Manch 3, 1834.]

the pleasure of the House of Representatives; and by this means you link together two branches of the Government, which the preservation of liberty requires to be constantly separated.” I have troubled the House by reading these passages, not merely as authority, but for the cogent arguments they contain in support of the general power of removal, and the principles on which it may be exercised. They come from him who is the patriarch of the constitution, who has been appropriately called the author and finisher of the faith of State rights; and of whom I hope I may be permitted to say, that if there has ever lived a more enlightened statesman, a purer and more single-minded patriot, and a wiser or more far-sighted politician, the Muse of History has for once been unfaithful to her duty, and omitted to record his name. It is in the faith taught by Madison—clarum et venerabile nomen—that I have been bred; and I am not now going to be seduced from that faith by the plaudits which the doctors of the new political church are constantly pouring forth upon the course which they see, or think they see, Virginia is going to pursue, and which they know is to place her in their wake. When we can be made to disregard the genuine chronicles of political doctrine which Madison and Jefferson have given us, I know not where to look for the canonical book of political scripture. It must sound somewhat curiously for Virginians to hear that State praised for her devotion to principle, her regard for the constitution, by those who until now have habitually sneered at and ridiculed her notions of constitutional construction as metaphysical refinements. When that ancient and venerable Commonwealth, “Virginia, the blessed mother of us all,” finds herself suddenly in favor with our new allies in the cause of State rights—the force bill— democratic-Jeffersonian-United States Bank republicans, who present memorials here from all quarters—she may well exclaim, “What has thy servant done that mine enemy

[H. of R. several clauses recognises the great departments as executive departments. Their character of executive is derived from the nature of the functions they perform. The constitution authorizes the President to “demand from the principal officer of each of the executive departments his opinion, in writing, upon any subject relating to the duties of their respective offices.” Was it ever supposed, until now, that the Secretary of the Treasury was not comprehended in this provision? We know that the uniform practice and understanding have been otherwise. But if it be not an executive department, what sort of a department is it? There are, and can be, but three kinds of political power—executive, legislative, and judicial. The execution of the laws relating to the finances, as well as the execution of all other laws, is an executive function; and the department to which is assigned their execution must necessarily be an executive department, no matter what name you give it. There is, however, a law which entirely dispels the idea that the Congress of 1789 intended that the Treasury should not be an executive department. The law establishing the Treasury Department passed the 2d September, 1789, and on the 11th of the same month another law passed, and stands in the statute book next in order to the law establishing the Treasury Department. The title of this act is “An act for the establishment of the salaries of the executive officers of the Government.” The first officer named in the law is the Secretary of the Treasury, and afterwards the Treasurer, Register, Comptroller, Auditor, &c., besides other officers of the War and State Departments. Now, a department, all the officers of which are executive officers, and is not itself an executive department, is a nondescript, which I leave to more acute political metaphysicians than I am to classify. It is true the law does not in terms call it an executive department, which I imagine was merely accidental; nor does the law define the duties of the several officers of the War, State, and Navy Departments, as it does those of the Treasury. The reason of that is to be found, not in the idea that those officers were to be less responsible to the President, but to preserve a greater security to the people and their money, by preserving the responsibility both of the Presdent and officers of the Treasury, by compelling the officer of the Treasury to act on his responsibility, and the President to meet his responsibility, if he controlled him improperly. And here I remark, that I do not censure Mr. Duane for not resigning: on the contrary, 1 tilink he was right to compel the President to “take the responsibility” of removing him. If censurable at all, it was for giving a pledge to resign in the first instance. To proceed; another reason is to be found in the peculiar functions of the Treasury Department, and the wish that the several officers of the Treasury, having distinct duties to perform, should mutually constitute checks on each other, without at all impairing the constitutional right and official duty of the President, as Chief Executive Magistrate to supervise the whole, and take care that each and all faithfully execute their respective duties. He appoints all these officers; he has the power of removing them all, given to him, as I have already shown, that he may “supervise, oversee, and control them;” that they may be displaced, unless “they conform to his judgment of the requisitions of the law.” They are commissioned by him, and during his pleasure. He is required by the constitution to see that the laws be faithfully executed; and if he did not “take the responsibility” of having them faithfully executed, when these officers neglect, or misunderstand, or pervert, or omit to perform their several duties, he would be recreant to his trust, and betray the confidence which had been reposed in him by the people. You will observe, sir, that I am arguing on the supposition that the President honestly believed that the occa

sion for the removal of the deposites under the charter

existed, and that the public interests required the exercise of this authority; and here I beg leave to offer an authority, which is from a high source. It is an extract from the speech delivered on this subject by a gentleman of very great talent—of whose character I entertain a high opinion, although I differ with him very decidedly on some political subjects; am not his advocate in the great contest for the succession, which it is said mixes itself with all questions of power and principle here, and perhaps may not ever be so, though it is not impossible. 1 read from the speech of Mr. CALHous: “I cannot doubt that the President has, under the constitution, the right of removal from office; nor can I doubt that the power of removal, wherever it exists, does, from necessity, involve the power of general supervision; nor can I doubt that it might be constitutionally exereised in reference to the deposites. Reverse the present case: suppose the late Secretary, instead of being against, had been in favor of the removal; and that the President had been against it, deeming the removal not only inexpedient, but, under circumstances, illegal; would any man doubt that, under such circumstances, he had a right to remove his Secretary, if it were the only means of preventing the removal of the deposites? Nay, would it not be his indispensable duty to remove him? and had he not, would he not have been universally and justly held responsible?” I answer, that I have no doubt of it. I have no hesitation in expressing the belief that, if such had been the case, but for the infusion of political prejudices, party influences, and pecuniary interests, which would then, as in all other cases, influence human opinions, there could not have been found ten intelligent politicians, or ten intelligent men of any sort, who would have denied the President’s right to remove his Secretary for not executing the law in conformity to the judgment of the President. Mr. CALhoun, it is true, condemns the President’s course in this case, because he apprehends that the President has acted for other reasons than those he has alleged, and for purposes which he thinks unwarranted and unconstitutional; and, therefore, he considers the removal of the deposites an abuse of power. Now, sir, is it be true that the President has been actuated by any indirect motives; if he has used the alleged reasons merely as pretexts for gratifying a vindictive resentment and hostility to the bank; if they are employed merely as signs to denote a foregone conclusion; then I would not split hairs between abuse and usurpation, but would say that the President had been guilty of a high misdemeanor in office—and this whether the alleged reasons of his conduct are good or bad in fact. I, for one, will give every facility to any gentleman, who entertains this opinion as to the President’s motives for his conduct, my aid for the freest and fullest inquiry into the facts; and, after examining them, with a mind perfectly free from all desire either to hold up or to break down the administration, if I am satisfied that the President has committed any official misdemeanor, I will give my vote for his impeachment, fearless of all consequences. But if, on the contrary, the President has acted in good faith, in conformity with the honest convictions of his judgment as to what was required by the behests of public duty, let us cease this clamor about usurpation. Whether his judgment was right, or his reasons sufficient or not, cannot affect the question of constitutional right and official duty. It is precisely the state of things which exists when a judge, called on to decide a cause within the jurisdiction of his court, decides wrong, but honestly. It would be a sad condition of things if every judge who pronounced an erroneous judgment should straightway be anathematized as a tyrant, usurper, and despot. The insufficiency of the reasons for the removal would not make a usurpation, if he had the right to interfere. Nor would the fact that the removal of the deposites was

produced by an unconstitutional exercise of power by the President make it necessary to restore them, if the rea, sons for the removal given by the Secretary are in them. selves sufficient, or if any sufficient reasons now exist for withholding them. There is another decisive proof that the Treasury Department was regarded by those who framed it as much an executive department as any other, which, as it has not been adverted to by any one, so far as I have seen, I will now refer to. When the Treasury Department law was under consideration in the Congress of 1789, the clause making it the duty of the Secretary “to digest and report plans for the improvement of the revenue, and the support of public credit,” was objected to by several gentle. men, who had denied, be it remembered, the power of removal. Let us hear what they thought of the Secre. tary being an executive officer. Mr. Page objected to it as being a dangerous innovation on the privileges of the House, and said, “I never can consent to establish by law this interference of an executive officer in the business of legislation.” And again: “When the President requires of this officer an opinion, the constitution commands him to give it.” Where, I ask, but in the clause entitling the President to require “the opinion, in writing, of the principal officer in each of the executive departments?” Mr. Tucker, of South Carolina, said, “It would create an interference of the Executive with the legislative powers.” No man who advocated the clause intimated an opinion that the Treasury Department was not an executive department. It was universally so regarded at that day; and so was the President's power of removal then distinctly recognised and established, and has been ever since uniformly admitted until this time, when it is swell. ed, distorted, and blazoned forth as an enormous stretch of executive power. But a great deal is said as to the President having seized the treasury; that he has got hold of the purse of the na. tion, which belongs in an especial manner to the representatives of the people. And in order to give greater weight to the resolution of the last session, which declared that the deposites were safe in the United States Bank, it has been said, (I do not refer to anything said here,) that the House of Representatives are the peculiar guardians of the treasury, and that the modern Caesar (Andrew Jackson) has driven away from the door of the treasury the mod. ern Metellus, William J. Duane. Now, all this may do well enough for a stump speech, or for the columns of a partisan newspaper, but in sober truth scarcely deserves a serious refutation. General Jackson has not seized the treasury; what he has done has been done in compliance with the law. He has assumed no other control over the treasury or the treasure than he was authorized to do by the constitution and the laws; and “the representatives of the people and of the States” in Congress assembled have now the same control over the matter that they had before. Nor has he got hold of the nation's purse, by reason of anything he has done, or claims the right to do. So far as I have heard or seen, he cannot get one cent of his own salary even, but by means of an appropriation by law; and then it must be drawn out by the regular warrants prescribed for drawing money out of the treasury, in pursuance of the constitution. Ah! but it is said he may remove the Secretary—remove the Treasurer—turn out the Comptroller, Register, &c., until he gets men that will give him the money for his own purposes, for the benefit of himself and his favorites, and without any appropriations. That is all true; such is his power, as conceded, I presume, by all. But in such cases it would be the exercise of power without right; it would be flagrantly unconstitutional. He would be impeached and turned out of office, and the indignation of an abused and betrayed people

gress having the effect of making him an agent of Congress, it is not only refuted by what took place in relation to the clause directing him to report plans, to which I have already referred, but is in conflict with the constitution, which, it seems to me, recognises no such political existence as an agent of Congress, in any other sense than that in which all officers are agents of the law and the constitution. In that sense, he is the agent of Congress, who can act upon him by law, and only by law; or, which is the same thing, by joint resolution. In any other way, his responsibility to Congress is a mere shadow. For suppose Congress, and the President too, thought the deposites ought to be removed, and the Secretary of the Treasury should be of opinion (as the present Secretary seems to be) that they are placed in the Bank of the United States by contract; that he alone has the power to remove them; and that the casus fæderis did not exist which justified their removal: what is to be done?, Can you impeach him for protecting the chartered rights of the corporation? And if you could, the delay necessarily incident to the proceeding might render it entirely nugatory as to the interests of the public. All that could be done, all that you could do, would be to look to the President to exercise that very power which is now denounced as a usurpation. And another answer to this argument is, that if his being required to report the reasons for having done an act to Congress makes him an agent of Congress, one would think that, pari ratione, his being bound to give his opinion in writing to the President in relation to the act would make him an agent of the President. I referred to one discriminating feature in the first two resolutions of the Legislature of Virginia. The first charges the unlawful act—the assumption of power; the second charges the same offence, and, moreover, that it was done from a “ disposition to extend his official authority.” That charges the act—this the malo animo. Now, this is impeachable matter. If the Legislature so intended it, I regret that they did not say so in plain terms; and it does seem to me, that any gentleman who entertains this opinion, and thinks it can be sustained by proof, ought to institute proceedings for the purpose of investigating it. We have the right to make the accusation; but we are not the judges. If the accusation is to be made, let it be made in the usual way—in a mode calculated to bring before us all the proofs on which the charge is founded, as well as the exculpatory testimony. Let us see if the charge is well founded. If it be, the President ought to be impeached; if any gentleman thinks there are sufficient grounds on which to make the inquiry, he shall have my vote in favor of it. As to the request of the Virginia Legislature that the deposites may be restored, I have only to say, that unless the bank charter is to be renewed, or another Bank of the United States established, I have as yet seen and heard nothing which induces me to think that any substantial and permanent relief from the public distress which exists will result from changing the place of deposite. Upon this point, however, I am willing still to hear more, and to hear all that can be said; and to be governed, in relation to this question of expediency, by all the circumstances which may exist at the time I am required finally to act on it. But I do not concur in the principle on which the Legislature of Virginia seem to found their request, to wit, that the only consideration to be taken into view, in reference to the removal or restoration of the deposites, is, whether the Bank of the United States is a safe depository of the public money. I am constrained to say, after a careful consideration of this subject, that the authority given to the Secretary to remove the deposites was not given solely with an eye to their safety, and, indeed, that it could not have constituted the chief, or even a prominent motive. The authority

can afford. Would such language have been used, if there was but one possible contingency in which this unqualified discretion could be exercised? Why not have defined the authority so as to limit it to that contingency? The stat. ute, moreover, requires him to give the reasons; and yet the argument is, that there is but one possible reason which can be given. But this power of removing the deposites could not pos. sibly be used without entirely prostrating and overthrow. ing the credit of the institution, if its credit was before so doubtful as to make it the just ground on which the place of deposite was changed; and thus the act done, for the safety of the money apprehended to be in danger, would be the certain means of still more endangering it. And, in addition to all this, another clause of the bank charter directs that all dues to the Government shall be receivable in notes of the Bank of the United States, until Congress shall otherwise order and direct. Now, I cannot comprehend what advantage it would be to the safety of the public money to remove it, as long as this provision existed, as it is obviously a matter of no sort of conse. quence whether the public money exists in bank credits or in bank notes. These give a promise to pay—those recognise with the same solemnity the obligation to pay, If, then, the safety of the public money had been the only or the chief consideration with the framers of the bank charter, they would have given the Secretary, as the means of making it effectual, the right to refuse the notes of the bank. This notion, that the deposites can only be removed on the ground that they are unsafe, is generally abandoned here. The Bank of the United States, to be sure, maintains this proposition; but most of its friends here concede that there are other reasons for which the Secretary would be justified in removing the deposites: one is, the failure of the bank to transfer the public money from place to place, as required by one of the stipulations of the charter. Now, sir, recollect that this last would be a violation of one of the fundamental articles of the charter. And how can those who make this concession use, with so much earnestness as they do, the denunciations against the Secretary for stating, as one of the reasons for the removal of the deposites, that the bank had violated its charter in another important article? It is said, with great plausibility, that the President and Secretary have assumed judicial authority, and have deprived the bank of the benefit of a jury trial, the great palladium of liberty; and when they admit that he may remove the deposites because of an act which would constitute a ground for the forfeiture of the charter, do they not themselves admit that he may protect the interests of the country from the misconduct of the bank, so far as the removal of the deposites is concerned, without waiting the judgment of a court, or the verdict of a jury? I do not know that there is any other question growing immediately out of the resolutions of the Virginia Legislature, except, perhaps, the idea that the Bank of the United States is made by the bank charter the treasury of the United States; and that, consequently, the removal of the deposites from that bank is in violation of that provision of the constitution which requires that no money shall be drawn from the treasury but in pursuance of appropriations made by law. The obvious answer to this is, that if the bank is made the treasury by the sixteenth section of the charter, the same section gives the Secretary the authority to say that it shall not be the treasury. It is the only clause of the charter from which the idea is derived. It is as follows: “That the deposites 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

given to him is given in terms as broad as the language

branches thereof, unless the Secretary of the Treasury shall at any time otherwise order and direct; in which case,

the Secretary shall immediately lay before Congress, if in session, and, if not, immediately after the commencement of the next session, the reasons of such order and direction.” The truth is, that the public money, no matter where it is, to the credit of the treasurer of the United States, is in the treasury. The public money, while in the Bank of the United States, is in the treasury; and when it is removed thence by the officer who is authorized so to “order and direct,” and placed elsewhere, it is still in the treasury. It is said that the Secretary of the Treasury has undertaken to do what the whole Government cannot do, to wit: lend out the public money to support the credit of local banks. I take it for granted the principle is true; but if the deposite of a portion of the public funds in a State bank be a loan to that bank, and therefore illegal, is it not equally illegal, and equally a loan, to deposite it in the Bank of the United States? The deposite of money in a bank is not a loan at all. It is selected as a place for keeping the public money until it is wanted. As to the authority of the Secretary of the Treasury, ad interim, and in the absence of special legislation, to select the place of keeping the public money, I have only to say, that it seems to have been the universal construction of the department from 1789 down to the present time—constantly practised on, and frequently brought to the notice of Congress, who have thereby given a silent acquiescence in it. Mr. Hamilton, while he was Secretary, exercised this authority, and detailed, in a report to Congress in 1794, the practice of the department under the interpretation of the law then adopted. When the old Bank of the United States expired, in 1811, Mr. Gallatin was Secretary of the Treasury, and, as such, selected the places of deposite, and prescribed the stipulations which were to be made. Mr. Crawford, both before and after the establishment of the present bank, pursued the same course. And the bank charter itself, in two of its clauses, recognises this authority. The sixteenth section authorizes the Secretary of the Treasury to direct that the deposites shall not be made in the Bank of the United States. Now, if the Treasurer is authorized, under the law of 1789, to select the place of deposite, he may immediately order them back, which would render nugatory the authority given to the Secretary. Another clause of the bank charter requires the bank to give facilities for the transfer of the public money whenever required by “the Secretary of the Treasury.” Thus distinctly recognising that officer as entitled to direct where the public money shall be Placed. ... I do not mean, Mr. Speaker, at this time, exhausted as is my strength, and worn out as the patience of the House Thust be, to enter into an examination of the reasons alleged by the Secretary for the removal of the deposites. The reasons alleged by him, if substantiated, are, in my judgment, such as justified the withdrawing and withholding the public deposites, so far as the rights of the bank were concerned; and enough of these charges seem to be admitted or established to my satisfaction, to have warranted the act of removal in point of legal authority. I think, however, that it was effected in a way which was hasty and ill-judged. The sudden and unexpected manner in which the determination to change the place of deposite was announced, without notice to the bank or to the country, was, I think, unwise and prejudicial to the interests of the community. That the bank itself has contributed by its course to increase the evils arising from this proceeding, I can have no doubt. But I think it extraordinary doctrine, indeed, that we are obliged to keep the public money in a bank which has violated a fundamental article of its charter, which, in effect, excludes the Government directors from all participation or knowledge of isimportant concerns; which, in spite of the express directions of the charter that seven directors shall consti

tute a quorum to do business, commits to a sub-committee, chosen by the President of the bank, the transaction of business most materially affecting the general interests of the community, and which finally expends large sums of money belonging to the public as well as the other stockholders, for the purpose of controlling the politics of the country. This last charge it has been attempted to slur over and ridicule, as unworthy of serious notice, as well as untrue in fact. I regard it, however, as important in principle, and it seems to be sufficiently established in proof. The printing accounts of the bank prior to 1829, when General Jackson's first message was issued, had not ordinarily exceeded about seven or eight hundred dollars per annum. From that time, its expenses for printing documents and essays rapidly and enormously increased; and, in 1832, if I mistake not, the amount expended under the resolution authorizing the president of the bank to procure and circulate such documents and pamphlets as were “calculated to enlighten the public mind as to the nature and operations of the bank,” (I think that is the language,) swelled up to the amount of $26,000: 1832 was the year of the veto, and of the presidential election. In 1833, the year after the most serious “assault” was made by the President on the credit of the institution, and when, therefore the motive of defending the bank against these “assaults” was strongest, the expense was only $3,000. But the presidential election was then over. “Res ipsa loquitur.” The bank declares its determination to go on in this course of expenditure, and, as it claims its right to do it, I presume it is now employing its funds in this way. Perhaps it has the mere corporate right of spending its money as it pleases. But this Government has the right of keeping the public money where it pleases, and I regard such an employment of the corporate powers of the bank as a dangerous and unjustifiable use of its power, and think we may rightfully employ all the powers over the public money which we have not surrendered to the bank to check its career. We have reserved the right to change the place of keeping the public money. To illustrate my idea as to this abuse of the bank, let

me ask what would be said, what ought to be said, if the Congress of the United States were now to pass a resolution declaring that the Bank of the United States was a dangerous institution to the liberties of the country, and that it was unconstitutional, and, therefore, that the President of the United States should be authorized to procure and circulate such pamphlets, essays, and documents as he might think proper, “to enlighten the public mind as to the nature and operations of the institution, and that the whole treasury of the United States should be put under his control for that purpose?” Is there a man who would dare to face his constituents after giving a vote for such a resolution? And yet this is precisely what the Bank of the United States has done with its treasury, to every intent and purpose. As an authority to prove that this control over the deposites may be used to prevent the bank from mingling in the politics of the country, I will read an extract from a report made to this House in 1830, which has received the sanction of the bank at least; for the printing and circulating some fifty thousand copies of it, constitute one item in the “printing accounts of the bank.” It is from the report of the chairman of the Committee of Ways and Means, (Mr. McDuffie,) now, and then, a distinguished member of this House, from South Carolina. “While there is a national bank bound by its charter to perform certain stipulated duties, and entitled to receive the Government deposites as a compensation allowed by the law creating the charter, and only to be forfeited by a failure to perform these duties, there is nothing in the connexion at all inconsistent with the independence of the

bank and the purity of the Government. The country