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General states, in the first sentence of his answer, that he had formed his opinion on that letter. The Comptroller's letter has constant reference to it, yet no copy of a document bearing that date was furnished by the Secretary; without it, it appears to me impossible for the committee to understand the merits of my claim, the reasoning of the Attorney General or Comptroller, or even the Secretary's own remarks; I therefore think you have abundant reasons, growing out of the Secretary's report, to call for that letter, without letting it be known that I have requested it. If, however, you think that propriety requires you to state that I have requested this interference, I, of course, cannot for a moment object.
Soliciting the favor of your continued attention to this subject, and that you will furnish me with a copy of the report of the Committee of Claims, when they shall make one, I am, with esteem, your assured friend,
JACOB BARKER. Hon. Rufus KING, Hon. NATHAN SANFORD.
In compliance with the request of Mr. Barker, the honorable Senate, at the instance of the Honorable Mr. King, passed a resolution, calling for a copy of the letter in question; on which the following report was made:
TREASURY DEPARTMENT, March 4, 1820. SIR: In obedience to a resolution of the Senate of the 1st instant, I have the honor to transmit a copy of the letter of the 2d of May, 1814, from the Secretary of the Treasury to Jacob Barker. The same letter was addressed to each of the subscribers to the loan of that date. I remain, with respect, your most obedient servant,
WM. H. CRAWFORD, Hon. John GAILLARD,
President pro tem. of the Senate.
May 2, 1814. Sir: The terms upon which the loan has been this day concluded are as follows, viz:
Eighty-eight dollars in money for each hundred dollars in stock; and the United States engage, if any part of the sum of twenty-five millions of dollars, authorized to be borrowed by the act of the 24th of March, 1814, is borrowed upon terms more favorable to the lenders, the benefit of the same terms shall be extended to the persons who may then hold the stock, or any part of it, issued for the present loan of ten millions.
Your proposal, of the 30th April, for five millions of dollars of the loan, having been at the above rate, or at a rate more favorable than the above to the United States, has been accepted; and you will please to pay, or cause to be paid, on the 25th day of the present month, into the bank or banks you have named, or into such as you shall name to the Secretary of the Treasury, on the receipt of this letter, twenty-five per cent., or one-fourth part of the sum above stated, pursuant to the notification from this department of the 4th of April last, and the remaining instalments on the days fixed in the said notification. You will be pleased, also, on or before the 25th of May, to furnish the cashier or cashiers of the bank or banks, where the payments under your proposal are to be made, with the names of persons in whose behalf the proposal has been made, and the sums payable by each.
The commission of one-fourth of one per cent. will be paid from the Treasury, after the payment of the first instalment, on the 25th day of the present month. I am, very respectfully, sir, your obedient servant,
G. W. CAMPBELL. JACOB BARKER, Esq., New York.
The following opinion was obtained from the Hon. Mr. Pinkney, then a
counsellor of law at Baltimore, in the hope that his clear and unanswerable arguments would induce Mr. Dallas to change his opinion.
“1. I suppose that the person who held stock in the ten-million loan on the day when a part of the sum of $25,000,000, authorized to be borrowed by the act of the 4th of March, 1814, was borrowed on terms more favorable to the lenders, was entitled, the moment such new borrowing was effected, to the benefit of those terms; his right to that benefit was perfected by the coincidence of the two facts—the borrowing by the government and the holding of the stock by him. The word "then,” in the letter of the 2d of May, 1814, can refer only to the epoch of the borrowing on terms more favorable to the lenders.. It is impossible to make it refer to any other epoch, without direct violence to the whole sentence.
"2. If the right to the benefit in question was completely vested in the holder of the stock in the ten-million loan, as soon as borrowing on terms more favorable to the lender took place, I do not think that he is to be considered as having transferred it by a mere subsequent assignment of the stock itself.
“The right to the benefit is collateral to the stock, and rests upon an engagement distinct from that which is the evidence or certificate of the stock. It is not made assignable by the certificate, as the stock itself is; for the certificate of stock takes no notice of it, and consequently does not even recognise it. An assignment of the stock, before the borrowing on the new terms, would doubtless have the effect of entitling the assignee to the benefit of the new terms; but it would have that effect for no other reason than that it would bring the assignee within the collateral contract, by making him holder of the stock at the time of the borrowing on the new terms. Such an as
signment of the stock as would not make the assignee holder of the stock at that time, (or, in other words, an assignment after that time,) would not so bring the assignee within the collateral contract, and would not, therefore, give him the benefit of that contract, unless it can be shown that this benefit was by the certificate of stock made assignable as a constituent part of the stock, and under the name of the stock; which cannot be pretended.
“The engagement of the Secretary of the Treasury relates exclusively to the person who should happen to hold the stock when the new borrowing should take place; and the certificate leaves that engagement exactly as it found it. That person, whoever he might be, had, of course, upon the instant of the borrowing, a right to receive the difference between the price of the two loans, which would be so complete that nothing could make it better. This right, arising out of the first contract, existed in him from that time; that is, from the time of the new borrowing, independently of the stock, with which it never was incorporated, although the holding of the stock on the day of the new borrowing was made the condition of its existence, and no subsequent act, amounting to a transfer of the stock itself, while the government delayed to comply with its engagement, could vary the right (already perfect) to have that engagement fulfilled, or could pass it to another.
“ As far as analogy can be brought to influence this question, it is in favor of the claim of the holder of the stock, when the new borrowing took place, and against that of a subsequent holder. Interest and dividends of stock, already due, are never understood, as I believe, to pass by the sale of the stock which has produced them, and yet interest and dividends are the direct offspring of the stock, and the sole objects of it. The reason is, that interest, or a dividend already due, has acquired an existence separate from the stock from which it sprung, is no longer dependent upon it, and has given birth to a new right, to which the continuance of the title to the stock itself is not in any degree necessary. The reason is conclusive here, although, if the rule had been otherwise, in the case of interest or a dividend, it would not have been conclusive the other way; because a rule is here given by an express engagement, which one of the parties is not at liberty to modify by notions deduced from supposed analogies. I am not aware of any inconvenience (which could found the argument ab inconvenienti) likely to result from an admission of the claim of the holder of the stock at the era of the new borrowing, since the public books will show who was that holder; nor can I perceive that the probable intent of the parties, or the propriety of the thing, favors the claim of a subsequent holder. On the contrary, I think that every consideration which belongs to the subject recommends the admission of the claim of him who held the stock at the time when the claim became complete under the terms of the contract to which it owes its being.
WM. PINKNEY. NOVEMBER 25, 1814.
New YORK, March 9, 1820. RESPECTED FRIEND: The letter you did me the honor to write on the 6th has been duly received. Be pleased to accept my thanks for the attention you have been so kind as to give to my case before Congress : it would have relieved my anxiety to have known that the letter from the Secretary of the Treasury to the contractors for the ten-million loan, dated the 2d May, 1814, (which you inform me had been reported to the Senate,) had been referred to the committee having under consideration my petition, as that would at once have convinced them that I do not rely on verbal explanation for any important point. I bottom my claim on positive rights, growing out of written contracts, the terms of which are, to my view, as plain and clear as the English language can define them. I aver that their sense and manifest meaning was perverted by Mr. Dallas, or the other officers of government who acted with him, and that the arm of power was exerted against me without the semblance of reason or justice; against which a citizen of this republic has no other protection than by an appeal to Congress; and if they will not do him justice, he must submit and suffer. For my rights, I point to the said letter of the 2d May, 1814; for the injustice done me, to the Comptroller's circular of the 30th November, 1814. These two documents are written evidences, and prove all I contend for as matter of right. The other point which the committee seem to think depended on verbal explanations, viz: that of connecting the two subjects together, had better be waived, than for the committee to suppose I wish them to go one step further in my favor than the evidence exhibited will warrant. I do not consider that exhibiting such connecting circumstances as must force conviction on the minds of the committee of the justice of my claim, can be deemed relying on verbal explanations. However, this point, in comparison with those proved by the two documents above mentioned, is so very unimportant, that I regret ever having urged it. The observation of Mr. Crawford, that the letter of the 2d May, 1814, was a circular to all the persons engaged in the loan, does not vary the question. Whether the letter was to one or a thousand, the obligations it contains are equally binding; it is a certificate of the terms agreed on, or, in other words, it is the contract itself. A similar one was made with all the persons supplying a portion of that loan.
The advertisement reported by Mr. Crawford contains a promise to put them all on a footing; in compliance with that promise, similar contracts were made with all, varying only in the amount supplied by each ; and this is called a circular to all. The term may be proper enough, but I do not perceive any object for introducing it, nor how it can be used to affect the question. Will you do me the favor to submit, informally, if you please, to the committee having charge of my petition, this letter, together with those I had the honor to address to yourself and Mr. Sanford, under date of the 27th and 29th of February, and to urge upon them that all I ask is, for the judges of the Supreme Court to pass on my rights, and not on the measure of favor which I am entitled to receive at the hands of government. The lan
guage of the poor petitioner to the French king fits my case : “ It is but justice I ask.” Very respectfully, I am, your assured friend,
JACOB BARKER. The Hon. RUFUS KING.
To the honorable the Senate and House of Representatives in Congress
assembled : The petition of Jacob Barker, of the city of New York, respectfully
showeth: That your petitioner represented to your honorable body, at the last session of Congress, that the late Secretary of the Treasury had put a construction on the contract for the ten-million loan at variance with the letter and spirit of the said contract, by which great injustice was done to your petitioner; which representation was referred to the honorable Secretary of the Treasury, who, in reporting thereon, did not notice the fact stated by your petitioner, that depreciated bank paper had been received at par for a portion of the twenty-five million loan; therefore, your petitioner begs leave to present to your honorable body the deposition of Dennis A. Smith, esq., from whom such paper was received, as evidence of that fact; also the certificate of Prime, Ward, & Sands, who are money-brokers and stock dealers of the first respectability in this city, of the value of such paper at the several periods when it was received by the Treasury Department; and, also, an extract from the opinion of the Hon. Brockholst Livingston, one of the judges of the Supreme Court of the United States, in the cases between the United States and your petitioner, on the bills of exchange in question, in which he declares that specie is the only currency known to our laws, and, therefore, that this should have formed the basis of calculation, and not depreciated and dishonored paper. The principle here decided would, of course, in a court of law, be equally applicable to all other branches of the loan contract. No citizen being allowed to call the United States into such a court, your petitioner confidently relies on the wisdom and intelligence of Congress, either to do him the same justice as would be there obtained, if he could have his rights decided in such a court, or to authorize a reference of the whole case to the Supreme Court of the United States. And your petitioner respectfully solicits from your honorable body an early consideration of his case, and such a decision thereon as its merits may demand; and your petitioner, as in duty bound, will ever pray.
JACOB BARKER. NEW YORK, December 20, 1820.
UNITED STATES OF AMERICA, District and State of Maryland,
Be it remembered, that on this sixth day of November, in the year of our Lord one thousand eight hundred and twenty, at the city of Baltimore, before me, Lewis Eichilberger, a commissioner appointed