tion expressly declares, whereas the 14th section, in regard to the notes, makes no such qualification of the powers of Congress.

"It is again said that the power given to the Secretary by the 16th section is his old, or former power, which was absolute and unconditional as it regarded every depositary with whom the public money was placed, and therefore, the present power must be the same. If the power given by the 16th section is the old power, the House is possessed of the Secretary's opinion as to the extent of it. The language of the Secretary's letter is as follows: 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 legislative provision on the subject, to take care that the public money was deposited in safe keeping, in the hands of faithful agents, and in convenient places, ready to be applied according to the wants of the Government. The law incorporating the Bank has reserved to him, in the fullest extent, the power he before possessed. It does not confer upon him any new power, but reserves to him his former authority without any new limitation.' It is unnecessary to dispute the position that the power in the 16th section is the old power in this sense; for the power in the 16th section is not only admitted, but asserted to go to the very extent which the Secretary claims for the old power, and no further; namely, to the extent that the safety of the deposites, and their distribution in convenient places, require. Such a power is obviously neither absolute nor unconditional. But independent of this definition of his own power by the Secretary, it seems to have been overlooked by the committee, that the present power is to be applied to divest a right; whereas the former power was exercised over the possession of depositories who had no right whatever. The control of the Treasury Department over the public moneys, until the charter of the present Bank, was universally a question between the Treasury and Congress; it is now a question between the Bank and Congress."

In this conclusion of the minority, we submit, that no lawyer, no honest and enlightened man, untrammelled and unbiassed by party, can fail to concur. Their views are similar to those entertained by the Committee on Finance of the Senate, who say:

"The opinion of the Secretary is, that his power over the deposites, so far as respects the rights of the Bank, is not limited to any particular contingencies, but is absolute and unconditional. If it be absolute and unconditional, so far as respects the rights of the Bank, it must be absolute and unconditional in all other respects; because it is obvious, if there be any limitation, that limitation is imposed as much for the benefit of the Bank as for the security of the country. The Bank has contracted for the keeping of the public moneys, and paid for it, as for a privilege or benefit. It has agreed, at the same time, that the Secretary shall possess the power of removal; but, then, it is also agreed, that whenever this power is exercised, the reasons therefor shall be reported to Congress; Congress being thus constituted the final judge as well of the rights of the Bank, in this particular, as of the good of the country. So that, if the Secretary's power be in truth absolute and unconditional, it restrains Congress from judging whether the public good is injured by the removal, just as much as it restrains it from judging whether the rights of the Bank are injured by the removal; because the limitation, if any, is equally for the security of the bank and of the public.

"If the Bank be interested in retaining the deposites, then it is interested in the truth or falsity, in the sufficiency or insufficiency, of the reasons given for their removal. Especially is it so interested, since these reasons

are to be rendered to a tribunal which is to judge over the Secretary, and may form a different opinion on the validity of these reasons, and may reverse his decision. It clearly has an interest in retaining the deposites, and, therefore, is as clearly concerned in the reasons which the Secretary may give for their removal. And as he is bound to give reasons, this very circumstance shows that his authority is not absolute and unconditional. Because, how can an appeal be given from the decision of an absolute power; and how can such a power be called on to give reasons for any instance of its exercise? If it be absolute, its only reason is a reference to its own will.

"The committee think, therefore, that no absolute and unconditional power was conferred on the Secretary; that no authority was given him by which he could deprive the Bank of the custody of the public moneys, without reason; and that therefore his opinion is not to be admitted that, in no event, can any order for removing the deposites impair the right secured to the Bank by the Charter. If removed without good cause, the committee think the removal does impair the rights of the Bank."

An attempt is made by the Secretary and the party to support his interference by precedent; and reference is had to the acts and assumptions of Mr. Crawford, particularly, to his letter of the 13th February, 1817, to the President of the Mechanics Bank of New York; in which, certainly, a power as extensive as unwarranted, was claimed by that gentleman, over the public funds. "The Secretary of the Treasury," he says, "will always be disposed to support the credit of the State Banks, and will invariably, direct transfers from the deposites of the public money, in aid of their legitimate exertions to maintain their credit. But as the proposition of the Bank of the United States, excludes the idea of pressure on its part, no measures of that nature appear to be necessary." No power is given by law, thus, to use the public treasure; and Mr. Crawford mistook his rights and duties when he claimed authority to dispose of it in supporting the credit of State banks. But a broad distinction seems to run between all the acts of the past and present administrations. Wherever extraordinary powers were assumed, by the first, they were used, temporarily, in aid of the law and public weal; but by the last, to the permanent increase of the Executive power, and to the public detriment. And we might observe, if the precedent were admissable, that Mr. Crawford's is distinguished from the present case, by the essential feature that his transfers were made with the consent of the Bank.

But Mr. Crawford was armed with extraordinary powers to compel the resumption of specie payments, by resolution of 30th April, 1816, requiring him to adopt such measures as he might deem necessary to cause the duties and moneys payable to the United States, to be paid in legal currency, and prohibiting after a given day, the receipts in any other medium.

"It appears by Mr. Crawford's letter of 10th December, 1817, to the Speaker of the House of Representatives, assigning his reasons for not transferring the deposites from some of the State and District banks to the

Bank of the United States, that he entertained doubts whether the provisions of the 16th section of the bank charter did impose the obligation of transferring to the Bank of the United States the deposites previously made in the local banks. He did, nevertheless, communicate his reasons for ordering and directing otherwise than that the deposites should be made in the Bank of the United States, whether they had been previously deposited in the local banks or not. A single moment of reflection will show that the transfer of deposites from local banks, not paying specie, to the Bank of the United States, which could pay in nothing but specie, must have been made under this resolution of Congress of 30th of April, 1816, and upon principles altogether inapplicable to the present case. The object of the Secretary of the Treasury was, by one and the same operation, to compel the local banks to resume specie payments, and to withdraw from them the public deposites, to place them in the Bank of the United States. That Bank could receive them only as equivalent to specie, for so only was it bound by its charter to pay them out. It was impossible, then, effectively to withdraw them, but by a simultaneous resumption of specie payments by the banks from which they were to be withdrawn.

To obtain their assent to this twofold measure, then, Mr. Crawford felt himself justified in giving them assurances of all the aid from Government necessary for its accomplishment; and particularly that in effecting the transfer of the deposites from their vaults to those of the Bank of the United States, there should be no advantage taken of them by any unnecessary pressure which should render the operation injurious to them. There can be no doubt that he was fully justified in giving them these assurances. To the liberality with which the bank of the United States co-operated to the accomplishment of these purposes, the letter of Mr. Crawford, of 10th December, 1817, bears signal testimony.

C

It is equally certain that indulgences were afterwards extended to several of the local banks, beyond what was warranted by law. They furnished the grounds of investigations and inquiries by both Houses of Congress, and, at one time, of direct charges made by Ninian Edwards against Mr. Crawford. The letters of that officer of the 25th of February, 1823, (p. 66,) to the Senate, of the 24th of February, 1823, (p. 72,) to the chairman of a committee of the House of Representatives, and of the 8th May, 1824, (p. 76,) to the chairman of a committee of the House, appointed to investigate the charges of Ninian Edwards, exhibit statements of several instances in which he had caused deposites to be transferred to the local banks for the purpose of sustaining them. In justification of the practice, he alleges frequent instances in which it had been resorted to, during the interval between the first and second Banks of the United States; and he cites, as analogous cases, several instances of delays to the payment of custom-house bonds, during the existence of the first Bank of the United States. But so far as such proceedings ever had taken place as expedients to rescue banks from danger, the committee of the House of Representatives, upon the charges of Ninian Edwards, expressly declare that this is no legal employment of public funds; it is nothing but a gratuitous loan."*

But, the selection of precedents by the Committee of Ways and Means of the House, is not more extraordinary than those adduced by Mr. Forsyth, of the Senate. "The first is a resolution offered in the House of Representatives, in 1817, never acted upon, and carrying with it no other authority, than the unsupported opinion of the mover, who was the honourable gentleman himself. He proposed that the Secretary of the Treasury, be directed, to withdraw the deposits; directed, not by the * Printed speech of Mr. J. Q. Adams.

President, but by Congress. The second was a resolution offered in the House, by Mr. Spencer of New York, never acted upon, by which the Secretary was ordered to withdraw the deposites. The third was an extract from Mr. M'Duffie's report, in 1830, averring that the Secretary, with the sanction of Congress, has the power of removing the deposites, for various reasons. And. thus, propositions to give a peremptory order by a superior, were cited to maintain the claim of the subordinate Secretary, to unlimited and exclusive power. Mr. Forsyth explained, that he had not adduced these precedents to show, that the Congress had no power, but that the Secretary had. He thought that Congress also possessed the power of removal, and so far differed from the Secretary; and thus took from the latter, the only pretence that had the colour of justification, namely; that his action was a condition precedent to the action of Congress. Another gentleman, but of the lower House, Mr. Wise, of Virginia, who has the happy faculty of combining qualities, which most persons believe have little affinity for each other, and who, upon his own report is "most distinctly" a friend of the administration, and undisguisedly and decidedly a friend to the constitutional power of Congress, to incorporate a bank, and who has treated this subject with much naiveté and peculiarity, has protested against the doctrine that Congress has divested or can divest itself of its power, in favour of the Secretary, and has declared, after mature reflection, that the Secretary is bound to lay before Congress, financial reasons alone, for the removal of the deposites, and that none of his reasons are good financial reasons. This brings us to the consideration of the second general proposition of the Secretary.

II. That Congress had wholly stript itself of all power over the deposites, having conveyed it to him. The replies of the Committees of the several Chambers are equally conclusive upon this as upon the former proposition.

Thus the minority of the Committee of Ways and Means of the House, say:

"It is finally said, that the power of the Secretary is absolute and unconditional, because Congress have given to him their whole power, reserving none whatever to themselves to touch the deposites until he shall have restored their power to them. This argument begs the question in dispute. The Secretary supposes himself to be an independent judge in this matter, whereas the minority suppose, that he is merely the agent of Congress. His power in the premises is a part of their power entrusted to him as their representative. Though he may use it for sufficient reasons, Congress may use it also for the same reasons. The restraint upon the exercise of his power is imposed by the right of the Bank, and this is all the restraint that is imposed upon the right of Congress. If the Bank has no right, as the committee appear to assert, upon what ground can the right of Congress be denied? If the power reserved to the Secretary, by the 16th section, is neither more nor less than the old power, how is it possible to deny the

right to Congress to control the deposites, under the charter, if Congress had any right to control them before the charter? It is worthy of deep reflection, that the argument put forward by the committee, to sustain the Secretary's reasoning, has carried them to the extent of asserting that Congress abandoned the public treasure to the Secretary and the Bank beyond the possibility of recall.

"The minority state their opinion to the House, that the power of the Secretary over the deposites in the Bank depends for its just exercise upon the existence of adequate causes; that the Bank had a direct and immediate interest in them, and is entitled to an impartial decision upon them; that an unjust decision upon them will be a violation of the charter, and a stain upon the public faith; and that the Secretary's position, that his power is absolute and unconditional in regard to the Bank, is an unwarrantable assumption of power, instead of a just interpretation of that which has been given."

And the minority thus meet the allegation of the Secretary, that the manner in which his duties are exercised, must be subject to the supervision of the President.

The

"In the execution of this power, the Secretary was the agent of Congress, and not of the President. He derived the power from Congress; he is to report his reasons for using it to Congress. The act of the Secretary in removing the deposites is neither actually, nor by construction, the act of the President, nor are the reasons of the President a satisfaction, either in effect or form, of the requisition of the Secretary to report his reasons. The exercise of this power affects the public treasure, which Congress directed to be placed in the Bank of the United States. treasure is the treasure of the people, the custody and control of which belongs to the Legislature and to the agents of the Legislature. The custody of the Legislature is exclusive of the Executive Department. The custody of the Bank, as the agent of the Legislature, is equally exclusive. The power of the Secretary is, in like manner, exclusive. The Chief Executive Magistrate has no constitutional authority to raise revenue, or to take it into his official possession when raised, or to direct who shall possess it, or to interfere with a direction or authority in this behalf, proceeding from Congress, any more than he possesses authority to direct by whom the public money shall be used and consumed. The Secretary cannot be relieved from the duty of accounting to Congress by any order of the President; nor can the reasons of the President be imposed upon him as a guide, nor be offered to Congress as an excuse. The discretion which is given by the charter, is given to the Secretary alone. The order of removal must come directly from the Secretary; and if it came from the President alone, it would be null and void.

The power of the President to remove the Secretary of the Treasury is no reason for holding that the Secretary is under the direction of the President in the exercise of the discretion conferred by the charter. The President may remove the Secretary whether he performs or does not perform his duty. The legal power to do it is as perfect in the one case as the other. The mere existence of the power does not consequently imply the right of direction or control. The constitutional duty of the President, to see that the laws are faithfully executed, requires him to see that an officer to whom the law confides a discretion is permitted fairly to exercise it. A law which confers a discretion upon one officer, is violated, instead of being faithfully executed, by compelling him to submit to the discretion of another officer. If the President has in this matter, directly or indirectly, controlled the discretion of the Secretary, the law has not been faithfully