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EVENINC POST EXTRA.
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THE UNCONSTITUTIONALTY OF THE NINE MILLION DEBT
I. Letter from the Hon. SAMUEL J. TILDEN.
The Canal Bill and the Constitution.
MR. TILDEN'S LETTER.
NEw York, April 7th, 1851.
Dear Sir : Your letter found me, as you supposed it would, “immersed in business, and having neither leisure nor inclination for politics;” indeed more oppressed for a few days with professional and private engagements than at almost any former period. But your call to “find or make the opportunity” to contribute what I am able “to expose the character of the Canal bill” now pending before the Legislature, and hurried so rapidly to an enactment, is one to which, ably as that duty has been performed in your columns, and will be performed by our friends in the Senate, I cannot be indifferent. The obligation to maintain the provisions of the constitution in regard to the state finances—to adhere to the wise and salutary policy which they established—to preserve our faith and honor solemnly pledged to the public creditor—and to rescue the noble trust for the million and for posterity which our state works will form when disencumbered from the debts that now press heavily upon them, is common to us all. But I owe, in addition, to the memory of Michael Hoffman, by whom these provisions of the constitution were mainly prepared, and to whom they are an imperishable monument, and scarcely less to the memory of his friend and ours, who, during the sessions of the convention, lent to the Executive station the lustre of his transcendant personal qualities, and at whose instance I undertook to aid, according to the measure of my inferior abilities, the labors of Mr. Hoffman,—to show that his work was not so imperfectly done that the measure proposed can ever be invested with the authority of law so long as the constitution itself shall remain unchanged. . Until I received your letter and a similar one from Mr. Burwell, I did not suppose that the Legislature could be induced to adopt Governor Hunt's recommendation. I have just succeeded in getting a copy of the bill and report, and of the opinion of Mr. Spencer, concurred in by Messrs. Stevens and Lord; and shall make some observations upon them, although the period is so short before the question will be decided as far as the Legislature is concerned, and my engagements so numerous, that I cannot hope to do full justice to the discussion. If the constitution is to be violated under the advice of counsel, Mr. Spencer has qualifications to be a leader in the case which none will dispute, and few can rival. He has addressed himself to the work, with an enthusiasm worthy of that class of our Whig brethren, who, under the impulse of Mr. Secretary Webster, are just now manifesting so profound a sense of the sanctity of constitutional obligations where they merely require us to deliver an innocent, perhaps free, neighbor to bondage— not to pay our just debts. He has invented a mode of borrowing nine millions of dollars without owing any thing, and has found authority for carrying through such a fair business transaction in behalf of the state, in the third section of the seventh article of the constitution, which provides that, “After paying the said expenses of superintendence and repairs of the canals, and the sums appropriated by the first and second sections of this article, there shall be paid out of the surplus revenues of the canals, to the treasury of the state, on or before the thirtieth day of September, in each year, for the use and benefit of the General Fund, such sum, not exceeding two hundred thousand dollars, as may be required to defray the necessary expenses of the state; and the remainder of the
revenues of the said canals shall, in each fiscal year, be applied in such manner as the Legislature shall direct, to the completion of the Erie Canal enlargement, and the Genesee Valley and Black River Canals, until the said canals shall be completed.”
The question is, Can this surplus of the canal revenues be constitutionally anticipated and applied to the purpose specifted, an indefinite period before et accrues or is *eceived 3
MR. SPENCER's CoNSTRUCTION OF THE THIRD SECTION.
Mr. Spencer enters into an elaborate criticism of the word “applied.” He seeks to throw light on its meaning from an exhaustless legal controversy, which never yet threw light upon any thing—the vexed question whether the statute authorizing a trust “to apply” rents and profits to “the use of a person,” authorizes a trust “to pay over to" that person. And he concludes that “the expression,” apply, “so far from being a direction to pay out or eagend, is with difficulty made to include such an act”. He is very doubtful whether the mandate of the constitution that certain surplus revenues “shall be applied to the completion” of the canals, permits them to be “paid out” for such things as building a new lock or enlarging the prism of a canal; but is quite clear that it does authorize those revenues to be used to borrow money upon, to be afterwards “expended” for such purposes | Most men would come to exactly the opposite result; would think the right to pay out the money in the actual execution of the work, “to the completion” of which it was to “be applied,” undeniable, and the right to use it to borrow money upon, at least very doubtful. As a mere verbal criticism, there is little accuracy in Mr. Spencer's explanation of the legal use of the word apply, and little analogy between that use and the language of the constitution. It is a novelty to find a man so hacknied in the controversies in relation to the doctrine of trusts, saying that the phrase “to apply to the use of,” is with difficulty made to include the act of expending or “paying out.” The exact objection to the trust “to pay over” is, that the trustee cannot be said “to apply to the use of a person, because he does not exercise the active duty of “paying out” and “expending.” Nor is this technical phrase substantially the same as that in the constitution. To apply to the use of a person is, of itself, a grant of much more extensive powers than to apply to the completion of an unfinished structure. Nor does the trustee, in the case cited, derive all his powers from the intrinsic force of that language. The persons for whose benefit active trusts are allowed to be created, are usually incapable of administering their own affairs; and society has therefore assumed the care of their interests. An elaborate and complex system of statutory and common law regulations has grown up, defining the powers and duties of trustees; and from these regulations many particular authorities are derived, which could not, independently of them, be inferred from the words designating the trust. Mr. Spencer not only refers to a use so purely technical to fix the general meaning of the word “apply,” but argues that it includes the independent and substantive power to anticipate and pledge, because trustees, under the technical phrase of which this word forms a part, sometimes possess such authority; that it is not only consistent with, but actually confers such power. Now, the fact that it is generally necessary for the trustee to apply to a court to sanction the exercise of such authority, shows that, even in this case, the power is not derived from the intrinsic force of language much broader than that of the constitution, but from accessary circumstances or the general law. But, if the verbal criticism of Mr. Spencer were correct, nothing can be more fallacious than to interpret common language by a use purely technical. The tendency to do so is the vice of the legal profession, and especially of minds more acute in discovering analogies than capable of determining their relative values. * The Convention cannot be supposed to have been as much versed in the learning of trusts as this expounder of their works. But those of them at least who had been employed in making a blade of grass grow where none grew before, might console themselves that they had not lost the ability to understand ordinary language in its obvious meaning. They did not suppose that, in using a very common word, they incorporated into the constitution any of the voluminous treatises on trusts which grace our law libraries, or conferred upon the legislative agents the