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specie standard, but at a great discount below the value of the paper of the Philadelphia and New York banks; and one hundred dollars in stock was actually given by the government for each eighty dollars of such depreciated paper.

By the making of this loan, of the 31st of August, 1814, the persons who on that day held stock in the ten million loan became clearly entitled, in the opinion of your memorialists, to the benefit of the terms inserted in the contracts for that loan, being the difference between eighty-eight and eighty per cent.; and inasmuch as the depreciated paper of the banks of the District of Columbia and of Baltimore was received at par, in payment of the loan of the 31st of August, they also became entitled to the further difference between the value of specie, or its equivalent, and the value of such depreciated paper.

Mr. Barker was, on that day, the proprietor of $2,951,605 32 of stock in that loan, and he had previously sold further portions of that loan to the amount of $544,498 25, reserving to himself the benefit of the condition contained in the contract made with the Secretary of the Treasury. He therefore became entitled to the benefit of that condition, being the differences above mentioned on the sum of $3,496,103 57; and the amount thereof ought immediately to have been paid him in supplemental stock.

For the purpose of receiving the stock, to which he was justly entitled, Mr. Barker repaired to Washington, soon after the second contract was made, and remained there until some time in the month of December thereafter, and was unceasing, during that period, in his application for an order directing the issuing of the supplemental stock to the persons who, according to the books of the commissioners of loans, held the original stock on the 31st day of August. No others claimed it, nor could they do so with the least propriety, as a sale and transfer of the stock, subsequent to that event, did not, in the opinion of your memorialists, transfer the benefit of the condition which attached on the happening of that event, or, in other words, on the allowance of more favorable terms.

These applications were rejected by the Treasury Department, and on the 30th November, 1814, the Comptroller, by the direction of Mr. Dallas, the head of that department, issued a circular to certain commissioners of loans, in the following words: "The additional stock in question is to be issued to the persons holding, at the time of application for the additional stock, scrip certificates or funded certificates of stock, of the aforesaid loan of ten millions of dollars, and not to those who may have held the said certificates on the 31st of August last, the day on which a part of the loan for six millions of dollars was taken, unless they shall also hold them at the time of application for the additional stock."

As Mr. Barker had been obliged, subsequently to the 31st day of August, 1814, to dispose of a considerable portion of the stock held by him on that day, the effect of this decision of the Secretary of the Treasury was to place the supplemental stock, in many instances, in the hands of persons who were not entitled to it, to the great injury

of Mr. Barker, and, as your memorialists conceive, in direct violation of the spirit as well as the letter of the contract.

It is understood that the decision of Mr. Dallas was supported by the opinion of Mr. Rush, the then Attorney General, who gave the same construction to the condition which was given to it by the Secretary of the Treasury. The grounds of that construction are unknown to your memorialists, excepting the supposed convenience of the treasury; but in corroboration of the opinion hereinbefore expressed. your memorialists respectfully ask leave to refer to the opinion of the late William Pinckney, of Baltimore, which was published by Mr. Barker, in the National Intelligencer of the 6th of December, 1814, prefaced as follows:

WASHINGTON, December 6, 1814.

GENTLEMEN: The Treasury Department differs with me in opinion on several points in relation to your rights. The construction I put upon the contract, being supported by the opinion of many professional men of the first standing in the Union, induces me to believe the Treasury Department has sanctioned a mistaken view of the subject; and as it has published its opinion on an important point, I herewith send for publication the opinion of one of the most able professional men in America on that point, whose reasoning on the subject appears to me to be so applicable, clear, and conclusive, that it must carry conviction to the mind of every unprejudiced man. With great respect, I have the honor to be, your assured friend, JACOB BARKER.

To the PROPRIETORS OF THE STOCK in the ten million loan.

"NOVEMBER 23, 1814.

"Mr. Barker will thank Mr. Pinckney to examine the Secretary of the Treasury's circular letters of the 2d May, and the 31st August, 1814, and inform him whether the persons who held stock in the ten million loan on the day more favorable terms were allowed for a portion of the twenty-five million loan, are entitled to the additional stock for the difference between eighty and eighty-eight, or whether it belongs to such persons as may happen to hold the stock when government deliver the additional stock. On the payment of the money, government furnished ordinary six per cent. stock to the amount of one hundred dollars for each eighty-eight dollars paid. The said original stock did not contain any condition or other evidence of its being entitled to the benefit of the additional stock. The whole question rests on the condition contained in the Secretary's circular letter."

Mr. Pinckney's Opinion.

"NOVEMBER 25, 1814.

"I suppose that the person who held stock in the ten million loan on the day when a part of the sum of twenty-five millions, 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.

"2d. 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 the 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 assignment 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 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 engagements, could vary the right (already perfect) to have the engagement fulfilled, nor could it pass 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 on 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. This 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 motives 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."

Your memorialists can add nothing to the weight of an opinion so eminently marked by that clearness of conception and that force of reasoning which adorned the distinguished jurist from whom it came. And notwithstanding the decision of the Secretary of the Treasury to the contrary, they feel themselves authorized to say, that in withholding from Mr. Barker the benefit of the condition annexed to his contract, because he did not continue to be the holder of the stock up to the date of the Comptroller's circular letter of the 30th of November, the highest injustice was inflicted on one who had zealously devoted himself, in the hour of difficulty, to the service of his country.

With respect to the extent of the difference between the two loans of the 2d May and the 31st of August, your memorialists beg leave to observe, that the fact that depreciated paper was received in payment for the second contract is fully established by the following deposition, lately taken in a cause now pending in the United States

courts:

"UNITED STATES OF AMERICA, District and State of Maryland, ss:

"Be it remembered, that on this 6th day of November, in the year of our Lord one thousand eight hundred and twenty, at the city of Baltimore, before me, Lewis Eichelberger, a commissioner appointed by the circuit court of the United States for the district aforesaid, in the fourth circuit of the said United States, under and by virtue of the act of Congress entitled 'An act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States,' personally appeared Dennis A. Smith, a witness for the defendant in a certain civil cause now depending in the district court of the said United States for the southern district of New York, wherein the United States of America are plaintiffs, against Jacob Barker, and also a witness for the defendant in another civil cause depending in the said court, wherein the United States of America are

plaintiffs, and Frederick Depeyster is defendant. And the said witness, being by me first carefully examined, and cautioned and sworn to testify the whole truth, makes oath, deposes, and saith, that he is aged thirty-nine years, and resides in Baltimore county, in the aforesaid State of Maryland; that on or about the 30th of August, 1814, he contracted with the then Secretary of the Treasury to loan to the United States the sum of one million eight hundred thousand dollars, being part of the twenty-five millions of dollars authorized to be borrowed by the act of Congress of the 24th of March, 1814; for which sum, so to be loaned by deponent to the United States, he was to receive six per cent. stock, to the amount of one hundred dollars for each eighty dollars paid; and it was further understood and agreed between the Secretary of the Treasury and him (deponent) that he (deponent) should pay for the same in the paper of the banks of the District of Columbia, and of the banks of the city of Baltimore, which banks received their own paper at par; and it was further agreed, that on producing the proper evidence of the payment of the said sum of one million eight hundred thousand dollars to the Commissioners of Loans of the United States, funded stock to the amount of one hundred dollars, bearing an interest of six per cent. per annum, should issue for each eighty dollars of the paper of the said banks so paid by deponent. That, in pursuance of such understanding and agreement, deponent did so pay, in the paper of the said banks, the one million eight hundred thousand dollars aforesaid, and did receive therefor funded stock to the amount of two million two hundred and fifty thousand dollars. That the said banks in whose paper this deponent paid the said one million eight hundred thousand dollars did not, at the time deponent so paid, redeem their notes with specie. That the place of residence of deponent is more than one hundred miles from the southern district of New York, the place of trial of the aforementioned causes."

If further evidence were necessary to prove that in testing the rights of the then proprietors of the ten million loan, dishonored and depreciated paper was substituted by the treasury for specie, the only currency known to the laws, such evidence would be found in Mr. Dallas's annual report to Congress, dated the 6th of December, 1815, pages 26, 27, and 28, from which it will appear that he refused to accept specie, which was offered for the public loan under seventy-five dollars in money for one hundred dollars in stock. And in proof of the value of said paper, at the period when Mr. Smith paid his instalments, your memorialists ask leave to refer your honorable body to the following copy of the certificate of Messrs. Prime, Ward, & Sands, who are among our most eminent stock-dealers:

"These are to certify that the value of the notes of the several banks at Baltimore, and in the District of Columbia, was, in comparison with specie, on the 10th of September, 1814, ten per cent. below par; on the 10th of October, 1814, twelve per cent. below par; on the 10th of November, 1814, twenty per cent. below par; and on the 10th of December, 1814, it was twenty-four per cent. below par. "PRIME, WARD, & SANDS.

"NEW YORK, December 14, 1814.”

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