I forbear to trespass further on the patience of the Committee upon this part of the subject, and proceed at once to the second general ground of inquiry. Has the charter been violated so as to work a forfeiture? This single question would afford materials for a very copious discussion-much more copious than I am disposed to undertake, after having already taken up so much of your time. I would address myself first to those gentlemen who hold the opinion that Congress have no Constitutional power to charter a bank. Such an opinion, I know, admits of no compromise, but certainly there is a great difference between the question that arises when it is proposed to establish a bank, and that which presents itself when it is proposed to pull down and destroy an established institution. The very repeal of a law admits its Constitutional validity, for, if it is unconstitutional, it is void of itself; and, therefore, a vote for a repeal can scarcely be regarded as the expression of an opinion that the law is unconstitutional. I lay no stress at this time upon the repeated recognitions, which must now be considered as having definitely settled the construction of the Constitution. Every one can give it its due weight. But, I would ask gentlemen to remember that the charter of this bank received all the Constitutional sanctions, was promulgated to the country and to foreigners as a Constitutional law, and has now been two years in force. Great interests are connected with its existence, incalculable mischiefs, public and private, will follow its repeal, and among them not the least considerable will be the wound inflicted upon the character and credit of the nation. How shall we stand in the estimation of foreign ers? I am afraid to follow out the inquiry. Let every one reflect for himself, and, as he values the national reputation, so let him decide. I cannot, however, at all understand the grounds upon which gentlemen who have Constitutional objections can vote for a scire facias. That proceeding distinctly admits the legal existence of the bank, and sends it to the judiciary to be tried for its life, to determine whether it has not for feited its right to continue longer to exist-an admission wholly inconsistent with the opinion alluded to. But, of this, every member must judge for himself. If Congress had a power to incorporate a bank, and have exercised that power according to the Constitution, no argument can be necessary to prove that we have no right to repeal the charter. This is a settled, established principle, founded in the nature of the power, and almost universally conceded. Chartered rights are sacred things; they are the rights of individuals, guarantied to them by the public authority, and of which no lawful authority can deprive them but that which the charter itself prescribes, or which is implied from its nature to be exercised in the manner pointed out by the charter, and according to the law of the land. Any other mode of proceeding to deprive this legal being of existence would be an act of lawless, unjust violence, as much for H. of R. bidden as to legislate away the life of a natural being. That we have a right to send this corporation to the judiciary, there to undergo its trial and receive its judgment, no one can deny, for so the charter has expressly provided. It is equally clear, I think, that we are to exercise a sound discretion. If we are satisfied that the charter has been so violated as to work a forfeiture, still the question of expediency is open. We may deem it for the public interest to continue its existence, without alteration, to organize, if its organization has been impaired, to propose changes in its structure, or to let it go down, and, if needful, raise up a new institution. We are not bound, even in that case, in the case of a clear and unequivocal forfeiture, to send it to trial and condemnation. Is it not equally plain, that we ought not to send it to trial, if we are satisfied that there has been no forfeiture? Why expose ourselves to the certain consequence of a failure? It will assuredly not increase the public respect for our conduct. We may lose somewhat in the public estimation. Why subject the bank to the destructive effect of a protracted criminal proceeding, when no offence known to the law has been committed? A gentleman from Virginia, (Mr. TYLER,) calculating that such a proceeding would not be terminated in less than eighteen months, says, it would give time to wind up the concerns of the corporation, which, he thinks, might be done most advantageously for the stockholders. He takes it for granted, then, that the corporation would be condemned; that a scire facias and conviction are the same thing. But the officers of the corporation will not so consider it; they are not at liberty so to consider it; they must go on and discharge their ordinary functions in the ordinary way, until its doom shall be finally pronounced; and then, and only then, would they be justified in commencing the arrangements that are to follow its dissolution. Till then it is a subsisting corporation, entitled to enjoy all its rights, and bound to perform all its duties. But, let us suppose a more favorable issue. Let us suppose it to be acquitted. Will it pass through the trial unhurt? This artificial being, though it has not precisely the same sort of susceptibility as the natural being, is nevertheless exquisitely susceptible; it may be wounded, dangerously wounded, in its credit. This is its living principle, the source of all its healthy action, upon the preservation of which the capacity to perform its functions mainly depends. There it will be wounded by the mere institution of a criminal proceeding. It behooves us, then, carefully to examine the ground before we determine to proceed. What, I ask, then, is such a violation of the charter as will work a forfeiture? The report admits that there is a distinction in this respect, and that there may be violations or non-compliances which do not forfeit. It must be so. Every act that is forbidden by any law which it is bound to obey, every failure to do what any such law requires, no matter how minute, or to what cause owing, is a violation or non-compliance with the char ter. It surely will not be pretended that every To sustain the contrary doctrine, the gentleman from Virginia has quoted and relied upon the famous proceeding, by quo warranto, against the city of London, in the time of Charles II. It is a bad precedent from bad times. Sir, the administration of private justice, in England, between man and man, has for a long time flowed in a clear and steady current. You may generally appeal with safety to the precedents it affords. But, when you come to examine the proceedings in Crown causes, you will err most lamentably unless you are aided by the light of contemporaneous history. Is the gentleman from Virginia acquainted with the character of the precedent he has quoted for our imitation and adoption? I will take the liberty to refer him to the historian for an account of it. It occurred in the year 1683, at a time when the royal prerogative, already most alarmingly extended, was abusing the power it had derived from the circumstances that attended and followed the resto 6 FEBRUARY, 1819. ration, to obtain an unlimited ascendency. To break down and crush the spirit of the city of London, was a favorite and important part of this system. The charges against the city were two. The markets had been destroyed by the fire of 1666, and new ones rebuilt, with many conve niences. To defray the expense, a small tax had been assessed upon goods brought to market. This was the foundation of the first charge. The second and real ground was, that the city of London, always on the side of the liberties of the people, and opposed to the arbitrary extension of the prerogative of the Crown, had addressed the King against the prorogation of Parliament. "The office of judge was at that time held during pleasure, and it was impossible that any cause, where the court bent its force, could ever be carried against it." If the gentleman wishes to know how the pleasure of the Crown was signi fied in the instance referred to, he may find it in the book he has used, at page to the following effect: "Memorandum. That when the demurrer in this case was joined, viz., Mich. Term, 34 Car., 2, Mr. Sergeant Pemberton was Chief Justice of the King's Bench. But, before Hilary Term, that it came to be argued, he was removed, and made Chief Justice of the Common Bench, and Sir Edward Saunders, who had been counsel for the King in drawing and advising the pleadings, was made Chief Justice of the King's Bench." The bloody Jeffries was the next Chief Justice. Does any gentleman still think this a precedent to be offered to our imitation? I will then beg leave to tell him further, that this decision took place in the very year whose annals are stained with the blood of Rus sell and of Sidney. It is one of the dark and atrocious offences committed by a dependent and corrupted judiciary, under the forms of justice, at the instigation of the Crown, which history has long since consigned to distinguished infamy. It is one of a series of arbitrary and oppressive acts that, rousing the spirit of a brave and injured people, finally expelled the Stuarts from the throne of England, and caused the revolution of 1688. The corporation of London was of course condemned, and the King availed himself of the decision to grant a new charter, which he took care to adapt to his own views, of repressing the spirit of London, and curtailing its liberties. All the corporations of England-all, guilty or innocent, convinced that if the most powerful body of the kingdom had sunk under a contest with a corrupted judiciary, executing the arbitrary wishes of the Crown, resistance on their part would be vain-came in, surrendered their charters, the security of their rights and liberties, and accepted such new charters as the Crown would condescend to give, paying for the privilege of being robbed of their rights such sums of money as the Crown thought proper to exact. The revolution gave independence to the judges. One of the first acts of the Government that succeeded, was to declare this decision illegal and void, (2 W. & M., s. 1, c. 8.) By the judiciary it was never respected; but, in all questions afterwards ༔ arising, the old charter was considered as having always continued in force. What is the language of modern and sound authority in England? "A 'judgment of ouster against mayor and aldermen, 'does not dissolve a corporation. God forbid, says an English judge, that the rights of the 'innocent should be lost and destroyed by the 6 H. OF R. ruary, 1817, was $1,724,109; 324,000 more than the coin part of the first instalment, and which may fairly be presumed to have been received for the second instalment." The inference is, that only $324,000 in coin had been received for the second instalment. This seems to be contradicted by the statement in page 6. The commit' offence of individuals. When a corporation ex-tee there say, "the loans were to be confined to ( ists, capable of discharging its functions, the aid the payment of the coin part of the second 'Crown cannot obtrude a new charter upon instalment, on the shares which had been sub' them." Thus repudiated and reprobated inscribed at the places where offices were then in England-thus condemned by its history, as well operation-New York, Boston, and Baltimore." as by its association, are we to adopt this prece- They then add, that the total amount of these loans, dent? The violation of charters has ever been at Philadelphia and Baltimore, was $338,250; deemed an enormous grievance. It was one of that at New York and Boston they were "to a our complaints against England, and thought very trifling amount, if any;" and that, in other worthy to be introduced into the Declaration of parts of the Union, the coin part of the instalment Independence, where it stands enumerated among was paid in coin. The view of the committee the solemn causes that led to the separation. would prove, that all the coin part of the second instalment had been paid in coin, excepting about $338,250. We have, however, the clearest proof of the real state of the fact in table V, among the documents. I would beg leave to add further, before I examine the particular offences imputed, that where a violation has taken place, I cannot conceive that it will work a forfeiture, if there be a specific remedy, redress, or penalty. A forfeiture in that case is unnecessary. I shall touch very briefly upon the several imputed offences contained in the report, not only because I have already trespassed too long, but because the principles I have submitted go far to settle them, and also because they have already been fully and satisfactorily answered by a member of the Committee, (Mr. LoWNDES.) It appears from that table that, in February, 1817, there were in the vaults of the bank in Philadelphia, Boston, New York, and Baltimore, in specie, exactly what the committee state - $1,724,109 06 But there were, at the same time, due from the commissioners for receiving subscriptions, $8,559,764 95, the coin part of which must have been received in coin, and would be rather more than 2,000,000 00 Making together The total amount in coin, required 3,724,109 00 4,200,000 00 So that the total deficiency arising The first of these charges relates to the two millions of public debt purchased by the bank for the Commissioners of the Sinking Fund. I think it clear that, in the question with the Treasury, the bank was in the right; and the obvious mode of correcting the error that has occurred, would be to pay to the bank the $54,000 lost by passing the stock to the commissioners at par. But no one, I think, after a moment's reflection, can hesitate to say that there has been no violation of the charter, and every one will admit that, if there had been, the Government could not complain, having been a party, with full knowledge, to the transaction, and enjoyed all the benefit of it. The object of the charter was to prevent the It thus appears that the amount is much less bank from purchasing to keep or to sell-that is than seems to have been supposed; that it could to say, purchasing for its own use. It purchased, not have occasioned the necessity of importation in this instance, for the Treasury; it passed the "to supply the deficiency the evasion had occastock immediately to the commissioners, and all sioned;" that it could not have injured the puncthe peculiarity of the case consists in the single tual stockholders, nor materially affected the circumstance that it received from the Govern-operations of the bank. On the contrary, it ment $54,000 less than it paid. It is needless to spend time on this item; for, if there has been a violation, there is a remedy for it by the charter, to be enforced under the charter, and not by destroying the charter. The second imputed violation is what relates to the non-payment of the coin part of the second instalment. There is some apparent confusion upon this subject in the report, and there is one plain mistake. It will be necessary to ascertain the facts accurately, before we attempt to reason upon them. In page 7 of the report it is stated, that the amount of specie in the bank in Feb may, I think, be assumed as probable, that the mere knowledge of the fact that this accommodation might be obtained kept down the price of specie, and really benefited the stockholders, as well as contributed to bring about the resumption of specie payments. But, small as it is, there is a much stronger ground of justification. I allude not now to the circumstance that an inquiry was instituted by Congress at the time of these transactions, and they not only escaped censure, but appeared to be approved. That would, and ought to be, an answer here-for Congress might then, by inter posing, have arrested the proceeding. But the necessity which then justified it in the sight of Congress still affords it a justification. The bank was bound to go into operation on or before the first Monday in April, 1817. It was the wish of the Government, founded upon the exigencies of the public, that it should commence much sooner; and, yielding to that wish, it did commence, before the second instalment was payable. What were its operations? Receiving deposites, discounting, issuing paper-each of which, to a certain extent, disabled it to enforce the precise literal terms of subscription. They could not refuse to discount for a stockholder, merely because he was a stockholder; they could not refuse to receive their own notes, or checks upon the bank, as equivalent to coin. That would have been absurd as they were bound to pay coin for them; and would, besides, have been a substantive violation of charter. They might have refused the notes of State banks; yes, they might, but what would have been the consequence? They must have violated the compact that had been entered into, and thrown everything into confusion. I am discussing the matter as if it were established that they did receive the notes of State banks. It does not appear whether they did or not. And, after all, what harm has been done? Is the bank in a worse condition, or the public injured? It cannot be pretended. The third item of complaint is too small, in itself, to merit much attention. It appears (Documents, page 114) that dividends to the amount of one thousand four hundred and sixty dollars were paid to four stockholders, who had been in default when the dividends were declared. There is an unintentional ambiguity in the mode of stating the charge, in the report, which might induce a belief that the instalment had not been paid at the time of paying the dividend. From the documents it will be seen that the instalment was paid, and that interest was charged upon it from the time when it became payable. The utmost loss that could have been incurred, would have been the difference between four per cent. and three per cent. for six months; equal to three hundred and sixty-five dollars. It was not, perhaps, so much; for the interest was probably charged up to the time of paying the dividend, which was more than six months. Whether these payments were made by mistake, or whether there were any peculiar circumstances to justify them, does not seem to have been inquired into, and cannot be ascertained. But every one must be satisfied, that, whether the payment was intentional, or whether it was by mistake-whether it was right, or whether it was wrong-the consequences cannot extend beyond those who were concerned in it. The money might, perhaps, be recovered back, or the officer be charged with it as a wrongful payment. It can never forfeit the charter. The only remaining article is that which regards the elections-particularly the first. This charge is, in substance, neither more nor less than that votes were received which the com FEBRUARY, 1819. mittee believe to have been illegal, and that the judges of the election, and directors and officers of the bank, "perfectly well knew the facts," which, in the opinion of the committee, made them illegal. As there were no directors till after the first election, I do not see how they can be implicated in the charge, so far at least as relates to that election. But, waiving that, and waiving too the inquiry whether the judges had any right to refuse the votes, (a very doubtful matter, to say the least of it,) let us examine the matter a little more closely, with a view, not to its foundation in fact, but to its legal results. I have never understood, nor do I believe, that any number of illegal votes will make an election void. There are circumstances that will undoubtedly avoid an election. If an armed force, of soldiers or others, were to surround the polls, and by violence, or the menace of violence, prevent the electors from voting, or otherwise interfere with the free exercise of their franchise, the election ought to be held void. But the mere circumstance of illegal votes being received, is of no importance, unless the election is contested. And what is then the rule? The chairman of the Committee of Elections will answer that question. Where the election is by ballot, the illegal votes are all deducted from the majority. Suppose there is still a majority, is the election void? No. The highest on the return is the person elected. Suppose there was no opposing candidate, is the election questionable? I believe we have never heard of such a thing. Again, sir, suppose the election not to be tested-the returned member takes his seat, and holds it till his term of service has expired. Is his right afterwards questionable, or the validity of the acts he has done? I have never so understood it. These are the ordinary rules applicable to such cases. How do they apply here? Illegal votes, it is said, were received. Was there any opposition, or were all the votes, legal and illegal, given for the same ticket? Was the election contested? Has not the time for contesting it gone by? Supposing it still open to contestcan any one inform us how many legal and how many illegal votes were given, or what would be the state of the poll if the illegal votes were deducted from the majority? These are matters necessary to be ascertained in the first instance; and until they are ascertained, at all events, the election is good, and the acts done under it valid. Even where an election is contested, the returned candidate takes his seat, and holds it, with all its rights, voting and acting with others, until the contest is decided. But, again; was it ever heard that the mere fact of receiving illegal votes at the election of corporation officers, was a forfeiture of the charter? Every corporation in the United States might tremble if that were the law No: You may invalidate the election before the proper tribunal-you may set it aside. The judiciary may inquire into it-may expel those who have been introduced by illegal means-may introduce those who have been by illegal means kept out. These are the appropri ate and all-sufficient remedies, which we have frequently seen employed, and employed with effect. They apply directly to the evil where it is found-correct that evil-but leave the innocent corporation, and the innocent corporators, in the enjoyment of their rights, which these remedies are intended to preserve, and not to destroy. I had intended to have noticed the propositions brought forward by the chairman of the committee. It would be unpardonable to consume more of the time of the House. A single remark upon them and I have done. Among those propositions there are several that would be highly advantageous to the bank. If they were offered to its free acceptance, perhaps they would be accepted. But, under the threat of a scire facias, they ought not to receive a moment's consideration. TUESDAY, February 23. Mr. H. NELSON, from the Committee on the Judiciary, to which was referred the bill from the Senate, entitled "An act to authorize William Prout to institute a bill in equity before the Circuit Court for the District of Columbia, against the Commissioner of the Public Buildings, and to direct a defence therein," reported the same without amendment; and the bill was ordered to be read a third time to-day. Mr. RICH, from the Committee of Claims, reported a bill for the relief of George M. Brook and Edmund P. Kennedy; which was read twice, and ordered to be engrossed and read a third time to-morrow. FRANKING PRIVILEGE. H. OF R. The House took up the bill to extend the privilege of franking letters, &c., to the Secretary of the Senate and Clerk of the House during the recess of Congress. The bill was amended, on motion of Mr. TALLMADGE, by including in its provisions the Speaker of the House. Mr. GARNETT moved to amend the bill by adding thereto the provisions of the bill freeing from postage letters and packets to and from certain officers of agricultural societies. This motion was lost; and, The question being taken on ordering the bill to be engrossed and read a third time, it was decided in the negative; and the bill of course rejected. BANK OF THE UNITED STATES. The House again resolved itself into a Committee of the Whole, (Mr. SMITH, of Maryland, in the chair,) on the subject of the Bank of the United States-Mr. JOHNSON's resolution for repealing the charter being still under consideration. Mr. SERGEANT concluded the argument which he commenced yesterday-occupying to-day more than two hours in defence of the bank-as given entire in the preceding pages. sensible of the attention with which the House Mr. PINDALL again rose. He was (he said) had already indulged him in this debate. He would therefore consume but a little more of its time, in replying to some of the grounds which had been occupied with so much skill and address by gentlemen who opposed the resolution men from South Carolina and Pennsylvania, (Mr. for the repeal of the bank charter. The gentleLOWNDES and Mr. SERGEANT,) who had displayed so much ability on this occasion, had been unable to discover any fault, not even the most venial sin, in the bank; on the contrary, they find it covered with virtues and perfection, and occuThe House, on motion of Mr. RICH, reconsid-pying a station almost superhuman. The genered the vote of yesterday which rejected the bill for the relief of the heirs of William Reed; and Ordered, That the Committee on Roads and Canals be discharged from the further consideration of all the petitions, memorials, and other matters, to them referred at the present session, upon which they have not acted, and that the same be laid on the table. the bill was laid on the table. The engrossed bill supplementary to the act for the relief of Benjamin Wells was read the third time, and passed. The bill from the Senate for the benefit of William Prout was read the third time, and passed. The amendments of the Senate to the bill regulating passenger ships and vessels were taken up, and agreed to-one of them with an amend tleman from South Carolina had yielded his applause to the bank, for its disinterested generosity in aiding the credit of the State banks; as an instance of which, the gentleman had quoted the agreement of the 31st January, 1817, with the receiving banks, when he imagines the interest of the institution would have dictated a refusal of that agreement, whereby the notes of the State banks would have been refused at the Treasury, and discredited by the public: so that the National Bank would have succeeded in obtaining the confidence and business of the country. Now, said Mr. P., let it not be forgotten, that, after the A message from the Senate informed the House receipt of the first instalment, the bank found itthat the Senate have passed bills of the follow-self the owner of only $1,800,000 in specie, and ing titles, to wit: "An act to repeal part of an act passed on the 27th day of February, 1813, entitled 'An act in addition to an act regulating the Post Office Establishment;""An act for the benefit of Jacob Purkill;" and "An act respecting the transportation of persons of color, for sale, or to be held to labor"-in which bills they ask the concurrence of this House. ment. that a secret understanding subsisted between the directors and stockholders, whereby the subsequent specie instalments were to be evaded. Whilst I admit, that, if the credit of the State banks could have been totally destroyed, the country would have been forced to turn its confidence and address its business to the National Bank, I insist that the bank was not in a condition to re |