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--