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[Dec. 29, 1836.
rency” should be applied to orders and effects like these. What is it, sir, but tampering, when orders are issued without warning, without authority, affecting every dollar of money in the Union, and changing the course of business? There is an intimate, sensitive relation between the course of business and the currency. You cannot touch one part of it without affecting the rest. Diminish the specie or raise its price in New Orleans, and it is instantly felt in New York and Boston. And when the cause which touches it is the simple order of the Executive, the sensation is the more deep and appalling. They who feel it do not know, and cannot anticipate, what will come nex", nor how soon it will come; distrust, fear, apprehension, guards, are the consequences. It is sar less so when the change is produced by the legislative power. Its action is more open, deliberate, less changeable, less dependent on local causes and the will of one or a few. This order did change the course of business. It required specie to be carried from the creditor to the debtor portions of the country; from the seats of business and wealth, where it was wanted, and in constant action, to points where it was not wanted, and could not be used, and, under express orders, was to be shut up, It necessarily produced serious evil to the poor, while it operated less upon the wealthy. The man in moderate circumstances could not obtain his specie to buy his small tract, but by going to a bank to procure it, adding greatly to his trouble and expense. The rich man could obtain his thousands, and make his purchases. He could turn over and over again what he had, by paying a small sum to the broker, who was near by. He could make his $500 buy a tract; when deposited, he could borrow the same $500 again, at a business transaction premium, buy another tract, and repeat the operation until he was satisfied. A better device to oppress the poor, and subserve speculation, never was made. And there is no hazard in saying that less, land has been bought by the poor and the actual settler, in proportion, than under the laws as before administered. The same effect has been felt wherever the order has reached. The wealthy have suffered little. Their money has been worth to them from two to five per cent, per month. It is an excellently good specimen of the value of those pretences which have misled popular opinion, temporarily. They have all terminated, sir, in making “the rich richer and the poor poorer”—which is one of the despicable phrases which disingenuous fraud so often uses in our country. There is no occasion for surprise at the state of the money market, and that perfectly solvent paper should sell for from 13 to 5 per cent, per month. But we are assured that the evils which the country has experienced resulted, not from the Treasury order and executive interference, but from the deposite act of last session. I admit, Mr. President, that it was a combination of the order and the execution of the deposite bill, with other causes, which produced it; but I deny that the slightest inconvenience ought to have resulted from the execution of the latter. It was an offensive law to the Executive, and received a reluctant approval; and it has been so treated as, if possible, to make it unpopujar with the country; and, as one of its friends, I owe no thanks to the Department for the blundering and mischievous manner of its execution. what was that law, and what did it require the Secretary to do? It provided that the surplus which should be in the Treasury on the 1st of January, 1837, should be divided among the States according to their number of electoral votes, and that one fourth of it should be paid on the 1st of January, one fourth on the 1st of April, one fourth on the 1st of July, and one fourth on the 1st of October. I was opposed to so great delay in the paymen', but was overruled; but I certainly did not antici
pate the mode in which it would be done. The Secre. tary has told us that it will amount to about thirty-seven millions. Then the law simply required the Secretary to place about nine millions of money in twenty-six States, or in places where those States would be willing to receive it, by the 1st of January. The law passed on the 23d of June, and the Secretary had six months to perform the operation. He had in the Treasury in June more than this amount, which was not needed for the immediate wants of the Government, and the revenue was constantly coming in, to supply the place of any sum the position of which might be changed. There was then no obstacle to a transfer and deposite of the shares of the States. And what amount of transfers were required? There were deposite banks in all the States, I behieve, except four—New Jersey, Delaware, Illinois, and Arkansas. These deposite banks being in the States, chartered by them, and having their confidence, were the places where the States would have been willing to receive their money; and the Secretary had only to leave or place it there until it was put under the cowtrol and disposition of the State authorities. Now, of the twenty-six States, there were, as appears by the public documents, fourteen or fifteen which already had in their banks their full share, and of course no transfers were necessary as to them. All the others (except the four mentioned before) had a greater or smaller proportion of the amount, and the balance only was to be transferred. And, with respect to several of these, the Sec. retary knew, or ought to have known, that they would prefer to receive their money exactly where it was when the law passed, because drafts on it there were at an advance. There was not more than three and a half millions which it was necessary to move at all. And yet this is the operation which is charged with a derange. ment of the currency. Every dollar of it might have been made to fall in with the business of the country, and to give facilities to it. None, at least none to any amount, required actual manual transfer. The Senate knows how the Secretary has dealt with it. He has given transfer warrants to the bank which was to receive the money, and thus placed it in their power to call for it when and in what currency they pleased. The paying banks, of course, have been obliged to draw in their means, to be prepared for the payment. The result was inevitable. If, on the other hand, the Secretary had simply given notice to the paying banks that they must, by a given day, say 20th of December, place the sums required in the banks to which they were to be paid, it could have been done without difficulty or derangement. Take an example: New York had to place $100,000 in North Carolina; the bank in New York would purchase drafts on North Carolina, and by other means obtain a credit on funds there in the ordinary course of its operations. The drasts paid in the bank there would have deposited the money there at a profi', perhaps, to the paying bank, and to the benefit of the commercial and other relations between the two places: A simple notice that they would purchase drafts might have accomplished it. And, once placed in the banks of the States, the States themselves, in their use of it, would have been bound, both by inclination and interest, so to have drawn it out and disposed of it as not to injure or embarrass their own institutions and their own citizens. The same process would have been sufficient for the subsequent quarterly payments. Why, then, should this deposite act be charged with any derangement of the currency? with any part of the pressure? If it has occasioned any, it has arisen from the mismanagement or perverseness of the Secretary; He has made this law the means of playing a game of battledoor and shuttlecock with the currency of the country, and, during the process, he has added his Dec. 29, 1836.]
thus make “confusion worse confounded.” So far as I can understand the subject, I cannot approve his conduct. The order appears to me to have placed the specie exactly where it was least wanted—created distrust and want of confidence--collected the revenue where it was not needed, and from whence it can only be transported with expense—and essentially deranged the exchanges. I do not stop to prove that they are deranged, nor to combat the assertions from high places that they are in as good or a better condition than for several years past. No man of ordinary capacity in the country can or does believe them, but all regard them as the offspring of ignorance or recklessness. Nor shall I resist by argument the assertion that the order “is conveying into the interior large sums in silver and gold, there to enter permanently into the currency of the country, and place it on a firmer foundation.” I do not believe that the assertion is credited even by the person who penned it. I know not who he was. The President, I feel assured, did not; nor, in his state of health, could he have examined it with care. – There is one circumstance connected with the pretences, or, is you please, reasons for this order, which is worthy of remark. They have been acted on by the Executive, either in direct violation of the known will of Congress, or to supply what were regarded as def cts or omissions in our legislation. They embrace two subjects--the public lands and the currency--neither of them within the constitutional control of the Executive; both of them before Congress in the session which had expired seven days before the order was issued. Our journals show that we had under consideration, in various forms, the proper disposition of the lands: our attention was invited to it by the Executive; and we had bills and speeches in abundance to guide us. A se. lect committee reported a bill to arrest monopolies of the public lands and purchases there of for speculation, and substitute sales to actual settlers only, in limited quantities, and at reduced prices, &c., &c., (page 436;) and it rested, I believe, without an effort for its passage. We had a bill to change the mode of sales, and it was postponed indefinitely, on motion of Mr. Walker, and every supporter of the administration voting to postpone and defeat it; and yet, as soon as we had left our seats, the Executive issued an order to legislate on these very subjects, and carry out the views of a portion of his friends,
but a small minority of the Senate, and against the will of the majority.
- --The currency, also, was the theme of repeated mo
tions, disquisitions, and projects. The President had pressed it upon Congress. On the 10th June, (page 420,) the Senator from Missouri [Mr. Bexton] introduced, on leave, the celebrated bill entitled a bill “to establish the currency of the constitution for the Federal Government,” which proposed that the Government should refuse the notes of all banks which issued those of less than $20, after March, 1837; of $50, after March, 1838; of $100, after March, 1839; of $500, after March, 1840; of $1,000, after March, 1841; and all notes of all banks after 1842. On the 27th June, on motion of Mr. Wright, this bill was laid upon the table. The same Senator, on 22d June, (page 464,) offered a resolution requesting the President “to cause inquiries to be made of the deposite banks, and of other banks of good credit, to ascertain whether any of said banks, in consideration of being made or continued depositories of the public moneys, will agree to enter into arrangements to discontinue the use and circulation of all paper currency of less denomination than $20; and also to promote the circula. tion of gold, by Raying all the currency issued by it in gold and solvo, the proportion of each to be at present according to the best ability of the bank, and eventually
one half of each, the demander to have the option of one half of either metal, and the bank the other.” This resolution was laid on the table, on motion of Mr. Mangum, and never afterwards disturbed. why were these movements made in the Legislature? If the Executive possessed the power under the laws, why was it not exercised? Why did the Executive wake up to a knowledge of its rights and duties a few days afterwards? Was it that the delusion of the specie currency had come to a stand, and the people must still be blinded a little longer by actions, when proses. sions had grown stale? Was it that a deposite bill was to be defeated as far as practicable in its salutary effects? A still more decisive expression of opinion was also given by Congress in the deposite bill itself. In the 5th section of that act it was declared that no bank should be selected or continued as a deposite bank, which should, after the 4th July, 1836, issue notes of less denomination than $5; nor should the notes of any bank be received in payment to the United States, which issued notes for less than that sum. This law established, as clearly as law can, the opinion of Congress, that bank notes were to be received for dues to the Government; and that it was not wise, for the present, to confine the circulation to notes of a larger denomination than $5. And yet this order was issued within less than twenty days afterwards, forbidding any bank notes to be received for the public lands. where was the respect for a co-ordinate branch of the Government, the only power of regulation on this subject, when its opinion, thus expressed, was spurned? Did not the Executive know—had not these proceedings informed him—what Congress thought upon these topics? And did it comport with the courtesy due from him thus to spurn their opinion, and execute his own purposes? It is painful, sir, to contemplate such conduct; and I am not prepared to give it even a “reluctant approval” But, Mr. President, the worst aspect of this order is its total illegality. It has nothing on which to rest in the constitution and lows of the land. I propose to exarmine it in that aspect and, in doing it, hope for the pardon of the Senator from Connecticut, if I should be compelled to use the ordinary process of reasoning familiar to lawyers. He seems to think very bad'y of them, and rejects them as safe guides. It is to be hoped that this hostility will not lead him quite up to the famous procedent given by Shakspeare, in the times of Henry vi, when Jack Cade, the clothier, undertook “to dress the Commonwealth, and turn it, and set a new nap upon it;” and promised to “apparel all the people in one livery, that they might agree like brothers, and worship him their lord.” Dick, the butcher, thereupon said to him, “The first thing we do, let's kill all the lawyers,” and Cade answered, “Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment?—that parchment being scribbled o'er, should undo a man?” If the Senator will permit us to look at a legal question with legal lights, we shall reach a conclusion satisfactory to ourselves, if not to him. [At this point of Mr. South Ann's remarks the Senate adjourned. The bill for the admission of Michigan was taken up the next day, and the Treasury order not resumed until the 6th January. Before the adjournment, however, Mr. Rives offered an amendment to his amendment, which directed the selection of the notes to be re. ceived, to be made by the banks, with the approbation of the St Cretary.] When the Senate adjourned, Mr. President, I was commencing the examination of the legal right and power of the Executive to issue the order. We must regard it as the act of the President. The Secretary,
aware, I suppose, of its questionable character, thought it proper to vary from the usual form, and state upon its face that it was issued by direction of the Presiden", and thus interpose the President's popularity between himself and his appropriate responsibility. It is an old finesse of conscious weakness; and has become the pitiful resort of incompetency and error on all occasions, and it has generally proved sufficient. The “President authorized it,” is argument and logic enough; reason has no business, after that, to intermeddle impertinently. The Secretary, doubtless, thought that the Deus intersit, because the dignus vindice modus, had been found. But it is of little consequence to us who was the author of the act, provided we have independence enough not to be alarmed at the idea of casting “censure” upon “President Jackson.” The question ought to be, not who authorized the order, but is it justified by law? Its objects and effects are, to regulate the currency and the sales of the public lands, and they are so declared on the face of the order, in the report of the Secretary, the message of the President, and the defence on this floor. Neither of them is, in its nature, or by the principles of the constitution, under the power of the Executive. Aware of this, and unwilling boldly to deny it, its advocates do not pretend to defend the order on the broad constitutional right of the President to interfere with them, without the sanction and direction of Congress, but take refuge under the laws, and endeavor to pervert them to its defence. By these, therefore, they must stand or sall. They are mainly two—the resolution of April, 1816, and the law of the 24th April, 1820, and the practice under them. We are to decide upon these by the same rules which regulate the construction of all other laws; and, to my mind, their meaning is free from all reasonable doubt, And, first, of the resolution of 1816. The circumstances under which it was passed, the evil to be remedied, its words, and the action of Congress and the Treasury Department, all point clearly to one construction, and one only. The charter of the old bank expired in 1811; the nation, during the war of 1812, had suffered severely from the state of the currency; bank paper had depreciated; the paper of the Government had failed to afford a remedy; the banks, in three fourths of the Union, had refused to redeem their notes in specie; the Treasury had applied all the means under its control to induce them to resume specie payments; the dues of the Government were received in worthless paper; it was accumulating in their Treasury; and we all recollect it in the shape of a million or two of unavailable funds. The evil was, the refusal of the banks to redeem their notes in specie; the remedy was, to restore specie payments. Relief was to be found by Congress, for the evil was intolerable. Wise or unwise, constitutional or not, they adopted the expedient of chartering a bank. They made it the depository of the public money, agreed to receive its notes, and required it to pay specie on demand. The object of its creation was the restoration of specie payments, and bringing back the currency to the sound condition in which it had formerly been. The task was difficult, and Congress was disposed to afford all the aid in its power. The charter was passed on the 10th of April; and twenty d oys afterwards, before the adjournment of Congress, before a dollar was subscribed to the bank, the resolution was passed, and is entitled “A resolution relative to the more effectual collection of the public revenue.”. They may be regarded as cotemporaneous acts, both having the same object. That object was not to require all the currency to be specie, nor all the dues to the Government to be paid in specie. The man who had proposed either, at that day, would have been regarded as la'oring under the delirium of madness. The
evil was not that all the currency was not specie, for it never had been so in the history of the Government. It was not that the Government could not get specie only for its claims, for it never had demanded specie only. But it was that the currency had degenerated into worthless paper, and that the Government was paid in that paper; and the object was to restore the currency, and obtain paper which would be redeemed on demand; to compel the banks to resume specie payments. The evil was depreciated paper; the remedy, to take only that which was not depreciated. It was not intended to restore what is called “the currency of the constitution.” It was not to have a currency altogether of gold and silver, for that was utterly impracticable. It was not to exclude specie-paying notes, but to obtain them. Under these circumstances, it would be extraordinary if the resolution bore a construction which would authorize the Secretary to refuse them altogether. It has two parts—one prescribing the duty of the Secretary, and the other expressing the opinion of Congress as to the time within which the duty might be accomplished. The first is mandatory, the second advisory. ‘The first requires and directs the Secretary “to adopt such measures as he may deem necessary to cause, as soon as may be, all duties, taxes, debts, or sums of noney, accruing or becoming payable to the United states, to be coilected and paid in the legal currency of the United States, or Treasury notes, or notes of the Bank of the United States, as by law provided and declared, or in notes of banks which are payable and paid on demar.d in the said legal currency of the United States. The second part declares that nothing but the kinds of money so specified ought to be received aster the 20th of February then next. It prescribes four kinds of money, either of which the Secretary was at liberty to receive; and he was to receive none other but those. But had he the power to refuse any one of these? Could he have rejected specie? Treasury notes? notes of the Bank of the United States? If not, on what principle of construction could he reject the other, when Congress had placed them on the same footing, and directed his duty in the same phraseology? Does any man believe that Congress intended that he shoull resusc them? Did congress or the secretary then so understand it? Surely not. And are we not bound now to give the construction which was then intended, and then understood, by all parties? At that day there was no dispute about it. All regarded it as directing the Sceretary to receive notes payable and paid on demand in specie. The then Executive, and every Executive since, has construed and practised upon it in the same way, until the 11th July last, when new and strange light broke into the executive mansion, and from a source better calculated, I fear, to mislead than to direct. The Senate will remark that while the resolution prescribes the kinds of money to be received, it draws a plain distinction between legal currency and the money which it would receive, the former was established by law, and was the guide between creditor and debtor, between citizen and citizen, and the Government. had a right to claim it. But it had also a perfect, right to waive it, and receive any thing else in its stead. And, in this resolution, it points out thre which it would receive, which were not legal currency— Treasury notes, United States bank notes, and notes of other banks. We shall sce that this distinct 9” is important, in the progress of this examination; and it is be§ause it has been overlooked, that confusion, has crept into the arguments of some of those who defend this order. . The resolution has nothing to do with establishing or declaring the legal currency; it deals only with, and prescribes rules for, the payment of debts to Gov. ernment. They who rely upon it ought to prove that
e kinds of money Dec. 29, 1836 )
Congress had no right to declare that the Government would receive any thing but legal currency. If they had that right, and have declared that they will receive something else, what authority has the Secretary to say that nothing else shall be received? To me it seems clear that, by the words and exposition of the resolution, the Executive had no authority to refuse notes of speciepaying banks. But it has been objected that this construction, by imposing on the Secretary the necessity of receiving these notes, compels him to receive all, and, of course, to take notes of inconvenient, or, perhaps, insolvent banks, and that the practice has been to select and refuse such as he saw fit. I answer, to require him to receive notes of specie-paying banks does not compel him to receive those which are not equal to specie at the place where they are paid. It is a false construction to say that he must take such notes when they are at a discount; for they are not then specie-paying to the officer who receives them; he cannot turn them into specie without loss; they are not equivalent to specie. He takes them because he can get an equal amount of specie on demand for them. This he cannot do if the bank be at a distance; its notes are not then worth specie. Much less can he be required to take those the solvency of which is justly questioned. Congress intended to authorize the receipt of notes which were convertible into specie without loss. It would be quite as correct to argue that the Secretary, being bound to receive specie, was therefore obliged to receive that of which he doubted the weight and genuineness, and which could not be passed for the amount which its denomination indicated. He must exercise his judgment whether the notes are good, will be paid on demand, and are equal to specie where they are offered. Beyond'this he has no discretion. Besides, the order which we are considering does not direct the rejection of those notes only which are suspicious, of banks at a distance, and which are at a discount, but of all notes, the very best, those of banks in the immediate neighborhood, and which could be converted into specie without delay and without cost; and to prove, if he receive all, that he may receive some which are not of full value, is an odd mode *** to reach the conclusion that he may reject all. But, if this inconvenience do exist in the rule, we must recollect that we are discussing, not its policy and expediency, but its meaning; not what the law ought to be, but what the law is, and, of course the power and duty of the Executive in regard to it. If he have not the power by law, it should be denied to him. If the law be not right, let Congress amend it. But, Mr. President, I deny the very found tion of the argument in support of this order; the point from which it starts and at which it ends. It rests on the assumption that gold and silver are the currency of the constitution, and thence it is inferred that the resolution is to be construed in relation to it, and that the Executive is justifiable in restoring it by his orders and regulations to the country. There is no such thing as a currency of the constitution in any other sense than that which regards all matters whithin the legitimate powers of congress as constitutional. In that sense, the courts, the departments, the customs, are the courts, departments, and customs, of the constitution. The constitution has provided no currency for the Union. The 5th item, 8th section, of the 1st article, says that “Congress shall have power to coin money, and regulate the value thereof, and of foreign, coins.” It may coin money, and may prescribe its value; it may coin gold, silver, copper, tin, iron, whatever it pleases, and place what value upon it it sees fit. The power is unrestricted and unlimited. It is the power to create a currency for the Union, ac. cording to the condition and necessities of the Union.
The confederation had no currency; and, until Congress exercised the power, the Union had no currency. When it did exercise it, it created a currency in conformity with the constitution, but in no other sense the currency of the constitution. It might have established other metals as coins, have given them different values, have required gold and silver to pass at a higher or lower standard, and they would have been equally the currency of the constitution as they now are. Congress has changed the fineness and standard value of coins, and might have changed them still more, and been equally within its constitutional powers. The cant phrase “currency of the constitution,” means nothing more nor less than the currency which Congress has established in virtue of the authority conferred upon it, and which it may alter at pleasure. It might, so far as its power is concerned, have established any other. Gold and silver are the legal currency, the current money, and are constitutional only because they have been made legal; but, without an act of Congress, they would have been no currency. There is, sir, another provision on this subject in the same article, section 10, item 1 : “No State shall coin money, emit bills of credit, nor make anything but gold and silver a tender in the payment of debts.” The reasons for this provision are abundantly found in the histo
fry of the Revolution and of the confederation. The power
was wisely taken from the States; the control of Congress was intended to be complete. One Senator [Mr. Buchanas] has said that, by some strange accident, Congress had lost all control in regard to the currency. It is so, and it is extraordinary that his memory does not direct him to that accident. But the constitution was not created in that spirit, nor with that view. With Congress the regulation of the currency is a question not of power, but of policy, with the States it is a question not of policy, but of power. Congress wisely established a currency of gold and silver, and made them a legal tender at a standard nearly corresponding with that of the nations with whom we have most commercial intercourse; and in this respect its duty was well done; and its policy will, I trust, never be changed. But it had the power to create another medium and another standard. I should not have thought these remarks necessary, if we had not incessantly, for two or three years past, heard of the currency of the constitution in bills and speeches which, however unsound, seem to have been suited to the political market. I proceed to examine the action of Congress upon this subject. ‘I he'iaw of the 31st of july, 1789, the fifth upon your statute book, regulating the collection of duties, directs that they shall be “received in gold and silver coin only,” at the following rates: The gold of France, England, Spain, and Portugal, and all other gold of equal fineness, at 89 cents for every pennyweight; the Mexican dollar at 100 cents; a crown of France and of England at $1 11, and all other silver of equal fineness, at $1.11 per ounce. This law is referred to by the Secretary of the Treasury in his report of the 26th April, 1836, and, he seems to consider it as a recognition by Congress that gold and silver alone were a legal tender, and alone ought to be received for dues to the Government. speaking of the authority to direct what money shall be received for public lands, he says: “This Department entertains the opinion that Congress alone possesses that authority in the first instance, to be enforced by the Treasury as the chief fiscal agent of the Government, under such constructions of the laws relating to the subject as seem reasonable. An authority of this kind was accordingly exercised by that body as early as 1789, by requiring all duties on foreign imports to be “received in gold and silver only,” by subsequently directing payment for the public lands to be made in cash, and by often recoghising the principle countenanced in the constitution (in SENATE.]
[Dec. 29, 1836.
the prohibition of any State to “make anything but gold and silver coin a tender in payment of debts”) that such a coin alone should generally be permitted to be used as a legal tender either by or to the United States.” . A more muddy phraseology could not well be found than this of our Secretary, and he shall be my Magnus Apollo who will construe it by any known rules. He seems, however, to assert that Congress had often, and especially by the act of 1789, recognised the principle that gold and silver alone should be used as money with which to pay to the Government. He makes a great mistake. Congress has never recognised that principle, and in that act had no reference to legal currency or legal tenders. They were deciding only what they would receive for the duties. A legal currency was not established until the 21 of April, 1792, nearly three years afterwards; and they directed the receipt of coins which never have been made a lawful tender: the crown of England, and all other gold and silver, not enumerated in our laws, giving currency to foreign coins. That act establishes only that Congress drew a distinction between legal currency and the moneys which they were willing to receive; but it does not recognise a currency, nor prescribe to its agents the rule that such coins alone as have since been made a legal tender “should generally be permit. ted to be used as a legal tender either by or to the United States.” The first reference fails the Secretary. He must not rest upon this law to justify him in the pretence that, by the order of 11th July, he was carrying out the expressed will of Congress. He seems to admit——and I use the word seems with becoming caution--he seems to admit that there was no direct action of Congress on this subject of payments to the Government, from this law of 1789, to the charter of the bank and the resolution of 1816. If that be so, there was then, up to the latter period, no declaration by Congress that the legal currency alone should be received for dues to the Government, and no direction or will of Congress to be carried out by the action of the Executive. And the practice as to the receipts was directly the reverse of the order of the 11th July. Almost immediately after the law of 1789, as soon as the collections commenced under it, Mr. Hamilton, the then Secretary of the Treasury, received into the depositories of the Treasury notes of banks which were convertible into specie. He took care that they should be notes of solvent banks—convertible—equal to specie where they were received. Our Secretary considers this as a modification of the enactments and principles of the law. what right had Mr. Hamilton to modify the law He did no such thing. He knew that Congress intended rather to prescribe the value to be received than the medium in which the duties should be paid; that the object was to receive specie or its equivalent. His construction was known to and sanctioned by Congress, and it became the settled practice—-the common law of the Government, and continued, with every legal sanction, from his day down to the resolution of 1816; and I know of no authority which could change it without the command of Congress. During the war of 1812, and after its termination, the banks south and west of New York suspended specie payments, and yet their notes were received by the Govment. It was of necessity, not choice; but it proves the practice, and confirms the assertion that the Secretary and the advocates of this order are in error when they suppose that there was any thing which required gold and silver only to be received for dues to the Government Prior to 1816. The practice itself had the force of law, and Congress alone, in whom rested the control of the currency and of the Treasury of the nation, could alter it. An interference with it by the Executive was an assumption of undelegated authority.
There is nothing in our laws or practice to impugn this view, unless it be the act of 2d April, 1792, establishing the mint, and the laws making foreign coins a lawful currency. That act, section 16, (1 Laws, 267,) declares that “all the gold and silver coins which shall have been struck at, and issued srom, the said mint, shall be a lawful tender in all payments whatsoever,” &c. But this merely establishes the currency--the lawful tender; and has nothing to do with the question what the Government will receive for its dues. That it is to be decided by the practice and by other laws, and the Executive has no lawful authority to violate that practice and those laws. The laws relating to foreign coins as a legal tender commenced with the act of 9th February, 1793. It declares, 1. That the gold coins of England, Portugal, France, and Spain, shall pass current as money, at the rates then fixed, as shall also the Spanish milled dollar and its parts, until three years after the mint shall commence to coin, after which only the Spanish milled dollar and its parts were to pass current. This coin had been the common currency before this act, and is the only one which, through all changes and at all times, has been a lawful, recognised tender between citizen and citizen. But this act, section 3, directly recognises the right of the United States to receive other foreign gold and silver coins in payment, and directs the officers who receive them to send them to the mint to be recoined. Thus establishing the fact that, at the moment of fixing the currency, they received what was not made lawful, and therefore no argument can be drawn from the currency to justify the act of the Secretary. He must look only to those laws and resolutions which relate to the moneys which the Government has agreed to receive. Under this law all foreign coins would have ceased to be a lawsul tender three years after the mint went into operation. This period was fixed by a proclamation of the President, dated 22d July, 1797, to be for silver coins, except Spani-h milled dollars, on the 15th October, 1797, and for gold, on the 31st July, 1798. (See 5 Laws, appendix, 511.) But the law was suspended from time to time, although no alteration was made in the foreign coins which should be received, until the act of the 25th Juae, 1834, which added the dollar of Alexico, Peru, Chili, and Central America, and that restamped in Brazil, and the five-sranc piece of France; which then became a legal tender. But still, other foreign coins were received by the Government, and still are received. We have, then, the practice and the laws up to the passage of the resolution of 1816, and find nothing to justify the Secretary in his order. The character of that resolution has been considered, and we have to inquire whether the practice since comports with the construction which I have put upon it. The first action under it was by Mr. Crawford, and his conduct is referred to as authority for this order. I am not the assailant of Mr. Crawford, nor his apologist for any errors which he may have cominitted. I was not his advocate, and to this hour have been made to feel the penalty of my offence. I leave his defence to those who were his particular friends in his palmy days--some of whom have strangely changed positions since that time. I thought he sometimes stretched the law beyond the meaning of the law, but he did nothing on this subject which could be a justification for this order. He had been compelled to receive depreciated paper, for there was nothing else in which the Government could be paid. He was a good democrat—the very model of those who now claim the name; yet he used ali the power of influence and of argument to induce Congress to charter the late bank. His argument in its