patent can be declared roid—if deeds made by the Commonwealth, through its agents, can be declared void, why shall it not 'be that when a private' party, knowing that the Legislature is here delega 7 ted with power to legislate fur the interests of the people, comes here and corrupts the public agents—why shall it not be that the court shall take cognizance of this, question? As I have already said,"l wish to see that question brought up and decided ; I wish to see the court brought squarely to it; for one result or the other, as I hare already said, must follow—the people must be taught that there is a remedy fiw. wrongs of this - oWe°- ter in the indicial tribunals ;•or, if that is not! the case, that theonly remedy for such wrongs is in their own hands ; and God knOwS„if the state of things alleged in regard to the Tmi s:lgo of this act be true—be irttethe 'people would be jusiified in taking almost any rent. edy that the law of nature has placed within, their hands to reach the perpetrators of ea great a wrong. - Then, sir, I conclude from the argument& thus hurriedly and briefly presented, that this law is a contract, and that, it being a:con tract, the Legislature ha's not the power 'to repeal it. If we should attempt to repeal it if we sit in judgment here in the ease of the State—then what is to prevent the next Leg islature, (I speak of it as a question of power, not as one of probability)- 7 what is'to pre vent the next Legislature from declaring that. the Itw of 1.861 is valid and - constitul anal. If we are to seek a remedy for the alleged cur= I option by the repeal of- the act 'of the last, Legislature; the subject may be tossed back, wards and .forwards liken foot-ball, from Leg, isla tare to Legislature, one body reversing ;he action of its predecessor, and thus no final determination can ever be renclied. But if we can get the question into djudicial shape; and have it decided in that manner one way or the other, there will be an end of it—we shall know what our rights tied our remedies are. There is a mode, sir, in which this reim position of the tonnage duties may lie mite constitutionally according to the very terms of the contract. I do not know whether it would he consistent with the views of the House to adopt that course; but as I have al ready indicated, the very . terms of the law provide that the tonnage tax shall not be re imposed unless at the same time it be imp sed upon all the other roads of the Common wealth. Now, if it is the' desire of gentle. men hero to get over this constitutional ob jection, and :it once to reinstate the tonnage tax, that reinstatement oan he made MIMI, tutionally, according to the very terms of the l.tw, by tat posing the tag upon the otharrail: roods of the State. lam not in favor of that, in the present juncture, until we see what the general government proposes to do in regard to the same question; but so far as the eon, stitutionnl difAculty is concerned, here is a mode by which we can reach the great wrong which is alleged to have been committed. But, if, according to the view which I have taken, we have not the power-to pass this re pealing act, I trust that whatever power we have will be exercised for the purpose of bringing this question squarely up before the judicial tribunals of the State, and having a decision one way or the other. As I have al ready said, this question outweighs in iraputu twice all the questions that can he brooght before this Legislature. If a law can he put through here by bribery aiid corruption, in such a manner that there shall be no judicial remedy, then we may all prepare to drape our land with mourning; because if the Log: islature can be corrupted, and if no judicial remedy is within the reach of the people, (this perhaps would be better 'addressed to the Supreme Court than to this' bo . dy,,but may he permitted to say my opinion, if there be no remedy, and thhreurruption can go on without chock, we : may riaol?‘ sir% begin to fear that gold willfind its way far: ther into the departments of our State goy; ernment than even the Legislatuip—that it will blunt the sword of justice. and that she will hold the scales to weigh, nut the merits of the cause but the weight of the bribe.--: And let that day be far distant in the State of Pennsylvania; for thus far I have confi dence in the jadielal tribunals of the State; and I trust that this question will he Lwought . before thew. Mr. Tracy (Bradford) wished that tho gentleman and more like him wore hero last winter. Is it possible that the Legislature cannot repeal a law, although it be an act contracted and consummated in fraud and corruption, He (Mr. Tracy) believed that the Leg : , itliature have the remedy for comp-. tiqus qf this Lind, that the remedy is hero among us, and it is the duty 'we owe our constituents and ourselves and the Commonwealth whose rppresenta, Lives we are, that the remedy must be new' and speedy. Mr. 'Williams, (Allegheny) said he had prepared a bill Which be propoSed by way of substitute for the one now upon the table. He made a motion tq amend the bill and presented the fol lowing amendment An act to repeal the net, entitled "Aq apt 'fqr the eommetation of the tonnage duties, approved March 7, A. B. 1861, WHEREAS, An ,'}et was passed at the last session of the 'egislature, purport, ing to be an apt fqr the com Mutation of the tonnage duties, by means where ; of the aum of $742;30841 or therBa ; boats, bpsidea interest, then owing tq the State by the PennsyWtnia, railroad company, and iu coutenTation of law in the Treasury of the State, together with a large annual revenge stipulated to be paid by the said company as the price of the charter, and by way of compensation for the determination in value of the main line of the public works, 4ppr9ll(lnded and actually in fliqed by the construction and opera; tions qf the said road—which revenue bad already reached the soar of ::4300,, 000 and upwards, and would have amounted at this time to a greatly larl der sum, with the prospect of indefin, Tte increase, wore wrongfully, unjustly and unconstitutionally withdrawn front the Sinking Fund provided by the Constitution and laws of this State for the payment of the public debt there, of, and made sacred and inviolable for that purpose, upon suggestions which were fidse and in pretended considera tions which were either in conflict with the Constitution, or utterly sort' and worthless in themselves, amounting in effect., under color of a pretended contract or commutation, to a gratuitous dqmitiqq,of all slid moneys and revenges to a private cor poration.withoutany subs ta nlial Null--
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