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ing, to it, the course of the Executive, as by the law, he was through his Secretary of the Treasury required to do, he, notwithstanding the Secretary is about to render his and the President's reasons, appeals to the people to determine whether the Executive has been found in the line of its duty.

414. The report of the Secretary may be viewed under two heads; first, the principles on which he founds his authority: and second, the facts by which he endeavours to justify its exercise. 1

415. The principles are; 1. That the charter of the Bank is a contract, between it and the United States, by which the Bank has agreed, that the power reserved to the Secretary over the deposits, shall not be restricted to particular contingencies, but be absolute and unconditional, as far as their interests are involved in the removal; and that, therefore, by his act, the Bank was divested of all right thereto, and the nation discharged from the contract: 2. That, whilst the power of the Secretary over the subject was absolute, that of Congress was divested-Congress having alienated it to hîm: 3. That, the exercise of his power is not, even in point of responsibility to Congress, dépendent upon the safety of the deposits, or on the fidelity of the Bank to the Government; but, that it is his right and duty to remove them, if, in his opinion, the removal tend, in any degree, to the interest and convenience of the public: And 4. That, as the propriety of removing the deposits was evident, it was, consequently, his duty to select the places of future deposit.,

416. I. We have had occasion to remark, already, upon the nature of the contract between the Bank and the Government, but we will add here some further views upon the subject. If the power of the Secretary be absolute and unconditional in respect to the rights of the Bank, it must be absolute and unconditional in all other respects; because if there be any limitation imposed, such limitation is as much for the benefit of the Bank as for the security of the country. The Bank had purchased as a benefit, the custody of the public monies; agreeing that the Secretary should have the power of removal; conditioned, however, that, the reasons for its exercise should be submitted to Congress, as the final judge of the rights of the Bank and the weal of the nation. If the power of the Secretary, therefore, be absolute and unconditional, it restrains Congress from ascertaining whether the States be injured by the removal, or the rights of the Bank be violated. If the Bank be interested in retaining the de

posits, it must be interested in the truth and the sufficiency of the reasons assigned for their removal; especially, as such reasons are to be rendered to a tribunal, to which the Secretary is amenable and which may reverse his decision. It has, clearly, an interest in detaining the deposits, and therefore, certainly concerned in the reasons which the Secretary may give for their removal. And the fact, that, he is bound to give reasons, conclusively, shows, that his authority is not absolute and unconditional;-for there is no appeal from the decision of absolute power; if it be absolute, its reason, is its will. But the Secretary is obliged to assign his reasons and satisfactory reasons too, to Congress. If such reasons be not good, he abuses the discretion reposed in him, violates the contract with the Bank and subjects himself to impeachment. The very effort of the Secretary to secure himself behind this entrenchment, shows clearly, that he has not confidence in the soundness of the reasons he would adduce.

The Secretary seeks protection also under the cover of precedent, furnished by the acts and assumptions of Mr. Crawford in 1817; in which, certainly, a power, as extensive as unwarranted, was claimed by that gentleman, over the public funds; namely, to use them in support of the State Banks. We might observe, if the precedent were admissible, that, Mr. Crawford's case is distinguished from the present, by the essential feature, that his transfers were made with the consent of the Bank; but the best reply is, that given by the Committee of Congress to whom the subject was referred; "this was no legal employment of the public funds; was nothing but a gratuitous loan.”

417. II. But the Secretary avers, that his power is absolute and unconditional, because Congress have given to him their whole power, reserving none to themselves, to touch the deposits until he shall have restored their power to them; and he adds, that the power reserved to him under the charter is the same which he previously possessed. This is a begging of the whole question. The Secretary assumes, that he is an independent judge of the whole matter; whereas, he is but the agent of Congress. His power is but part of their power, entrusted to him, as their representative. Though he may use it for sufficient reasons, Congress may use it, also, for like reasons. The restraint upon his power, is imposed by the right of the Bank, which is the only restraint on the power of Congress. If the Bank have no right, upon what ground can the right of Congress be denied? If

the power reserved to the Secretary, under the charter, be the old power, how can the right of Congress, to control the deposits be denied, under the charter, if Congress had any right to control them before the charter! The argument of the Secretary goes to the whole extent of asserting, that, Congress have abandoned, to the Secretary and the Bank, the public treasure, beyond the possibility of recall.

III. The Secretary also assumes, that, his power over the deposits does not depend upon their safety nor upon the fidelity of the Bank, but may be exercised, if their removal tend in any degree to the interest and convenience of the public. But the only adequate cause for removal must be one affecting the safety of the public monies in the Bank or their distribution for the public service. Such a cause alone directly concerns the subject upon which the power is to be exercised. It is the only one of which the functions of his office and his relations to the Bank authorize and enable the Secretary to judge, and which requires immediate action, without reference to Congress. It is the only one which would justly deprive the Bank of the use of the public monies after having paid for it. It is the only one which Congress could safely submit to the discretion of the Secretary of the Treasury, without abandoning to that officer the whole scheme of the public policy in regard to a National Bank.

"1. A cause that does not directly concern the subject upon which the power is to be exercised, must regard the public monies as an instrument, and not as an object of the power. To comprehend such a cause, the charter must be construed to give the Secretary an unlimited choice of the objects to be attained by the custody of public monies; for as none are pointed out by the charter, but those of mere custody and transfer, the instant that these cease to be the only objects of the power, we are without any limitation. Whether the purpose of the Secretary be local or general, whether it be to make money dear or cheap, to regulate or disturb exchanges, to promote or retard public works, to increase or diminish the amount of Bank discounts, to excite or counteract political movements, each and all of these objects must be within the discretion of the Secretary, if any of them are.

"2. That the Secretary should be entrusted with a power necessary to protect the Treasury itself, or to meet the de-, mands upon it, is reasonable. If the public monies are exposed to danger, he must first perceive its approach, and would be best able to measure its extent. He, also, from his official

position, must know the direction which public engagements require to be given to the means of satisfying them. The power, which either danger or the public credit makes necessary, is one that does not admit of delay, whether Congress be in session or not. The action required, to be effectual, must be in some cases instantaneous. The grant or reservation of such a power to the Secretary of the Treasury, was necessary and proper. But if the public monies were to be made an instrument for effecting an ulterior object, no reason can be imagined why the power of using them should be given to the Secretary rather than to the President, or why it should be given to either, instead of being left to the action of Congress. That, nothing but the safety and distribution, of the national treasure were the lawful objects of the Secretary's power, is conclusively shown by the circumstance that the Act to establish the Treasury Department,' the very moment that the Secretary gave the order not to make the deposits in the Bank of the United States, placed them in the hands of the Treasurer, who could lawfully make no disposi-tion of them, but to keep them securely, to be disbursed ac, cording to law. A removal of the deposits for any purpose, except to place them in this custody, would be not only a violation of the rights of the Bank, but of the functions of the Treasurer, as created by law."

418. IV. The claim of the Secretary, of right, to select the depositaries of the public treasure, when withheld from the Bank of the United States, falls with his pretension to withhold it. But no portion of this great case requires more consideration, than the employment of substitutes for the Bank of the United States. It may be regarded as to the right and the result.

419. Of the practice on which the claim of right is based, we have already spoken. In proof that it is unwarrantably claimed, we adduce some additional remarks.

"The proper duty of the Secretary is to superintend the collection of the revenue. That of the Treasurer is "to receive and keep the monies of the United States, and to disburse them on warrants drawn by the Secretary of the Treasury, countersigned by the proper officers, and recorded according to law. He is required to give bond, in the sum of one hundred and fifty thousand dollars, conditioned for the faithful performance of the duties of his office, and for the fidelity of the persons to be by him employed. It is the Treasurer, therefore, who is to choose the place of deposit; and he is the

best officer, in theory, as well as the only officer, by the law, to perform the act; because the doctrines of general convenience and interest are not so like to reach him. His object will be security, and his bond is the motive for obtaining it. If there be a treasury practice, which has displaced the Treasurer, the practice should be made to conform to the law, or the law to the practice. As the case now stands, the money of the United States is not deposited, where it is, by direction, and under the sanction, of the law. It is placed in the deposit Banks by an officer who has not the authority so to place it; and in case of controversy, it may possibly be found, not only that the bond of the Treasurer is of no avail, but that, remedies for the loss or detention of the deposits, are not to be obtained in the name of the United States, or in the courts of the United States; but in private names, and in State courts, with all the contingencies incident to litigation in this form. Whatever may be the practice, it is not becoming, that the Treasury of the United States should be in any predicament, but that, precisely, in which the law has given its direction to place it."

420. But where did the Secretary get authority to contract with the State Banks? It would seem as if every step of this officer was over some broken pillar of the law. He was authorized by no law to make such contracts; nay, he was expressly forbidden by the Act of 1st May, 1820, for the regulation of the departments, which provides, Section 6, that no contract shall thereafter 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.

421. We are now to consider the result of the substitution of the Executive of other depositaries of the public funds for those provided by law; which leads us, immediately, to the inquiry into the actual condition of the State Banks.

422. It appears, from the best information attainable, that there are in the States, districts and territories, in round numbers, four hundred and fifty Banks; with an aggregate capital of one hundred and forty-six millions of dollars; circulation of nearly one hundred millions; deposits fifty millions; specie about ten millions. The total amount of discounted paper is about two hundred and thirty-three millions.

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