for a religious society of Roman Catholics.-Now if warrantable, had it not been, that a great number a majority of this congregation should insist on em- of people took a warm interest in it, for although, ploying pastors contrary to the rules of the church, in form, it is a prosecution by the commonwealth, and the minority should choose to persist in re- vs. William Hogan, yet, in fact, it is a dispute be maining strict Roman Catholic, in the sense of the tween the members of a large religious congregaword at the time of that incorporation, what is to tion, touching rights which they consider of very become of the chapel and ground adjoining? That great value. From the extensive field of argument is a momentous question, on which I have not form which was occupied by the counsel on both sides, ed an opinion-but I mention it, in order to show we may suppose it was their expectation that we this congregation, that there are cogent reasons should now give a decided opinion on the merits for reconciliation. On both sides of their unfortu- of the controversy; but, on mature reflection, we nate division are found men of the most respectable think that such an opinion would be unseasonable character-on both sides there probably have been and improper. The question is, whether William faults, and, with the exertion of that christian chari- Hogan should be discharged, remanded or admit. ty which is incumbent on both, there may yet be a ted to bail; if he is not discharged, he may be bailreunion. ed, because he is charged with a bailable offence. As my opinion on the matter of law submitted to There is not a doubt but the disturbance of the the court, is in favor of the pastors of this church, public worship of any religious congregation is an these reverend gentlemen may, prehaps, not thank indictable offence. This has not been denied; inme for going out of my way, when I offer a few deed it is a principle in support of which every rewords for their consideration. It is scarcely pos.ligious society has an interest.

sible that the Roman Catholics of the United States We should not be justified, therefore, in discharg of America should not imbibe some of that spirit ing Mr. Hogan, unless we were satisfied, without of religious freedom which is diffused throughout doubt, that he has not disturbed the public worship the country. If those who govern that church ex-in St. Mary's church. But this is more than we ercise their power with great moderation; if they can say, and more than we ought to say, consider. are not too forward in assuming the direction of ing that the parties are at issue on many contested temporal affairs; if they consult the reasonable de- facts. Not only is the behaviour of Mr. Hogan in sires of the laity, both in the appointment and the St. Mary's church, on the 13th January last, to be removal of pastors, in all human probability they taken into consideration, but also the laws and may long retain their dominion. But if things are discipline of the Roman Catholic church in the carried with a bigh hand-if, trusting to the au- United States of America; much of which is only thority of the church, they disregard the wishes of to be known by parol evidence. It would be untheir congregations, it is easy to foresee how the warrantable, therefore, in us, who are now acting matter will end. That church possesses neither in a course of summary proceeding, to decide, with property nor temporal power in this country. The Jaity have both. In a struggle, therefore, between the two orders, the issue cannot be doubtful. With respect to the proposed alterations of the charter, I am of opinion, that, under the circum stances of the case, the judes of this court ought bot to certify that they are lawful.

out the assistance of a jury, facts in which the vital interests of this church are involved. We have no hesitation in saying that William Hogan cannot be discharged, but must enter into recognizance, with proper security, for his appearance at the next mayor's court. But a more important question remains. The counsel for the prosecution have insisted on his being held to security for his good

Opinion of the chief justice and judge Duncan, de-behaviour, in order to preserve the church from livered February, 1822, by chief justice Tilghman. Commonwealth,

at the instance of Wm. Hogan,

Israel Deacon.

future disturbance. We should have no doubt of the propriety of rigorous security for Mr. Hogan's good behaviour, if it were the case of a man who had behaved rudely and notoriously in church, and threatened to do so again. But it is not so. He It appears that the rev. William Hogan, who has used no force or violence of any kind, nor did he been brought before us, on this habeas corpus, is make any indecent noise. It is in truth a very sin detained by the keeper of the prison of the city and gular case. Mr. Hogan is a Roman Catholic priest county of Philadelphia on two commitments by al- who once, without doubt, was a regular pastor of derman Badger, dated 18th January, 1822. In one his church, and claims to be so still, and in this of these commitments it is said, "that William Ho claim he appears to be supported by a majority of gan was charged on oath with having, within the the congregation. But his faculties have been said city, on the 13th January, 1822, prevented and withdrawn by the bishop of the diocese, and he has disturbed, by his presence and acts, the regular been publicly excommunicated. Under these cirCatholic worship at the church of St. Mary's; and cumstances he appeared at the altar in the vestthe celebration of mass by the clergy of said church." ments of a priest, and refused to withdraw when And in the other it is said, "that he was charged required by the bishop. His presence, as is contenon oath with intending, within the said city, unlaw. ded by the prosecutors, prevented the celebration fully to disturb the pastors of St. Mary's church in of mass according to the rules of the church, and, the celebration of divine service, and to excite and therefore, the public worship was interrupted; on promote, by his acts and attendance, noise and dis- the contrary, this rule is denied by those who supturbance in the said church, so that the pastors port Mr. Hogan, and they say, inoreover, that the thereof might be prevented from performing divine proceedings of the bishop in withdrawing his facservice therein." Our habeas corpus act, gives us culties, and excommunicating him, were irregular power to investigate the truth of the circumstances and void. I wish to draw a veil over the scene which of the case, and determine whether, according to was exhibited in church, and therefore will not law, the prisoner ought to be bailed, remanded or describe it. It does not appear, however, that ei discharged. We have therefore indulged the par- ther party had a deliberate intention of exciting ties with an investigation of the circumstances of tumult, or of disturbing the public worship by vio the case, to an extent which would have been un-lence.

We see plainly enough that each intended to as-sentatives of his former master. His object was to sert and preserve its rights without breaking the recover his freedom which he claimed on the ground peace, and the avowed object of this prosecution is that his mother Milly had become entitled to her to decide, whether Mr. Hogan has a right to per-freedom prior to his birth, on some of the grounds form divine service in St. Mary's church. It might stated in the opinion of the court-One of these seem hard, therefore, if we were to assist the prose-grounds was a deed of emancipation, executed in cutors, in a mode of proceeding which would ei her favor by that master, (John Rodgers), within ther confine Mr. Hogan in prison until the trial of the state of Ohio, and which did not conform to the the indictment, or prove ruinous to him and his se provision of the laws of Virginia, on the subject of curities, in case he could find security, and the emancipation-Rodgers, a resident of Virginia, had trial should go against him. If the prosecutors are gone into the state of Ohio to reclaim Milly who right, the bare appearance of Mr. Hogan at the al-had run away from him; and she sued out a writ of tar would be a forfeiture of the recognizance for his habeas corpus against him, in one of the county good behaviour. We think, therefore, that the jus- courts of that state, and was discharged from his cus. tice of the case will be best attained by not requir-tody, in the most summary manner. This discharge ing security for good behaviour. To this then there is also relied on as another ground of the plantiff's can be but one objection. What is to become of that claim. After this, and when Rodgers was, probably, part of the congregation who cannot, in conscience, under some degree of coercion, he executed in Ohio be present when mass is celebrated by Mr. Hogan. the deed aforesaid, and she at the same time indented This would indeed be a very serious objection if herself to him for two years, and was brought back they had no other place of worship. But fortunately by him into the state of Virginia, where, after this they have, the church of St. Joseph is open to them; time, the plaintiff was born.-The superior court this trial may be expected to come on in March; now gave judgment, upon a special verdict, for the deif those who are opposed to Mr. Hogan will, in the fendants, and, on an appeal, their judgments was mean time, do, as they did once before, on our recom-unanimously affirmed by the court of appeals. mendation, abstain from goingto St. Mary's church, it will be conduct, which cannot detract a particle from their rights, conduct of which no christian must

Lewis vs. Fullerton.

The court is of opinion that there is no error in

be ashamed, and even their adversaries must com- the opinions of the superior court, impeached by mend. For it can be attributed to no other motive, the 2d and 3d exceptions. The reasons in support than a sincere desire to preserve the peace, and I may of those opinions are so clear and self evident, that add, the character of their church. When this right they need not be adverted to.

is decided, we still indulge the hope, that this con- Nor is there any error in the other opinions of gregation may be united as brethren. For surely that court, objected to by the appellant, and which in a christian congregation, the hope of reconcilia- go to the merits of his title.

tion cannot be desperate; upon the whole, we order The appellant claims bis right to freedom on that Willam Hogan shall enter into a recognizance three grounds:-1st, on the right to freedom aileg for his appearance at the next mayor's court, to an-ed to have been acquired by his mother, prior to his swer the charges that have been made against him, himself in the sum of $500, and two good sureties in the sum of $250 each.

Inmediatly after the delivery of this opinion, Mr. Hogan entered into recognizance, with security, and was discharged.

birth, by having sojourned within the state of Ohio, and as is further alleged, been there employed by her master: 2dly, on the ground that her right to freedom was prior to his birth, established by the judgment on the writ of habeas corpus stated in the record:-and 3dly, he claims it under the deed of emancipation contained in the proceedings; and which was also executed prior to the birth of the appellant. It is readily conceded that if his mother's right to freedom was valid and complete, prior to his birth, on any of these grounds his right to freedom follows as a necessary consequence.

FROM THE RICHMOND ENQUIRER OF DEC. 11, 1821. An important decision was made in the court of appeals on Tuesday last, in the case of Lewis vs. Fullerton. We have applied for a copy of the opinion, which we now submit to our readers.- Under the first inquiry we must throw entirely While that decision is very important to our ci- out of view the subsequent residence of the mother tizens, bordering on the state of Ohio, in relation within the state of Ohio, with the alleged consent to the emancipation of their slaves in that state, of Rodgers her former master. Whatever may be it contains some important principles, bearing the effect of a residence therein, for a great length upon the decision of the supreme court, in the of time, and with the assent aforesaid-whatever case of Cohens vs. Virginia.-It decides that the may be the effect of this circumstance in relation laws of one country attempted to be asserted into a person who may thereby have become one of another, are with an exception that they do not violate any moral principle in that other, or the poli cy of that other, or any right or interest derived under the law of that other.-This limitation of the lex loci, in relation to the force of the laws of the District of Columbia, within this commonwealth, arising under the case of Cohens, goes to cut up their authority by the roots. The authority of their laws cannot be asserted in that case within this commonwealth, without encountering all of these objections.

LEWIS AND FULLERTON.
Statement of the case.

This was an action brought by Lewis, an infant, in the supreme court of Cabell, against the repre

the permanent members of that state, the residence now in question is of a far defferent character.

There is no evidence in this case of the mother's residence within the state of Ohio, prior to the appellant's birth, but that she was once seen, on a Sunday, working at a sugar camp therein, in the absence of her master, and without any evidence that it was with his permission. In reference to this evidence, the court below was asked to instruct the jury, that, if they should find that she was em ployed by her master within that state, in making sugar, or any other local service, not merely transi tory, and for however short a time, they must und a verdict for the plaintiff. The judgment of the superior court refusing to give that instruction, was, in our opinion, entirely correct. Such an occupa

tion for a short time, and even for the benefit of the provisions of our act on that subject, the duty of master, and probably in his presence, could neve supporting the old and infirm slaves would devolve operate an emancipation of his slave. It could not upon the commonwealth. That burthen is only to so operate, when the animus revertendi strongly ex-he borne by the master, in relation to the slaves "80 isted in him, both in relation to himself and to his emancipated;" that is, emancipated agreeably to slave. There is indeed but a shade of difference the provisions of the act-(1 rev. code. pa. 434 )— between such a residence as this, (if indeed it can Even yet, and notwithstanding a late alteration of be called a residence), and the mere right of pas- the law upon this subject, that burthen must be sage through the state: and such a construction as born by the commonwealth, at least for a time. that now contended for, would whittle down to noth- For these reasons we are unanimously of opinion ing, the right of the citizens of each state within to affirm the judgment. every other state, guaranteed to them by the constitution. Such an occupation cannot be said to carry with it evidence of the assent of the master that she From the Charleston City Gazette, of Jan. 25, 1822. should cease to remain his property, and become a The following opinion, for its novelty and impor member of the state of Ohio, without which the re-tance, is worthy of being circulated through the gulations of that state, on the subject of emancipa-medium of the press. Every case which decides tion, cannot attach. the indefeasible rights of the citizen, and proves As for the 2d ground of claim, under the judg-the protecting power of the constitution, enlarges ment upon the habeas corpus, it has been truly an and strengthens the foundations of our civil liberty. swered, that judgment has not affirmed the mother's Slight innovations, if unresisted, become prece. right to freedom. Even if it had, and this mode of dents; and are imperceptibly increased, until lit proceeding was legalized by the laws of that state, tle less than a political convulsion can restore the (as it seems not to be by the laws of this), in favor institutions of the country to their pristine purity. of a slave against his master, those laws are not The recognition and application of the principle, found in the case before us: and even if they were, that all power is derived from the "mighty bands it might well be questioned whether the judgement of the people," must be grateful to every friend of aforesaid could have concluded the right of the the great political experiment of a representative master in the present instance. The right of our democracy. citizens under the constitution, to reclaim their fugitive slaves from other states, would be nearly a nullity, if that claim was premitted to be intercepted by a proceeding like the one in question; a pro- This was an application to the court of sessions, ceeding of so extremely summary a character, that in Charleston, spring term, 1821, for a prohibition it affords no fair opportunity to a master delibe- to restrain the tax-collector of that district, from rately to support his right of property in his slave. enforcing an execution, which he had issued against Such a proceeding ought not, therefore, to be conclusive on the subject.

As to the deed of emancipation, contained in the record, that deed, taken in connexion with the evidence offered to support it, shews that it had a reference to the state of Virginia. It is stated to have been made by John Rodgers, a resident of the state of Virginia; and the testimony shews, that it formed a part of a contract whereby the slave Milly was to be brought back, (as she was brought back), into the state of Virginia. Her object, therefore, was to secure her freedom by the deed, within the state of Virginia, after the time should have expir ed, for which she indented herself, and when she should be found abiding within the state of Virginia.

S. & M. Allen,

ads.
The State.

}

S. & M. Allen, for the sum of ten thousand dollars, being a tax imposed by the last clause of the appropriation act of 1820, which is in the following words: "That a tax of ten thousand dollars be, and the same is hereby, imposed upon every person or persons, who shall, after the passing of this act, open or keep open any office for the sale of any lottery tickets, or who shall sell within this state, any lottery tickets in any other lotteries than those which are authorized by the law of this state.

Charleston for a prohibition, which was refused by the presiding judge, and this was a motion to reverse that decision, and for an order that a prohibition should be issued.

And it shall be the duty of the tax-collector, in the district where such lottery offices are opened, in default of the person or persons keeping such of fiees, to return the same and pay the tax imposed by this law, to issue his execution as in other cases of defaulters." Some short time after the passage of If then this contract had an eye to the state of this act, the office in question was opened for the Virginia for its operation and effect, the lex loci purpose of selling lottery tickets. The proprietors ceases to operate. In that case it must, to have its having refused to pay the tax, this execution was iseffect, conform to the laws of Virginia. It is insuf- sued—application was then made to the court in ficient, under those laws, to effectuate an emancipation, for want of a due recording in the county court, as was decided in the case of Givens vs. Mann in this court. It is also ineffectual, within the commonwealth of Virginia, for another reason. The lex loci is also to be taken, subject to the exception, that it is not to be enforced in another country, when it violates some moral duty, or the policy of that country, or is inconsistent with a positive right secured to a third person or party by the laws of that country, in which it is sought to be enforced. In such a case we are told "magis jus nostrum, quam jus alienum servemus." Hubs. 2. tom. lib. 1 lit. 3,- In determining the first question, it is not pre2 Fonb. 444.-That third party in this case, is the tended that this court can set limits to the discre commonwealth of Virginia: and her policy and in- tion which the legislature may exercise in selectterests are also to be attended to. These turn the the subjects of taxation. Neither is it denied, that scale against the lex loci in the present instance.-that they have the power to fix the time when the For want of being emancipated agreeably to the tax shall become due, and to prescribe the modệ

Norr, justice, delivered the opinion of the court. In support of this motion, the two following grounds are taken:

1st. That the tax was not due at the time the execution was issued.

2d. That the act, subjecting a person to an exe cution, without any legal trial and judgment, is unconstitutional and void.

by which it shall be collected. We are merely to was opened after the passage of the law. I am give construction to the law; to declare what the therefore of opinion, that the tax was not due, and legislature have done, and not what they can or may that the execution was prematurely issued. This do. It is admitted that this is an annual tax-it is view of the subject, so far as regards this case, necessary, therefore, to fix a period when it shall dispenses with the necessity of giving any opinion commence. If the act had fixed a time when this on the other ground. But as the tax collector may particular tax should be paid, there would have feel authorized to proceed to collect the tax at the been an end to the question. But as there is no end of the year, unless an opinion is given on the particular time mentioned, we must look to the ge- other ground, the court has thought it best to deneral provisions of the law in relation to other sub. cide the whole case. jects of taxation for the construction with regard to this. And as far as we are able to trace the acts of the legislature back, it appears that the first day of October has always been the period to which the assessment have been made to relate.

The second ground presents the two following questions for our consideration.

First-whether, supposing this to be a tax as it si called by the act, the collector can enforce the payment of it, in this summary manner, or whether the The quantity of land and the number of negroes fact on which the relator's liability is predicated, owned, the amount of money at interest on that must first be established by the verdict of a jury, day, and the amount of professional income receiv. and second, whether it must not be considered raed during the year, terminating at that period, have ther in the nature of a penalty than a tax, in which always constituted the basis of taxation. To this case it is still more confidently contended, that the rule there has been at most but two exceptions.- part of the act authorizing the tax collector to is. One is the tax upon stock in trade, the amount of sue an execution without a trial by jury, is unconwhich is, by an express provision of the act, to be es stitutional and void. The clause of the constitution, timated on the first day of Jan. The other the tax under which the relators claim this privilege, is in upon theatrical exhibitions, shows, &c. which, by a the following words "No freeman of this state similar provision, becomes due whenever it shall shall be taken, or imprisoned, or disseiezd of his be demanded by the clerk of the court, and which, freehold liberties, or privileges, or outlawed, or from the nature of the tax itself, must have been an exiled, or in any manner destroyed or deprived of execution, because it is to be paid per diem, and his life, liberty or property, but by the judgment of not per annum. Whenever a new subject of taxa- his peers, or by the law of the land." tion is introduced, is must be governed by the ge- In order to a correct decision of the first quesneral provisions of the tax of which it is a part, and tion, it is only necessary to settle the meaning of not by the exceptions, unless the nature of the tax the words in the constitution, "the law of the land," should tend to a different conclusion. Indeed this and on that subject little more need be said, than is the only practical construction which can be giv. to refer to the commentaries on magna charta, from en to the law; for the tax collector is required to whence they have been copied. Dr. Sullivan, in his complete his collections and settle his accounts by lectures, after commenting upon various parts of the first of May, after which, according to his con- magna charta, says, let us next consider the end of struction, a person might erect as many lottery offi- this part, which is an exception running through ces and sell as many lottery tickets as he pleased, the whole, "nisi per legale judicium parium suorum, with impunity. In answer to this, however, it is vel per legem terræ," that is, by the common law, said that the tax collector might proceed at any which does not in all casses require a trial by peers. time, when an office should be opened, to collect Sul. sec. 490. In page 491, he observes "the stathe money, and to issue an execution for that pur-tute (that is magna charta) speaks in the disjuncpose, whenever the tax is withheld, in the same tive, per legale judicium parium suorum aut per manner as is directed in the clause relative to plays, legem terre." Now the lex terræ, the common law, in shows, &c. But the act gives the tax-collector no the universal practice of it, allows these exceptions such authority as is given to the clerk in the clause &c. And, in pages 493 and 4, he enumerates seve alluded to. When he has closed his accounts, ral cases, where the courts of law may proceed to there is an end of his authority for that year. It is give judgment per legem terræ without the interalso further contended, that, unless he may demand vention of a jury- as in all cases where a person the tax whenever the office is opened, it may be makes default, or confesses judgment, all cases of altogether evaded, because it might not be open on demurrer and special verdicts, cases of contempt the 1st of October. But I do not know that it &c.—and concludes with the words of lord Coke. would be necessary that the office should be open The due process of the law is lex terra-see also on that day to render the proprietor liable to the the case of Zilstra vs. the corporation of Charleston Professional income is not received on the 1st, Bay, 390. To these may be added the confirst day of October, yet the person is liable to be finement of persons for safe custody, who are actaxed for the amount of income received during the cused of high crimes and misdemeanors, all cases preceding year. But suppose that by this construc. in the courts of equity and in the courts military, tion the tax may be eluded, it is no more than may maritime, and ecclesiastical, the proceedings of be done with respect to almost every other tax. which are carried on without the intervention of a Suppose a person should purchase lands and ne-jury; distress for rent also, is another case within groes on the second day of October, and sell them the exception. And last, though not less satisfactoon the last day of September following, or should rily established, distress for taxes. All these, and lend money and receive it back in the same manner, many others that might be mentioned, are carried it will be seen that he would receive the annual pro- on by the well known and established principles of fits of his lands, the labor of his negroes, and the the common law, or lex terre, without the aid of a interest of his money, and yet evade the tax. But jury. This method of collecting taxes, is as well that resuits from the terms of the law itself, and established by custom and usage as any principle not from the administration of it. The assessment of the common law. A similar practice prevailed of this tax could not have had relation to the Octo- in all the colonies from the first dawn of their exisber preceding. First, because the law of the act tence; it has been continued by all the states since is prospective; and, secondly, because this office their independence, and bad existed in England

tax.

-

B. F. HUNT, for the motion.
HAYNE, attorney general, contra.

from time immemorial. Indeed it is necessary to impose upon them a restraint which it was in their the existence of every government, and is based upon power to remove, by performing the very act which the principle of self preservation. I do not consid-it was intended to prevent. The constitution, says er it as deriving any support from that provision judge Patterson, is the form of government de in the constitution, that all laws then in force should lineated by the mighty hand of the people, in which continue so, until altered or repealed. I cannot certain first principles of fundamental laws are es believe that the authors of that instrument intended tablished; it fixes the limits to the exercise of le. to give effect to laws, the provisions of which are gislative authority, and prescribes the orbit within in direct hostility to the constitution itself. That which it shall move; it says to the legislature, so clause was introduced, I presume, through abun- far shalt thou go and no farther. Our constitution dance of caution, to remove any doubt which other prohibits the legislature to "deprive any man of his wise might have been entertained, whether all ex-liberty, except by his peers or by the law of the isting laws might not have been prostrated by the land." Yet, this act gives to the tax-collector auabolition of the old constitution. I think, therefore, thority to adjudge the person accused guilty of the that any legal process which was originally founded act charged against him without a trial by jury, or in necessity, has been consecrated by time and ap- in any other form, and to enforce the payment of proved and acquiesced in by universal consent, the penalty by imprisonment, if he has no property must be an exception to the right of trial by jury, out of which the money can be made. And if there and is embraced in the alternative, "the law of the is any principle of constitutional law by which it can land"—such I consider to be the summary proceed-be justified, I have yet to learn where it is to be ings allowed in the collection of taxes. And I should found. I do not contend that the legislature could think the proceedings in this case authorized by the not impose such a penalty, (or lay such a tax, if law of the land, if I could consider the sum required that phraseology is more agreeable, though I think to be paid, as a tax-but, the second question pre- it incorrect), nor that they can prescribe the mode sents the case in a very different shape-the sum of of compelling the payment of it; but that the liaten thousand dollars is imposed upon every person bility of the party must first be established by a jury who shall "open or keep open any office for the sale of his country, and not by the arbitrary fiat of an inof lottery tickets, or shall sell any lottery tickets," dividual. The motion therefore must be granted. &c. It is not laid upon the property, it is not laid ABRAHAM NOTT. on the person, nor on the income. It is not measured by the value of the property, nor the amount of the proceeds derived from the office, but is in fact a penalty on the act of opening, keeping open an office, or selling the tickets; it is not limited in its operation within any definable bounds, but may be ramified into as many ten thousand cases as there are persons concerned in the act of selling. The act also in substance declares its object to be the suppression of vice. It appears to me, therefore, as much a penalty as the sum of one hundred pounds, formerly inflicted upon a person who should be conJames Gettys Trover, to recover a note victed of killing a negro. And the question is whedrawn by Henry Drain in ther it is to be considered a tax, merely because the Bank of the Metropolis. favor of Patrick Dowling. act has called it so. If the nature of the thing can be changed by merely changing the name, every penal in the bank of the Metropolis for collection by It was proved that the note had been depositel ty may be converted into a tax And there can be no doubt but that the numerous assaults and bat-Patrick Dowling, who endorsed the same; that an order was afterwards given by Patrick Dowling on tery, and other misdemeanors with which our courts are crowded, would have been fruitful sources of the bank to deliver the note to the plantiff, having revenue to the state, but it would be a commutation assigned it to the plantiff, who received the note, much more friendly to the civil list, than to the collection; that the note was protested when it be endorsed his name on it, and left it in the bank for liberty of the citizen. And if they had not been willing to have renounced the one to have secured came due, and, more than a month after the protest, the other, the article of the constitution now under Patrick Dowling called at the bank and demanded consideration, need never to have been penned. If the note, describing it as Henry Drain's note, of of the parties whose names appeared on the note, the teller of the bank, who, not knowing any thing delivered it to Patrick Dowling. The amount of Drain, the drawer, and Patrick Dowling, and the the note was afterwards settled between Henry latter thereupon delivered up the same to the former, who destroyed it.

it is to be considered in the nature of a penalty (and I can have no other view of it) it is a direct and mani fest violation of the constitution. It is the last clause of the act, and, in all probability, was introduced near the close of the session, a period of time, of all others, the least propitious to that due deliberation with which the acts of that body are usually marked. 1 cannot believe that there was an individual mem

ber of that legislature, who would deliberately consent to authorize a tax gatherer, at his arbitrary wil and pleasure, to adjudge a man guilty of an act that would subject him to a penalty of ten thousand dollars, and issue his execution, either against his goods or his person, for the amount, without even the semblance of a trial. I have already shown what is to be understood by the law of the land; the constitution intended to impose a restraint upon the legislature as well as upon the other departments of the government; and it would have been idle to

LIABILITY OF BANKS.

From the Washington City Gazette. The following case, recently decided in the cir cuit court, is on a point of general interest to the community:

Under the above circumstance, the court, (on the prayer of Mr. Jones, counsel for the defendant), instructed the jury that they must be of opinion, from the evidence, that the bank had been guilty of gross negligence, and had not used the caution and circumspection which a prudent man would use in the management of his concerns, and that an actual loss had been sustained by the plaintiff by such negligence, before the plaintiff would be entitled to a verdict

Verdict for the plaintiff for the amount of the note and interest.