But how stands the case between the bank and the public? Is this a discharge of the trust reposed in the bank? Is this a just exercise of the power confided to it, of providing for the country a proper place of deposit for their money? Is it not, in fact, a perversion of the end of the institution? And consider the effect during a state of suspension. Would any individual venture to deposit coin in a bank, which had published a declaration that it would no longer redeem its obligation in coin? As a place of deposit, then, the bank no longer exists; and the merchant is left suddenly to seek elsewhere, that safe place of deposit for his moneys, which the bank undertook to supply, as a consideration for its charter. If it be said, that the bank continues to receive notes on deposit, the answer is, that this is but a portion of its duty, and furnishes no excuse for the failure as to its other duty.

But even as to receiving notes on deposit, this is a fallacious defense. So long as there is some standard of value every one is able to proceed upon certainty. A note for one hundred dollars means one hundred silver dollars. But when that standard is rejected and a deposit is received by a bank of one hundred dollars in paper, according to what rate shall that deposit be paid out? The notes of the bank itself fluctuate from day to day. So also do the notes of other banks. In fact, they are no longer currency, but have become articles of commerce, and the depositor must now take the hazard of a speculation in which of these articles it may please the bank to return him his deposit. Is this the state of things which the public intended by granting the charter for a bank of deposit? Is this a fulfilment of the end of its institution? Is this a performance of the trust upon which the bank was created? Most assuredly it cannot be so regarded.

I come now, in the third place, to consider the last and most important end for which banks are created by public authority.

The Bank of South Carolina was chartered as far back as the year 1800, while the country was yet fully mindful of all those evils which had been inflicted upon it by a disordered currency. The extreme suffering which had been undergone from continental money, bills of credit and paper medium had opened the eyes of all to the great advantages of a sound currency. It had been found, after all trials, that none could be relied upon unless immediately convertible into gold and silver. The inducement, therefore, which banks held out, of supplying so important a want, drew at once, from the public, corresponding grants of privileges; and in every section of the Union, a bank-note currency, immediately convertible into coin, became the established medium of trade. Such a currency was found more convenient even than coin, and its regulation and management was yielded up to the banks, and became a great public trust in their hands. This view of the subject is taken by Mr. Justice Spencer, in deliver

ing his opinion in the case of the Utica Insurance Company, 15 Johns. 386, and he expressly calls this power to issue notes a great public trust.

In South Carolina it is placed by the law upon the high ground of a special privilege. By the act of 1814, all corporations are prohibited from issuing notes in the nature of currency, except where such power is given to chartered banks. 8 Sts. at Large, 33, 4. And the result is, that the banks enjoy a right, which is denied to every other corporation; amounting in precise terms, to what we have termed a franchise, or privilege, for the exercise of which the bank is responsible. And so it was adjudged, under the New York banking law, in the case already cited of the Utica Insurance Company.

The nature and value of this bank-note currency may still further be shown by considering the footing which it had acquired in law. In Miller v. Race, 1 Bur. 457, Lord Mansfield declares bank notes to be money as much so as a guinea, and to the same effect is the declaration of Lord Ellenborough in Knight v. Criddle, 9 East, 48; so in New York in Handy v. Dobbin, 12 Johns, R. 220; and the same view of the subject is taken in United States Bank v. Bank of Georgia, 10 Wheat, 346. In the case, too, of Briscoe v. Bank of Kentucky, 11 Peters, 258, so high is the footing upon which Mr. Justice Story in his dissenting opinion puts them, and so near to actual coin, that he considers the banks unconstitutional which exercise the right of issuing them.

Again there is another class of cases which declare that bank notes are a legal tender in payment of debts, unless specially objected to at the time-a privilege which has never been allowed to individual notes. In fact, the whole course of trade had established it as the understanding of all that payments between individuals were always expected to be made in bank notes, and thus has placed them upon the footing of an acknowledged currency.

Such being the rank which bank notes held in the affairs and business of the country, the undertaking to furnish them as a currency, was, manifestly, the grand object at which the public aimed in creating banks. Few persons are aware of the great expense to which the country willingly subjects itself for the attainment of this most desirable end; and as the inquiry is germain to the main argument before us, it is proper to bring this point, although a political subject, to the view of the court. It will enable them to measure the magnitude of the interests involved.

In the issue of bank notes, a bank changes its character from being a lender, to becoming a borrower, of money. Every bank note in the pocket of an individual is, in fact, a loan by him of its amount to the bank, until he passes it to some other person; and then it becomes in the same manner, a loan from him to whom it is passed. The result is, that the whole amount of notes, issued by the banks, is so much borrowed by

them from a part of the public at large, and without interest; and this amount the banks lend to another portion of the public at the rate of six per cent. interest.

These two portions of the public, it will be perceived, stand entirely in different relations to the bank; and inasmuch as the borrowers from the banks are much fewer in number than those who hold their notes, the latter constitute much the largest portion of the community. Those who borrow from the bank, too, it may be fairly assumed, make, from some source of profit, the interest which they pay for the loan, and so receive a compensation. But that larger portion of the community, which hold the notes of the banks as a currency, are losing the interest thereon, without any return, and therefore bear the whole burthen of this currency. The banks themselves reap a profit upon the whole, the sole consideration for which is, the soundness of the currency which they undertake to furnish.

It is this profit which furnishes the inducement to banking. At the time of the suspension, the issues of the banks in Charleston amounted, together, to about $3,700,000, the annual interest of which is $222,000. If to this be added the issues of the country banks, the aggregate is about $6,000,000, bearing an annual interest of $360,000. And thus an amount nearly equal to the whole general taxes of the State is paid by the community to the banks every year, for which no sort of equivalent is received, but the benefits which the State is supposed to derive from them as banking corporations.

Even to this large sum should be added something more for the deposits which stand in each bank; for, in relation to the community, the banks are also debtors for the deposits; and as they pay no interest on them, they stand in the same relation with the issues under another name. The statements furnished upon which these calculations are based do not enable us to ascertain how much of the issues of one bank are included in the deposits in another. I have, therefore, not undertaken to unite this uncertainty with what is certain upon the other calculation. But it is plain that as at the time of the suspension these deposits amounted to three million of dollars, something more should be added; and the total profits which the banks in South Carolina were actually deriving from the community at the time of the suspension must have amounted to at least $400,000.

Surely, then, the State must have set a high value upon this public trust when they were content to pay more for its discharge than for the whole machinery of the State government. The benefit expected in return from the banks consists in maintaining a sound currency, and removing the evils which had been suffered under the system of bills of credit. It is true that by no process could the State free itself from every part of this burthen; for, if the currency were specie alone.

still there must be a loss of interest on the amount of coin in actual circulation. And so in a bank which maintains specie payments, there must be an offset for the coin necessarily kept on hand to meet demands for specie. But a bank in a state of suspension declares that it has no such offset to offer; and the suspension itself releases them from the necessity of holding such unproductive capital.

It would seem demonstrated, then, that the great end and purpose,' contemplated by the public in granting a bank charter, is the attainment of a sound, convertible bank-note currency; and that to create and preserve such a currency is the great public trust which the bank has undertaken to furnish as a consideration for the grant. What then is the chief, in fact, the only means of keeping such a currency sound? It is answered on every side, immediate convertibility into coin. This presents the only test of soundness; the only check to over issues; and while it continues to be applied, a bank-note currency so entirely satisfies the public demands that it displaces every other; and all specie of the country becomes either absorbed by the banks, or, if they are tempted to over issues, it is driven from the market of the country.

When the banks, therefore, suspend payment in specie, they voluntarily put aside the only means of preserving the very currency which they undertook to keep sound; and they compel the public, from the necessity of the case, to receive and circulate the currency which they have thus impaired. If they have any coin on hand, and refuse to pay it, they refuse to apply the very remedy needed; for, by paying coin they would at once apply two means of cure: they would thereby withdraw some of the redundant paper, and at the same time supply the demand for coin. Indeed, it is affirmed by very competent judges that the second suspension in Charleston could easily have been prevented by the banks paying out freely from the coin which they then had on hand. The actual demand was so small that it could easily have been met. But the refusal to pay, of itself, created a factitious demand by impairing confidence and deranging anew the whole course of trade.

This is not the place to enlarge upon the evils which a suspension of specie payments inflicts upon the country. The experience of the last six years has written these evils in characters too deep to be easily forgotten; and it is only necessary to ask the questions, whether a suspension of specie payments does not entirely pervert, or destroy, the end which the State contemplated in creating a bank of issues? and whether the failure to preserve a sound currency is not a breach of the trust upon which the bank was created? There can be but one answer to these questions.

The bank, then, by a suspension of specie payments, is shown to have failed in all the essential ends for which it was created. It has perverted

and abused the power to discount; it has failed to perform the trust of furnishing a place of deposit for the moneys of the country; and instead of a sound convertible currency, it has visited the community with all the evils of an irredeemable paper currency. It has, in fact, plunged the country back into the very evils, from which it was intended that the banks should relieve them.

4. The last of the four propositions which I proposed to establish in the argument of the main question in this case, follows, as a necessary consequence of the delinquency, which has thus been made out. The charter of incorporation has become forfeited; the tacit condition is broken; and the State, by the law of the land, may now resume her grant under a judicial judgment upon this scire facias.

Objections.-1. But it is objected that the charter in express terms has placed the notes of the bank upon the same footing with those of individuals; and, therefore, that no other remedies can be used against the bank, but those which the law allows against individuals.

This objection rests upon a fallacy which confounds the State remedy with the individual remedy. The clause of the charter which is referred to merely contemplated the liability of the bank to individuals. At the date of this charter the law was settled that a corporation must contract under seal; and when the charter allowed the corporation to contract by bills, under the hands of its officers, it created a new kind of obligation, the character of which it became necessary to define. The clause which created this new species of obligation, is the one now under consideration, and it merely declares, that under such an obligation, the bank should be liable in the same manner as an individual upon a note of hand.

It would be contrary, then, to every rule of sound construction to imply that such an enactment thus made was intended to deprive the State of a great political power; nay, more, to renounce a paramount public duty. The contract between the State and the corporators in the charter, is a totally different contract from any which is formed afterwards between the corporation and strangers. The remedies for their breach are altogether different. The charter does not attempt to prescribe the public remedy. It leaves that to the common law. It did not need to be prescribed, as by the very words of the law the charter is held upon a tacit, not an expressed condition.

In fact, it would amount to a tyranny intolerable, under our institutions, for the State to create great moneyed corporations, and surrender its governing and controlling power over them. Under the decisions of the Supreme Court, upon the Constitution of the United States, a charter cannot be annulled otherwise than by judicial authority, enforcing this tacit condition of forfeiture. If the General Assembly, then, should, by construction, be held to have surrendered this right,