DEC. 29, 1836.]

Treasury Circular.

favor is one of his ablest efforts. He had to aid that bank in restoring the currency of the country to a sound condition; and the resolution of 1816 was enacted to give him countenance and support. It was, of course, his duty to go as far as that resolution authorized him to go; and the point at which he stopped his successors ought to have hesitated to pass.

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hears me were absolved from his honorary obligation to secrecy, I doubt not he could tell us when, and where, and by whose aid, that production was prepared, and how that reputation was acquired.

In that trial, which took place before a most able committee of the House of Representatives, of which Mr. Livingston was chairman, and Mr. Webster one of the members, the conduct of Mr. Crawford was investigated, and their report is given in the documents of the House of Representatives.

The Secretary, in his report of 26th April last, seems in some difficulty to give us a correct and safe history of his acts, on account of the burning of the Treasury. Fire seems to be either a warm friend or a desolating It appears by it that the chief complaint was, not that enemy to the existing administration. It will afford or Mr. Crawford received the notes of the specie-paying avoid many an explanation, when errors and corruptions banks, or of any banks, but that, after they were receiv are alleged against it. It may truly be said to be an ad-ed, he deposited the money in insolvent banks, and ministration purified and cleansed by fire. But enough remains on this point to enable us to understand Mr. Crawford's conduct correctly.

Under that resolution, and the law chartering the bank, he was bound by his duty to receive and place in that bank the public moneys; and to receive, after the 20th February, 1817, nothing but specie, Treasury notes, notes of the Bank of the United States, or notes of specie-paying banks. To effect this end, he had to deal with banks which had refused specie for their notes, had resumed it, and subsequently stopped again.

He did not direct that notes of specie banks should be refused, but gave directions that the officers should not receive notes which would not be received by the Bank of the United States, in which he had to deposite them, and by which they were to be credited and paid, either in their own notes, or in specie. What less could he have done to perform his duty? He further requested the depositors to give notice to the receivers what notes they would so consider. This was justifiable, because Congress had created the depository, and had required the treasure to be placed in it, and had not, at the same time, required that depository to receive any money but that which it was willing to receive. The Secretary could accomplish the two great objects of his duty-to aid in compelling the banks to resume specie payments, and thereby restoring a sound currency, and to deposite the public money in the Treasury provided for it--in no

other way.

But, when this example is cited by the Secretary and by Senator, do they not perceive the strong contrasts between the acts of 1817 and of 1836? When the or der now under consideration was issued, there was no obligation on the Secretary to restore a currency already sound, at least not declared to be unsound by Congress, and there was no Treasury designated by Congress which had refused to receive the notes which the Secretary has rejected.

The precedent manifestly does not sustain the act. Mr. Crawford did not forbid all specie-paying notes; he only required that those received should be equivalent to specie where they were paid; and all his regulations were governed by two considerations

1. To receive all the kinds of money mentioned in the resolution of Congress;

2. To take the notes of banks in such way that they could be received into the Treasury; and that no money should be lost by taking notes of insolvent banks. Mr. Crawford did receive notes of specie-paying banks. This he could not have done, if the laws and resolutions of Congress required only gold and silver. The phrase "currency of the constitution" had not then acquired its potency in Congress, nor among the people; nor had the adroit reformers of that currency undertaken to restore it for the Federal Government.'

The acts of Mr. Crawford were called in question, and he was accused and tried-and a verdict of acquit tal pronounced. His defence gave him more reputation than any other production of his lif; and if one who

VOL. XIII.-13

thereby lost it; and that he made corrupt bargains to give these State banks too much for receiving and transferring the public money. But neither his accuser nor the committee ever dreamed that it was his duty, under the laws then in force, or under the resolution of 1816, to refuse notes and demand specie. That very sage notion was reserved for these times, when the spargere voces ambiguas is the creed of the popular politician; when gold and silver have been converted into "the currency of the constitution," and men rest their claims to popular confidence on the unworthy cry of-gold, gold, silver, silver; no United States Bank; no United States Bank; the poor against the rich; the poor against the rich!-et id genus omne.

No United States Bank, sir! The hour is approaching rapidly when a different language will be held; when the sucessors of those who have made profit, in money and honors, by these impositions on popular credulity, will, under another name, perhaps, and by more specious devices, restore the substance, if not the form, of that great controller and purifier of the currency. And I, sir, for one, shall rejoice when that hour arrives, provided the object be boldly, manfully, and frankly avowed and accomplished, without local and personal objects, and with a single eye to the permanent and lasting inter

ests of the nation.

The precedent of 1817, sir, proves only that Mr. Crawford and the then Executive considered themselves bound to receive bank notes which were equivalent to specie where they were paid; and that he gave directions to the receivers and the depositories to take them wherever they were equivalent to specie; and it condemns the bold assumption of the order of 11th July, which refuses all notes and demands specie only, without legal sanction for the usurpation of power-a usurpation perpetrated under advice which would destroy any administration, because it inflicts injuries which an intelligent nation cannot and will not bear.

The subsequent history of the practice under this res olution has been most unski'fully told by the Secretary, in his report before referred to, and has been unadvisedly adopted by the Senator from New Hampshire. It is stated that Mr. Crawford, in eighteen hundred and twenty-three, extended the indulgence of receiving at the Western banks notes of certain banks on the seaboard. The indulgence-why, sir, that indulgence was nothing more nor less than receiving for lands and other dues in the West the notes of banks which were not only worth specie, but which were, at the places at which they were received, the very best funds which the Government could obtain. They were notes of banks the drafts on which were at a premium. It was the receipt, not of actual specie, but of that which, for the uses of the Government, was worth more than specie. This is a singular kind of indulgence, and an odd kind of argument To show that the Treasury has the power to refuse all notes of all specie-paying banks. The resolution of 1816 requires the Secretary 'o receive specie-paying notes; he receives those of the local banks and of banks on

Treasury Circular.

which drafts are at a premium; and this is the indulgence of receiving notes instead of specie, and a proof that the Secretary of the Treasury may refuse all notes! Logical reasoning, this.

But I beg to inquire, if the law of 1820, the resolution of 1816, or any thing else, required specie only to be received, how could Mr. Crawford, in eighteen hundred and twenty-three, direct notes of Eastern banks to be received at the land offices in the West? The argument must cut both ways. It must prove that the legal currency, only, "ought generally to be permitted," and yet that the Secretary has the right to direct, by way of indulgence, the notes of any banks he selects to be received. We are thus brought to the law of 24th April, 1820. To construe it correctly it is necessary that we should recollect the previous legislation.

The old Congress, on the 20th May, 1785, had directed certain of the public lands to be sold, and fixed the price at one dollar in specie, or loan office certificates reduced to specie, or certificates of liquidated debts of the United States. The provision was necessary, because there was then no other currency but specie and depreciated paper. The sole object was to secure a specified value or the land sold.

Several changes were made, but none affecting the question under discussion, until Congress, after the estab-ferent construction on them; and the Executive never lishment of the Federal Government, on the 18th May, 1796, passed a law directing sales of certain parts of the land, and the terms; but it uses the expression, money purchase-money, without designation of kind.

The meaning is, that actual settlers or bonafide residents of the State may buy 320 acres, and pay for it in any money they please; all others must pay in gold and silver. I wish the Senator from New Hampshire had persuaded himself to bend his mind to this proviso. Ile seems to have examined the order with some labor, and to have been prepared with reasoning and references to sustain it; but he entirely overlooked this most extraordinary feature. After his argument was closed, his attention was called to it by the Senator from Ohio, but he was quite unprepared to give us a constitutional view of the difficulty which it presents. He, however, referred us to the exposition of the Senator from Mississippi; and I suppose that exposition is all that we are to hope for to relieve our consciences and satisfy our judgments.

The objection to this part of the order is, that it makes a distinction between actual settlers and others, and between the citizens of the States where the lands lie and all others, and allows advantages to the former which are denied to others. The argument in support of it, and to which we are referred, amounts to this: it is no violation of right, nor of the constitution, because the constitutional provision does not confer on the citizens of one State all the rights of citizens in every other State, such as voting, &c.; and there is a distinction recognised by law and practice in favor of actual settlers and against speculators, as in case of the pre-emption laws. The Senator will find it difficult from his premises to show the right of the Executive to create and establish distinctions between citizens, such as this order creates. He will discover that he must make great leaps in his process of reasoning, and surmount more than one sturdy non sequitur-quite as troublesome as that resulting from the logic of figures.

The constitution, article 4, section 2, says: "The citi zens of each State shall be entitled to all privileges and immunities of citizens in the several States."

This is one item in that article which provides for the relative rights and duties of the Federal Government towards the States and towards each other, such as

Giving faith and credit to judicial proceedings; Delivering up fugitives from justice, and from service or labor;

The admission and rights of new States;
The security of representative forms of government

to all the States;

And the power to dispose of and make rules respecting the territory and property of the United States.

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of New Jersey, also, who, at particular elections, have no right to vote, not because they are not citizens, but because they have not resided in the county or township long enough, and paid taxes. The citizens of Pennsylvania have no right to vote there, for the same reason; yet the citizens of Pennsylvania are on a perfect equality with the citizens of the State, under like circumstances. Let them reside there the time, and do other acts prescribed for her own citizens, and they will have the same right. They can acquire it in the same time and by the same means. The same rules govern with regard to both. One enjoys the right, because he has complied with the requirements; the other does not, because he has not complied.

So with regard to all other rights; any citizen of the Union may, in any State, enjoy the same rights as the citizens of that State, by doing what they have done, and placing himself in the same circumstances.

It is the common obligation of citizens in all the States to perform certain prescribed duties, in order to entitle them to the enjoyment of the common rights. If a citizen of any other State will perform the same prescribed duties, he shall have the enjoyment of the same common rights. And this article gives to every man, everywhere, the high and sacred privilege of being a citizen on the same terms. The Senator need not be alarmed about the hosts of Xerxes or of Peteus, and lest Delaware should pour out ber million of votes on this construction. The adjoining States can afford her many voters, and when they shall have done what her own citizens have, they will be able to add to her popular vote, but not till then.

So, also, the interest in even the exclusive common property of a State may be acquired by any one becoming a citizen, and it may be lost by ceasing to be a citizen. The rule is equal to all.

This principle as to States is nothing more nor less than that which is applied at every election in every State, in regard to their countics. An inhabitant of one county cannot vote in another, because he does not reside in it; and so an inhabitant of one State cannot vote in another, because he does not reside in it; but each may, at his own pleasure, and on the same terms, relieve himself from his disability.

But whether this construction of the act can be carried thus far or not, is it not distinctly true that if there be special privileges, such as voting, which cannot be equally enjoyed, the distinction arises from State laws and institutions, not from the laws and institutions of the The association of it with these subjects shows the Union? And if this be so, how does it relieve the Execu. spirit in which it ought to be construed, and the object tive when he draws distinctions in virtue of the powers of which it sought. This object was entire equality be- the Union' The States may make their own internal regutween the States and the citizens of all the States, free-lations, always regarding constitutional restraints; but dom of intercourse, and interchange of privileges; and the article itself is the most important in that great work to accomplish some of its avowed ends, "to form a more perfect union, establish justice, insure domestic tranquillity," &c. Its construction, by every principle of legal and philosophical reasoning, should be liberal to attain these objects.

The terms are clear, and were intended to be a substitute for that article of the confederation which relates to the same subject, and which was most confused and inexplicable. "The citizens of each State"-all the citizens of every State-"to all privileges and immunities of citizens in the several States"-to all the immunities and privileges which the citizens of those States enjoy under similar circumstances.

Now, this does not mean the right of voting, whether An inhabitant or not; nor those other rights to which the Senator from Mississippi refers. The citizens of Pennsylvania have not the right of voting in New Jersey; and why? Because they have not the residence, and other qualifications, which are necessary. There are citizens

does it follow that any such power has been vested in the General Government? and, above all, in the Executive of that Government? Does the constitution say that he may make distinctions in favor of a State-then may he not make them against a State? And is there not thereby a power erected which may trample upon the equality of the States--bestow favors upon favorites, and wreak vengeance upon opponents? Sir, I have not so read the constitution of my country. I have not so learned the doctrine of State rights. The grounds of defence here are abhorrent to every principle contained in our institutions; and an authority is claimed, which, if sanctioned and practised, will create a despotism or sever the Union.

There are great fundamental privileges and immunities belonging, of right, to all citizens of free Governments, and which have especially belonged to all the citizens of all the States since they became free, independent, sovereign, and confederated. Equal protection by Government; enjoyment of life, liberty; the acquisition and possession of property; the benefit of habeas corpus: passing through and residing in any part

of the Union, for trade, agriculture, professional pursuits, or other occupations; the maintenance of actions for the defence of rights; the purchasing, holding, and disposing of property, real and personal, with many others-these constitute us one nation-these make the Union. And shall the Executive, at his will, deny us the enjoyment of any one of them all? And shall he do it, especially, in relation to the common property of allto the public lands? Do Senators remark the extent of the power which has been assumed? The common privilege and immunity is to buy and hold land where the citizen pleases, without being burdened in the acquisition and possession more than others; more than the citizens of the State where he acquires and holds it. Can this privilege be violated by a State? Can Indiana forbid a citizen of New Jersey from buying and possessing her lands' or, if he do buy, compel him to pay for it otherwise than her own citizens may? Not while the 4th article of the constitution exists-not while the Union lasts. Can Congress do it? And does the executive power reach to that which neither the State nor Congress may touch? Yet this the Executive has done, and done more. He has forb dden the people of other States to buy the common property of the Union, within Indiana and the other States, except under a severe restriction. And if he may impose one restriction, where shall he be limited?

I have always, Mr. President, esteemed this provision, and the article of which it forms a part, as the most precious in the constitution of the country, and most necessary for its peace and prosperity. You may alter the executive powers, enlarge or limit the Judiciary, amplify or restrain the Legislature, and your Government may still retain i's character and usefulness; but violate and destroy that article, and the fabric is shattered: we are no longer common and equal citizens of a common and glorious nation, made glorious by equal laws.

[DEC. 29, 1836.

Now, I do not understand Mr. Hamilton as the Senator from Missouri does. He was proposing a plan for the disposition of the public lands. To effect the sales was the leading object-"as an operation of finance, it claimed primary attention." This, he thought, ought to be pursued in conformity with the convenience and interests of those who were to buy and occupy them, as an inducement to them to make purchases. His scheme, therefore, had these objects, and none other. They could be attained most effectually by suiting the scheme to the character of the several kinds of purchasers; and he gives a list of them-a mere description of classes of men: moneyed individuals and companies, who buy to sell; associations to form settlements; and single persons or families, who had or might settle there. And it is this description or list which the Senator converts into a distinction "recognised in the nature of things, and sanctioned by laws."

But does Mr. Hamilton advise that any distinction shall be made between them-that the settlers shall be permitted to buy on other and better terms than other classes? This is the point complained of in the Treasury order; and the Senator must exercise both ingenuity and imagination before he will make the discovery of it in this paper. It requires optics keen to see what is not to be seen. On the contrary, Mr. H. expressly says: "Hence a plan for the sale of the Western lands, while it may have a due regard to the last, (the settlers,) should be calculated to obtain all the advantages which may be derived from the two first classes," (the maneyed individuals, companies, and associations.) This language needs no comment. It was reserved for the Senator to see in it a preference of the settler over the speculator. But if Mr. Hamilton did advise such a distinction and preference, it was advice only--not legisla tion: a plan for the sales--not an execution of the plan. Congress did not make a law which sanctioned it. The act of 1797, nor any other of the acts, contains any such provision. And thus we learn the value of this evidence, which is offered to defend the establishment of such a distinction and preference by an order of the Executive, and at the executive pleasure. And it is by such per

ations are sustained.

And, sir, how is this act of the Executive, which violates that article, defended? The defence ought to be clear, beyond cavil or debate. I understand the Senator from Missouri to assert that there has heretofore been a distinction drawn and maintained between actual settlers and speculators in the land, between residents and non-versions of documentary evidence that executive usurpresidents; and that Congress has sanctioned the distinction, by numerous pre-emption and other laws, for above forty years-from the first plan for the sale of the public lands, down to the time when propositions were made for dividing the proceeds of the lands. The first evidence to which we are referred to sustain the allegation is an extract from the report of Mr. Hamilton, Secretary of the Treasury, in 1790. It is in the following words: "That, in the formation of a plan for the disposition of the vacant lands of the United States, there appear to be two leading objects of considerat on: one, the facility of advantageous sales, according to the probable course of purchases; the other, the accommodation of individuals now inhabiting the Western country, or who may hereafter emigrate thither. The former, as an operation of finance, claims primary attention; the latter is important, as it relates to the satisfaction of the inhabitants of the Western country. It is desirable, and does not appear impracticable, to conciliate both. Purchasers may be contemplated in three classes: moneyed individuals and companies, who will buy to sell again; associations of persons who intend to make settlements themselves; single persons or families, now resident in the Western country, or who may emigrate there hereafter. The two first will be frequently blended, and will always want considerable tracts; the last will generally purchase small quantities. Hence a plan for the sale of the Western lands, while it may have a due regard to the last, should be calculated to obtain all the advantages which may be derived from the two first classes."

Again, Mr. President, the Senator insists that the same distinction between settlers and those who are not-between residents and non-residents, has been drawn by the pre-emption laws. These laws have never been favorites of nine. They have produced frauds and perjuries without number. Where they have favored one honest claim, they have covered hundreds of those which are dishonest and base. They have offered rewards for the violation of law, and the plundering of the public property. But, bad as they are, they afford no apology for this assumption of executive power. They give to the man who has settled on and improved the public lands, under the circumstances stated in the laws, a right to buy at the minimum price. In consideration of settlement and improvement, Congress agree not to sell the land settled and improved to others, but to give a title to it, provided the settler will pay the regular price for it. They will not throw that land into public competition, because he has it in possession, and by his cultivation has added to the value of it, and of the adjoining public lands. But, sir, this gives no preference to one citizen over another, under the same circumstanIt does not permit one man to buy at public sales, at one price, and forbid others, similarly situated, to buy at the same price. It does not prohibit citizens of other States from purchasing on the same terms as the citizens of the States where the lands lie. And if it did, it is a distinction drawn by Congress, and limited to those already on the lands. By what right does the Executive

ces.

extend it to other settlers and bonafide residents? Where does he get his legislative power? By what authority does he extend a law made for one object to embrace another? Has he no limit; no restraint? Is he to be permitted to wrest any and every law from its purpose? And is there to be no end of his trespasses on the legislative authority of the Union? The pre-emption laws did not apply to these sales; and he knew that Congress had refused to give those laws a further extension. During our last session the subject was before us, not only on private petitions, but on a memorial from the Legislature of the State of Indiana. (Journal, 97.) They requested us to continue the pre-emption laws for three years. A bill was reported on the subject. The Committee on the Public Lands expressed an opinion against it; and the bill was rejected by a vote of 23 to 17. Yet, the moment Congress adjourned, the Executive issued an order more unequal than any pre-emption law; and we are now to be outraged by being told that because Congress has drawn some distinctions on former occasions, the President may draw more, and that the Executive has the power, without the authority, and against the will of Congress, to regulate the sales of your public lands as he pleases. Every argument in support of this order is an apology for executive usurpation.

There is but one other suggestion of the Senator that I deem it important to notice. He says, if it be unconstitutional to discriminate between revenue payments, then Congress cannot do it; and yet Congress has done it, and that in relation to the lands themselves; that in March, 1823, an act was passed to make foreign gold coins receivable in payment of the public lands. was a discrimination and an exception, for an act of 1819 had illegalized the circulation of foreign coins.

This

And who, Mr. President, has said that it was unconstitutional to discriminate between revenue payments? Congress has an undoubted right to decide what shall be received for any or for all its dues, provided they require the same payment equally from all the citizens. They may receive foreign gold for customs, as they always have done. So they may for the lands. But does it follow that the President may, of his own authority, do this? Where does he get his power?

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most unequally, oppressively, and injuriously, on the West. The lands are the great and only source of debts to the Government there. To compel them to pay in specie, while others were paying elsewhere in the ordinary currency, was an act of gross oppression. To force them to gather up their gold and silver, and to deposite it in a few of their banks, so as to take it out of circulation, and compel all the rest of their banks to curtail their accommodations, was a refinement of despotism which would naturally excite the indignation of all who were not the humblest slaves of power. The effect was feared. The elections were approaching-the succession might be put in jeopardy. The force of the blow was to be weakened, and an exception was made in favor of those States. Michigan, Indiana, Illinois, Missouri, Alabama, Mississippi, and Louisiana, have a temporary suspension as to them and their citizens. They are to be permitted to buy as they have heretofore done. But how long, sir? Until the 15th December-until the elections were over. And it had its effect. The succession was saved in almost all those States; while, but for the exception, they might have shared the fate of Kentucky, Tennessee, and Ohio. Indeed, I believe that even the exception would have been insufficient, had it not been for an assurance from the very cabinet of the palace itself that the order should be revoked-on assurance deceptive and untrue, because there was no in. tention in the Executive to revoke it. If it be revoked it will be by the power of Congress; or, perchance, the policy of those who are preparing for the 4th March next. The amendment of the Senator from Virginia may serve, perhaps, to evade it-to escape from it-without the manliness to condemn it.

Mr. President, in this review of the laws and practice of the Government, I have been able to find no justification for this executive interference with the currency of the country. He has no constitutional right to regulate the currency; his duty is to execute the laws as Congress may make them. And I regard this order as a gross usurpation of power. The Secretary saw it; he had not the manliness to issue his order in the common form of instructions from his Department. He felt the necessity of calling in the magic of a name to sanction Besides, I do not understand what the Senator means his oppression. He had experienced the power of that by the foreign coins being illegalized in circulation. name, and its potency in silencing all complaints against Their circulation has never been illegal. It has, at all trespasses on the constitution and the laws. And he times, been lawful to offer and to receive them. Their thought, in this emergency, "the President of the Unicirculation has been legal, but they have not at all times ted States has given directions" would be the best arbeen a lawful and compulsory tender between citizen gument which he could use. And, sir, it may produce and citizen, but all were at liberty to pay and to receive its effect. They who would have found no difficulty in them. The act of 1819 did not illegalize their circula- condemning Levi W, will hesitate before they distion, nor that of 1823 make them a lawful tender. So approve the act of President Jackson. I wish the Secfar as regards their circulation between citizen and citi-retary could have contrived to bestow upon it the name zen, the latter act did not affect them at all. The law which its real paternity demands. The records of the of 1819 was one of the chain of laws which made certain Senate furnish the heraldic guides which would not foreign coins a lawful tender for definite periods. It ex- have misled him. But is the act less a violation of law pired by its own limitation. It was not the will of Con- and duty, and are we the less bound to speak the truth gress to renew it; but subsequent to its expiration they in regard to it? I regard it as inferior to no infringe. authorized those coins to be received for the public ment upon the rights of Congress, no stretch of execu lands. This they had an undoubted right to do; and the tive authority, which we have heretofore witnessed. It only legitimate inference from that law is the one to is the greatest, and I hope it will be the last; and, as it which I have before called the attention of the Senate; is said to have been proclaimed as the "crowning glory that there is a clear distinction between the lawful cur- of my administration," no fu'ure effort for glory will be rency or tender, and the money which the Government essayed, and that the hour approaches when we shall has agreed to receive for its dues-a distinction which have a name less potent, and a disposition less presudestroys the whole argument in support of the order of ming, with purposes more consistent with the constitution the Executive. and las, to save us from at least unnecessary encroachments.

I now repeat again my inquiry, where is the apology for the discrimination between the kinds of money, and between the citizens of different States?-and what could have been the temptation to make it? May it not be found in the anticipated operation of the order itself? The contriver of it could not fail to see that it must act

A few words as to the amendment, and I will cease to fatigue the Senate. The Senator from Virginia has, by his amendment, created some embarrassment with me. I am not unwilling to express the opinion that the order must be rescinded. I desire to do so. I feel it to be a