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courts against the Bank of the State by the State of South Carolina a celebrated suit, which, while it forms a part of the history of this period, will present the great legal abilities and knowledge of Mr. Memminger, as the Journals of the House of Representatives preserve the record of his sagacity as a legislator. As heretofore stated, there are but few pages of the Journals of the House of Representatives that do not record his name in some way connected with the legislation of that body upon almost every question of any importance brought before it. For two decades, as chairman of the Committee of Ways and Means, there was no bill reported for providing the revenues of the State that did not pass the scrutiny of his investigation; while as the chairman, or a member of many standing and special committees, he appears among the most active and earnest of the sons of Carolina in the unselfish service of his fellowcitizens. It is apparent that Mr. Memminger was opposed to a National Bank, as it existed in that day, and for reasons so clearly stated in the resolutions presented by him to the House of Representatives, that I do not deem it necessary to add a word to their significance.
He did not oppose the maintenance of a State Bank under proper restrictions, and for the uses of the whole people, under such legitimate relations of commercial exchange as the experience of all reputable political economy would sanction, but he opposed any and all deviation from well established principles that would set up an artificial standard of values or limit the bank's privileges to comparatively a few persons. He believed that banks were public institutions, and were not to be recognised by the law-making power as mere agencies for speculation; that they were designed for the convenience of the people, and not authorized for mere money-making purposes; that as public institutions they had never been invested with the right or
the authority to take advantage of circumstances, and advance the interests of stockholders to the damage of the general community. Hence he sought in every way possible to guard the funds of depositors, and to make and to keep the banks solvent by limiting their powers and guarding their issues of bills and other liabilities against the possibility of an improper and illegitimate relation to a universally recognised and normal standard of values.
His wisdom and integrity of purpose was recognized by the constituency, who honored him with their confidence. and by the legislative body in which he held a seat, the active, able and earnest exponent of sound financial philosophy.
In 1840 Mr. Memminger prepared and introduced a bill entitled "An act to provide against the suspension of specie payments by the banks of South Carolina." It was under the provisions of this bill that proceedings were instituted by the State against the Bank of South Carolina to vacate the charter of the bank on the ground of its having suspended specie payment, and the payment of deposits on demand. I desire to present this case in full, as with a few others I may select, it will be the best evidence I can lay before the reader of the ability of Mr. Memminger as a lawyer, and of his sagacity as a statesman.
“The Bank Case," as it is known among the lawyers, but more properly the case of the State versus the Bank of South Carolina, was an issue joined on a scire facias sued out of the Court of Common Pleas for the District of Charleston, to vacate the charter of the bank on the ground that the bank had suspended specie payments of its bills and of deposits. The declaration recites the writ, then sets forth and alleges that the persons named therein, and their successors, were incorporated by an act of the General Assembly of the State of South Carolina, ratified on the 19th of December, 1801,
and recites the several acts amending the charter. The scire facias recites the privileges and franchises of the bank, and the use of the several liberties, privileges and franchises given to it by the act of incorporation, and then further alleges that the president and directors, for the time being, of the said Bank of South Carolina, resolved to suspend the payment of gold and silver, legal current coin of the said State, as well as of all promissory notes and bills of credit in the nature of a circulating medium put forth and issued by the said Bank of South Carolina, and of all moneys received and held by the said Bank of South Carolina on deposit, as of all other debts, dues, obligations and liabilities whatsoever of the said Bank of South Carolina, and then and there declared the determination of the said Bank of South Carolina to suspend and refuse the payment of gold or silver, legal current coin of the said State, of the promissory notes and bills of credit in the nature of a circulating medium of the said Bank of South Carolina, and of all moneys received and held by the said Bank of South Carolina on deposit; and that the said Bank of South Carolina from the 18th day of May, 1837, until the 1st day of September, 1838, continually did refuse, on demand made at the banking house of the said Bank of South Carolina,
deem or pay in gold or silver, legal current coin of the said State, the promissory notes and bills of credit in the nature of a circulating medium of the said Bank of South Carolina, which had been put forth and issued by the said Bank of South Carolina, and did then and there refuse to pay, in the said coin, the moneys received and held by the said Bank of South Carolina on deposit," etc..
The scire facias then, in the same manner, alleged a second suspension of specie payment on the 14th of October, 1839, and from that day to the 21st of July, 1840, during which time the bank continued to do business, receive de
posits, discount notes and issue bills paying out only its own notes and the notes of other suspended banks.
“The scire facias lastly set forth that by an act of the General Assembly of said State, ratified on the 18th December, 1840, entitled 'An act to provide against the suspension of specie payment by the banks of this State,' it was provided that the provisions of the said act should be and become a part of the charter of every bank already incorporated within the said State which had heretofore suspended the payment of its notes in legal coin, or which had declared its determination to refuse or suspend such payment, and that every such bank should, on or before the first day of March next, after the ratification of the said mentioned act, notify the Governor of said State of its acceptance of the provisions of the said act, and in case any such bank should neglect to give such notice, the said Governor should forthwith cause legal proceedings to be instituted against such bank for the purpose of vacating and declaring void its charter. The scire facias averred that the bank did not accept the said act within the time specified," etc.
To this declaration the defendants pleaded—first, not guilty; second, that the bank at or between either of the times mentioned in the declaration did not, on demand made, refuse to redeem or pay in gold and silver, etc.—a general denial; third, that the bank did not continually refuse to pay its depositors in gold or silver on demand; fourth, "nul tiel record," as the charter alleged in the declaration; and, fifth, a special plea-to-wit:
The Bank of South Carolina saith that before the 18th of May, in the year 1837-that is to say, on the 1st day of May, in the year aforesaidthe banks in New York, Baltimore, Philadelphia, Richmond, and Fay etteville had suspended specie payments; by reason whereof an extraordinary scarcity and appreciation in value of gold and silver coin took place, whereby the payment of the notes of the Bank of South Caroolina, and of the debts due and owing by the said bank for deposits in
gold and silver without delay became impossible; and the said, the Bank of South Carolina, in common with all the banks in Charleston, did resolve to suspend the ordinary redemption of their bills and the payment of their deposits in gold and silver until such time as the same could be done by solvent banks in good credit with safety to the country, as well they might. And that on the first day of September, in the year 1838, the said Bank of South Carolina resumed the ordinary payment of gold and silver, in satisfaction of their debts and liabilities without delay, until the 14th day of October, in the year 1839; and that before the last-mentioned day another general suspension of the banks in Fhiladelphia and Baltimore, and in the States of Virginia and North Carolina, as well as of the banks to the south and west of Charleston, with like effects, took place; that in consequence thereof the demand for gold and silver, in payment of bank notes and deposits in bank, became and were extraordinary and irregular, having no reference to the quantity of paper in circulation or unto the credit or solvency of the banks on whom such demands were made, but solely to the drain of specie for foreign markets, and for the traffic in gold and silver carried on by persons trafficking in the precious metals; that the said Bank of South Carolina, on both the said last-mentioned days and years was, and from thence continually has been, a solvent company, having sufficient means for the payment of its debts without any diminution of its capital stock; but by reason of the confusion of commercial affairs and extraordinary demands for coin, the said bank was not able to pay its dues and liabilities in gold and silver coin without making oppressive and ruinous exactions of its own debtors, and that under these circumstances the president and directors of the said bank, in common with divers other good and solvent banks of the city of Charleston, resolved to suspend the payment of gold and silver coin, etc.
And that afterwards-to-wit: on the 21st day of July, in the year 1840the said Bank of South Carolina, having all along kept in view the duty of paying their debts and liabilities in gold and silver coin, according to the law of the land, made their arrangements to accelerate, as far as in them lay, the day when the resumption of specie payments might be made, without great and material injury to all persons indebted to them, did resume the ordinary payment of specie in discharge of their dues and liabilities, and from thence have continued so to do, etc.
The State joined issue on the first and fourth pleas and demurred specially to the second and third, on the grounds that each was pleaded in bar to the whole action and yet answered only a part of the matter charged in the declaration; that they did not answer any part of them with cer