Sir,
In your Paper of the 30th ulto. I find a communication calling on me for my views in relation to the Bank act:—commonly known as the "Briscoe Bill." Your correspondent attaches to my opinions a value to which they are not entitled and attributes to me an influence I certainly do not possess. Others as I have been informed also desire from me such a statement and as I have no opinions which I wish to conceal they are herein submitted, with no other hesitation than that which arises from an unwillingness to appear before the public, and with no other request than that this answer shall not be construed into an admission of my being a candidate for any office. Of the question, in its strictly legal character I am not able to judge, and will not offer an opinion. As a measure of policy and justice, every man's political right constitutes him an umpire and every man's conscience must dictate his decision. It seems to me that the question has been changed from its true nature, the rights of Creditors against the obligations of Debtors, into an issue of the Banks against the Country, and its Laws. Were the latter the true question, I certainly have no favor for the Banks which could draw me from my duty to the country. From my earliest inquiries into the policy of a paper currency, I have believed it to be an unqualified evil to an agricultural people, especially one like ourselves engaged in the product of a staple of export. As we sell for the currency of the world, if we have a local currency which is cheaper, we must pay the enhanced price for all that we buy, and thus lose the difference. Its action may be likened to selling by a large measure and buying by a small one. To show that my opinion on the subject of Bank forfeitures is free from the bias of any personal interest, I will state that I have never owned a share of Bank stock nor borrowed a dollar from a Bank. The various opinions in relation to this question may be arranged in three classes. 1st,—those who hold that when forfeiture is adjudged against a Bank all debts to and from it shall be expunged, the personal effects ("escheat to") become the property of the state and the real estate revert to the original grantor. 2nd, that after forfeiture the state shall appoint a receiver to collect the assets of the Bank for the benefit of the state. 3rd, that after forfeiture of franchise, trustees shall be appointed under penal restraints, and with sufficient security, to collect the assets and dispose of the property of the corporation for the benefit of the creditors and stockholders. Among the third class, Sir, I arrange myself. No one has openly contended for special legislation to relieve Bank debtors; but it is argued that statutory provision is necessary to give effect to the common law, the operation of which a forfeiture being declared, is asserted to be to wipe out all debts to and from a corporation. The common law is the ancient customs or memorial usages of England and there could have been no such usages in relation to banking corporations for the simple reason that the thing did not exist among them. At the present day, the trade of banking is conducted in that country by private bankers and joint stock companies, deriving their powers and suffering their restraints and penalties, under general acts of Parliament. They do not exist by special grants or charters, and so far as I have learned are proceeded against in the same manner as a mercantile firm which has committed an act of bankruptcy. The bank of England is an exception to this remark, but there the charter provides a mode for terminating its existence, and so far from allowing the government of England to pay its immense debt to that bank by a judgement of forfeiture, expressly provides that the debt shall be paid before the privilege granted be taken away.
Lawyers say that the common law is nothing more than the rules of reason and justice, the definition must be wrong, if the common law will permit an agent to lend out the money of his employers to personal or business friends, and then by an act contravening his duties as an agent, debar the employer from pursuing his money in the hands of the borrower, or if it will permit a banking corporation to throw its notes into circulation and then by refusing to redeem them, deprive the note holders of his remedy against the effects of the bank, or if it will release the debtor from the obligation of his bill given for the notes of the bank and throw the loss upon the note holder who gave the debtor, labor, or property in exchange for the notes, he had borrowed. If this be common law, it is high time it were substituted by statutes accordant with the mandates of reason and of right. Forfeiture, as I have seen it treated in the argument for the first and second class of opinion, constantly carries the mind back to the feudal system, with its Lord paramount.
We have no original grantor of lands retaining reversionary rights, and nothing could be more preposterous than that a man who had sold a house and lot to a banking corporation should claim that the property for which he had been paid, reverted to him as the original grantor, whenever the bank should have forfeited its charter. Equally unjust would I hold an escheat to the state; the grant of the state was a corporate franchise, that, in accordance with the terms of the grant she may reclaim; but it is Anti-American to seize the property of individuals. It is the plundering practice of British confiscation. Our laws provided for the execution of a criminal, but it is contrary to the genius of our government to interfere with the rights of his creditors or heirs. One of the earliest reforms was the expulsion from among us of the English practice of confiscation and attainder. I should be very sorry to see in the minds of any a wish to adopt a measure so germain to the expelled practice, even against the now odious banks. The law as it stands on the statute books is expeditious and seems adequate to protect the rights of all parties, from the time the information is filed; after the bank has been condemned, there is no reprieve, after it has been executed, it cannot be revived.
If the Bill had stopped at the death of the corporation, it is by no means probable that the creditors and stockholders would have abandoned their rights, without a resort to the courts, and long and cumbrous litigation must have been the result. The provision for the appointment of trustees, with the guards and checks it contains, has made the law so far as I can see, all that we want. Already it has received a judicial decision in its favor, the statute stands the adjudicated law of the land and I for one prefer to leave it undisturbed until experience points out its defects. Of the two classes, Creditors and Debtors, the former certainly have the higher claim to kind consideration. Legislation has interfered with the collection of their debts, thus they were prevented by special law from collecting off the debtors of the insolvent banks, any thing better than the paper of those banks; and at a subsequent period another law was passed prohibiting the banks from transferring its Bills receivable to satisfy the demands of a noteholder. If we should now declare that the forfeiture of a bank charter expunges its debts, well may the creditor complain of our government as having locked up the assets of the banks until it was ready to apply the sponge to all from which he could hope indemnity. Though our present condition forms an exception it is nevertheless a general rule that the few borrow, the many hold the notes of the Banks; it surely must be elsewhere than in the ranks of the Democracy that advocates are to be found contending for the exemption of the few, by sacrificing the rights of the many. Though I have (to answer a position sometimes taken) treated the subject as though a Bank under judgment of forfeiture was a convicted criminal, the reverse is generally known to be the fact. The Quo Warranto is a civil proceeding and a corporation after forfeiture of its franchise is analogous to a deceased person. After the natural death of a person, suits could neither be brought or defended in his name, without a legal provision to that effect, and to my mind the Trustees of a deceased (artificial person) corporation are no more than the administrators or executors of a deceased natural person. This answer, I hope, sir, will suffice for all who thought they were entitled to my opinions, and desired their publication, as well as those who may have wished to submit me to this new political test; and I will now leave the subject where the discussion may be more profitably conducted, in the hands of those learned in the law. If however, it shall be shown that the common law is such as has been represented; I can not yield the opinions herein expressed. My thoughts, my feelings are American,—to England, the robber nation of the earth, whose history is a succession of wrongs and oppressions, whose tracks are marked by the crushed rights of individuals,—to England I cannot go for lessons of morality and justice.
Sentinel Office, Vicksburg.
