190

CHAPTER IX.

THE CLOSURE OF THE LAND BANK—FIRST COMMISSION.

The special consideration of the affairs of the Land Bank was abandoned and the subject of contemporary discussion taken up, at the point where Shirley assumed charge of the government of the province. A contemporary writer describes the situation as follows:

As to the temper of the people at the time the Land Bank Party, which was very numerous throughout the Province, was irritated and inflamed to such a degree that they seemed ripe for tumult and disorder; they had persuaded themselves that the Act of Parliament could not be carried into execution, and they had even bid defiance to the Government by their threats. * * * Nor was the temper of the House of Representatives in a much better frame than that of the populace, two-thirds of the members at least being either partners or abettors of the Land Bank Scheme, from whom a general opposition to all the measures of Government necessary at that time for his Majesty’s service and the public welfare of the Province seemed in their present disposition to be much feared.¹

It will depend somewhat on the judgment of the individual whether Shirley’s advent to power will be considered to have been for the advantage of the province or not. He found a people ripe for rebellion. Parliament had placed in the hands of his predecessor an instrument of oppression which could have been so applied that resistance would have been inevitable. The situation demanded conciliation and wise administrative ability. Belcher was incapable of dealing with the question in any such spirit, and was totally inadequate for the emergency if the policy was to be of that character. His methods served according to Shirley “only to

191

exasperate the people and beget a malignant spirit.” Had he remained in power the first collision with Great Britain would probably have occurred in 1741.

Shirley’s evident sympathy with the unfortunate situation of the individual subscribers to the Land Bank could not prevent him from insisting that the legislative steps which were thereafter taken towards winding up that scheme should be in accordance with the general terms of the act which compelled this step, but it led him to urge the Board of Trade to let such legislation stand where it was quite evident that it was evasive of the strict application of the act. It was important that some steps should be taken towards the abandonment of scheme and the redemption of outstanding bills prior to September 29, if the right to a judgment for treble damages was not to be a permanent enjoyment of the possessors of the bills. It can not well be doubted that it was largely due to the change in governors that the convocation of the company at Concord on the first of September became possible, at which meeting a committee was appointed “to examine the directors’ and treasurer’s accounts and the company’s trading stock.” At an adjourned meeting held at Milton, September 22, this committee reported, and the next day,—

a Committee was chosen who were impowered to attend and assist the Directors in consuming the bills as paid in by the partners or otherwise drawn into the treasury, and that they, in behalf of the partners, should audit and settle the Accounts of Trade with the Directors or Factors of the partners, in order to their receiving or paying what might be gained or lost in the trade, to be concluded and shut up as soon as possible, and that they should see the plates on which the Bills were struck be forthwith destroyed.

This vote is said to have been obtained with difficulty, and to have been carried by a bare majority, many being desirous to stand out and bid defiance to parliament.

192

On September 28, in order that the record might be complete as to their voluntary withdrawal from the further prosecution of the scheme before the limit of time set by the act of 1741, the directors entered the following declaration, couched in the language of the statute, on the company’s books:—

We, the subscribers, having been concerned in the Manufactory Scheme lately erected in Boston on Land Security, which by the partners is voted to be dissolved, do hereby publicly declare that from this time forward we do desist from and give up and relinquish, and wholly forbear to act further therein, or directly or indirectly to carry on the same.

Operations in connection with the Silver Scheme had already been suspended. Although the act under which the two organizations were thus abruptly brought to an end, made void and illegal all the contracts and agreements into which both companies had entered, still the situation of those who had issued the silver notes was far less perilous than was that of the promulgators of the Land Bank scheme. These notes had been divided among the directors, all men of good standing in the community, and by them distributed among friends who were united by a common purpose, and were actuated by the belief that the steps they were taking were in the nature of self-defence. The consideration of their mortgages was expressed in ounces of coined silver, sterling alloy. Payments were to be made in the same or in standard gold. The obligations ran in favor of nine Boston merchants,¹ whose names were

193

duly recited as payees in the instruments, but who were not described as directors of any organization. There was, in other words, nothing on the face of these papers which would of itself compel a court to recognize them as connected with an illegal company. Traces are to be found of litigation arising from the facilities furnished possessors of the notes, under the act of parliament, to annoy individual partners; but these are insignificant compared with the record of the other company.

On the other hand, the Land Bank mortgages were issued in consideration of so many pounds in bills of credit, called “Manufactory Bills.” The receipt of them was acknowledged to be from nine gentlemen, who were described as “Directors of the Manufactory Company (so-called).[¹] Their payment was provided for “in Manufactory Bills as aforesaid, or in merchantable hemp, flax,” etc., at such prices as the directors should judge they would pass for in lawful money. These instruments were, therefore, unmistakably connected with the Land Bank company. The patrons of the Land Bank were scattered through the province. The majority of them were able to meet the obligations which they had assumed, but the margin of their capacity to respond beyond this was narrow. Knowledge of the character of the act for closing the companies led some to transfer their property. The straightening of the lines between the province and adjacent colonies, threw the residences of a number of the promoters outside the province. Against subscribers thus situated, proceedings under subsequent provincial legislation became ineffective.

194

It was necessary to provide for the redemption of outstanding bills; for the expenses incurred by the company, and for certain losses which had been incurred in trade. Each solvent subscriber was primarily responsible for his loan, and in addition for his proportion of the losses incurred in the prosecution of the scheme in accordance with the articles of agreement. The question of the proper distribution of the losses in trade was a source of perplexity, and caused much discussion. After the adjustment of such questions as these, there still remained the delinquencies arising from the insolvents, the fugitives, and the dishonest.

The first efforts towards legislation for the purpose of closing the Land and Silver Banks were taken in the house, July 24, 1741, when a resolve was passed to the effect that a committee should be appointed to perfect some proper method to bring to as speedy, easy and final a conclusion as might be the private schemes for emitting bills of credit. In August, 1741, the General Court, with the intention of carrying out the above purpose carried through to the point of engrossment “An act to subject the bonds and mortgages given by the undertakers and their sureties in the Silver and Manufactory schemes to the payment of possessors of bills.”¹ The title of this act sufficiently indicates the cause that there was on the part of the partners in the Land Bank for apprehension if it should become a law, and it is evident that it was the fear of possible consequences in that case, which led the company to petition the General Court to refrain from further consideration of the proposed

195

act. This petition was favorably received and the proposed legislation was not carried beyond the point of engrossment. Knowledge of this petition and of its favorable reception is obtained through a petition for relief which the company found themselves obliged to present in March 1742, in which the subscribers express their gratitude that at the request of the same memorialists the General Court had refrained from enacting a bill which was under consideration in September, 1741, which bill was framed in such a manner as tended to distress said company.

The motives which led to this prolonged attempt to wind up the company without legislative interference are apparent, as are also the difficulties which ultimately compelled the subscribers to solicit the aid of the lawmaking power. On the one hand, it was almost impossible to legislate with reference to the company without recognizing contracts which the act of parliament declared invalid. On the other hand, it was not easy to procure from the solvent subscribers even their own proportionate contributions towards closing up affairs, not to mention the fact that enough must also be raised to cover delinquencies and losses in trade. The directors, from the outset, realized that if subscribers would escape persecution, those who were able must pay more than what seemed to be their proportionate share towards the adjustment of affairs, but a committee of the partners appointed at the last meeting of the company to adjust and settle the accounts of the partners, published in October, 1741, in the News-Letter, a report to the effect that the directors had made an excessive assessment and gave their advice to partners as to how much ought to be paid. This committee was composed of three members, and in the March following, two out of three

196

concluded that it was their duty to petition for the legislation necessary to clear up the confusion, for which it is evident that they were in part responsible. Their motives were undoubtedly good in thus advising partners. They believed that the losses in trade were improperly distributed, but it would have been better for all to have hurried through an adjustment of affairs on any terms.

The result of the application in March, 1742, was the passage of a resolve, April 3, by the General Court, for the appointment of a joint committee¹ with full power to wind up the affairs of the company, pay off its indebtedness, destroy the bills and distribute the proceeds. In this resolve, the outstanding contracts of the company were practically recognized, and for that reason the governor withheld his consent. A second resolve, authorizing the appointment of a committee to examine and report as to the amount of bills outstanding, and from whom they were due, so that effectual care might be taken to cause the outstanding notes to be brought in, was passed April 23,² and to the measure in this form the governor consented. These resolves must be those which are referred to by Shirley under the phrases Order No. 1 and Order No. 2 in his letter to Lord Wilmington, April 30, 1742,³ wherein he says:

“ . . the Assembly and Council upon the petition of the worthier part of each of the late Companies pass’d one of the enclosed orders No. 1, and the most earnest solicitations have been made to me by the sufferers to give my consent to it; but as the remedy proposed by it is at the bottom founded upon the supposed subsistence of the mutual agreements and contracts made at first between the directors and partners of each of the

197

Companies, which are deem’d and declared by the Act of Parliament to be illegal and void ab initio, I could not possibly come into it. But to retrieve the sufferers and preserve the public peace and quiet, so far as was in my power, I form’d and promoted the inclosed order of the General Court, No. 2, which is consistent with the Act, and I understand has considerably alarm’d the deficient partners, and will, I hope, help to make the Act of Parliament have its full effect, and draw in all the outstanding Bills properly.”

Two things are to be noted in connection with this first effort at legislation with regard to the Land Bank: first, the attempt to avoid submission to the Privy Council for approval, as shown through the adoption of the form of a resolve in preference to an act; and second, the temper of people which made it necessary that Shirley should let something go through in order to preserve the public peace and quiet.

May 27, a petition by Joseph Parmenter and a number of others¹ was presented to the General Court, setting forth that notwithstanding their speedy compliance with the act of parliament, their estates were exposed to the demands of possessors of bills, through the wilful neglect of some of the partners to pay in their quotas; that demands had been made upon some of the petitioners for the exchange of large sums of the bills; that proceedings were actually pending against some of them and that they were exposed to more and greater demands, wherefore they prayed for relief.

From this, it would appear that up to this point popular

198

sympathy for those whom Shirley termed “the sufferers,” was powerful enough to protect them against the attacks of speculators. The time had now arrived when this was no longer to be possible. The attitude of the possessors of bills had already been brought to the attention of the General Court, March 17, in a petition in which the subscribers asserted that they were possessors of considerable sums of the notes, which had been discredited even before the act of parliament and which the partners now refused to redeem. Unless assisted by the General Court the petitioners alleged that they would “be obliged, though with reluctance, to proceed with and augment prosecutions against the said Partners on the said Act in order to acquire their just rights.” The minatory character of this petition foreshadowed what was to take place, and although the possessors would appear to have abstained temporarily from prosecuting their claims, in order that the General Court might signify its intentions in the premises, yet towards the end of May and in the early part of June a number of suits were inaugurated.

It is perhaps a measure of the number of these suits that were expected to be brought, that a special blank form of writ was issued, which contained a declaration in a plea of debt based upon the steps taken in the organization of the Land Bank and the issue of the bills. A number of these bills, the printed declaration alleged, had been received by the plaintiff at the value expressed therein, and neither the defendant nor anybody else would take them from the plaintiff at that value, but they rested in his hands useless, whereof the defendant had notice, and so by the statute in that case provided, became chargeable to the plaintiff for the amount named in lawful money with interest from the date of said

199

bills. The writ opened with the ordinary instruction to the sheriff to attach the estate of the defendant, or for want thereof to take his body. At a later date, another form came into use which was a mere summons to the defendant to appear. There were some changes of phraseology, but they were slight.¹

The petition of Parmenter and others was referred to a joint committee and June 30 reports on the condition of the two companies were submitted by John Jeffries. It appears by the report on the Land Bank there were then outstanding between sixteen and seventeen thousand pounds of Land Bank bills, but that the returns were daily coming in.² The consideration of the report was postponed to the next session.

In April, 1742, the governor issued a proclamation calling on partners to bring in the bills and a few days thereafter the General Court appointed a committee to examine into the affairs of the two schemes and report the names of delinquents. This action stimulated some of them to contribute their proportion. Many of them, however, remained unmoved by the appeal of the governor or the threats of the Court.

On the 13th of September, 1742, the directors therefore petitioned the council for relief, asserting that they had done their utmost to bring in and destroy the bills, but many of the partners obstinately neglected and refused to aid them. They prayed the board to take such steps as would force the delinquents to comply with the law. The council thereupon ordered the attorney-general to prosecute all such delinquent partners as should incur the pains and penalties of premunire under the

200

act of parliament. In pursuance of these instructions, John Overing, attorney-general, proceeded to lodge information against some of the more conspicuous of the delinquents, and to prosecute them in the Superior Court of Judicature. As a result of these proceedings, he was enabled to bring some of these recalcitrants to terms. Others were able to evade service and escape prosecution. As a whole but little was accomplished by the prosecutions. Meantime the situation of the unfortunate subscribers who had complied with the law was harassing in the extreme.

The fact that a subscriber had paid in his proportionate share merely relieved him from the penalty of treble damages. He might still be the victim of any possessor of the bills who chose to sue him. Nor could the directors enforce the collection of dues to the company since all contracts were rendered void by the act of parliament.¹ Under these circumstances the subscribers, who had complied as far as possible with the act of parliament, petitioned for relief, and on the fifteenth of January, 1742-43, the General Court passed to be enacted a bill entitled an Act for the more speedy finishing the Land Bank or Manufactory Scheme. The governor in his speech on the same day alluded to this act, saying that while he would be glad to promote the ends aimed at by the bill, it interfered with the act of parliament and was of an extraordinary nature. Furthermore, he was obliged to submit all bills for approval before signing, and by its terms this act might have its entire effect before it could be submitted.

201

June 18, a second bill, of the same title as the former, passed both houses to be enacted. June 25, the governor stated in his speech, that this bill must lie for consideration till the next meeting, as he expected to hear from the Lords Commissioners of Trade. September 9, he had heard nothing concerning its fate, and it is evident that the bill was not approved, for on November 10 another bill bearing the same title passed both houses to be enacted, and November 12 it was ordered to be published in the Boston Gazette.

This act was originally introduced in the house on the 5th of November. On the 7th, Shirley transmitted a copy to the Lords of Trade. From the letter which accompanied this copy we can ascertain the objections to the bill of June 18th. It is needless to go into detail in this matter. In a general way it may be said that the objections were that the powers given to the commissioners to wind up the bank were too arbitrary. The governor pointed out that though the methods employed were the same, the powers conferred by the new bill upon the commisioners were curtailed, and the rights of partners were protected by giving them the right of appeal. Possessors of bills still retained all rights conferred by the act of parliament.

The bill was divided into eleven sections. In the first, John Jeffries, Samuel Danforth and John Chandler were named as commissioners, and power was conferred upon them, or any two of them, to order and adjust all the affairs and business necessary for the just and equal finishing of the Land Bank or Manufactory Scheme. In the second section, power was given these commissioners to examine persons under oath, in order to discover concerning the affairs and trade of the company; to get possession of the books, papers and writings relating to

202

its officers; and to discover its debts and credits, the quantity of bills emitted, and the proportion due from directors and partners for the redemption of outstanding bills. Power to assess partners for their proportion of the bills of the company was conferred in the third section, and after such assessment had been approved and allowed by the Great and General Court, suit could be brought for the same, or the commissioners could raise the money by mortgaging in their own names the estate that the partner had originally mortgaged to the Land Bank. To prevent alienations or conveyances of these estates of partners, such estates were declared to be bound and held for the assessment from the day of the publication of the act to the same extent as if they had been attached in an ordinary suit at law. Power was given the commissioners in the fourth section to sue debtors of the Land Bank for money, goods or effects, due from them to the company. The fifth section conferred upon the commissioners power to assess the losses incurred by the company in trade, and after the assessment had been approved to sue for the same.

The sixth section was an allegation that none of these proceedings should be held to interfere in any way with the rights of possessors of bills to sue partners. By the seventh section, the commissioners were required to report at the session beginning May, 1744, and any partner who felt aggrieved could appeal to the courts, but to perfect his right to do so was required to file his notice of appeal before that session began. If any question of fact arose between such partner and the commissioners, provision was made for its trial. All mortgages of lands of partners made by the commissioners were by the eighth section declared to be good. All suits under this act were to be brought in the County of Suffolk. As

203

possessors had power to bring suits elsewhere, it was provided in the ninth section that bills lodged in court in such suits should be delivered to the commissioners. The tenth and eleventh sections relate to allowances to the commissioners and to the method of filling vacancies in the commission.

Thus through the instrumentality of a commission all the void obligations of the company were practically revived and power was given to renew the securities. The act of parliament was to that extent rendered of no effect. There remained unpaid of the obligations or assessments due from subscribers to the company, when its affairs were turned over to the commissioners only £2,318 8s. 3d. This amount was due from eighty-three delinquents, of whom forty-six had paid part of their dues and thirty-seven were totally delinquent.

A bill entitled an act in further addition to and explanation of an act for the more speedy finishing of the Land Bank or Manufactory Scheme, was passed in February, 1744,¹ defining more particularly the circumstances under which it was the duty of courts, laid down in the ninth section of the original act, to forward bills to the commissioners. This was not to be done unless the judgments of the possessors had received full satisfaction.

The commissioners entered upon their duties in November, 1743, and were awarded the “use of the room at the west end of the court house, in Boston, where the assessors used to sit.” It was supposed that they could easily master the affairs of the company, make their assessments, and report at the May session. The only right of appeal vested in the partner by this act for finishing the Land Bank, was dependent upon his filing

204

a notice of his intention to contest the decision of the commissioners prior to the beginning of the May session. It was not until August sixteenth that the commissioners were able to report that they had made their first assessment, and this was only laid upon thirty-seven of the partners who were totally delinquent.¹ If there was any object in allowing the right of appeal in the original act, it was essential that the time should be extended, and as it was evident that the time when the commissioners could make future assessments upon other classes of partners or upon the subscribers as a whole, was indeterminate, it was clear that some change would be required in the act to cover this point for future assesssments [sic].

For the foregoing reasons the General Court passed, August 18, 1744, an act in further addition to and explanation of an act for the more speedy finishing of the Land Bank or Manufactory Scheme. For the assessment of August sixteenth the time for appeals was extended to September 7, and the commissioners were ordered to publish the list in the four weekly prints called the Boston Weekly Postboy, the Boston Evening Post, the Boston Gazette or Weekly Journal, and the Boston Weekly Newsletter. Future assessments were to be published in the same newspapers, and fourteen days after notice by publication were allowed for appeals.

The same day that this act was published, the General Court by resolve authorized the commissioners to receive a large amount of bills which had been paid in to the late directors of the Land Bank and which were then in the hands of Samuel Adams, Esq., and to destroy them, and they were further authorized to burn

205

such bills as they should from time to time thereafter receive.

November 8, the commissioners made a second assessment, this time directed against partial delinquents, of whom the names of forty-six appear in the published list. On the fourth of December, Jeffries made a report of his doings to the General Court, and on the fifth the assessment was approved.

During this same month “an Act for the more speedy and equitable finishing the scheme commonly called the fifteen year silver scheme, and for the better securing the possessors of bills issued therein,” was put through its preliminary stages. It does not appear, however, to have been carried through to enactment.

The commissioners now settled down to work. Their first efforts were directed against the delinquents. A special blank form of writ was printed containing a declaration adapted to the case of the total delinquents who were assessed on the 16th of August. The setting up of the bank by the defendant and many others, the issue of the bills, the abandonment of the scheme, the redemption of their proportionate shares by many of the subscribers and the neglect of others, were alleged in due form. The passage of the act for finishing the scheme, and the power given the commissioners under the act to sue for assessments; the fact that an assessment was laid in August, of which the defendant had paid no part; the further fact that this assessment had been approved by the General Court; the notice by publication in accordance with the act; the failure of the defendant to give notice of intention to appeal; and finally his failure to pay the assessment when demand upon him was made,—were also formally asserted. The

206

instructions to the sheriff were to summon the defendant to appear.¹

Another writ was printed containing a declaration adapted to the case of those assessed November eighth. The sheriff was instructed to attach the property of the defendant or arrest his person in a suit at the hands of the commissioners appointed pursuant to an act of the General Court to finish the Land Bank or Manufactory scheme. Then followed an allegation of the responsibility of subscribers to possessors under the act of parliament, whereby in equity and according to their mutual covenants, they were severally obliged to pay their ratable parts for the redemption of outstanding bills. The ratable parts of the several subscribers, the commissioners, under the authority conferred upon them by the General Court, had assessed upon the partners, whereof the defendant was one, on the eighth of November, and in that assessment the defendant was assessed. Notice had been given by publication, report had been made to the General Court, and the proceedings had been approved, and the defendant had thereby become chargeable for the assessed sum and had not paid the same.²

The number of total delinquents assessed in August was thirty-seven, and the number included in the assessment of November was forty-six. It is evident, from the use of the summons to the defendant in the form for suits under the August assessment, that the commissioners feared that the bodies of the defendants would be all that the sheriffs could produce in response to instructions to attach and arrest, and that the custody of these would not in their opinions advance the redemption of Land Bank notes.

207

They, perhaps, hoped for some results from suits against those assessed in November, and waited a little over a year before taking any other steps toward levying assessments.¹ On the 27th of December, 1745, however, they levied a ten per cent. assessment upon all subscribers, including therein those against whom assessments had already been made, and in due course of time thereafter sought to enforce collection of this assessment through the courts.

The first special blank form of writ that appears upon the files in connection with this assessment is addressed directly to the defendant, summoning him to appear, and in the final clause is a statement that his goods have been attached. He is summoned to answer the commissioners in a plea of debt, the claim being based upon an assessment laid under authority of the General Court, December 27, 1745, against subscribers for their ratable parts for the redemption of outstanding bills. Notice by publication is alleged, and the approval, February 7th, of the assessment by the General Court. Payment of the same, it is stated, has not been made by the defendant.²

Another special blank was used which was addressed to the sheriff in the ordinary way, and contained the usual order to attach or arrest. It contained allegations similar in substance to those of the next preceding form.³

During the year 1746, the commissioners were busy seeking to enforce the collection of their assessment of December, 1745. The tedious nature of the proceedings,

208

and the general resistance which they met with, made the results costly and unproductive. At a later date one of the commissioners reported that their work at this time tended rather to increase than diminish the debt of the company. To add to their embarassment, and to increase the confusion of their affairs, their books and papers were burned when the town-house was destroyed by fire in 1747.

It is not strange that we find that the General Court was made uneasy by this condition of affairs. All the original evidence, by means of which subscribers could be held, was gone. An order was introduced in the General Court in September, 1747, for a joint committee to consider and report what was necessary to be done for the further relief of those persons who were concerned in the Land Bank scheme, but it does not appear that this committee ever acted.¹ In April, 1748, the commissioners were called upon to make a report at the May session. This they did on the 22d of June, stating that they were careful to keep an exact and minute account, not only of the several sums paid in by the partners and of the species in which payments were made, but also of the disbursements for purchasing and drawing in the company’s bills, and of the charges occasioned by the law suits, and otherwise. But as the books and papers containing all their entries and accounts were unhappily consumed with the courthouse by fire, and the knowledge of many things transacted, thereby put beyond all possibility of being recovered, and there being no way that they knew of except by sight of the receipts given by the commissioners

209

to the partners, to ascertain what had been paid, they had given notice to partners to produce their receipts. Not more than one in a hundred had been brought in up to that tune. They were therefore incapable of making the report which they were called upon to furnish. A committee was thereupon appointed to consider the affair.

November 11, 1748, a bill was introduced the purpose of which was to overcome the difficulties in the way of settling the Land Bank, occasioned by the loss of the books and papers of the commissioners, and January 3 the governor gave his consent to the bill. The preamble recites the great difficulties experienced by the commissioners, more especially those occasioned by the destruction of the books of the company and of the commissioners in the late burning of the court-house in Boston.

The first section of the act provides that the commissioners shall as soon as may be make an assessment on those persons mentioned in a list printed in the supplement of the Boston Gazette, 1745, which list is declared to contain a true and exact account of the partners in said Land Bank scheme. The assessment was to be adequate to redeem outstanding bills, to make good deficiencies, and to cover expenses. Receipts for payment on the previous assessment should be received as money by the commissioners pro tanto. The assessment was to be printed in the weekly newspapers sixty days before its presentation to the General Court, after which publication the approval of the court was required. The commissioners could issue their warrants of distress against partners who failed to pay such assessment within sixty days after approval by the General Court. The form of the warrant of distress was then given.

210

Sheriffs, coroners and constables were required in section two to execute the warrants, and in section three instruction was given them as to the liability of the estates of deceased persons, who if living and in the province would have been compelled to respond. By section four, the commissioners were to divide any surplus that they might collect among the partners. Section five provided for meetings of the commissioners, and section six conferred upon them power to demand and receive papers.

The warrant of distress, which the commissioners were by this act authorized to issue against delinquents, opened with a recital of the names of the commissioners and their title. It was addressed to the sheriff, and proceeded to rehearse in detail the authority under which it was issued and the several facts that constituted a technical compliance with the act, so that the responsibility of the defendant became thereby fixed. It then proceeded to require the officer to levy by distress upon the property of the defendant, giving detailed instructions as to surpluses and redemptions. It was evident that the commissioners expected through the agency of these warrants to overcome the obstacles which had hitherto prevented them from closing up the company. They proceeded therefore in a hopeful mood to make an assessment, and at some time in the year 1749, submitted it to the General Court. The fact that such an assessment was made, appears from a report of one of the commissioners, who says that some of the partners not being satisfied with it, prevailed on one branch of the General Assembly to withhold its approval, and the whole assessment thereby became invalid. Apparently no effort was made to substitute any other assessment for the one which failed of approval, and as this approval

211

lay at the basis of all proceedings under the act, the legislation of 1749 fell to the ground.

During this interval John Colman brought suit against the directors for a large sum, which he alleged to be due him from the company. He was defeated in the Inferior Court, appealed, and the judgment was affirmed. On the 15th of December, 1749, a committee reported to the house concerning a petition which had been presented June 24th of that year by John Brown and others.¹ The report was not satisfactory and the committee was ordered to take the petition again under consideration, together with the bills advanced in trade, and given upon bonds by the directors, and to hear all parties upon the affair and to make report thereon. March 18th, 1749-50,² the committee reported, and the house voted to postpone consideration of the matter to the next session, but apparently this, determination of the affair was not acceptable, for we learn that on April 4, 1750, the house came up to the council chamber, and a hearing on the petition was opened in the presence of the whole court. On the tenth and the eleventh of the same month the hearing was concluded in the same manner. A committee was appointed to consider and report, and on the 11th of October, John Quincy gave in the report of that committee, which was in effect an order that the commissioners submit some sort of a report, indicating as best they could the condition of the affairs of the Bank.³

212

This report was accepted, and in response to the order, the commissioners on the 15th of January, 1750-51, filed an account of the state of affairs of the company according to their best light.¹ This report was referred to the committee appointed to consider the petition of John Brown and others. On the 27th, the house, where evidently was lodged the strength of the petitioners, showed signs of impatience, and voted that this committe[e] be directed to sit forthwith and report as soon as may be. Again, on February 21, the house voted that the accounts of the commissioners, the accounts of the directors as a collective body, and the accounts of the delinquent partners, should be referred to a committee, which should adjust and settle them and report thereon the first day of the next session of the court. The council non-concurred, and voted that a conference should be had between the two houses, and that John Quincy should represent the board at the conference. This conference was held the same afternoon, after which the council adhered to their original vote with amendments and sent it down to the house. Finally, both houses agreed on the 22d upon a form defining the powers of a committee to examine the question of the liability of the directors. This committee was to examine and make strict inquiries into any moneys or other effects that might have been received by the directors of the Land Bank company jointly and distinct from any money or effects with which they stood charged in their particular accounts. The accounts of the commissioners were also referred to them, and they were to sit during the recess of the court. On the 17th of April, 1751, John Wheelwright,

213

in behalf of this committee, reported, giving in detail the amounts which were found to be due to the company from the several directors, which amounts it was said the directors and the heirs of deceased directors ought forthwith to pay to the company. The committee were further of the opinion that the proportionate share of a director for the finishing of the affairs of the Land Bank, was in addition to the foregoing amounts, forty pounds. They recommended the enforcement of assessments already laid, and the levying of another, if necessary. To accomplish this they recommended the passage of a new act. The report was read, accepted, and a committee appointed, April 19, to bring in a bill to accomplish these purposes. On the 24th such a bill, having been duly enacted, met with the approval of the lieutenant-governor.

The preamble to this act recites the assessments of August 21, 1744, November 8, 1744, and December 27, 1745, and their publication.¹ It states the impossibility of ascertaining the exact sums paid by individual partners, in consequence of the burning of the court-house, in any other way than from evidence to be furnished by the partners themselves; and then goes on in the first section to declare that the partners are held to be liable for the payment of the sums mentioned in the publications of said assessments, unless they can furnish evidence of payment. Six per cent. interest was to be collected on all the assessments, and in order to meet charges caused by the non-payment of assessments, ten per cent. was added to the assessments of August and November, 1744, and five per cent. to that of December, 1745. In section two the directors were declared to be liable for

214

the sums found to be due from them in Wheelwright’s report, and the surviving directors and the estates of deceased directors were each assessed forty pounds Land Bank money. By section three these sums were to be paid before August 1, 1751, and if not then paid, the commissioners were required forthwith to issue their warrants of distress, and this notwithstanding there might be outstanding unsatisfied judgments of the courts theretofore obtained. The form of the warrant was given. Section four was devoted to the setting forth of the officers who were empowered and required to execute the warrants, and to instructions in case the assessed partners were deceased or out of the province. Three months were allowed for the redemption of real estate.

Under section five the commissioners were authorized to make further assessments if it should become necessary. Such assessments were to be published, according to section six, in the Boston Gazette or Weekly Journal. Sixty days were allowed after publication for voluntary payment, and then the commissioners were required, unless the assessment had in the meantime been set aside by the General Court, to issue forthwith their warrants of distress.

It is then alleged that in a previous act the estates of partners were, after the publication of the assessment, held in the same manner as if they had been attached at the suit of a creditor. By the seventh section all lands which were bound by this clause, no matter in whose possession they might then be, were declared to be still subject to the payment of the assessment, and liable to be taken by distress. As soon as the commissioners should have collected enough to redeem the outstanding bills, they were in the eighth section instructed to give public notice of a time and place at

215

which they would attend to redeem bills. Such public notice was declared to be a legal tender to possessors of bills.

The warrant of distress provided for in this act was to be issued over the hands and seals of the commissioners. The form was addressed to the sheriff. It recited the authority conferred in the act itself, and required the sheriff to levy by distress and sale of the estate of the defendant a certain sum, and bring the same to the commissioners. If no estate could be found, the sheriff was to arrest the defendant and commit him to gaol until the same should be paid. If real estate was attached three months were allowed for redemption. The return was to be made to the registry of deeds for record.¹

The governor had refused consent to the first attempt at legislation directed towards closing the Land Bank, because the company was too plainly recognized. He had refused consent to the first act prepared for finishing the Land Bank, because it was too arbitrary. Ten years had elapsed since the arrival of the act of parliament, and beyond what had been accomplished by the company itself, little progress had been made towards closing the affairs of the company. With the law which was passed in 1751, the commissioners could easily have wound up the Bank in 1743. It remained to be seen what could be done with such a law now. The commissioners had a warrant of distress printed,² following the phraseology prescribed by the act, and at once proceeded to test this question.

The delinquents had, however, in many instances taken steps to protect their property as best they could, and they had learned that legislation of this sort was

216

full of flaws. In the country it was difficult to procure service of the warrants, and many of them were returned years after issue without service.¹ “He is out of the province”; “Cannot find estate”; “Dead, insolvent”; “Is dead, sold his estate in season, and was insolvent”; “Never lived in Worcester, but in Woodstock, and no estate can be come at”; “Sold in season, gone to Albany”; “Sold in season, died and left no estate”; and so on, with an occasional “paid formerly” by way of variation, such are the returns made to these warrants of distress.²

In 1752, Sheriff Pollard, of Suffolk County, in a memorial, addressed to the General Court, stated that as far as lay in his power he had levied the warrants of distress and had exposed the estates for sale, yet by reason of a supposed defect in the law, which did not in express words enable the sheriff to execute a conveyance with warrantee, those persons who had been inclined to bid at such sales were discouraged from so doing. Whereupon the memorialist felt it to be his duty to lay these facts before the court.

The council on the 14th of December, 1752, ordered the appointment of a committee to take the matter of the memorial under consideration and to report a bill. The house non-concurred on the 15th, and ordered the memorial dismissed. On the 23d the house reconsidered this action, concurred with the council and filled the committee. January 3d 1753, the bill was reported to the council, and passed to be engrossed. April 7th the house ordered the committee appointed December 23d to prepare a bill as soon as may be. On the 9th the council concurred in this order. On the 12th this committee

217

was ordered by concurrent vote to sit forthwith and report thereon as soon as may be.

On the 19th of June, a committee of the General Court was appointed to inspect and examine the accounts 0f the commissioners, and to report at the next sitting of the court the present state of the accounts and what they judge proper to be done thereon.

December 21, 1753, an act in further addition to the several laws in being for the snore speedy finishing the Land Bank and Manufactory Scheme was passed by the council to be engrossed. January 21, 1754, the house passed an order that a joint committee prepare a bill for this purpose, and the council concurred in this order. April 13, such a bill was reported in the council and read a first time. On the 19th it was passed in concurrence to be engrossed, and the same day the vote was reconsidered and the council non-concurred. February 19, 1755, the bill was revived, and on the 21st and 22d read a first and second time in the council, and with an amendment was passed to be engrossed. On the 25th, the house passed the bill a first, second and third time in concur[r]ence, and on the 27th this bill became a law.¹

The bill opens with the allegation that further provision is necessary to be made with regard to the sale of real estate of delinquents. The first section is retroactive in certain cases, as well as applicable to the future, and provides that if after levy on the real estate of a partner for a sum assessed upon him, the sheriff shall obtain from the register of deeds a certificate that prior to October, 1743, the said partner had not conveyed the estate to any other person, he shall be authorized and empowered after the time allowed for redemptions shall have elapsed to execute a warrantee

218

deed to the purchaser. Section two gave to claimants the right to bring suit within one year from the date of the conveyance by the sheriff, and in the meantime such claimants were barred from any action of trespass or ejectment. Provision was made for the case of absence from the province or the legal incapacity of a claimant.

By the third section, the estates of all partners were made liable for the costs and charges which might arise from such conveyance. By the fourth section, an attested copy of a Land Bank mortgage was made good evidence in any suit upon such mortgage. By section five the powers of commissioners, conferred by previous legislation, were declared not to be abridged by this act. The most curious feature of this act is the recognition of the mortgages given to the Land Bank.

◄Volume II, Chapter VIII   Directory of Files   Volume II, Chapter X►