executed, and his act has been a violation both of the law and of the constitution."

III. The third position of the Secretary is, that his power over the deposites, 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 for a true view of this pretension we refer again to the report of the minority of the committee of Ways and Means.

"The only adequate cause for removing the public deposites, must be a cause affecting the safety of the public moneys 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 cause of which the functions of his office and his relations to the Bank authorize and enable the Secretary to judge, and which is of such a nature as to require immediate action without a previous reference to Congress. It is the only cause which would justly deprive the Bank of the use of the public moneys after having paid for it. It is the only cause which Congress could safely submit to the discretion of the Treasury, without abandoning to that officer the whole scheme of 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 moneys 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 moneys; 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 demands upon it, is reasonable. If the public moneys 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 moneys 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 deposites in the Bank of the United States, placed them in the hands of the Treasurer, who could lawfully make no disposition of them, but to keep them securely, to be disbursed according to law. A removal of the deposites 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."

IV. The claim of the Secretary, of right, to select the future depositaries of the public treasure, when withheld from the Bank of the United States, falls with his pretension to withhold them. If he could not take them away, he could not place them elsewhere. But no portion of this great case calls for more consideration, than the employment of the substitutes for the Bank of the United States. It may be regarded as to the right and the result.

The right of choosing depositaries of the public funds, when such funds are not legally gaged, is claimed, with much speciousness, as pertaining, ex officio, to the Secretary of the Treasury. This right is derived, by implication, from the Acts of 1789 and 1792, authorizing the Secretary to superintend the collection of the revenue, and to direct the superintendence of the collection of duties on imports and tonnage, as he shall judge best. If there be danger in attaining power by implication and construction, (and who shall deny it) can our apprehensions be more properly aroused than by this far fetched deduction which puts at the disposition of the Secretary, and now distinctly avowed, at the will of the President, all the moneyed power of the nation? And yet, for many years this enormous power was silently acquiesced in, as was the irresponsible disposition of the funds of the post office. By the Treasury practice, the monies of the government were lodged wherever the Secretary directed. But circumstances, heretofore, so ruled his discretion, that no danger flowed, or was apprehended, from it.

The first Bank of the United States was incorporated, 25th of February, 1791, and furnished a safe place of deposite, almost as soon as the government had a dollar to guard: and though not required by law, that Bank became, and continued, the depositary, with inconsiderable exceptions, until its extinction in 1811. Upon that event the funds remained in the hands of the Secretary, and were deposited by him where he deemed most convenient. The single mindedness of Mr. Madison, which admitted no idea of personal or party influence to mingle with his patriotism-the integrity and intelligence of Messrs. Gallatin, Dallas, and Crawford, which left no doubt of the purpose for which they employed their powers-the war of 1812, which gave superabundant employment to all the departments of the government, prevented an inquiry into the legality of these powers, which, though assumed, had not been abused. When that period, rendered so disastrous to the finances of the country, and entailing upon its resources the fiscal burdens, which are but just removed, in consequence of the want of a national Bank, was terminated, a proper and safe depositary was provided by law for the funds of the government, in the Bank of the United States, in nine-tenths of the places where they

accumulated. For their disposition in the remaining tenth, there was little regard; and, they may have been supposed, in the custody of the proper officer, the Treasurer.

The proper duty of the Secretary is to superintend the collection of the revenue. The duty of the Treasurer is "to receive and keep the moneys of the United States, and to disburse the same 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 deposite; 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 deposite 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 deposites, 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."*

But where did the Secretary get authority to contract with the State Banks? It would seem as if every step of this officer was to be 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, Sec. 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.

We now proceed to consider the result of the selection of * Speech of Mr. Binney.

In

the State Banks, as the depositaries of the public treasure. other words, to consider the probable operation of the system proposed by the administration. This may be done with the greater propriety, that the system is, now, fully developed.

Mr. Taney and the Committee of Ways and Means concur, in declaring, that by the adoption of the State Banks, as the fiscal agents of the General Government, a sounder state of the currency, than that lately existing, might soon be obtained. This leads, immediately, to the inquiry into the actual condition of the State Banks. The information attainable on this subject, is neither so full, nor correct, as is to be desired; yet, it is sufficient to enable us to form a tolerable correct judgment. From the returns, collected by Mr. Wilde, of the House of Representatives, it appears that there are, in round numbers, four hundred and fifty Banks in the States, districts, and territories; with an aggregate capital of one hundred and forty-six millions of dollars; circulation of near seventy millions; but which by others is given at an hundred millions; deposites, fifty millions; specie and specie funds, fifteen millions. Specie funds do not mean gold and silver; but deposites or balances in distant banks, on which checks may be drawn, which are as available as specie. The actual amount of the precious metals in possession of these banks is supposed not to exceed ten millions. The total amount of discounted paper is about two hundred and thirty-three millions. The interest on their discounts is more than the specie in their vaults.

Thus, it is apparent that the circulation of the State Banks is at least seven times greater than their specie, and that, consequently, they would be wholly unable to withstand any run, which might drain them; and would be compelled to contract their issues, diminish greatly the circulation, and throw into utter confusion the business operations of the whole country, depreciating the value of property in proportion to the reduction of the circulation. The Bank of the United States has less than two dollars in outstanding notes, for one dollar of specie at command. And what confidence is due even to the statements made by State Banks may be gathered, from the late failure of some, and the notorious shifts of others to make up accounts for settling or reporting days. "There are, no doubt, many sound and solvent State Banks, with honest, bonourable, and conscientious directors. But any bank, to which the aid of public deposites is necessary for its safety, cannot be fit for a public depository. Upon the real condition of all the State Banks in the State of New York, the recent act of the Legislature, taxing the people with the loan of six millions of dollars, to save them from breaking, is a commentary of very unequivocal significancy."*

*Speech of Mr. Adams.

There is a constant tendency in the State Banks to over issues. This is repressible, only, by a power perpetually and uniformly active, which, like gravity in the solar system, shall keep each planet in its orbit. This power is the Bank of the United States. The Secretary of the Treasury, in his letter to the Committee of Ways and Means, seems reluctantly to admit this, but most perversely infers, despite of the maxim, that the effect ceases with the cause, that the Bank being discontinued, the restraint it produces, will remain. Thus he says: "If there be any force in this argument, the paper currency furnished by the State Banks, as well as that issued by the Bank of the United States, ought now to be in a sound state. The Bank of the United States has been in existence seventeen years, and must have already exerted all the influence in relation to the currency which can ever be expected from such an institution. And if it exercises a wholesome and salutary control over the conduct of the State Banks, and restrains them within proper bounds, it has had full time and opportunity to exert that power; and the notes of the State Banks, as well as those of the Bank of the United States, ought now to be found in a safe condition. For, it must be admitted, that we have gained but little in chartering the United States Bank, if only the comparative small portion of the paper currency furnished by itself is sound, while the great mass of the circulating medium is inherently vicious and liable to be disordered at any moment. It is believed, that more than three-fourths of the present paper currency is furnished by the State Banks; and if so large a portion of our circulating medium is unsafe and unworthy of credit, then the Bank of the United States is incapable of exercising the salutary control claimed for it, or it has failed to perform its duty to the public. In either event it is time to look for some other remedy."* The style and logic of this article are equally admirable. It is supposed, justly supposed, that the presence of the Bank of the United States, like the sun in the system, vivifies, regulates, and preserves the subordinate Banks, and the Secretary infers, that because it so does, the State Banks will continue, truly and faithfully, to perform their revolution in their proper orbits, when the Bank shail be no more. He urges, that if the Bank produces soundness in the State Banks, the object of its being has been attained, and therefore it may be dismissed as useless, and that, if it have not rendered the circulating medium safe, it has failed in the purpose of its creation. He who would say, that the power of gravity, having, for thousands of years, preserved the order of the universe, has effected the design for which it was created, and that such order will continue, though such power be withdrawn, would argue just as soundly. * Letter of Mr. Taney to Committee of Ways and Means, 1834.