A Biography of Henry Clay, the Senator from Kentucky / Containing Also, a Complete Report of All His Speeches; Selections From His Private Correspondence; Eulogies in the Senate and House; and a Poem, by George D. Prentice, Esq.

by Unknown

ON THE REMOVAL OF THE PUBLIC DEPOSITS FROM THE BANK OF THE UNITED STATES.

IN THE UNITED STATES SENATE, DECEMBER 26, 1833.

[THE house of representatives, on the second of March, 1833, adopted, by a vote of one hundred and ten to forty-six, the following resolution: ‘that the government deposits may, in the opinion of the house, be safely continued in the bank of the United States.’ Notwithstanding this resolution, the president of the United States, (general Jackson,) in September following, read a paper to his cabinet, declaring his intention to cause the deposits to be removed from the bank. He then removed the secretary of the treasury, Mr. Duane, from office, in consequence of his refusal to comply with the president’s orders in this respect, and appointed Mr. Taney secretary in his place; who removed the deposits from the United States bank, on the first of October, 1833, and placed them in sundry state banks. At the ensuing session of congress, the secretary of the treasury, Mr. Taney, having made his report on that transaction, the subject came up for consideration in the senate, when Mr. Clay submitted the following resolutions, which he accompanied with the subjoined speech.]

RESOLVED, that by dismissing the late secretary of the treasury, because he would not, contrary to his sense of his own duty, remove the money of the United States in deposit with the bank of the United States and its branches, in conformity with the president’s opinion; and by appointing his successor to effect such removal, which has been done, the president has assumed the exercise of a power over the treasury of the United States not granted to him by the constitution and laws, and dangerous to the liberties of the people.

Resolved, that the reasons assigned by the secretary of the treasury for the removal of the money of the United States, deposited in the bank of the United States and its branches, communicated to congress on the third of December, 1833, are unsatisfactory and insufficient.

WE are in the midst of a revolution, hitherto bloodless, but rapidly tending towards a total change of the pure republican character of the government, and to the concentration of all power in the hands of one man. The powers of congress are paralysed, except when exerted in conformity with his will, by frequent and an extraordinary exercise of the executive veto, not anticipated by the founders of our constitution, and not practiced by any of the predecessors of the present chief magistrate. And, to cramp them still more, a new expedient is springing into use, of withholdingaltogether bills which have received the sanction of both houses of congress, thereby cutting off all opportunity of passing them, even if, after their return, the members should be unanimous in their favor. The constitutional participation of the senate in the appointing power is virtually abolished by the constant use of the power of removal from office, without any known cause, and by the appointment of the same individual to the same office, after his rejection by the senate. How often have we, senators, felt that the check of the senate, instead of being, as the constitution intended, a salutary control, was an idle ceremony? How often, when acting on the case of the nominated successor, have we felt the injustice of the removal? How often have we said to each other, well, what can we do? the office cannot remain vacant, without prejudice to the public interest, and, if we reject the proposed substitute, we cannot restore the displaced; and, perhaps, some more unworthy man may be nominated.

The judiciary has not been exempt from the prevailing rage for innovation. Decisions of the tribunals, deliberately pronounced, have been contemptuously disregarded. And the sanctity of numerous treaties openly violated. Our Indian relations, coeval with the existence of the government, and recognised and established by numerous laws and treaties, have been subverted, the rights of the helpless and unfortunate aborigines trampled in the dust, and they brought under subjection to unknown laws, in which they have no voice, promulgated in an unknown language. The most extensive and most valuable public domain that ever fell to the lot of one nation, is threatened with a total sacrifice. The general currency of the country—the life-blood of all its business—is in the most imminent danger of universal disorder and confusion. The power of internal improvement lies crushed beneath the veto. The system of protection of American industry was snatched from impending destruction, at the last session; but we are now coolly told by the secretary of the treasury, without a blush, ‘that it is understood to be conceded on all hands, that the tariff for protection merely is to be finally abandoned.’ By the third of March, 1837, if the progress of innovation continues, there will be scarcely a vestige remaining of the government and its policy, as they existed prior to the third of March, 1829. In a term of eight years, a little more than equal to that which was required to establish our liberties, the government will have been transformed into an elective monarchy—the worst of all forms of government.

Such is a melancholy but faithful picture of the present condition of our public affairs. It is not sketched or exhibited to excite, here or elsewhere, irritated feeling. I have no such purpose. I would, on the contrary, implore the senate and the people to discard all passion and prejudice, and to look calmly, but resolutely, upon the actual state of the constitution and the country. Although I bringinto the senate the same unabated spirit, and the same firm determination which have ever guided me in the support of civil liberty, and the defence of our constitution, I contemplate the prospect before us with feelings of deep humiliation and profound mortification.

It is not among the least unfortunate symptoms of the times, that a large portion of the good and enlightened men of the union, of all parties, are yielding to sentiments of despondency. There is, unhappily, a feeling of distrust and insecurity pervading the community. Many of our best citizens entertain serious apprehensions, that our union and our institutions are destined to a speedy overthrow. Sir, I trust that the hopes and confidence of the country will revive. There is much occasion for manly independence and patriotic vigor, but none for despair. Thank God, we are yet free; and, if we put on the chains which are forging for us, it will be because we deserve to wear them. We should never despair of the republic. If our ancestors had been capable of surrendering themselves to such ignoble sentiments, our independence and our liberties would never have been achieved. The winter of 1776–7 was one of the gloomiest periods of the revolution; but on this day, fifty-seven years ago, the father of his country achieved a glorious victory, which diffused joy and gladness and animation throughout the states. Let us cherish the hope that, since he has gone from among us, Providence, in the dispensation of his mercies, has near at hand in reserve for us, though yet unseen by us, some sure and happy deliverance from all impending dangers.

When we assembled here last year, we were full of dreadful forebodings. On the one hand we were menaced with a civil war, which, lighting up in a single state, might spread its flames throughout one of the largest sections of the union. On the other, a cherished system of policy, essential to the successful prosecution of the industry of our countrymen, was exposed to imminent danger of immediate destruction. Means were happily applied by congress to avert both calamities; the country was reconciled, and our union once more became a band of friends and brothers. And I shall be greatly disappointed, if we do not find those who were denounced as being unfriendly to the continuance of our confederacy, among the foremost to fly to its preservation, and to resist all executive encroachment.

Mr. President, when congress adjourned, at the termination of the last session, there was one remnant of its powers, that over the purse, left untouched. The two most important powers of civil government are, those of the sword and the purse. The first, with some restriction, is confided by the constitution to the executive, and the last to the legislative department. If they are separate, and exercised by different responsible departments, civil liberty is safe;but if they are united in the hands of the same individual, it is gone. That clear-sighted and sagacious revolutionary orator and patriot, Patrick Henry, justly said, in the Virginia convention, in reply to one of his opponents:

‘Let him candidly tell me where and when did freedom exist, when the sword and purse were given up from the people? Unless a miracle in human affairs interposed, no nation ever retained its liberty after the loss of the sword and the purse? Can you prove by any argumentative deduction, that it is possible to be safe without one of them? If you give them up you are gone.’

Up to the period of the termination of the last session of congress, the exclusive constitutional power of congress over the treasury of the United States had never been contested. Among its earliest acts was one to establish the treasury department, which provided for the appointment of a treasurer, who was required to give bond and security in a very large amount, ‘to receive and keep the moneys of the United States and to disburse the same, upon warrants drawn by the secretary of the treasury, countersigned by the comptroller, recorded by the register, and not otherwise.’ Prior to the establishment of the present bank of the United States, no treasury or place had been provided and designated by law for the safe-keeping of the public moneys, but the treasurer was left to his own discretion and responsibility. When the existing bank was established, it was provided that the public moneys should be deposited with it, and consequently that bank became the treasury of the United States. For whatever place is designated by law for the keeping of the public money of the United States, under the care of the treasurer of the United States, is for the time being the treasury. Its safety was drawn in question by the chief magistrates, and an agent was appointed, a little more than a year ago, to investigate its ability. He reported to the executive, that it was perfectly safe. His apprehensions of its solidity were communicated by the president to congress, and a committee was appointed to examine the subject. They, also, reported in favor of its security. And, finally, among the last acts of the house of representatives, prior to the close of the last session, was the adoption of a resolution, manifesting its entire confidence in the ability and solidity of the bank.

After all these testimonies to the perfect safety of the public moneys, in the place appointed by congress, who could have supposed that the place would have been changed? Who could have imagined, that within sixty days of the meeting of congress, and, as it were, in utter contempt of its authority, the change should have been ordered? Who would have dreamed, that the treasurer should have thrown away the single key to the treasury, over which congress held ample control, and accepted in lieu of it some dozens of keys, over which neither congress nor he has any adequate control? Yet, sir, all this has been done; and it is nowour solemn duty to inquire, first, by whose authority it has been ordered? and, secondly, whether the order has been given in conformity with the constitution and laws of the United States?

I agree, sir, and I am happy whenever I can agree with the president, as to the immense importance of these questions. He says, in a paper which I hold in my hand, that he looks upon the pending question as involving higher considerations than the ‘mere transfer of a sum of money from one bank to another. Its decision may affect the character of our government for ages to come.’ And, with him, I view it as of transcendent importance, both in its consequences and the great principles which the question involves. In the view which I have taken of this subject, I hold the bank as nothing, as perfectly insignificant, faithful as it has been in the performance of all its duties, efficient as it has proved in regulating the currency, than which there is none in all christendom so sound, and deep as is the interest of the country in the establishment and continuance of a sound currency, and the avoidance of all those evils which result from a defective or unsettled currency. All these I regard as questions of no importance, in comparison with the principles involved in this executive innovation. It involves the distribution of power by the executive, and the taking away a power from congress which it was never before doubted to possess—the power over the public purse. Entertaining these views, I shall not, to-day, at least, examine the reasons assigned by the president, or by the secretary of the treasury; for if the president had no power to perform the act, no reasons, however cogent or strong, which he can assign as urging him to the accomplishment of his purpose, no reasons, can sanctify an unconstitutional and illegal act.

The first question, sir, which I intimated it to be my purpose to examine, was, by whose direction was this change of the deposits made?

Now, sir, is there any man who hears me, who requires proof on this point? Is there an intelligent man in the whole country who does not know who it was that decided on the removal of the deposits? Is it not of universal notoriety? Does any man doubt that it was the act of the president? That it was done by his authority and at his command? The president, on this subject, has himself furnished evidence which is perfectly conclusive, in the paper which he has read to his cabinet; for, although he has denied to the senate an official copy of that paper, it is universally admitted that he has given it to the world, as containing the reasons which influenced him to this act. As a part of the people, if not in our senatorial character, we have a right to avail ourselves of that paper, and of all which it contains. Is it not perfectly conclusive as to the authority by which the deposits have been removed? I admit that it is an unprecedented and most extraordinary power.The constitution of the United States admits of a call, from the chief magistrate, on the heads of departments, for their opinions in writing.

It appears, indeed, that this power which the constitution confers on the president, had been exercised, and that the cabinet were divided, two and two; and one, who was ready to go on either side, being a little indifferent how this great constitutional power was settled by the president. The president was not satisfied with calling on his cabinet for their opinions, in the customary and constitutional form; but he prepares a paper of his own, and instead of receiving reasons from them, reads to them, and thus indoctrinates them according to his own views. This, sir, is the first time in the history of our country, when a paper has been thus read, and thus published. The proceeding is entirely without precedent. Those who now exercise power, consider all precedents wrong. They hold precedents in contempt; and, casting them aside, have commenced a new era in administration. But while they thus hold all precedents in contempt, disregarding all, no matter how long established, no matter to what departments of the government they may have given sanction, they are always disposed to shield themselves behind a precedent, whenever they can find one to subserve their purpose.

But the question is, who gave the order for the removal of the deposits? By whose act were they removed from the bank of the United States, where they were required by the law to be placed, and placed in banks which the law never designated? I tell the gentlemen who are opposed to me, that I am not to be answered by the exhibition of an order signed by R. Taney, or any one else. I want to know, not the clerk who makes the writing, but the individual who dictates—not the hangman who executes the culprit, but the tribunal which orders the execution. I want the original authority, that I may know by whose order, on whose authority, the public deposits were removed, and I again ask, is there a member of this senate, is there an intelligent man in the whole country, who doubts on this point? Hear what the president himself says, in his manifesto, read to his cabinet:

‘The president deems it HIS duty, to communicate in this manner to his cabinet the final conclusions OF HIS OWN MIND, and the reasons on which they are founded,’ and so forth.

At the conclusion of this paper what does he say?

‘The president again repeats, that he begs his cabinet to consider the proposed measure as HIS OWN, in the support of which he shall require no one of them to make a sacrifice of opinion or principle. ITS RESPONSIBILITY HAS BEEN ASSUMED, after the most mature reflection, as necessary to preserve the morals of the people, the freedom of the press, and the purity of the elective franchise, without which all will unite in saying, that the blood and treasure expended by our forefathers in the establishment of our happy system of government will have been vain and fruitless.Under these convictions, he feels that a measure so important to the American people cannot be commenced too soon; and HE therefore names the first day of October next as a period proper for the change of the deposits, or sooner, provided the necessary arrangements with the state banks can be made.’

Sir, is there a senator here who will tell me that this removal was not made by the president? I know, indeed, that there are in this document many of those most mild, most gracious, most condescending expressions, with which power too well knows how to clothe its mandates. The president coaxes, he soothes the secretary, in the most bland and conciliating language:

‘In the remarks he has made on this all-important question, he trusts the secretary of the treasury will see only the frank and respectful declarations of the opinions which the president has formed on a measure of great national interest, deeply affecting the character and usefulness of his administration; and not a spirit of dictation, which the president would be as careful to avoid, as ready to resist. Happy will he be, if the facts now disclosed produce uniformity of opinion and unity of action among the members of the administration.’

Sir, how kind! how gentle! How very gracious must this have sounded in the gratified ear of the secretary of the treasury! Sir, it reminds me of an historical anecdote, related of one of the most remarkable characters which our species has ever produced. While Oliver Cromwell was contending for the mastery of Great Britain, or Ireland, (I do not now remember which,) he besieged a certain catholic town. The place made a stout resistance; but at length the town being likely to be taken, the poor catholics proposed terms of capitulation, stipulating therein for the toleration of their religion. The paper containing the terms was brought to Oliver, who, putting on his spectacles to read it, cried out, ‘oh, granted, granted, certainly;’ he added, however, ‘but if one of them shall dare to be found attending mass, he shall be hanged;’ (under what section is not mentioned; whether under a second, or any other section, of any particular law, we are not told.)

Thus, sir, the secretary was told by the president, that he had not the slightest wish to dictate—oh, no; nothing is further from the president’s intention; but, sir, what was he told in the sequel? ‘If you do not comply with my wishes—if you do not effect the removal of these deposits within the period I assign you—you must quit your office.’ And what, sir, was the effect? This document bears date on the eighteenth of September. In the official paper, published at the seat of government, and through which it is understood that the government makes known its wishes and purposes to the people of the United States, we were told, under date of the twentieth of September, 1833, two days only after this cabinet paper was read, as follows:

‘We are authorized to state’—[authorized; this is the word which gave credit to this annunciation—] ‘We are authorized to state, that the deposits of the public money will be changed from the bank of the United States to the state banks, as soonas necessary arrangements can be made for that purpose; and that it is believed they can be completed in Baltimore, Philadelphia, New York, and Boston, in time to make the change by the first of October, and perhaps sooner, if circumstances should render an earlier action necessary on the part of the government.’

Yes, sir, on the eighteenth of September this measure was decided on; and on the twentieth, it is announced to the people, that the deposits would be removed by the first of October, or sooner, if practicable! Mr. Duane was continued in office till the twenty-third, on which day he was dismissed; and between the twenty-third and the twenty-sixth, on which latter day the mere clerical act of signing the order for removal was performed, Mr. Taney, by whom it was done, was appointed secretary of the treasury, having conformed to the will of the president, against his own duty, which Mr. Duane would not do. Yes, sir, on the twentieth went forth this proclamation, by authority, of the removal of the deposits, although Mr. Duane remained in office till the twenty-third. On this point we have conclusive proof in a letter of the president to that gentleman, dated on the twenty-third, which letter, after all the gracious, friendly, and conciliating language of the cabinet paper, concludes in these terms:

‘I feel constrained to notify you, that your further services as secretary of the treasury are no longer required.’

Such, Mr. President, is the testimony on the one side to prove the truth of the proposition, that the removal of the deposits from the bank of the United States, was a measure determined on by the president himself—determined on while the latter secretary of the treasury was still in office, and against the will of the secretary; although Mr. Taney may have put his signature to the order on the twenty-sixth—a mere ministerial act, done in conformity with the previous decision of the president, that the removal should take place on or before the first of October.

I now call the attention of the senate to testimony of the other party; I mean Mr. Duane. After giving a history of the circumstances which accompanied his appointment to office, and what passed antecedently to his removal, he proceeds to say:

‘Thus was I thrust into office: thus was I thrust from office; not because I had neglected any duty; not because I had differed with him about the bank of the United States; but because I refused, without further inquiry by congress, to remove the deposits.’

Can testimony be more complete to establish the proposition I have advanced? And is it possible, after the testimony of the president on one side, and of his secretary on the other, that the former had decided that the deposits should be removed, and had removed the secretary because he would not do it, that any man can doubt that the removal was the president’s own act?—that it was done in accordance with his command?

And now, sir, having seen that the removal was made by the command and authority of the president, I shall proceed to inquire whether it was done in conformity with the constitution and laws of the United States.

I do not purpose at this time to go into the reasons alleged by the president or his secretary, except so far as those reasons contain an attempt to show that he possessed the requisite authority. Because if the president of the United States had no power to do this thing—if the constitution and laws, instead of authorizing it, required him to keep his hands off the treasury—it is useless to inquire into any reasons he may give for exercising a power which he did not possess. Sir, what power has the president of the United States over the treasury? Is it in the charter establishing the bank? The clause of the charter relating to the public deposits declares,

‘That the deposits of the money of the United States, in places in which the said bank and branches thereof may be established, shall be made in said bank or branches thereof, unless the secretary of the treasury shall at any time otherwise order and direct; in which case the secretary of the treasury shall immediately lay before congress, if in session, and if not, immediately after the commencement of the next session, the reasons of such order or direction.’

This is in strict consonance with the act creating the treasury department in 1789. The secretary of the treasury is by that act constituted the agent of congress; he is required to report to congress annually the state of the finances, and his plans respecting them; and if congress in either of its branches shall require it, he is to report at any time on any particular branch of the fiscal concerns of the country. He is the agent of congress to watch over the safety of the national deposits; and if, from any peculiar circumstances, the removal of them shall be required, he is to report the fact—to whom? to the president? No, sir; he must report to congress, together with his reasons therefor. By the charter of the bank, the president of the United States is clothed with two powers respecting it, and two only. By one of its clauses he is authorized to nominate, and by and with the consent of the senate, to appoint the government directors, and to remove them, by the other clause he is empowered to issue a scire facias when he shall apprehend that the charter of the institution has been violated. These, I say, are the only powers given him by the charter; all others are denied to him, and are given to others. The bank is not bound to report the state of its affairs to him, but to the secretary of the treasury; and it is thus to report whenever he shall call upon it for information; but when it becomes necessary to go further, a committee of congress is authorized to examine the books of the bank, and to look into the whole state of its affairs, and to report, not to the president, but to congress, who appointed them.The president, as I have said, is restricted to the two powers of appointing directors, and issuing a scire facias.

And has the president any power over the treasury by the constitution? None, sir—none. The constitution requires that no money shall be drawn from the treasury except by appropriation, thus placing it entirely under the control of congress. But the president himself says; ‘upon him has been devolved, by the constitution and the suffrages of the American people, the duty of superintending the operation of the executive departments of the government, and seeing that the laws are faithfully executed.’ Sir, the president, in another part of this same paper, refers to the same suffrages of the American people, as the source of some other and new powers over and above those in the constitution, or at least as expressive of their approbation of the exercise of them. Sir, I differ from the president on this point; and though it does not belong exactly in this place in the argument, I will add a remark or two on this idea. His reëlection resulted from his presumed merits generally, and the confidence and attachment of the people; and from the unworthiness of his competitor; nor was it intended thereby to express their approbation of all the opinions he was known to hold. Sir, it cannot be believed that the great state of Pennsylvania, for instance, which has so justly been denominated the key-stone of our federal arch, in voting again and again for the present chief magistrate, meant by that act to reverse her own opinions on the subject of domestic industry. Sir, the truth is, that the reëlection of the president proves as little an approbation by the people of all the opinions he may hold, even if he had ever unequivocally expressed what those opinions were, (a thing which he never, so far as my knowledge extends, has yet done,) as it would prove that if the president had a carbuncle or the king’s evil, they meant, by reëlecting him, to approve of his carbuncle.

But the president says, that the duty ‘has been devolved upon him,’ to remove the deposits, ‘by the constitution and the suffrages of the American people.’ Sir, does he mean to say that these suffrages created of themselves a new source of power? That he derived an authority from them which he did not hold as from any other source? If he means that their suffrages made him the president of the United States, and that, as president, he may exercise every power pertaining to that office under the constitution and the laws, there are none who controvert it; but then there could be no need to add the suffrages to the constitution. But his language is, ‘the suffrages of the American people and the constitution.’ Sir, I deny it. There is not a syllable in the constitution which imposes any such duty upon him. There is nothing of any such thing; no color to the idea. It is true, that by law, all the departments, with the exception of the treasury, are placed under the general care of the president. He says this is done by theconstitution. The laws, however, have appointed but three executive departments; and it is true, that the secretaries are often required by law to act in certain cases according to the directions of the president. So far it is admitted that they have been, by the law, (not by the constitution,) placed under the direction of the president. Yet, even as to the state department, there are duties devolving upon the secretary over which the president has no control; and for the non-performance of which that officer is responsible, not to the president, but to the legislative tribunals or to the courts of justice. This is no new opinion. The supreme court, in the case of Marbury and Madison, expressed it in the following terms:

‘By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which, he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity to his orders.

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‘In such cases, their acts are his acts: and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examined by the courts.

‘But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts, (that is, when he is not placed under the direction of the president,) when the rights of individuals are dependent on the performance of those acts, he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

‘The conclusion from this reasoning is that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.’

Though the president is mistaken in his assertion, that the constitution devolves upon the president the superintendence of the departments, there is one clause of that instrument which he has very correctly quoted, and which makes it his duty to ‘see that the laws are faithfully executed,’ as it is mine now to examine what authority he obtains by this clause in the case before us. Under it, the most enormous pretensions have been set up for the president.

It has been contended, that if a law shall pass which the president does not conceive to be in conformity with the constitution, he is not bound to execute it; and if a treaty shall have been made, which, in his opinion, has been unconstitutional in its stipulations, he is not bound to enforce them. And it necessarily follows, that,if the courts of justice shall give a decision, which he shall in like manner deem repugnant to the constitution, he is not expected or bound to execute that law. Sir, let us look a little into this principle, and trace it out into some of its consequences.

One of the most important acts performed at the departments is, to settle those very large accounts which individuals have with the government; accounts amounting to millions of dollars; to settle them, an auditor and a comptroller have been appointed by law, whose official acts may affect, to the extent of hundreds of thousands of dollars, the property of individual contractors. If the pretensions of the president are well founded, his power goes further than he has exerted it. He may go into the office of the auditor, or the office of the comptroller, and may say to him, sir, Mr. A. B. has an account under settlement in this office, one item of which, objected to by you, I consider to be in accordance with the constitution; pass that account and send it to the auditor; and he may then go to the auditor and hold similar language. If the clause of the constitution is to be expounded, as is contended for, it amounts to a complete absorption of all the powers of government in the person of the executive. Sir, when a doctrine like this shall be admitted as orthodox, when it shall be acquiesced in by the people of this country, our government will have become a simple machine enough. The will of the president will be the whole of it. There will be but one bed, and that will be the bed of Procrustes; but one will, the will of the president. All the departments, and all subordinate functionaries of government, great or small, must submit to that will; and if they do not, then the president will have failed to ‘see that the laws are faithfully executed.’

Sir, such an extravagant and enormous pretension as this must be set alongside of its exploded compeer, the pretension that congress has the power of passing any and all laws which it may suppose conducive to ‘the general welfare.’

Let me, in a few words, present to the senate what are my own views as to the structure of this government. I hold that no powers can legitimately be exercised under it but such as are expressly delegated, and those which are necessary to carry these into effect. Sir, the executive power, as existing in this government, is not to be traced to the notions of Montesquieu, or of any other writer of that class, in the abstract nature of the executive power. Neither is the legislative nor the judicial power to be decided by any such reformer. These several powers with us, whatever they may be elsewhere, are just what the constitution has made them, and nothing more. And as to the general clauses in which reference is made to either, they are to be controlled and interpreted by those where these several powers are specially delegated, otherwise the executive will become a great vortex thatmust end in swallowing up all the rest. Nor will the judicial power be any longer restrained by the restraining clauses in the constitution, which relate to its exercise. What then, it will be asked, does this clause, that the president shall see that the laws are faithfully executed, mean? Sir, it means nothing more nor less than this, that if resistance is made to the laws, he shall take care that resistance shall cease. Congress, by the first article of the eighth section of the constitution, is required to provide for calling out the militia to execute the laws, in case of resistance. Sir, it might as well be contended under that clause, that congress have the power of determining what are, and what are not, the laws of the land. Congress has the power of calling out the military; well, sir, what is the president, by the constitution? He is commander of the army and navy of the United States, and of the militia when called out into actual service. When, then, we are here told that he is clothed with the whole physical power of the nation, and when we are afterwards told, that he must take care that the laws are faithfully executed, is it possible that any man can be so lost to the love of liberty, as not to admit that this goes no further than to remove any resistance which may be made to the execution of the laws? We have established a system in which power has been carefully divided among different departments of the government. And we have been told a thousand times, that this division is indispensable as a safeguard to civil liberty. We have designated the departments, and have established in each, officers to examine the power belonging to each. The president, it is true, presides over the whole; his eye surveys the whole extent of the system in all its movements. But has he power to enter into the courts, for example, and tell them what is to be done? Or may he come here, and tell us the same? Or when we have made a law, can he withhold the power necessary to its practical effect? He moves, it is true, in a high, a glorious sphere. It is his to watch over the whole with a paternal eye; and, when any one wheel of the vast machine is for a time interrupted by the occurrence of invasion or rebellion, it is his care to propel its movements, and to furnish it with the requisite means of performing its appropriate duty in its own place.

That this is the true interpretation of the constitutional clause to which I have alluded, is inferred from the total silence of all contemporaneous expositions of that instrument on the subject. I have myself, (and when it was not in my power personally, have caused others to aid me,) made researches into the numbers of the Federalist, the debates in the Virginia convention, and in the conventions of other states, as well as all other sources of information to which I could obtain access, and I have not, in a solitary instance, found the slightest color for the claims set up in these most extraordinary times for the president, that he has authority to affordor withhold at pleasure the means of enforcing the laws, and to superintend and control an officer charged with a specific duty, made by the law exclusively his. But, sir, I have found some authorities which strongly militate against any such claim. If the doctrine be indeed true, then it is most evident that there is no longer any other control over our affairs, than that exerted by the president. If it be true, that when a duty is by law specifically assigned to a particular officer, the president may go into his office and control him in the manner of performing it, then is it most manifest that all barriers for the safety of the treasury are gone. Sir, it is that union of the purse and the sword, in the hand of one man, which constitutes the best definition of tyranny which our language can give.

The charter of the bank of the United States requires that the public deposits be made in its vaults. It also gives the secretary of the treasury power to remove them—and why? The secretary is at the head of the finances of the government. Weekly reports are made by the bank to him. He is to report to congress annually; and to either house whenever he should be called upon. He is the sentinel of congress—the agent of congress—the representative of congress. Congress has prescribed and has defined his duties. He is required to report to them, not to the president. He is put there by us, as our representative; he is required to remove the deposits when they shall be in danger, and we not in session; but when he does this, he is required to report to congress the fact, with his reasons for it. Now, sir, if, when an officer of government is thus specifically assigned his duty, if he is to report his official acts on his responsibility to congress; if, in a case where no power whatever is given to the president, the president may go and say to that officer, ‘go and do as I bid you, or you shall be removed from office;’ let me ask, whether the danger apprehended by that eloquent man has not already been realized?

But, sir, let me suppose that I am mistaken in my construction of the constitution; and let me suppose that the president has, as is contended, power to see every particular law carried into effect; what, then, was it his duty to do in the present case under the clause thus interpreted? The law authorized the secretary of the treasury to remove the deposits on his responsibility to congress. Now, if the president has power to see this, like other laws, faithfully executed, then, surely, the law exacted of him that he should see that the secretary was allowed to exercise his free, unbiased, uncontrolled judgment in removing or not removing them. That was the execution of the law. Congress had not said that the secretary of war, or the secretary of state, might remove the public deposits from the treasury.

The president has no right to go to the secretary of war and askhim what the secretary of the treasury ought to do. He might as well have consulted the secretary of the treasury about a contemplated movement of the army, as to ask the secretary of war about the disposition of the public moneys. It was not to the president, and all his secretaries combined, that the power was given to alter the disposition of the deposits in the bank. It was to the secretary alone, exclusive of the president, and all the other officers of government. And according to gentlemen’s own showing, by their construction of the clause, the secretary ought to have been left to his own unbiased determination, uncontrolled by the president or any body else.

I would thank the secretary of the senate to get me the sedition law. It is not very certain how soon we may be called to act upon it.

Now, sir, let us trace some of the other sources of the exercise of this power, or motives for it, or by whatever other name they are to be called. He says to Mr. Duane:

‘The president repeats, that he begs the cabinet to consider the proposed measure as his own, in the support of which he shall require no one of them to make a sacrifice of opinion or principle. Its responsibility has been assumed, after the most mature deliberation and reflection, as necessary to preserve the morals of the people, the freedom of the press, and the purity of the elective franchise.’

The morals of the people! What part of the constitution has given to the president any power over ‘the morals of the people?’ None. It does not give such power even over religion, the presiding and genial influence over every true system of morals. No, sir, it gives him no such power.

And what is the next step? To-day he claims a power as necessary to the morals of the people; to-morrow he will claim another, as still more indispensable to our religion. And the president might in this case as well have said that he went into the office of the secretary of the treasury, and controlled his free exercise of his authority as secretary, because it was necessary to preserve ‘the religion of the people!’ I ask for the authority. Will any one of those gentlemen here, who consider themselves as the vindicators of the executive, point me to any clause of the constitution which gives to the present president of the United States any power to preserve ‘the morals of the people?’

But ‘the freedom of the press,’ it seems, was another motive. Sir, I am not surprised that the present secretary of the treasury should feel a desire to revive this power over the press. He, I think, was a member of that party which passed the sedition law, under precisely the same pretext. I recollect it was said, that this bank, this monster of tyranny, was taking into its pay a countless number of papers, and by this means was destroying the fair fame of the president and his secretary, and all that sort of thing. Sir,it is sometimes useful to refer back to those old things—to the notions and the motives which induced men in former times to do certain acts which may not be altogether unlike some others in our own time.

The famous sedition act was passed, sir, in 1789; and it contained, among others, the following provision:

‘Section 2. That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall, knowingly and willingly, assist or aid in writing, printing, uttering, or publishing, any false, scandalous, and malicious writing or writings, against the government of the United States, or either house of the congress of the United States, or the president of the United States, with intent to defame the said government, or either house of the said congress, or the said president, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either of them, the hatred of the good people of the United States, or to stir up sedition within the United States: or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the president of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States; or to resist, oppose, or defeat, any such law or act; or to aid, encourage, or abet, any hostile designs of any foreign nation, against the United States, their people, or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.’

We have now, sir, in the reasons for the removal of the government deposits, the same motives avowed and acted upon. The abuse of the government, bringing it into disrepute, using contemptuous language to persons high in authority, constituted the motives for passing the sedition law; and what have we now but a repetition of the same complaints of abuses, disrespect, and so forth. As it is now, so it was then; for, says the next section of the same sedition act:

‘That if any person shall be prosecuted under this act for the writing or publishing of any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.’

It is only for the sake of the truth, said they who favored the passage of that law—for the sake of justice; as it is now said that it was necessary to remove the deposits, in order to preserve the purity of the press. That’s all, sir. But there is one part of this assumption of power by the president much more tyrannical than that act. Under that law, the offending party was to have a trial by jury; the benefit of witnesses and of counsel; and the right to have the truth of his alleged libels examined. But what is the case now under consideration? Why, sir, the president takes the whole matter in his own hands; he is at once the judge, the jury, and the executioner of the sentence, and utterly deprives the accused party of the opportunity of showing that the imputed libel is no libel at all, but founded in the clearest truth.

But ‘the purity of the elective franchise,’ also, the president has very much at heart. And here, again, I ask what part of the constitution gives him any power over that ‘franchise?’ Look, sir, at the nature of the exercise of this power! If it was really necessary that steps should be taken to preserve the purity of the press or the freedom of elections, what ought the president to have done? Taken the matter into his own hands? No, sir; it was his duty to recommend to congress the passage of laws for the purpose, under suitable sanctions; laws which the courts of the United States could execute. We could not have been worse off under such laws, (however exceptionable they might be,) than we are now. We could then, sir, have reviewed the laws, and seen whether congress or the president had properly any power over this matter; or whether the article of the constitution which forbids that the press shall be touched, and declares that religion shall be sacred from all the powers of legislation, applied in the case or not. This the president has undertaken to do of himself, without the shadow of authority, either in the constitution or the laws.

Suppose, sir, that this contumacious institution, which committed the great sin, in 1829, of not appointing a new president to a certain one of its branches—suppose that the bank should go on and vindicate itself against the calumnies poured out upon it—that it should continue to stand upon its defence; how inefficient will have been the exercise of power by the president! How inadequate to the end he had in view, of preserving the press from being made use of to defend the bank! Why, sir, if we had had the power, and the president had come to us, we could have laid Mr. Nicholas Biddle by the heels, if he should have undertaken to publish another report of general Smith or Mr. Duffie, or another speech of the eloquent gentleman near me, (Mr. Webster,) or any other such libels, tending to bring the president or his administration into disrepute. But the president of the United States, who thought he had the bank in his power, who thought he could stop it, who was induced to believe, by that ‘influence behind the throne, greater than itself,’ that he could break down the bank at a word, has only shown his want of power over the press, by his attempt to exercise it in the manner he has done. The bank has avowed and openly declared its purpose to defend itself on all suitable occasions. And, what is still more provoking, instead of being a bankrupt, as was expected, with its doors closed, and its vaults inaccessible, it has now, it seems, got more money than it knows what to do with; and this greatest of misers and hoarders, cruelly refuses to let out a dollar of its ten millions of specie, to relieve the sufferings of the banks to which the government deposits have been transferred.

Sir, the president of the United States had nothing to do with the morals of the community. No, sir; for the preservation of ourmorals we are responsible to God, and I trust that that responsibility will ever remain to Him and His mercy alone. Neither had the president any thing to do with the freedom of the press. The power over it is denied, even to congress, by the people. It was said, by one of those few able men and bright luminaries, whom Providence has yet spared to us, in answer to complaints by a foreign minister, against the freedom with which the American press treated certain French functionaries, that the press was one of those concerns which admitted of no regulation by the government; that its abuses must be tolerated, lest its freedom should be abridged. Such, sir, is the freedom of the press, as recognised by our constitution, and so it has been respected ever since the repeal of the obnoxious act which I have already quoted, until the detestable principles of that law have been reasserted by the president, in his assumption of a power, in nowise belonging to his office, of preserving the purity of the press.

Such, sir, are the powers on which the president relies to justify his seizure of the treasury of the United States. I have examined them one by one; and they all fail, utterly fail, to bear out the act. We are irresistibly brought to the conclusion, that the removal of the public money from the bank of the United States has been effected by the displacement from the head of the treasury department of one who would not remove them, and putting in his stead another person, who would; and, secondly, that the president has no color of authority in the constitution or the laws for the act which he has undertaken to perform.

Let us now, for a few moments, examine the consequences which may ensue from the exercise of this enormous power. If the president has authority, in a case in which the law has assigned a specific duty exclusively to a designated officer, to control the exercise of his discretion by that officer, he has a right to interfere in every other case, and remove every one from office who hesitates to do his bidding, against his judgment of his own duty. This, surely, is a logical deduction not to be resisted. Well, then, how stands the matter? Recapitulating the provisions of the law prescribing how money should be drawn from the treasury and the deduction above stated, what is to prevent the president from going to the comptroller, and, if he will not countersign a warrant which he has found an accommodating secretary to sign, turning him out for another; then going to the register, and doing the same; and then to the treasurer, and commanding him to pay over the money expressed in the warrant, or subject himself to expulsion.

Where is the security against such conduct on the part of the president? Where the boundary to this tremendous authority, which he has undertaken to exercise? Sir, every barrier around the treasury is broken down. From the moment that the presidentsaid, ‘I make this measure my own, I take upon myself the responsibility,’ from that moment the public treasury might as well have been at the hermitage as at this place. Sir, the measure adopted by the president is without precedent—in our day at best. There is, indeed, a precedent on record, but you must go down to the christian era for it. It will be recollected, by those who are conversant with ancient history, that after Pompey was compelled to retire to Brundusium, Cæsar, who had been anxious to give him battle, returned to Rome, ‘having reduced Italy, (says the historian,) in sixty days, (the exact period, sir, between the removal of the deposits, and the meeting of congress, without the usual allowance of three days’ grace,) without bloodshed.’ The historian goes on; ‘finding the city in a more settled condition than he expected, and many senators there, he addressed them in a mild and gracious manner, (as the president addressed his late secretary of the treasury,) and desired them to send deputies to Pompey with an offer of honorable terms of peace. As Metellus, the tribune, opposed his taking money out of the public treasury, and cited some laws against it, (such, sir, I suppose, as I have endeavored to cite on this occasion,) Cæsar said, ‘arms and laws do not flourish together. If you are not pleased with what I am about, you have only to withdraw. (Leave the office, Mr. Duane!) War, indeed, will not tolerate much liberty of speech. When I say this, I am renouncing my own right; for you, and all those whom I have found exciting a spirit of faction against me, are at my disposal.’ Having said this, he approached the doors of the treasury, and as the keys were not produced, he sent for workmen to break them open. Metellus again opposed him, and gained credit with some for his firmness; but Cæsar, with an elevated voice, threatened to put him to death, if he gave any further trouble. ‘And you know very well, young man,’ said he, ‘that this is harder for me to say than to do.’ Metellus, terrified by the measure, retired, and Cæsar was afterward easily and readily supplied with every thing necessary for the war.

And where now, sir, is the public treasury? Who can tell? It is certainly without a local habitation, if it be not without a name. And where is the money of the people of the United States? Floating about in treasury drafts or checks to the amount of millions, placed in the hands of tottering banks, to enable them to pay their own debts, instead of being appropriated to the service of the people. These checks are scattered to the winds by the treasurer of the United States, who is required by law to let out money from the treasury, on warrants signed by the secretary of the treasury, countersigned, registered, and so forth, and not otherwise.

[Mr. Clay here referred to a correspondence, which he quoted, between the treasurer and the officers of the bank, complaining of these checks drawn withoutproper notice, and so forth, in which the treasurer says they were only issued to be used in certain contingencies, and so forth.]

Thus, sir, the people’s money is put into a bank here, and the bank there, in regard to the solvency of which we know nothing, and it is placed there to be used in the event of certain contingencies—contingencies of which neither the treasurer nor the secretary have yet deigned to furnish us any account.

Where was the oath of office of the treasurer, when he ventured thus to sport with the people’s money? Where was the constitution, which forbids money to be drawn from the treasury without appropriation by law? Where was the treasurer’s bond, when he thus cast about the people’s money? Sir, his bond is forfeited. I do not pretend to any great knowledge of the law, but give me an intelligent and unpacked jury, and I undertake to prove to him that he has forfeited the penalty of his bond.

Mr. President, the people of the United States are indebted to the president for the boldness of this movement; and as one among the humblest of them, I profess my obligations to him. He has told the senate, in his message refusing an official copy of his cabinet paper, that it has been published for the information of the people. As a part of the people, the senate, if not in their official character, have a right to its use. In that extraordinary paper, he has proclaimed, that the measure is his own; and that he has taken upon himself the responsibility of it. In plain English, he has proclaimed an open, palpable, and daring usurpation!

For more than fifteen years, Mr. President, I have been struggling to avoid the present state of things. I thought I perceived in some proceedings, during the conduct of the Seminole war, a spirit of defiance to the constitution and to all law. With what sincerity and truth, with what earnestness and devotion to civil liberty, I have struggled, the searcher of all human hearts best knows. With what fortune, the bleeding constitution of my country now fatally attests.

I have, nevertheless, persevered; and under every discouragement, during the short time that I expect to remain in the public councils, I will persevere. And if a bountiful Providence would allow an unworthy sinner to approach the throne of grace, I would beseech Him, as the greatest favor He could grant to me here below, to spare me until I live to behold the people rising in their majesty, with a peaceful and constitutional exercise of their power, to expel the Goths from Rome; to rescue the public treasury from pillage, to preserve the constitution of the United States; to uphold the union against the danger of the concentration and consolidation of all power in the hands of the executive; and to sustain the liberties of the people of this country against the imminent perils to which they now stand exposed.

[Here Mr. Clay, who was understood to have gone through the first part of his speech only, gave way, and Mr. Ewing of Ohio moved that the further consideration of the subject be postponed until Monday next; which was ordered accordingly. And then the senate adjourned to that day. December 30, Mr. Clay resumed his speech.]

Before I proceed to a consideration of the report of the secretary of the treasury, and the second resolution, I wish to anticipate and answer an objection, which may be made to the adoption of the first. It may be urged, that the senate, being, in a certain contingency, a court of impeachment, ought not to prejudge a question which it may be called upon to decide judicially. But by the constitution the senate has three characters, legislative, executive, and judicial. Its ordinary, and by far its most important character, is that of its being a component part of the legislative department. Only three or four cases, since the establishment of the government, (that is, during a period of nearly half a century,) have occurred, in which it was necessary that the senate should act as a judicial tribunal, the least important of all its characters. Now it would be most strange if, when its constitutional powers were assailed, it could not assert and vindicate them, because, by possibility, it might be required to act as a court of justice. The first resolution asserts only, that the president has assumed the exercise of a power over the public treasury not granted by the constitution and laws. It is silent as to motive; and without the quo animo—the deliberate purpose of usurpation—the president would not be liable to impeachment. But if a concurrence of all the elements be necessary to make out a charge of wilful violation of the constitution, does any one believe that the president will now be impeached? And shall we silently sit by and see ourselves stripped of one of the most essential of our legislative powers, and the exercise of it assumed by the president, to which it is not delegated, without effort to maintain it, because, against all human probability, he may be hereafter impeached?

The report of the secretary of the treasury, in the first paragraph, commences with a misstatement of the fact. He says, ‘I have directed’ that the deposits of the money of the United States shall not be made in the bank of the United States. If this assertion is regarded in any other than a mere formal sense, it is not true. The secretary may have been the instrument, the clerk, the automaton, in whose name the order was issued; but the measure was that of the president, by whose authority or command the order was given; and of this we have the highest and most authentic evidence. The president has told the world that the measure was his own, and that he took it upon his own responsibility. And he has exonerated his cabinet from all responsibility about it. The secretary ought to have frankly disclosed all the circumstances of the case, and told the truth, the whole truth, and nothing but thetruth. If he had done so, he would have informed congress, that the removal had been decided by the president on the eighteenth of September last; that it had been announced to the public on the twentieth; and that Mr. Duane remained in office until the twenty-third. He would have informed congress, that this important measure was decided before he entered into his new office, and was the cause of his appointment. Yes, sir, the present secretary stood by, a witness to the struggle in the mind of his predecessor, between his attachment to the president and his duty to the country; saw him dismissed from office, because he would not violate his conscientious obligations, and came into his place, to do what he could not, honorably, and would not perform. A son of one of the fathers of democracy, by an administration professing to be democratic, was expelled from office, and his place supplied by a gentleman, who, throughout his whole career, has been uniformly opposed to democracy!—a gentleman who, at another epoch of the republic, when it was threatened with civil war, and a dissolution of the union, voted, (although a resident of a slave state,) in the legislature of Maryland,against the admission of Missouri into the union without a restriction incompatible with her rights as a member of the confederacy![21] Mr. Duane was dismissed because the solemn convictions of his duty would not allow him to conform to the president’s will; because his logic did not bring his mind to the same conclusions with those of the logic of a venerable old gentleman, inhabiting a white house not distant from the capitol; because his watch, (here Mr. Clay held up his own,) did not keep time with that of the president. He was dismissed under that detestable system of proscription for opinion’s sake, which has finally dared to intrude itself into the halls of congress—a system under which three unoffending clerks, the husbands of wives, the fathers of families, dependent on them for support, without the slightest imputation of delinquency, have been recently unceremoniously discharged, and driven out to beggary, by a man, himself the substitute of a meritorious officer, who has not been in this city a period equal to one monthly revolution of the moon! I tell our secretary, (said Mr. Clay, raising his voice,) that, if he touch a single hair of the head of any one of the clerks of the senate, (I am sure he is not disposed to do it,) on account of his opinions, political or religious, if no other member of the senate does it, I will instantly submit a resolution for his own dismission.

The secretary ought to have communicated all these things; heought to have stated that the cabinet was divided two and two, and one of the members equally divided with himself on the question, willing to be put into either scale. He ought to have given a full account of this, the most important act of executive authority since the origin of the government; he should have stated with what unsullied honor his predecessor retired from office, and on what degrading conditions he accepted his vacant place. When a momentous proceeding like this, varying the constitutional distribution of the powers of the legislative and executive departments, was resolved on, the ministers against whose advice it was determined, should have resigned their stations. No ministers of any monarch in Europe, under similar circumstances, would have retained the seals of office. And if, as nobody doubts, there is a cabal behind the curtain, without character and without responsibility, feeding the passions, stimulating the prejudices, and moulding the actions of the incumbent of the presidential office, it was an additional reason for their resignations. There is not a maitre d’hotel in christendom, who, if the scullions were put into command in the parlor and dining-room, would not scorn to hold his place, and fling it up in disgust with indignant pride!

I shall examine the report before us, first, as to the power of the secretary over the deposits; secondly, his reasons for the exercise of it; and, thirdly, the manner of its exercise.

First. The secretary asserts that the power of removal is exclusively reserved to him; that it is absolute and unconditional, so far as the interests of the bank are concerned; that it is not restricted to any particular contingencies; that the reservation of the power to the secretary of the treasury exclusively, is a part of the compact; that he may exercise it, if the public convenience or interest would in any degree be promoted; that this exclusive power, thus reserved, is so absolute, that the secretary is not restrained by the considerations that the public deposits in the bank are perfectly safe; that the bank promptly meets all demands upon it; and that it faithfully performs all its duties; and that the power of congress, on the contrary, is so totally excluded, that it could not, without a breach of the compact, order the deposits to be changed, even if congress were satisfied that they were not safe, or should be convinced that the interests of the people of the United States imperiously demanded the removal.

Such is the statement which this unassuming secretary makes of his own authority. He expands his own power to the most extravagant dimensions; and he undertakes to circumscribe that of congress in the narrowest and most restricted limits! Who would have expected that, after having so confidently maintained for himself such absolute, exclusive, unqualified, and uncontrollable power, he would have let in any body else to share with him its exercise? Yet he says, ‘as the secretary of the treasury presides over one ofthe executive departments of the government, and his power over this subject forms a part of the executive duties of his office, the manner in which it is exercised must be subject to the supervision of the officer,’ (meaning the president, whose official name his modesty would not allow him to pronounce,) ‘to whom the constitution has confided the whole executive power, and has required to take care that the laws be faithfully executed.’ If the clause in the compact exclusively vests the power of removal in the secretary of the treasury, what has the president to do with it? What part of the charter conveys to him any power? If, as the secretary contends, the clause of removal, being part of the compact, restricts its exercise to the secretary, to the entire exclusion of congress, how does it embrace the president? especially since both the president and secretary conceive, that ‘the power over the place of deposit for the public money would seem properly to belong to the legislative department of the government?’ If the secretary be correct in asserting that the power of removal is confined to the secretary of the treasury, then Mr. Duane, while in office, possessed it; and his dismission, because he would not exercise a power which belonged to him exclusively, was itself a violation of the charter.

But by what authority does the secretary assert that the treasury department is one of the executive departments of the government? He has none in the act which creates the department; he has none in the constitution. The treasury department is placed by law on a different footing from all the other departments, which are, in the acts creating them, denominated executive, and placed under the direction of the president. The treasury department, on the contrary, is organized on totally different principles. Except the appointment of the officers, with the coöperation of the senate, and the power which is exercised of removing them, the president has neither by the constitution nor the law creating the department, any thing to do with it. The secretary’s reports and responsibility are directly to congress. The whole scheme of the department is one of checks, each officer acting as a control upon his associates. The secretary is required by the law to report, not to the president, but directly to congress. Either house may require any report from him, or command his personal attendance before it. It is not, therefore, true, that the treasury is one of the executive departments, subject to the supervision of the president. And the inference drawn from that erroneous assumption entirely fails. The secretary appears to have no precise ideas either of the constitution or duties of the department over which he presides. He says:

‘The treasury department being intrusted with the administration of the finances of the country, it was always the duty of the secretary, in the absence of any legislate provision on the subject, to take care that the public money was deposited in safe-keeping, in the hands of faithful agents,’ and so forth.

The premises of the secretary are only partially correct, and the conclusion is directly repugnant to law. It never was the duty of the secretary to take care that the public money was deposited in safe-keeping, in the hands of faithful agents, and so forth. That duty is expressly, by the act organizing the department, assigned to the treasurer of the United States, who is placed under oath, and under bond, with a large penalty, not to issue a dollar out of the public treasury, but in virtue of warrants granted in pursuance of acts of appropriation, ‘and not otherwise.’ When the secretary treats of the power of the president, he puts on corsets and prostrates himself before the executive, in the most graceful, courteous, and lady-like form; but when he treats of that of congress, and of the treasurer, he swells and expands himself, and flirts about, with all the airs of high authority.

But I cannot assent to the secretary’s interpretation of his power of removal, contained in the charter. Congress has not given up its control over the treasury, or the public deposits, to either the secretary or the executive. Congress could not have done so without a treacherous renunciation of its constitutional powers, and a faithless abandonment of its duties. And now let us see what is the true state of the matter. Congress has reserved to itself, exclusively, the right to judge of the reasons for removal of the deposits, by requiring the report of them to be made to it; and, consequently, the power to ratify or invalidate the act. The secretary of the treasury is the fiscal sentinel of congress, to whom the bank makes weekly reports, and who is presumed constantly to be well acquainted with its actual condition. He may, consequently, discover the urgent necessity of prompt action, to save the public treasure, before it is known to congress, and when it is not in session. But he is immediately to report—to whom? To the executive? No, to congress. For what purpose? That congress may sanction or disprove the act.

The power of removal is a reservation for the benefit of the people, not of the bank. It may be waived. Congress, being a legislative party to the compact, did not thereby deprive itself of ordinary powers of legislation. It cannot, without a breach of the national faith, repeal privileges or stipulations intended for the benefit of the bank. But it may repeal, modify, or waive the exercise altogether, of those parts of the charter which were intended exclusively for the public. Could not congress repeal altogether the clause of removal? Such a repeal would not injure, but add to, the security of the bank. Could not congress modify the clause, by revoking the agency of the secretary of the treasury, and substituting that of the treasurer, or any other officer of government? Could not congress, at any time during the twenty years’ duration of the charter, abolish altogether the office of secretary of the treasury, and assign all his present duties to some newly constituteddepartment? The right and the security of the bank do not consist in the form of the agency, nor in the name of the agent, but in this: that, whatever may be its form or his denomination, the removal shall only be made upon urgent and satisfactory reasons. The power of supplemental legislation was exercised by congress both under the new and old bank. Three years after the establishment of the existing bank, an act passed, better to regulate the election of directors, and to punish any one who should attempt, by bribes, or presents in any form, to influence the operation of the institution.

The denial of the secretary, to congress, of the power to remove the deposits, under any circumstances, is most extraordinary. Why, sir, suppose a corrupt collusion between the secretary and the bank, to divide the spoils of the treasury? Suppose a total nonfulfilment of all the stipulations on the part of the bank? Is congress to remain bound and tied, whilst the bank should be free from all the obligations of the charter? The obligation of one party, to observe faithfully his stipulations, in a contract, rests upon the corresponding obligation of the other party to observe his stipulations. If one party is released, both are free. If one party fails to comply with his contract, that releases the other. This is the fundamental principle of all contracts, applicable to treaties, charters, and private agreements. If it were a mere private agreement, and one party who had bound himself to deposit, from time to time, his money with the other, to be redrawn at his pleasure, saw that it was wasting and squandered away, he would have a clear right to discontinue the deposits. It is true, that a party has no right to excuse himself from the fulfilment of his contract, by imputing a breach to the other which has never been made. And it is fortunate for the peace and justice of society, that neither party to any contract, whether public or private, can decide conclusively the question of fulfilment by the other, but must always act under subjection to the ultimate decision, in case of controversy, of an impartial arbiter, provided in the judicial tribunals of civilized communities.

As to the absolute, unconditional, and exclusive power which the secretary claims to be vested in himself, it is in direct hostility with the principles of our government, and adverse to the genius of all free institutions. The secretary was made, by the charter, the mere representative or agent of congress. Its temporary substitute, acting in subordination to it, and bound, whenever he did act, to report to his principal his reasons, that they might be judged of and sanctioned, or overruled. Is it not absurd to say, that the agent can possess more power than the principal? The power of revocation is incident to all agency, unless, in express terms, by the instrument creating it, a different provision is made. The powers, whether of the principal or the agent, in relation to any contract, must be expounded by the principles which govern allcontracts. It is true, that the language of the clause of removal, in the charter, is general, but it is not, therefore, to be torn from the context. It is a part only of an entire compact, and is so to be interpreted, in connection with every part and with the whole. Upon surveying the entire compact, we perceive that the bank has come under various duties to the public; has undertaken to perform important financial operations of the government; and has paid a bonus into the public treasury of a million and a half of dollars. We perceive, that, in consideration of the assumption of these heavy engagements, and the payment of that large sum of money on the part of the bank, the public has stipulated that the public deposits shall remain with the bank, during the continuation of the charter, and that its notes shall be received by the government, in payment of all debts, dues, and taxes. Except the corporate character conferred, there is none but those two stipulations of any great importance to the bank. Each of the two parties to the compact must stand bound to the performance of his engagements, whilst the other is honestly and faithfully fulfilling his. It is not to be conceived, in the formation of the compact, that either party could have anticipated that, whilst he was fairly and honestly executing every obligation which he had contracted, the other party might arbitrarily or capriciously exonerate himself from the discharge of his obligations. Suppose, when citizens of the United States were invited by the government to subscribe to the stock of this bank, that they had been told, that, although the bank performs all its covenants with perfect fidelity, the secretary of the treasury may, arbitrarily or capriciously, upon his speculative notions of any degree of public interest or convenience to be advanced, withdraw the public deposits; would they have ever subscribed? Would they have been guilty of the folly of binding themselves to the performance of burdensome duties, whilst the government was left at liberty to violate at pleasure that stipulation of the compact which by far was the most essential to them?

On this part of the subject, I conclude, that congress has not parted from, but retains, its legitimate power over the deposits; that it might modify or repeal altogether the clause of removal in the charter; that a breach of material stipulations on the part of the bank would authorize congress to change the place of the deposits; that a corrupt collusion to defraud the public, between the bank and a secretary of the treasury, would be a clear justification to congress to direct a transfer of the public deposits; that the secretary of the treasury is the mere agent of congress, in respect to the deposits, acting in subordination to his principal; that it results from the nature of all agency that it may be revoked, unless otherwise expressly provided; and, finally, that the principal, and much less the agent, of one party cannot justly or lawfully violate the compact, or any of its essential provisions, whilst theother party is in the progressive and faithful performance of all his engagements.

If I am right in this view of the subject, there is an end of the argument. There was perfect equality and reciprocity between the two parties to the compact. Neither could exonerate himself from the performance of his obligations, while the other was honestly proceeding fairly to fulfil all his engagements. But the secretary of the treasury concedes that the public deposits were perfectly safe in the hands of the bank; that the bank promptly met every demand upon it; and that it faithfully performed all its duties. By these concessions, he surrenders the whole argument, admits the complete obligation of the public to perform its part of the compact, and demonstrates that no reasons, however plausible or strong, can justify an open breach of a solemn national compact.

Secondly. But he has brought forward various reasons to palliate or justify his violation of the national faith; and it is now my purpose to proceed, in the second place, to examine and consider them. Before I proceed to do this, I hope to be allowed again to call the attention of the senate to the nature of the office of secretary of the treasury. It is altogether financial and administrative. His duties relate to the finances, their condition and improvement, and to them exclusively. The act creating the treasury department, and defining the duties of the secretary, demonstrates this. He has no legislative powers; and congress has delegated and could delegate none to him. His powers, wherever given, and in whatever language expressed, must be interpreted by his defined duties. Neither is the treasury department an executive department. It was expressly created not to be an executive department. It is administrative, but not executive. His relations are positive and direct to congress, by the act of his creation, and not to the president. Whenever he is put under the direction of the president, (as he is by various subsequent acts, especially those relating to the public loans,) it is done by express provision of law, and for specified purposes.

With this key to the nature of the office, and the duties of the officer, I will now briefly examine the various reasons which he assigns for the removal of the public deposits. The first is, the near approach of the expiration of the charter. But the charter had yet to run about two and a half of the twenty years to which it was limited. During the whole term the public deposits were to continue to be made with the bank. It was clearly foreseen, at the commencement of the term, as now, that it would expire, and yet congress neither then nor since has ever thought proper to provide for the withdrawal of the deposits prior to the expiration of the charter. Whence does the secretary derive an authority to do what congress had never done? Whence his power to abridge in effect the period of the charter, and to limit it to seventeen and ahalf years, instead of twenty? Was the urgency for the removal of the deposits so great, that he could not wait sixty days, until the assembling of congress? He admits that they were perfectly safe in the bank; that it promptly met every demand upon it; and that it faithfully performed all its duties. Why not, then, wait the arrival of congress? The last time the house of representatives had spoken, among the very last acts of the last session, that house had declared its full confidence in the safety of the deposits. Why not wait until it could review the subject, with all the new light which the secretary could throw upon it, and it again proclaims its opinion? He comes into office on the twenty-third of September, 1833, and in three days, with intuitive celerity, he comprehends the whole of the operations of the complex department of the treasury, perceives that the government, from its origin, had been in uniform error, and denounces the opinions of all his predecessors! And, hastening to rectify universal wrong, in defiance and in contempt of the resolution of the house, he signs an order for the removal of the deposits! It was of no consequence to him, whether places of safety, in substitution of the bank of the United States, could be obtained or not; without making the essential precautionary arrangements, he commands the removal almost instantly to be made.

Why, sir, if the secretary were right in contending that he alone could order the removal, even he admits that congress has power to provide for the security of the public money, in the new places to which it might be transferred. If he did not deign to consult the representatives of the people as to the propriety of the first step, did not a decent respect to their authority and judgment exact from him a delay, for the brief term of sixty days, that they might consider what was fitting to be done? The truth is, that the secretary, by law, has nothing to do with the care and safe-keeping of the public money. As has been already shown, that duty is specifically assigned by law to the treasurer of the United States. And, in assuming upon himself the authority to provide other depositories than the bank of the United States, he alike trampled upon the duties of the treasurer, and what was due to congress. Can any one doubt the motive of this precipitancy? Does anybody doubt, that it was to preclude the action of congress, or to bring it under the influence of the executive veto? Let the two houses, or either of them, perform their duty to the country, and we shall hereafter see whether, in that respect, at least, Mr. Secretary will not fail to consummate his purpose.

Second. The next reason assigned for this offensive proceeding, is the reëlection of the present chief magistrate. The secretary says:

‘I have always regarded the result of the last election of president of the United States, as the declaration of a majority of the people, that the charter ought not to be renewed.’ * * * ‘Its voluntary application to congress for the renewal of itscharter four years before it expired, and upon the eve of the election of president, was understood on all sides as bringing forward that question for incidental decision at the then approaching election. It was accordingly argued on both sides before the tribunal of the people, and their verdict pronounced against the bank,’ and so forth.

What has the secretary to do with elections? Do they belong to the financial concerns of his department? Why this constant reference to the result of the last presidential election? Ought not the president to be content with the triumphant issue of it? Did he want still more vetoes? The winners ought to forbear making any complaints, and be satisfied, whatever the losers may be. After an election is fairly terminated, I have always thought that the best way was to forget all the incidents of the preceding canvass, and especially the manner in which votes had been cast. If one has been successful, that ought to be sufficient for him; if defeated, regrets are unavailing. Our fellow-citizens have a right freely to exercise their elective franchise as they please, and no one, certainly no candidate, has any right to complain about it.

But the argument of the secretary is, that the question of the bank was fully submitted to the people, by the consent of all parties, fully discussed before them, and their verdict pronounced against the institution, in the reëlection of the president. His statement of the case requires that we should examine carefully the various messages of the president, to ascertain whether the bank question was fairly and frankly, (to use a favorite expression of the president,) submitted by him to the people of the United States. In his message of 1829, the president says:

‘The charter of the bank of the United States expires in 1836, and its stockholders will most probably apply for a renewal of their privileges. In order to avoid the evils resulting from precipitancy in a measure involving such important principles, and such deep pecuniary interests, I feel that I cannot, in justice to the parties interested, too soon present it to the deliberate consideration of the legislature and the people.’

The charter had then upwards of six years to run. Upon this solemn invitation of the chief magistrate, two years afterwards, the bank came forward with an application for renewal. Then it was discovered that the application was premature. And the bank was denounced for accepting the very invitation which had been formally given. The president proceeds:

‘Both the constitutionality and the expediency of the bank are well questioned by a large portion of our fellow-citizens.’

This message was a noncommittal. The president does not announce clearly his own opinion, but states that of a large portion of our fellow-citizens. Now we all know that a large and highly respectable number of the people of the United States have always entertained an opinion adverse to the bank on both grounds. The president continues:

‘If such an institution is deemed essential to the fiscal operations of the government, I submit to the wisdom of the legislature whether a national one, founded upon the credit of the government, and its resources, might not be devised.’

Here, again, the president, so far from expressing an explicit opinion against all national banks, makes a hypothetical admission of the utility of a bank, and distinctly intimates the practicability of devising one on the basis of the credit and resources of the government.

In his message of 1830, speaking of the bank, the president says:

‘Nothing has occurred to lessen, in any degree, the dangers which many of our citizens apprehend from that institution, as at present organized. In the spirit of improvement and compromise, which distinguishes our country and its institutions, it becomes us to inquire whether it be not possible to secure the advantages afforded by the present bank through the agency of a bank of the United States, so modified in its principles and structure, as to obviate constitutional and other objections.’

Here, again, the president recites the apprehensions of ‘many of our citizens,’ rather than avows his own opinion. He admits, indeed, ‘the advantages afforded by the present bank,’ but suggests an inquiry whether it be possible, (of course doubting,) to secure them by a bank differently constructed. And towards the conclusion of that part of the message, his language fully justifies the implication, that it was not to the bank itself, but to ‘its present form,’ that he objected.

The message of 1831, when treating of the bank, was very brief. The president says:

‘Entertaining the opinions heretofore expressed in relation to the bank of the United States, as at present organized,’ (noncommittal once more: and what that means, Mr. President, nobody better knows than you and I,) ‘I felt it my duty, in my former messages, frankly to disclose them.’

Frank disclosures! Now, sir, I recollect perfectly well the impressions made on my mind, and on those of other senators with whom I conversed, immediately after the message was read. We thought and said to each other, the president has left a door open to pass out. It is not the bank; it is not any bank of the United States to which he is opposed, but it is to the particular organization of the existing bank. And we all concluded that, if amendments could be made to the charter satisfactory to the president, he would approve a bill for its renewal.

We come now to the famous message of July, 1832, negativing the bill to recharter the bank. Here, it may be expected, we shall certainly find clear opinions, unequivocally expressed. The president cannot elude the question. He must now be perfectly frank. We shall presently see. He says:

‘A bank of the United States is, in many respects, convenient to the government, and useful to the people. Entertaining this opinion, and deeply impressed with thebelief that some of the powers and privileges possessed by the existing bank, are unauthorized by the constitution.’ and so forth. * * * ‘I felt it my duty, at an early period of my administration, to call the attention of congress to the practicability of organizing an institution, combining all its advantages, and obviating these objections. I sincerely regret, that in the act before me I can perceive none of those modifications,’ and so forth. * * * ‘That a bank of the United States, competent to all the duties which may be required by the government, might be so organized as not to infringe on our own delegated powers, or the reserved rights of the states, I do not entertain a doubt. Had the executive been called on to furnish the project of such an institution, the duty would have been cheerfully performed.’

The message is principally employed in discussing the objections which the president entertained to the particular provisions of the charter, and not to the bank itself; such as the right of foreigners to hold stock in it; its exemption from state taxation; its capacity to hold real estate, and so forth, and so forth. Does the president, even in this message, array himself in opposition to any bank of the United States? Does he even oppose himself to the existing bank under every organization of which it is susceptible? On the contrary, does he not declare that he does not entertain a doubt that a bank may be constitutionally organized? Does he not even rebuke congress for not calling on him to furnish a project of a bank, which he would have cheerfully supplied? Is it not fairly deducible, from the message, that the charter of the present bank might have been so amended as to have secured the president’s approbation to the institution? So far was the message from being decisive against all banks of the United States, or against the existing bank, under any modification, that the president expressly declares that the question was adjourned. He says:

‘A general discussion will now take place, eliciting new light, and settling important principles; and a new congress, elected in the midst of such discussion, and furnishing an equal representation of the people, according to the last census, will bear to the capitol the verdict of public opinion, and I doubt not bring this important question to a satisfactory result.’

This review of the various messages of the president, conclusively evinces that they were far from expressing, frankly and decisively, any opinions of the chief magistrate, except that he was opposed to the amendments of the charter contained in the bill submitted to him for its renewal, and that he required further amendments. It demonstrates that he entertained no doubt that it was practicable and desirable to establish a bank of the United States; it justified the hope that he might be ultimately reconciled to the continuation of the present bank, with suitable modifications; and it expressly proclaimed that the whole subject was adjourned to the new congress, to be assembled under the last census. If the parts of the messages which I have cited, or other expressions, in the same document, be doubtful, or susceptible of a different interpretation, the review is sufficient for my purpose; which is, to refute the argument, so confidently advanced, that the president’sopinion, in opposition to the present or any other bank of the United States, was frankly and fairly stated to the people, prior to the late election, was fully understood, and finally decided by them.

Accordingly, in the canvass which ensued, it was boldly asserted by the partisans of the president, that he was not opposed to a bank of the United States, nor to the existing bank with proper amendments. They maintained, at least, wherever those friendly to a national bank were in the majority, that the reëlection would be followed by a recharter of the bank, with proper amendments. They dwelt, it is true, with great earnestness, upon his objections to the pernicious influence of foreigners in holding stock in it; but they nevertheless contended that these objections would be cured, if he was reëlected, and the bank sustained. I appeal to the whole senate, to my colleagues, to the people of Kentucky, and especially to the citizens of the city of Louisville, for the correctness of this statement.

After all this, was it anticipated by the people of the United States, that, in the reëlection of the president, they were deciding against an institution of such vital importance? Could they have imagined, that, after an express adjournment of the whole matter to a new congress, by the president himself, he would have prejudged the action of this new congress, and pronounced that a question, expressly by himself referred to its authority, was previously settled by the people? He claimed no such result in his message, immediately after the reëlection; although in it he denounced the bank as an unsafe depository of the public money, and invited congress to investigate its condition. The president, then, and the secretary of the treasury, are without all color of justification for their assertions, that the question of bank or no bank was fully and fairly submitted to the people, and a decision pronounced against it by them.

Sir, I am surprised and alarmed at the new source of executive power, which is found in the result of a presidential election. I had supposed that the constitution and the laws were the sole source of executive authority; that the constitution could only be amended in the mode which it has itself prescribed; that the issue of a presidential election, was merely to place the chief magistrate in the post assigned to him; and that he had neither more nor less power, in consequence of the election, than the constitution defines and delegates. But it seems that if, prior to an election, certain opinions, no matter how ambiguously put forth by a candidate, are known to the people, these loose opinions, in virtue of the election, incorporate themselves with the constitution, and afterwards are to be regarded and expounded as parts of the instrument.

Third. The public money ought not, the secretary thinks, to remain in the bank until the last moment of the existence of the charter. But that was not the question which he had to decide onthe twenty-sixth of September last. The real question then was, could he not wait sixty days for the meeting of congress? There were many last moments, nearly two years and a half, between the twenty-sixth of September and the day of the expiration of the charter. But why not let the public money remain in the bank until the last day of the charter? It is a part of the charter, that it shall so remain; and congress having so ordered it, the secretary ought to have acquiesced in the will of congress, unless the exigency had arisen on which alone it was supposed his power over the deposits would be exercised. The secretary is greatly mistaken, in believing that the bank will be less secure in the last hours of its existence than previously. It will then be collecting its resources, with a view to the immediate payment of its notes, and the ultimate division among the stockholders of their capital; and at no period of its existence will it be so strong and able to pay all demands upon it. As to the depreciation in the value of its notes in the interior, at that time, why, sir, is the secretary possessed of the least knowledge of the course of the trade of the interior, and especially of the western states? If he had any, he could not have made such a suggestion. When the bank itself is not drawing, its notes form the best medium of remittance from the interior to the Atlantic capitals. They are sought after by merchants and traders with avidity, are never below par, and in the absence of bank drafts may command a premium. This will continue to be the case as long as the charter endures, and especially during the last moments of its existence, when its ability will be unquestionable, Philadelphia being the place of the redemption; whilst the notes themselves will be received in all the large cities in payment of duties.

Fourth. The secretary asserts, that ‘it is well understood that the superior credit heretofore enjoyed by the notes of the bank of the United States, was not founded on any particular confidence in its management or solidity. It was occasioned altogether by the agreement on behalf of the public, in the act of incorporation, to receive them in all payments to the United States.’ I have rarely seen any state paper characterized by so little gravity, dignity, and circumspection, as the report displays. The secretary is perfectly reckless in his assertions of matters of fact, and culpably loose in his reasoning. Can he believe the assertion which he has made? Can he believe, for example, that if the notes of the bank of the Metropolis were made receivable in all payments to the government, they would ever acquire, at home and abroad, the credit and confidence which are attached to those of the bank of the United States? If he had stated that the faculty mentioned, was one of the elements of the great credit of those notes, the statement would have been true; but who can agree with him, that it is the sole cause? The credit of the bank of the United States results from the large amount of its capital; from the great ability and integrity with which it hasbeen administered; from the participation of the government in its affairs; from its advantageous location; from its being the place of deposit of the public moneys, and its notes being receivable in all payments to the government; and from its being emphatically the bank of the United States. This latter circumstance arranges it with the bank of England, France, Amsterdam, Genoa, and so forth.

Fifth. The expansion and contraction of the accommodations of the bank to its individual customers, are held up by the secretary, in bold relief, as evidences of misconduct, which justified his withdrawal of the deposits. He represents the bank as endeavoring to operate on the public, by alternate bribery and oppression, with the same object in both cases, of influencing the election, or the administration of the president. Why this perpetual reference of all the operations of the institution to the executive? Why does the executive think of nothing but itself? It is I! It is I! It is I, that is meant! appears to be the constant exclamation. Christianity and charity enjoin us never to ascribe a bad motive if we can suppose a good one. The bank is a moneyed corporation, whose profits result from its business; if that be extensive, it makes better; if limited, less profit. Its interest is to make the greatest amount of dividends which it can safely. And all its actions may be more certainly ascribed to that than any other principle. The administration must have a poor opinion of the virtue and intelligence of the people of the United States, if it supposes that their judgments are to be warped, and their opinions controlled by any scale of graduated bank accommodations. The bank must have a still poorer conception of its duty to the stockholder, if it were to regulate its issues by the uncertain and speculative standard of political effect, rather than a positive arithmetical rule for the computation of interest.

As to the alleged extension of the business of the bank, it has been again and again satisfactorily accounted for by the payment of the public debt, and the withdrawal from Europe of considerable sums, which threw into its vaults a large amount of funds, which, to be productive, must be employed; and, as the commercial wants proceeding from extraordinary activity of business, created great demands about the same period for bank accommodations, the institution naturally enlarged its transactions. It would have been treacherous to the best interests of its constituents if it had not done so. The recent contraction of its business is the result of an obvious cause. Notwithstanding the confidence in it, manifested by one of the last acts of the last house of representatives, congress had scarcely left the district before measures were put in operation to circumvent its authority. Denunciations and threats were put forth against it. Rumors, stamped with but too much authority, were circulated, of the intention of the executive to disregard theadmonition of the house of representatives. An agent was sent out—and then such an agent—to sound the local institutions as to the terms on which they would receive the deposits. Was the bank, who could not be ignorant of all this, to sit carelessly by, without taking any precautionary measures? The prudent mariner, when he sees the coming storm, furls his sails, and prepares for all its rage. The bank knew that the executive was in open hostility to it, and that it had nothing to expect from its forbearance. It had numerous points to defend, the strength or weakness of all of which was well known from its weekly returns to the secretary, and it could not possibly know at which the first mortal stroke would be aimed. If, on the twentieth of September last, instead of the manifesto of the president against the bank, he had officially announced, that he did not mean to make war upon the bank, and intended to allow the public deposits to remain until the pleasure of congress was expressed, public confidence would have been assured and unshaken, the business of the country continued in quiet and prosperity, and the numerous bankruptcies in our commercial cities averted. The wisdom of human actions is better known in their results than at their inception. That of the bank is manifest from all that has happened, and especially from its actual condition of perfect security.

Sixth. The secretary complains of misconduct of the bank in delegating to the committee of exchange the transaction of important business, and in that committee’s being appointed by the president and not the board, by which the government directors have been excluded. The directors who compose the board meet only periodically. Deriving no compensation from their places, which the charter, indeed, prohibits them from receiving, it cannot be expected that they should be constantly in session. They must, necessarily, therefore, devolve a great part of the business of the bank in its details, upon the officers and servants of the corporation. It is sufficient, if the board controls, governs, and directs the whole machine. The most important operation of a bank, is that of paying out its cash, and that the cashier or teller and not the board performs. As to committees of exchange, the board not being always in session, it is evident that the convenience of the public requires that there should be some authority at the bank daily, to pass daily upon bills, either in the sale or purchase, as the wants of the community require. Every bank, I believe, that does business to any extent, has a committee of exchange, similar to that of the bank of the United States. In regard to the mode of appointment by the president of the board, it is in conformity with the invariable usage of the house of representatives, with the practice of the senate for several years, and, until altered at the commencement of this session, with the usage, in a great variety, if not all of the state legislatures, and with that which prevails inour popular assemblies. The president, speaker, chairman, moderator, almost uniformly appoints committees. That none of the government directors have been on the committee of exchange, has proceeded, it is to be presumed, from their not being entitled, from their skill and experience, and standing in society, to be put there. The government directors stand upon the same equal footing with those appointed by the stockholders. When appointed, they are thrown into the mass, and must take their fair chances with their colleagues. If the president of the United States will nominate men of high character and credit, of known experience and knowledge in business, they will, no doubt, be placed in corresponding stations. If he appoints different men, he cannot expect it. Banks are exactly the places where currency and value are well understood, and duly estimated. A piece of coin, having even the stamp of the government, will not pass, unless the metal is pure.

Seventh. The French bill forms another topic of great complaint with the secretary. The state of the case is, that the government sold to the bank a bill on that of France for nine hundred thousand dollars, which the bank sold in London, whence it was sent by the purchaser to Paris to receive the amount. When the bank purchased the bill, it paid the amount to the government, or, which is the same thing, passed it to the credit of the treasury, to be used on demand. The bill was protested in Paris, and the agents of the bank, to avoid its being liable to damages, took up the bill on account of the bank. The bill being dishonored, the bank comes back on the drawer, and demands the customary damages due according to the course of all such transactions. The complaint of the secretary is, that the bank took up the bill to save its own credit, and that it did not do it on account of the government; in other words, that the bank did not advance at Paris nine hundred thousand dollars to the government on account of a bill which it had already paid, every dollar, at Philadelphia. Why, sir, has the secretary read the charter? If he has, he must have known that the bank could not have advanced the nine hundred thousand dollars for the government at Paris, without subjecting itself to a penalty of three times the amount, (two million and seven hundred thousand dollars.) The thirteenth section of the charter is express and positive:

‘That if the said corporation shall advance or lend any sum of money for the use or on account of the government of the United States, to an amount exceeding five hundred thousand dollars, all persons concerned in making such unlawful advances or loan, shall forfeit treble the amount, one fifth to the informer,’ and so forth.

Eighth. The last reason which I shall notice of the secretary is, that this ambitious corporation aspires to possess political power. Those in the actual possession of power, especially when they have grossly abused it, are perpetually dreading its loss. The miser does not cling to his treasure with a more death-like grasp. Theirsuspicions are always active and on the alert. In every form they behold a rival, and every breeze comes charged with alarm and dread. A thousand spectres glide before their affrighted imaginations, and they see, in every attempt to enlighten those who have placed them in office, a sinister design to snatch from them their authority. On what other principles can we account for the extravagant charges brought forward by the secretary against the bank? More groundless and reckless assertions than those which he has allowed himself to embody in his report, never were presented to a deceived, insulted, and outraged people. Suffer me, sir, to group some of them. He asserts, ‘that there is sufficient evidence to prove that the bank has used its means to obtain political power;’ that, in the presidential election, ‘the bank took an open and direct interest, demonstrating that it was using its money for the purpose of obtaining a hold upon the people of this country;’ that it ‘entered the political arena;’ that it circulated publications containing ‘attacks on the officers of government;’ that ‘it is now openly in the field as a political partisan;’ that there are ‘positive proofs’ of the efforts of the bank to obtain power. And, finally, he concludes, as a demonstrated proposition:

‘Fourthly, that there is sufficient evidence to show that the bank has been and still is seeking to obtain political power, and has used its money for the purpose of influencing the election of the public servants.’

After all this, who can doubt that this ambitious corporation is a candidate for the next presidency? Or, if it can moderate its lofty pretensions, that it means at least to go for the office of secretary of the treasury, upon the next removal? But, sir, where are the proofs of these political designs? Can any thing be more reckless than these confident assertions of the secretary? Let us have the proofs; I call for the proofs. The bank has been the constant object for years of vituperation and calumny. It has been assailed in every form of bitterness and malignity. Its operations have been misrepresented; attempts have been made to destroy its credit, and the public confidence in its integrity and solidity; and the character of its officers has been assailed. Under these circumstances, it has dared to defend itself. It has circulated public documents, speeches of members of congress, reports made by chairmen of committees, friends of the administration, and other papers. And, as it was necessary to make the defence commensurate with the duration and the extensive theatre of the attack, it has been compelled to incur a heavy expense to save itself from threatened destruction. It has openly avowed, and yet avows, its right and purpose to defend itself. All this was known to the last congress. Not a solitary material fact has been since disclosed. And when before, in a country where the press is free, was it deemed criminal for any body to defend itself? Who invested the secretary of thetreasury with power to interpose himself between the people, and light and intelligence? Who gave him the right to dictate what information should be communicated to the people and by whom? Whence does he derive his jurisdiction? Who made him censor of the public press? From what new sedition law does he deduce his authority? Is the superintendence of the American press a part of the financial duty of a secretary of the treasury? Why did he not lay the whole case before congress, and invite the revival of the old sedition law? Why anticipate the arrival of their session? Why usurp the authority of the only department of government competent to apply a remedy, if there be any power to abridge the freedom of the press? If the secretary wishes to purify the press, he has a most Herculean duty before him. And when he sallies out on his quixotic expedition, he had better begin with the Augean stable, the press nearest to him, his organ, as most needing purification.

I have done with the secretary’s reasons. They have been weighed and found wanting. There was not only no financial motive for his acting—the sole motive which he could officially entertain—but every financial consideration forbade him to act. I proceed now, in the third and last place, to examine the manner in which he has exercised his power over the deposits.

Thirdly. The whole people of the United States derive an interest from the public deposits in the bank of the United States, as a stockholder, in that institution. The bank is enabled, through its branches, to throw capital into those parts of the union where it is most needed. Thus it distributes and equalizes the advantages accruing from the collection of a large public revenue, and the consequent public deposits. Thus it neutralizes the injustice which would otherwise flow from the people of the west and the interior’s paying their full proportion of the public burdens, without deriving any corresponding benefit from the circulation and deposits of the public revenue. The use of the capital of the bank has been signally beneficial to the west. We there want capital, domestic, foreign—any capital that we can honestly get. We want it to stimulate enterprise, to give activity to business, and to develope the vast resources which the bounty of Nature has concentrated in that region. But, by the secretary’s financial arrangements, the twenty-five or thirty millions of the public revenue collected from all the people of the United States, (including those of the west,) will be retained in a few Atlantic ports. Each port will engross the public moneys there collected. And, as that of New York collects about one half of the public revenue, all the people of the United States will be laid under contribution, not for the sake of the people of the city of New York, but of two or three banks in that city, in which the people of the United States, collectively, have not a particle of interest; banks, the stock in which is or may be held by foreigners.

Three months have elapsed, and the secretary has not yet found places of deposit for the public moneys, as substitutes for the bank of the United States. He tells us, in his report of yesterday, that the bank at Charleston, to which he applied for their reception, declined the custody, and that he has yet found no other bank willing to assume it. But he states that the public interest does not in consequence suffer. No! What is done with the public moneys constantly receiving in the important port of Charleston, the largest port, (New Orleans excepted,) from the Potomac to the Gulf of Mexico? What with the revenue bonds? It appears that he has not yet received the charters from all the banks selected as places of deposit. Can any thing be more improvident than that the secretary should undertake to contract with banks, without knowing their power and capacity to contract by their charters? That he should venture to deposit the people’s money in banks, without a full knowledge of every thing respecting their actual condition? But he has found some banks willing to receive the public deposits, and he has entered into contracts with them. And the very first step he has taken has been in direct violation of an express and positive statute of the United States. By the act of the first of May, 1820, section sixth, it is enacted:

‘That no contract shall hereafter be made by the secretary of state, or of the treasury, or of the department of war, or of the navy, except under a law authorizing the same, or under an appropriation adequate to its fulfilment; and excepting, also, contracts for the subsistence and clothing of the army or navy, and contracts by the quarter-master’s department, which may be made by the secretaries of those departments.’

Now, sir, what law authorized these contracts with the local banks, made by the secretary of the treasury? The argument, if I understand the argument intended to be employed on the other side, is this; that, by the bank charter, the secretary, is authorized to remove the public deposits, and that includes the power in question? But the act establishing the treasury department confides, expressly, the safe-keeping of the public moneys of the United States to the treasurer of the United States, and not to the secretary; and the treasurer, not the secretary, gives a bond for the fidelity with which he shall keep them. The moment, therefore, that they are withdrawn from the bank of the United States, they are placed, by law, under the charge and responsibility of the treasurer and his bond, and not of the secretary, who has given no bond. But let us trace this argument a little further. The power to remove the deposits, says the secretary, from a given place, implies the power to designate the place to which they shall be removed. And this implied power to designate the place to which they shall be removed, implies the power to the secretary of the treasury to contract with the new banks of deposit. And, on this third link, in the chain of implications, a fourth is constructed, todispense with the express duties of the treasurer of the United States, defined in a positive statute; and yet a fifth, to repeal a positive statute of congress, passed four years after the passage of the law containing the present source of this most extraordinary chain of implications. The exceptions in the act of 1820, prove the inflexibility of the rule which it prescribes. Annual appropriations are made for the clothing and subsistence of the army and navy. These appropriations might have been supposed to be included in a power to contract for those articles, notwithstanding the prohibitory clause in that act. But congress thought otherwise, and therefore expressly provided for the exceptions. It must be admitted that our clerk, (as the late governor Robinson, of Louisiana, one of the purest republicans I have ever known, used to call a secretary of the treasury,) tramples with very little ceremony upon the duties of the treasurer, and the acts of the congress of the United States, when they come in his way.

These contracts, therefore, between the secretary of the treasury and the local banks are mere nullities, and absolutely void, enforceable in no court of justice whatever, for two causes; first, because they are made in violation of the act of the first of May, 1820; and, secondly, because the treasurer, and not the secretary of the treasury, alone had, if any federal officer possessed the power to contract with the local banks. And here, again, we perceive the necessity there was for avoiding the precipitancy with which the executive acted, and for awaiting the meeting of congress. Congress could have deliberately reviewed the previous legislation, decided upon the expediency of a transfer of the public deposits, and, if deemed proper, could have passed the new laws adapted to the new condition of the treasury. It could have decided whether the local banks should pay any bonus, or pay any interest, or diffuse the public deposits throughout the United States, so as to secure among all their parts, equality of benefits as well as of burdens, and provided for ample guarantees for the safety of the public moneys in their new depositories.

But let us now inquire, whether the secretary of the treasury has exercised his usurped authority, in the formation of these contracts, with prudence and discretion. Having substituted himself to congress and to the treasurer of the United States, he ought at least to show that, in the stipulations of the contracts themselves, he has guarded the public moneys and provided for the public interests. I will examine the contract with the Girard bank of Philadelphia, which is presented as a specimen of the contracts with the Atlantic banks. The first stipulation limits the duty of the local banks to receive in deposit, on account of the United States, only the notes of banks convertible into coin, ‘in its immediate vicinity,’ or which it is, ‘for the time being, in the habit of receiving.’ Under this stipulation, the Girard bank, for example,will not be bound to receive the notes of the Louisville bank, although that also be one of the deposit banks, nor the notes of any other bank, not in its immediate vicinity. As to the provision that it will receive the notes of banks which, for the time being, it is in the habit of receiving, it is absurd to put such a stipulation in a contract, because by the power retained to change the habit, for the time being, it is an absolute nullity. Now, sir, how does this compare with the charter and bank of the United States? The bank receives every where, and credits the government with the notes, whether issued by the branches or the principal bank. The amount of all these notes is every where available to the government. But the government may be overflowing in distant bank notes when they are not wanted, and a bankrupt, at the places of expenditure, under this singular arrangement.

With respect to the transfer of moneys from place to place, the local banks require in this contract, that it shall not take place but upon reasonable notice. And what reasonable is, has been left totally undefined, and of course open to future contest. When hereafter a transfer is ordered, and the bank is unable to make it, there is nothing to do but to allege the unreasonableness of the notice. The local bank agrees to render to the government all the services now performed by the bank of the United States, subject, however, to the restriction that they are required ‘in the vicinity’ of the local bank. But the bank of the United States is under no such restrictions; its services are coextensive with the United States and their territories.

The local banks agree to submit their books and accounts to the secretary of the treasury, or to any agent to be appointed by him, but to be paid by the local banks pro rata, as far as such examination is admissible without a violation of their respective charters; and how far that may be, the secretary cannot tell, because he has not yet seen all the charters. He is, however, to appoint the agents of examination, and to fix the salaries which the local banks are to pay. And where does the secretary find the authority to create officers and fix their salaries, without the authority of congress?

But the most improvident, unprecedented, and extraordinary provision in the contract, is that which relates to the security. When, and not until the deposits in the local bank shall exceed one half of the capital stock annually paid in, collateral security, satisfactory to the secretary of the treasury, is to be given for the safety of the deposits. Why, sir, a freshman, a schoolboy, would not have thus dealt with his father’s guardian’s money. Instead of the security preceding, it is to follow the deposit of the people’s money! That is, the local bank gets an amount of their money, equal to one half its capital, and then it condescends to give security! Does not the secretary know, that when he goes for thesecurity, the money may be gone, and that he may be entirely unable to get the one or the other! We have a law, if I mistake not, which forbids the advance of any public money, even to a disbursing agent of the government, without previous security. Yet, in violation of the spirit of that law, or, at least, of all common sense and common prudence, the secretary disperses upwards of twenty-five millions of public revenue among a countless number of unknown banks, and stipulates that, when the amount of the deposit exceeds one half of their respective capitals, security is to be given!

The best stipulation in the whole contract, is the last, which reserves to the secretary of the treasury the power of discharging these local banks from the service of the United States whenever he pleases; and the sooner he exercises it, and restores the public deposits to the place of acknowledged safety, from which they have been rashly taken, the better for all parties concerned.

Let us look into the condition of one of these local banks, the nearest to us, and that with respect to which we have the best information. The banks of this district (and among them that of the Metropolis) are required to make annual reports of their condition on the first day of January. The latest official return from the Metropolis bank is of the first of January, 1832. Why it did not make one on the first of last January, along with the other banks, I know not. In point of fact, I am informed, it made none. Here is its account of January, 1832, and I think you will agree that it is a Flemish one. On the debit side stand capital paid in, five hundred thousand dollars. Due to the banks, twenty thousand nine hundred and eleven dollars and ten cents; individuals on deposit, seventy-four thousand nine hundred and seventy-seven dollars and forty-two cents; dividend and expenses, seventeen thousand five hundred and ninety-one dollars and seventy-seven cents; and surplus, eight thousand one hundred and thirty-one dollars and two cents; making an aggregate of six hundred and eighty-four thousand four hundred and ninety-six dollars and thirty-one cents. On the credit side, there are bills and notes discounted, and stock (what sort?) bearing interest, six hundred and twenty-six thousand and eleven dollars and ninety cents; real estate, eighteen thousand four hundred and four dollars and eighty-six cents; notes of other banks on hand, and checks on the same, twenty-three thousand two hundred and thirteen dollars and eighty cents; specie—now, Mr. President, how much do you imagine? Recollect, that this is the bank selected at the seat of government, where there is necessarily concentrated a vast amount of public money, employed in the expenditure of government. Recollect that, by another executive edict, all public officers, charged with the disbursement of the public money here, are required to make their deposits with this Metropolis; and how much specie do you suppose it had at the date of its last official return? ten thousand nine hundredand seventy-four dollars and seventy-six cents; due from other banks, five thousand eight hundred and ninety dollars and ninety-nine cents; making in the aggregate on the credit side, six hundred and eighty-four thousand four hundred and ninety-six dollars and thirty-one cents. Upon looking into the items, and casting them up, you will find that this Metropolis bank, on the first day of January, 1832, was liable to an immediate call for one hundred and seventy-six thousand three hundred and thirty-five dollars and twenty-nine cents, and that the amount which it had on hand, ready to meet that call, was forty thousand and seventy-nine dollars and fifty-five cents. And this is one of the banks selected at the seat of the general government, for the deposit of the public moneys of the United States. A bank with a capital of thirty millions of dollars, and upwards of ten millions of specie on hand has been put aside, and a bank with a capital of half a million, and a little more than ten thousand dollars in specie on hand, has been substituted in its place! How that half million has been raised, whether in part or in the whole, by the neutralizing operation of giving stock notes in exchange for certificates of stock, does not appear.

The design of the whole scheme of this treasury arrangement seems to have been, to have united in one common league a number of local banks, dispersed throughout the union, and subject to one central will, with a right of scrutiny instituted by the agents of that will. It is a bad imitation of the New York project of a safety-fund. This confederation of banks will probably be combined in sympathy as well as interest, and will be always ready to fly to the succor of the source of their nourishment. As to their supplying a common currency, in place of that of the bank of the United States, the plan is totally destitute of the essential requisite. They are not required to credit each other’s paper, unless it be issued in the ‘immediate vicinity.’

We have seen what is in this contract. Now let us see what is not there. It contains no stipulation for the preservation of the public morals; none for the freedom of elections; none for the purity of the press. All these great interests, after all that has been said against the bank of the United States, are left to shift and take care of themselves as they can. We have already seen the president of a bank in a neighboring city, rushing impetuously to the defence of the secretary of the treasury against an editorial article in a newspaper, although the ‘venom of the shaft was quite equal to the vigor of the bow.’ Was he rebuked by the secretary of the treasury? Was the bank discharged from the public service? Or, are morals, the press, and elections, in no danger of contamination, when a host of banks become literary champions on the side of power and the officers of government? Is the patriotism of the secretary only alarmed when the infallibility of high authority is questioned? Will the states silently acquiesce, and see the federalauthority insinuating itself into banks of their creation, and subject to their exclusive control?

We have, Mr. President, a most wonderful financier at the head of our treasury department. He sits quietly by in the cabinet, and witnesses the contest between his colleague and the president; sees the conflict in the mind of that colleague between his personal attachment to the president on the one hand, and his solemn duty to the public on the other; beholds the triumph of conscientious obligation; contemplates the noble spectacle of an honest man, preferring to surrender an exalted office with all its honors and emoluments, rather than betray the interests of the people; witnesses the contemptuous and insulting expulsion of that colleague from office; and then coolly enters the vacated place, without the slightest sympathy or the smallest emotion. He was installed on the twenty-third of September, and by the twenty-sixth, the brief period of three days, he discovers that the government of the United States had been wrong from its origin; that every one of his predecessors from Hamilton down, including Gallatin, (who, whatever I said of him on a former occasion, and that I do not mean to retract, possessed more practical knowledge of currency, banks, and finance, than any man I have ever met in the public councils,) Dallas, and Crawford, had been mistaken about both the expediency and constitutionality of the bank; that every chief magistrate, prior to him whose patronage he enjoyed, had been wrong; that the supreme court of the United States, and the people of the United States, during the thirty-seven years that they had acquiesced in or recognised the utter utility of a bank, were all wrong. And, opposing his single opinion to their united judgments, he dismisses the bank, scatters the public money, and undertakes to regulate and purify the public morals, the public press, and popular elections!

If we examine the operations of this modern Turgot, in their financial bearing, merely, we shall find still less for approbation.

First. He withdraws the public moneys, where, by his own deliberate admission, they were perfectly safe, with a bank of thirty-five millions of capital, and ten millions of specie, and places them at great hazard with banks of comparatively small capital, and but little specie, of which the Metropolis bank is an example.

Second. He withdraws them from a bank created by, and over which the federal government had ample control, and puts them in other banks, created by different governments, and over which it has no control.

Third. He withdraws them from a bank in which the American people, as a stockholder, were drawing their fair proportion of interest accruing on loans, of which those deposits formed the basis, and puts them where the people of the United States draw no interest.

Fourth. From a bank which has paid a bonus of a million and a half, which the people of the United States may be now liable torefund, and puts them in banks which have paid to the American people no bonus.

Fifth. Depreciates the value of stock in a bank, where the general government holds seven millions, and advances that of banks in whose stock it does not hold a dollar; and whose aggregate capital does not probably much exceed that very seven millions. And, finally,

Sixth. He dismisses a bank whose paper circulates in the greatest credit throughout the union and in foreign countries, and engages in the public service banks whose paper has but a limited and local circulation in their ‘immediate vicinities.’

These are immediate and inevitable results. How much that large and long-standing item of unavailable funds, annually reported to congress, will be swelled and extended, remains to be developed by time.

And now, Mr. President, what, under all these circumstances, is it our duty to do? Is there a senator, who can hesitate to affirm, in the language of the resolution, that the president has assumed a dangerous power over the treasury of the United States, not granted to him by the constitution and the laws; and that the reasons assigned for the act, by the secretary of the treasury, are insufficient and unsatisfactory?

The eyes and the hopes of the American people are anxiously turned to congress. They feel that they have been deceived and insulted; their confidence abused; their interests betrayed; and their liberties in danger. They see a rapid and alarming concentration of all power in one man’s hands. They see that, by the exercise of the positive authority of the executive, and his negative power exerted over congress, the will of one man alone prevails, and governs the republic. The question is no longer what laws will congress pass, but what will the executive not veto? The president, and not congress, is addressed for legislative action. We have seen a corporation, charged with the execution of a great national work, dismiss an experienced, faithful, and zealous president, afterwards testify to his ability by a voluntary resolution, and reward his extraordinary services by a large gratuity, and appoint in his place an executive favorite, totally inexperienced and incompetent, to propitiate the president. We behold the usual incidents of approaching tyranny. The land is filled with spies and informers; and detraction and denunciation are the orders of the day. People, especially official incumbents in this place, no longer dare speak in the fearless tones of manly freedom, but in the cautious whispers of trembling slaves. The premonitory symptoms of despotism are upon us; and if congress do not apply an instantaneous and effective remedy, the fatal collapse will soon come on, and we shall die—ignobly die! base, mean, and abject slaves—the scorn and contempt of mankind—unpitied, unwept, unmourned!

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