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would be in wretched taste in a newspaper warfare, and much less become a grave communication to the Legislative Assembly.
By a resolution of the Council this paper and a copy of a subsequent official report made by the same gentleman to the Eexecutive, of his acts as Loan Agent, have been printed and referred to a select committee for consideration which committee “has been instructed to receive and consider any information which may be submitted by any person or officer of the Territory, relating to the negotiation of the canal loan, and the matters contained in said communication."
As this document is not the report of an officer of the Territory, and does not in fact contain an aswer to the resolution of the Council calling for certąin information (though presented as such answer in the letter by which it was accompanied,) it can be regarded in itself only as the gratuitous submission of the views and information of a private individual touching matters deemed by him worthy of the consideration of the Legislature.
But this report is sent forth to the world under the sanction of the authority of the Council, and by the further action of that body the charges in that paper acquire some character and importance.
As one of the canal commissioners thus formally presented to tlie Legislature for official misconduct, and especially as being the individual who has been particularly assailed, I feel it to be due to the Legislature and to myself to vindicate the conduct of myself and associates, in a manner as public as that conduct has been assailed, and at the same time to submit for the consideration of the committee such other information as I may be able, relative to the matters embraced in said report.
I shall strive to perform this duty in a manner becoming myself and the character of the committee,
The personal and political relations between the Loan Agent and myself, which have been brought into view in the report, its many imputations, its lofty defiance and its vituperation and abuse, I shall pass unnoticed.
They present a picture of depraved malice and of disordered passion humiliating to human nature. I have no taste for controversies of this character, neither have I ever provoked such warfare. I have no private griefs to avenge, much less have I indulged the hope or published the vain glorious boast, that by a single stroke of my “puny arm,” I could crush any adversary.
With these preliminary remarks, I will now proceed to consider those portions of the report which are proper to be noticed.
The report charges, in substance, that the Receiver has been guilty of an arbitrary and unwarrantable interference with the duties of the Loan Agent, from motives of seeret hostility to the canal, and has by such interference arrested and defeated a loan of $30,000.
That the commissioners urged by the same motives, have been guilty of a reckless disregard of duty, and of a wilful violation of law, in not making provision for the payment of interest due on bonds sold, by calling in the interest due from purchasers of canal lands.
That the consequences of their conduct has been the accomplishment of their design to prevent the negotiation of any loan by dishonoring the credit of the Territory, and in that way to strike a death blow at the policy of the canal.
The whole scope and design of a great portion of this pamphlet, is to fix upon one or more of the commissioners the odium of being the contrivers and workers of the destruction of the canal, and with it, of the fondest hopes of its friends and the people. The credit of acting the chief part in this work of mischief has been given to me.
The truth of these charges and the justice of the credit or odium imputed to myself and others, will clearly appear from a true presentment of the facts.
And here in the outset, it will be proper to bring into full view, the powers and duties of the Loan Agent, under the law and authority of the Governor.
In so doing, the authority of the Governor to appoint such agent, though denied by many, will here be assumed.
The act of Feb. 12th, 1841, sec. 2, after authorizing the issue and execution of bonds to the amount of $100,000; provides “ That all, or any part of any moneys whtch may be borrowed in pursuance of this act, may be deposited in any sound specie-paying banks, which may be selected by the canal commissioners and the Governor of the Territory, subject to the draft of the Receiver of the canal fund, whenever the same shall be required for expenditures on the canal.”
The letter of authority, May 13, 1841, executed by the Governor, authorized Byron Kilbourn “ upon receiving from any person or persons a certificate of the cashier of any of the safety fund banks of State of New York, or any specie paying bank which the said agent may select, that he or they have deposited with the said cashier any specified amount of money, subject to the order of the Receiver of the canal fund, as mentioned in last aforesaid act (act of Feb. 12,1841,) to deliver over to such person or persons so many of the certificates aforesaid (certificates of stock) as shall not exceed in amount the sum deposited.
In the certificates or bonds delivered to the agent, the time and place, when and where, 'the principal of the loan should be reimbursable, and also the names of the persons to whom the same should be due and payable were left in blank, which the said agent was (by: said letter of authority) authorized to fill in such manner as should correspond with the loan which should be made.
The canal commissioners by letter under their hands and seals in May or June, 1841, selected and designated any of the specie paying safety fund banks of New York, the Ohio Life Insurance and Trust Company of Cincinnati, and two specie paying institutions of Columbus, as proper banks for the deposite of any moneys borrowed by the loan officer.
These are the powers and the only powers given to the Loan Agent.
Under this law and these powers, the steps to be taken and the conditions to be observed in the sale of the bonds cannot be mistaken.
1st. The money in equal amount to the bonds to be sold must be deposited.
2nd. It must be deposited in a sound specie paying bank.
That bank must be one selected or designated by the Governor and commissioners.
Certificates of the deposite of such money, in such bank signed by the cashier thereof, must be delivered by the agent.
The certificates must be payable to the order of the Receiver of the canal fund.
Then and not till then, the agent is authorized to fill the blanks with the times, places, and names corresponding with the loan, and to deliver the certficates to the person entitled thereto.
Here, then, was a special agent or attorney entrusted with a few simple and limited powers, so plainly prescribed that they could not be misunderstood.
There was no diseretion to exercise, no responsibility to assume. He was authorized to do a particular act in a particular manner. He could not lawfully transfer, sell or contract for the sale of any of the bonds in his hands unless in the manner pointed out by the law and his instructions.
He could not alter or dispense with any of the conditions or terms prescribed, in any emergency, or under any apparent necessity however urgent.
It may be a question unsettled in the minds of some, and a question which the committee may be called upon to decide—whether if such agent, has in any ease transcended his powers, and has bargained or transferred any of said bonds in any manner not warranted by law, such bargain or transfer, is not a nullity; whether every bond so transferred, would be any thing better than worthless parchment, or the bond of any individual, association, or corporation, passed in a similar manner—whether such bonds on being executed by the Governor and Secretary became negotiable and transferred like bank bills or bills of exchange not due—or like all other bonds, are received by the holder, whether the first or any subsequent purchaser, at his own peril—whether the Loan Agent in this case, was not powerless to do harm to the Territory by the limitation of his authority -whether he could abuse his trust if disposed, and whether in this view due security for the faithful performance of his duties (and was not properly) dispensed with.
It might be yet another question whether, if such bonds have been bona fide negotiated to innocent purchasers for valuable consideration, although not in pursuance of the law, the Territory should not in honor and justice, feel bound to recognize their validity.
I wish the attention of the committee to be here directed to two requisitions of the law, made part of the instructions of the Loan Agent, to which reference will be made hereafter.
1st. That the funds deposited on certificates, should be subject or payable to the order of the Receiver of the canal fund.
By the first provision, not a dollar of the loan to be negotiated, could be touched, controlled, or come into the hands of the agent, who was not required to give any bonds, to faithfully account for money received.
That officer had no more authority by the law and instructions under which he acted, to take, keep and expend any of the funds for which the bonds might be negotiated, than he had to take, keep and expend, any other funds of the Territory without law or license.
2d. To the kind of funds to be received on the loan.
The law declares that the deposite should be made in money. The term money, unless qualified, can mean nothing but specie, or legal currency or its equivalent.
The bills of specie paying banks, redeemable in specie on demand and always convertible into specie, are generally received and for all practical purposes considered at or near the place of issue of said bills as money-being equivalent to money. It is not adopting a technical or rigid construction, to affirm that such was the character of the funds required by the law.
But by referring to another requirement of the law, it will be perceived, that no room is left for construction on this point.
The law requires the money to be deposited in some sound specie paying bank to be selected by the Governor and commissioners.
The object of this provision was two-fold, first, to secure a safe place of deposite of the loan, but secondly, and chiefly, to designate the character of the funds which should be received.
The law in designating the character of the bank, intended to designate the character of the funds—and not only intended to secure the receipt of the loan in funds of the same character with the bank, to wit: the bills of sound specie paying banks, but also in the bills of such specie paying banks as the Governor and commissioners should select, as furnishing the best circulating medium.
It was never supposed that if the Bank of America of New York, or any other institution of like character, were selected as the depository of the loan--that by the law the deposites could be received