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The obvious intent of all parties, in attaching the condition before mentioned to the contracts for the ten million loan, was, that no original contractor for any part of the twenty-five million loan should be enabled to undersell the contractors for the ten million loan without loss. To suffer this intent to be defeated by the receipt at par of bank paper, which had depreciated more than twenty per cent., and a great part of which had no currency at any place without the limits of the District of Columbia, would be to permit one of the contracting parties to produce the very mischief which it was intended to prevent; for the parties to the second contract could have purchased, with sixty dollars specie, as much of such depreciated paper as would have procured them one hundred dollars stock, by which means they were enabled to come into the market and sell the stock at very great profit, while the contractors for the ten million loan were compelled to sell their stock at very great loss, although both parties were selling at the same time and at the same price.

Besides, as specie was the only legal currency of the country, and as the loan of 2d May, 1814, was paid in specie, or what was equivalent to it, the only rational mode of ascertaining the quantum of difference between the terms of that loan and any subsequent contract, must be by ascertaining the difference in the amount of specie or its equivalent, received by the government, for any given quantity of stock issued under the respective contracts.

And as the government received, in fact, $88 in specie, or paper equivalent, on every $100 of stock issued under the first contract, and as it really received but $60 in specie for every $100 of stock issued under the second contract, there was an actual difference of $28 money on each $100 of stock between the two contracts, in favor of the lenders under the second contract.

In proof of the correctness of this reasoning, your memorialists beg leave to quote an extract from an opinion of the late Justice Livingston, of the Supreme Court of the United States, delivered in the abovementioned cause, which came before him on a writ of error from the district court of the southern district of the State of New York:

"It is enough for the purpose of the plaintiff in error that the difference in fact existed, and that bills of exchange could be bought on

better terms for gold and silver than paper. This being the case, and specie being the only known legal tender for a debt, it is the opinion of this court that the district court erred in rejecting the testimony which was offered to show that bills on London could be bought, at the times referred to, at fifteen per cent. discount in specie.

"This testimony should have been received, and been the basis of the assessment of damages, and not the par of exchange merely, because bills were bought at that value, if paid for in depreciated and dishonored currency. For this error the judgment of the district court is reversed, and a venire facias de novo awarded."

This opinion appears to correspond with that expressed by Mr. Dallas, in his report to Congress, dated on the 15th of November, 1815. When speaking of this depreciation, which he, in that report, calls exchange, he makes the following observations: "The public stock created in consideration of a loan, also partook of the inequali

ties of the exchange, although, to the government, the value of the stock created, and the obligation of the debt to be discharged, were the same wherever the subscription to the loan might be made.'

If the obligation could have been otherwise, the government would have had a right, when the stock became due, to redeem it with the paper of any non-paying bank which might have been found in the market, however great the discount at which such paper might have been obtained. This could not be pretended. And if they had not the right to pay off the stock at the expiration of the limited period for its redemption, in such depreciated paper estimated at par, then it is equally clear that they had not the right to sell stock for it in the place where of all others the local paper was most depreciated, and thereby get a higher price for the stock, and then make such price the standard by which to estimate the rights of those who paid specie or its equivalent for stock in the ten million loan.

As the stock certificates issued subsequently to the 30th of November, 1814, had inserted on their face a declaration which precludes all subsequent purchasers from claiming any implied rights to any further benefit from said conditions, and as Mr. Barker continued to be the proprietor of most of the stock on which this part of his claim is founded until after that date, your memorialists are persuaded that the claims of Mr. Barker, in this particular, are most equitable and sound, even though the construction given to the condition by Mr. Pinkney and others should not be deemed correct.

Such being the extent of Mr. Barker's just claims on the government, it is not surprising that the refusal of the Secretary of the Treasury to adjust them, or to allow him any portion of the difference before mentioned on any part of the stock in question, should wear to Mr. Barker the appearance of gross injustice. That impression was very much increased by an attempt made by the Treasury Department to deprive the proprietors of the ten million loan of all further benefit of the condition attached thereto, when nearly one-half of the twentyfive millions remained uncontracted for, and when its value in the market had depreciated about twenty per cent. below the contract price, by setting forth in the circular of the 30th November, 1814, the following declaration:

"It is proper to apprize you that the Attorney General has given an opinion to the Secretary of the Treasury, setting forth, among other things, that the condition in the letter of the Secretary of the Treasury of the 2d May, 1814, to the subscribers for the ten million loan, attached as soon as the second loan was made, (the loan of August, 1814,) that, on the happening of that event, it (the contract) no longer remained open and executory, subject to all the variations in price which might mark subsequent loans, until the whole twenty-five millions should be exhausted. This opinion has been adopted at the Treasury, and the supplemental stock now authorized to be issued is deemed to be in full of all demands upon the government for further issues of stock in the ten million loan under the contract above mentioned. It is not thought necessary, however, to take any release to this effect from the stockholders on delivering them the supplemental stock;" and, to give effect to this exercise of power, all the original

certificates of stock were ordered to be cancelled, and new ones issued, bearing on their face the following declaration: "Funded six per cent. stock of 1814. Loan of $10,000,000 of 2d May, 1814, on which the supplemental stock has issued.

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Doubting, as your memorialists are constrained to believe, the soundness of this construction of the Attorney General, a new effort appears to have been made by the treasury to get rid of the condition, by laying the twenty-five million loan aside when it was only about half exhausted, and by making new loans under a subsequent law. By referring to the report of Mr. Dallas of the 6th of December, 1815, before quoted, evidence will be found establishing the fact of a loan having been made under a new law before the twenty-five million loan was more than about half exhausted. This surely could not

have been the intent and meaning of the Secretary when he made the contract for the ten million loan; if it had been, he would have defeated the effect of the condition altogether, by making all subsequent loans under new laws to be passed after making the said contract.

The only possible object in thus cancelling the old and issuing the new stock, was to give publicity and effect to the determination to deprive the holders of stock in the ten million loan of all further benefit from the condition in question, as no part of the operation of calling in the old and issuing the new stock was requisite for any other purpose. The books of the commissioners of loans designated the persons who held the stock on the 31st of August, 1814. Those books are the evidence always relied on by government in making their quarterly payments of interest; and the condition, when vested, could not, in the opinion of your memorialists, follow the stock without striking from the contract the word "then," or without a special assignment from the persons who held the stock when the more favorable terms were allowed.

After such promulgation by the officers of government that the condition was at an end, no person would give a cent more for this stock than they would for stock in other loans which had not that condition attached to it.

Mr. Barker was, therefore, compelled to sell at a very great loss, when, by the terms of the contract, he was entitled to the full benefit of the promised indemnity against depreciation, as long as any portion of the twenty-five millions remained uncontracted for. Otherwise, if government had contracted for a single thousand dollars the day following the 2d of May, at 873 per cent., the condition would have been at an end, although the residue might have been subsequently taken at 50 per cent.; in which case the holders of the stock in the ten million loan would only have been entitled to supplemental stock for one-eighth of one per cent., although from five to ten per cent. more had been given for the stock in consequence of such condition. A construction leading to such results could not have been intended by either of the parties.

Mr. Barker being thus deprived of the benefit of the condition by the act of an officer of government, when nearly one-half of the twenty-five millions remained uncontracted for, and when the market price of the stock had fallen twenty per cent. below the contract

price, and having also been greatly injured by the construction put upon the terms of the condition, he petitioned your honorable body, at late sessions of Congress, for redress in the premises. Those petitions were referred to the Committee of Claims of the honorable the Senate, who reported, among other things, "that the supplemental stock was issued to the persons holding, at the time of application for it, scrip certificates, or funded certificates of the original stock; the original certificates were surrendered and cancelled, and new certificates issued in lieu of them; by which acts the holders of the original stock clearly expressed their assent to, and acceptance of, the final execution of the loan contract, in the manner and form proposed by the Treasury Department.

"It is true, the right to demand the benefit of the condition accrued on the 31st of August, 1814, to the persons then holding the stock, and became attached to the stock in their hands; and, in the opinion of the committee, the benefit of the condition, thus attached to the stock, followed it when sold and transferred, unless separated by the agreement of the vender and purchaser."

The committee also expressed the opinion that the United States had closed the contract to the satisfaction of the holders of the stock. On receiving advice of this report, Mr. Barker obtained from the Treasury Department copies of a letter, dated on the 22d of November, 1814, from the then Secretary of the Treasury to the acting Comptroller, and of his reply thereto, which are in the following words:

TREASURY DEPARTMENT,
November 22, 1814.

SIR: I have just received your second note of this date, relative to the execution of the contract for the ten-million loan.

Pursuing the principle that the construction given to the contracts by the Attorney General is to be carried into effect, without impairing the rights or embarrassing the remedies of the creditors, I mean that the supplemental stock shall issue in such form and manner, on the one hand, so as to avoid any appearance of acknowledging at the Treasury that the contracts remain open; and, on the other, leave the creditors every proper facility to establish hereafter the identity of the supplemental stock, and its connexion with the ten-million loan. Although I am not yet, perhaps, master of all the details of office, I presume the best mode of accomplishing the object which I have stated, will be to leave the certificate of original stock as it now stands, and issue a new certificate for the supplemental stock only. I am, &c., A. J. DALLAS.

N. LUFFBOROUGH, Esq.,

Acting Comptroller.

TTREASURY DEPARTMENT, COMPTROLLER'S OFFICE,

November 24, 1814.

SIR: I take the liberty of enclosing for your approbation, forms of certificates proposed to be printed and issued to the holders of stock

in the ten-million loan, pursuant to the opinion of the Attorney General, enclosed to me in your letter of the 19th instant. These forms have become necessary, in order to carry into effect that part of your letter to me of the 22d of this month, which requests that every proper facility may be afforded to the holders of certificates in the above-mentioned stock to establish hereafter the identity of the supplemental stock, (now about to be issued to them,) and its connexion with the ten-million loan. The designation, in writing, on the face of the certificates to be issued for the supplemental stock, is made for no other purpose than that of enabling the holder, if he chooses, to preserve its identity, and its connexion with the primary stock. The manuscript addition made on the face of the certificate intended. to be issued, in lieu of the original stock of the ten-million loan now in circulation, is intended, 1st, to guard the public against imposition, by preventing more supplemental stock from issuing, in any case, than is actually due; and, 2d, to give notice to subsequent purchasers of the stock, that the stipulations contained in the contract between the Secretary of the Treasury and the original subscribers to the loan had been fulfilled; or, in other words, that everything relating to that contract, so far as respected the stock in existence, was deemed at the Treasury to be settled and closed. There is nothing in this that can have a tendency to impair the rights or embarrass the remedies of the public creditors under the ten-million loan for further issues of supplemental stock. No exaction is made from them of any release whatever of their rights or claims in this respect. Their rights will still remain with themselves, and their remedies with Congress. The notification on the face of the certificate is nothing more than the simple statement and exhibition of a fact which does exist, and which ought to be known as well to the subsequent purchasers of the stock as to those who now hold it, namely, that the supplemental stock, stated on the face of the certificate to have been issued, was deemed at the treasury to be a full and complete execution of the original contract, on the part of the government, so far as regarded the amount of stock to be issued under that contract. This information is already in possession of the agent of the present holders of the stock, or a great portion of it. To keep it from subsequent holders, who might purchase, too, under the impression that still further benefits are to attach to the stock, might subject the Treasury, and with great reason, to imputations which it has hitherto been free from, and which it never will, I trust, be justly lia

ble to.

I have deemed it to be my duty to be thus particular in explaining to you the causes for my making the certificates of stock in the forms you see them, and I hope this will be the last time I shall have occasion to trouble you on this very unpleasant business.

With, &c.,

NATHAN LUFFBOROUGH,
Acting Comptroller.

The Honorable the SECRETARY OF THE TREASURY.

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