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was the result of an inevitable participation in a common calamity, rather than from any design to defraud."
The interests of the bank prompted it to pay specie, if possible, during the entire period of this “universal suspension;" for if it could only have accomplished this, the very fact that it was the only bank that had been successful in conducting its business upon a specie basis would have conduced to greatly extend its business, so that its profits would have exceeded those that it could have made by suspending on its then limited business. If it could have gained by fraud the time to have perpetrated it was at the time of the commencement of the general suspension before its specie funds had been exhausted, as it could have refused the specie to the note holders, realized the premium upon it and afterwards refused to resume specie payments. Instead of doing this it exhausted itself of specie in the redemption of notes, and then resumed at the earliest opportunity; and the bank could have sustained the payment of specie if the Territory had paid its debt past due to it, and still unpaid. But the most decisive evidence of the lack of an attempt to commit a fraud is shown by the bank in leaving its property and debts, more than enough to meet the demands against it, exposed to the legal action of its creditors without any attempt of removal or concealment. During this period of second suspension the bank, while not doing any business or making any money, paid off over one-half of the indebtedness against it.
The bank resumed business again in April, 1844, under the present board of directors and cashier, and since that time it had promptly met all of its liabilities. And the claim is made that since that time no charge as to any discrimination, either political or class, can be substantiated, because no preference in any form or shape had been shown.
In discussing the section of the charter as to the provision “that hould the bank fail to go into operation, or should it abuse or misuse its privileges under the charter, the Legislature might annul, vacate and make void the charter,” reserving to
itself in this form the provisional right to repeal the charter; there is given an account of the different legal attacks upon the bank, giving the attempts to revoke the charter by the Legislatures of 1842 and 1843. Then follows the account of the suit against the bank in the summer of 1844, when it was sought to close up the bank by a writ of quo warranto showing a forfeiture of the charter. In this trial, it is said, that Judge Wilson decided that suspension of specie payments or refusal to pay on demand, "did not of itself work a forfeiture of charter; that fraud must be combined.” The statement was made that “the good sense of every man must commend this decision and distinguish between the participation in a common calamity, involving alike corporations and individuals, and a premeditated design to defraud.” The suit was withdrawn because of the "conviction that no evidence of fraud could be presented.” It seemed to the directors that this inability of the prosecution to find any evidence of fraud should have been enough to have forever settled the question of the revocation of the bank's charter, as there was no more proper place to determine its forfeiture than in the courts which are familiar with law and the weighing of evidence. But before these attacks were made, the Legislature, through two of its committees, had made an investigation of the bank with reference to violations of the charter. There was no doubt,” but that these committees made a thorough examination and had reported the facts to the Legislature, and that the different sessions of the Legislature were satisfied that there had been no violation of the charter. Any wrongs complained of, with the exception of suspension, were done before these examinations took place; and these examinations should be accepted by everyone as better evidence than "the report of Mr. Hempstead” wherein "the mere opinion of one or two individuals” is given that the charter had not been complied with in regard to the payment of the stock; that this matter, having been once settled, was final until changed by some mode known in law. “The secret attempt of the Legislature to go behind those reports
is believed to be unprecedented by any body of enlightened
The public faith was pledged to continue the charter until 1858; and the "violation of public faith has ever been deemed most disreputable in despotism, how base must it be, then, in a republic, professing to rest upon the virtue of the people and to exist only for their good?”
Because of this lack of ability to show fraud arose the unwillingness to permit the bank to be heard in its defence “before any tribunal.” “Every principle of law, justice and honor" demanded that the fraud be shown before the forfeiture of the charter by the Legislature or by the courts, and that the officers of the bank be permitted to appear in its defence. That the session of the Legislature which purported to repeal the charter called for no evidence, summoned no witnesses." The Legislators were misled by the “members from the North” as to public opinion towards the bank and as a result of this “no ceremony was used at the immolation.” And “ without trial or witnesses, the victim was condemned to death."
The Constitution was designed not only for the protection of life, but also of property. If the directors of a bank can be condemned without being heard or notified to appear, they are liable at any time to be declared guilty of a higher crime. " Who is safe?”
Granted that misuse and abuse of the provisions of the charter had arisen, this did not empower the Legislature to depute the power to appoint trustees to take charge of the bank property, as no such provisions are found in the charter and they can not seize it any more than they can any farm “ without a stipulation to that effect.” The property of the corporation did not come into its possession by any legislative enactment, hence it can not be taken away by such enactment. They obtained this property by purchasing the same as a citizen, and hold the same under law. The Territory has no authority over the bank beyond that expressed in the charter,
except the "authority it has over the farm and shop," and that does not extend to the closing up of their business.
“The directors felt perfectly competent” to manage the affairs of the bank; even if it should be “agreeable" to the “trustees in expectancy” to have control of the property for a number of years until it "might suit their convenience to return the remaining property to its owners." The directors felt it their duty towards the stockholders to offer legal resistance to such an illegal attempt. The case may be summed up on their part by the statement that: “The trustees claim the right to take possession of the property belonging to the bank. The directors deny the existence of such a right. Let the courts decide. If the bank should be defeated, it will suhmit."
In the closing sentence the directors leave the whole matter of the right or wrong of the pertinacious attempts of certain persons to destroy the institution and appealed from the prejudice of the past to facts; "from the hostility of the few to the justice of the many; from the condemnation without trial to the right of audience in the sacred precincts of the court room; from the artifices of the demagogue to the integrity of the bench, and the incorruptness of the jury-box.”
This report was signed by John Wharton, Timothy Davis, J. P. Farley, Patrick Quigley, Directors, and M. Mobley, Cashier.
6. Petitions to Congress to Disaffirm the Acts Granting Banking Privileges to Citizens of Territories.
In January, 1846, after a five years' struggle over the question, the Legislature of Wisconsin repealed the charter of the Wisconsin Fire and Marine Insurance Company, which had been doing a banking business at Milwaukee. The company issued a manifesto claiming that it had in no way violated the conditions of its charter, and as the charter would not expire until 1868, it should still continue its banking business. The charter of the Miners' Bank of Dubuque had been forfeited before this, in 1845, and it had also stated its intention to continue in business.
1 Incorporated February 28, 1839.
The persons in both Territories actively opposed to these two banks circulated petitions and forwarded them to Congress, and on February 17, 1846, the Delegate from Wisconsin, M. L. Martin, introduced the following resolution:
“Resolved, That the Committee on Territories inquire into the expediency of disaffirming and annulling every act now in force in either of the Territories of Wisconsin or Iowa, under which individuals or companies claim to have banking privileges.” It was referred to the Committee and on May 11, 1846, its chairman, Stephen A. Douglas, reported3 a bill disaffirming and annulling these charters. It was read and referred to the Committee of the Whole House on the State of the Union and reported from it and passed the House of Representatives on June 9th. In the Senate it was referred s to the Committee on Territories and reported back on July 9th, with the recommendation that it do not pass. It was taken up for consideration on August 7th, and after a considerable time spent in debate upon it, was, after several ineffectual attempts, laid upon the table by the close vote of 26 to 24. The reason for this action is found that it was near the close of the session. During the consideration of the bill strong opposition to the principle of the bill had been shown to be held by many of the Senators, and any attempt to force its passage through the Senate would cause a loss of much time, through debate, that was necessary for the transaction of more important business. So the disposal of it was settled by the question of expediency. This was the last attempt by Congress to interfere with the banking question of these Territories, as both of them soon after became States.
i Journal of House, 1st Sess. 29th Cong., p. 421. 2 Ibid, p. 782. 3 Ibid, p. 930. 4 Ibid, p. 1123. s Journal of Senate, 1st Sess. 29th Cong., p. 341. 6 Ibid, p. 396.