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.