Important autograph judicial opinion signed in the third-person, "The Chief Justice," three pages on two adjoining sheets, 8 x 10, no date but circa 1817. Asked by Secretary of the Treasury William H. Crawford to weigh in on the question of a stock issuance by the Second Bank of the United States, Marshall opines on the validity of the government's purchase of shares. In part: "The Chief Justice, as one of the commissioners of the sinking fund, submits to the consideration of the Secretary of the Treasury, in answer to his inquiry, the following opinion on the fifth section of the act for incorporating the Bank of the United States…
If the act contained no limitation on the power of either, that which was first exercised would necessarily so far limit the other. If for example the United States should redeem 1 million of the debt, it is obvious that the bank would not afterwards sell the debt so redeemed; and if the bank should sell 1 million, that million would not be distinguishable from the mass of debt in circulation and would immediately resume its original character and qualities. On any other construction the one or the other power would be defeated.
But the power of the bank to sell is limited. They cannot sell more than 2 millions of dollars in any one year, ‘nor sell any part thereof at any time within the United States, without previously giving notice of their situation to the Secretary of the Treasury, and offering the same to the United States for the period of 15 days at least, at the current price not excluding the rates aforesaid.’
Should the bank sell more than 2 millions in any one year such sale would transcend its power, but a sale to the amount of 2 millions if made without the United States is I think entirely unexceptionable. The debt so sold mixes with the general mass as if it had never been part of the capital of the Bank. If the sales be made within the United States an additional restriction is imposed on the power. The debt must be first offered to the Secretary of the Treasury. If he consents to become the purchaser, the transaction is closed. He may purchase at less than the rates fixed in the act if the current price be less. The portion of the debt so sold could no longer be acted upon by the power of the Secretary to redeem. Should he decline purchasing, the Bank is at liberty to sell to any other person. To me it seems that the power of the Secretary to redeem this portion of the debt is gone forever in like manner as if he had been himself the purchaser.
The two powers check and limit each other so far as neither is limited by the act. If either was to remain in full force to act on the portion of that on which the other had acted previously lawfully, the other would be useless." Archivally mounted, suede-matted, and framed under Tru-Vue Optium Museum Acrylic with color copies of the two other pages and a portrait of Marshall to an overall size of 40 x 17.5. In very good to fine condition, with some wrinkling and creasing, and writing showing through from opposing sides.
In 1817, amidst an era of high inflation and a credit bubble threatening financial stability, the bank's president, William Jones, hoped to raise funds by selling more shares. He also hoped to inflate the value of the stock to raise more funds. However, the Act of Congress chartering the bank stipulated that the federal government had the right to purchase shares at a defined rate before any private sale, and limited the amount of stock that might be sold to $2 million per annum. So, when Jones prepared to issue the stock, Crawford informed him that the US Treasury would purchase the $2 million in full.
In commenting on the division of powers and responsibilities of the United States Treasury and the Second Bank of the United States, Marshall demonstrates an extensive and specific grasp of the topic. In the end, his findings were consistent with the bank's charter: that the power of the bank was limited, that it could only sell so much stock per year, and that the United States government could purchase the stock. Marshall's handwritten decision was retained by Crawford, and this document was originally obtained from a Crawford heir. To our knowledge, it is the only handwritten John Marshall judicial opinion in private hands.
From The Michael Allen Collection.
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