SPEECH HUBBARD, OF NEW HAMPSHIRE, RESOLUTION OF MR. EWING RESCINDING THE TREASURY ORDER, Delivered ia the Senate, December, 1836. WASHINGTON: BLAIR AND RIVES, PRINTERS. 1837. 3i' e.i3 3 bi.*] ^ H £ 4) 5 • i ' ■ V . . ' 1 \ '. ■' , v *■•.' r, w • i ' ;‘ ,/: ' • SPEECH Jw Senate , Dec. 27, 1836—On the resolution of Mr. Ewing of Ohio, for rescinding the Treasury order of the 11th July, 1836. Mr. President: A ! though it was on my motion that the Senate adjourned on Thursday last, yet in moving for the adjournment, it was not then my intention to address the Senate this morning upon }he subject now under consideration. But as I shall have no better opportunity to express my own views with reference to the deposite bid of the last session, which seems to be involved in this dis¬ cussion, and as l have been, in connection with my colleague, most grossly misrepresented in relation to our vote upon that bill, and as the principles of that bill have been most strangely misunderstood— certainly most falsely and perversely slated in the public journals—I will avail myself of the oppor¬ tunity now presented, briefly to express the con¬ siderations which induced me to give my support to that measure. Before, however, I proc ed to notice that bill, I shall advert to the resolutions of the Senator from Ohio—shall endeavor to explain their object*, and, in my apprehension, the imprac¬ ticability of accomplishing the object intended in the wav and manner proposed. The resolutions offered by the Senator from Ohio, are as follows: “Resolved by the Senate and House of Represent a tives, &c. That the Treasury order of the eleventh day of July, anno Domini one thousand eight hun¬ dred and thirty-six, designating the funds which should be receivable in payment for public lands, be, and the same is hereby, rescinded. “ Resolved, also , That it shall not be lawful for he Secretary of ,the Treasury to delegate to any person, or to any corporation, the power of direct¬ ing what funds shall be receivable for customs, or for the public lands; nor shall he make any dis¬ crimination in the funds so receivable, between different individuals, or between the different branches of the public revenue.” The first resolution seeks to repeal the Treasu¬ ry order—“ the specie circular” as it is called, of the 11th of July, 1836. The second is intended to prohibit the Secretary of the Treasury, by his au¬ thorized agents, from directing what funds shall be received for customs, or for the public lands, and prohibiting him from making any discrimination in the funds so receivable between different individ¬ uals, or between the different branches of the pub¬ lic revenue. The main purpose of the resolution is to rescind the order of the Executive, bearing date on the 11th of July, 1836, directed to “/?e- of public money and to the deposite hanks. ” *wCan this be accomplished? Is this matter with¬ in our power? It seems to me that if these reso¬ lutions should pass both Houses of Congress, the object which the Senator from Ohio basin view, would not thereby be effected, if the order of the 11th of July, 1836, was issued by authority of law, the resolution of the Senator from Ohio should seek to repeal the law upon which the order is based, and which gave authority for is¬ suing the order. If the order of the Secre¬ tary of the Treasury has not been issued in pursuance of law, the order itself is of no ef¬ fect; and any resolution which* we could pass, rescinding such an order, would be alike ineffec¬ tual. If the Secretary had the legal power to send forth the order, it is beyond the legislative con¬ trol of Congress. If the Secretary, or the Presi¬ dent, through the Secretary, had the right lo pro¬ mulgate the circular, he may be answerable for the manner in which he exercises that right; but the act itself cannot be repealed by any legisla¬ tion of Congress. If the Secretary had not the authority, the power , the right to issue the order, then the order itself is perfectly nugatory. The Executive is an independent branch of the Government. The Senate can have no more power over the rightful acts of that branch of the Government, than it has over an order of the House of Representatives, or an order of the Judi¬ ciary. One branch of the Government exercising its powers and its duties within the constitution and the law, cannot have its acts rescinded and set at nought by the action of any other branch of the Government. If the order, then, has been issued by the Se¬ cretary of the Treasury in pursuance' of law, the mode proposed to get rid of it is objectionable, and, in my view, unwarrantable. If not issued in pursuance of law, the adoption of the resolution would s<;em to me equally objectionable and un¬ warrantable. In such a case, the officer should be, and ought to be, held amenable, for such an as¬ sumption of power. It, therefore, occurs to me, that the object the Senator from Ohio has in view, cannot be attained in the way proposed, and if the last resolution of the Senator from Ohio should be adopted, it seems to me that the direct effect would be to prohibit receivers from accepting the paper of local banks under any cir¬ cumstances in payment of the public dues. It proposes, in terms, to take the power from the Secretary of the Treasury to designate the kind of money receivable; and should it be adopted, if anj effect shall be produced whatever, it will be te 4 exclude from the offices of our receivers all local bank paper. They would be bound to take no¬ thing but gold and silver, unless the joint resolu¬ tion ©1 April, 1816, is imperative and obligatory; and if that he so, the Executive had no authority to restrain the legal operation of that resolution, for if binding it gives to the debtor rights which cannot be infringed or taken away by Executive power. If the order of July 11. 1836, was unau¬ thorized, the resolution to rescind it would be unne¬ cessary. Its adoption could not prevent the im media e promulgation of a similar order, in case the Executive, charged with the execution of the laws, should consider it to be his duty to do so. To accomplish the object the Senator from Ohio has in view, we must go beyond the order itself; we must go to the law' on which that order was based; and in the execution of which it is pre¬ sumed that the order in question was issued. To render the order of no effect, we must amend the law. I propose, Mr. President, first to examine the question, whether the Executive had a legal au¬ thority to issue the order of the 11th of July, 1836; and if he had the power, whether it was a matter of policy for him to exercise it at the time, and un¬ der the circumstances, he did Had the President, through, the Secretary of the Treasury, thepower to issue the order of the 11th of July last? On this point I can entertain no doubt. Itseems to my mind to be clear and free from difficulty; and so far from its being a wanton assumption of power, so far from its being illegal, it is a power in strict accordance with the requisitions of exist¬ ing laws, and which the President, charged with their execution, was bound to issue if he consider¬ ed the public interest demanded it. The public lands were the property of our com¬ mon country; they had been obtained by the sa¬ crifices and services, the blood and the treasure, of the whole Republic, during the war of the re¬ volution; and they were early pledged for the payment of the pubic debt, necessarily incurred in the establishment of our national independence. An act of Congress which has reference to the sale of the public lands, was p issed May 18, 1796. and makes no particular designation as to the kind of money receivable. It fixes the mini¬ mum price at two dollars per acre, arid directs that < upon payment of a moiety of the purchase money, the purchaser shall have a year’s credit for the residue.” The act of March, 1797, declares “that the evi¬ dences of the public debt of the United States shall be receivable in payment of any of the lands which may he hereafter sold in conformity to the act” of 1796. The fifth section of the act of May 10, 1800^ provides “That no lauds '-ha i be sold by virtue of this act, at either public or private sale, for less than two dollars per acre, and payment may be made for the same by nil purchasers, either in >pe- cie } or in evident-* s s act was repealed by the act of August 4th, 1790; but it will be found that, in Augirsd;’ pf the act of Congress passed introduced, which was contained in m2 ati Oi 1789. The Mint was established on the 12th of April, 1792; and by the 16th section of that act of Con¬ gress, it is provided “that all the gold and silver coins which shall have been struck at, and issued from the said mint, shall be a lawful tender in all paymerds whatsoever; those of full weight accord¬ ing to the respective valu s herein before declared, and those of less than full weight at values pro¬ portionate to their respective weights.” Thus t appears, that by the acts of Congress, not only foreign g Id and silver co ns at certain rates were ma te receivable, but also the gold and siver coins struck at ohv Mint were also made a lawful tender. The first United States Bank was chattered on the 2lst of Februarv, 179i; and it will be seen, by a reference to the 10th section of that act of Con¬ ga ess, “that the bills or notes of the sai l corpora¬ tion originally made payable, or which shall have become payable ,on demand, in go] 1 and silver coin, shall b? receivable in all payments to the United States.” And thus, by the exprt ss enact¬ ment of Congress, were the bil s of the United States Bank made receivable for all de >*s due to Government; and by a reference to the 74th tion of the act oft'A than «>ne half of the capital of those banks in the pur¬ chase of wool; and the paper of those banks is is¬ sued within a period of 90 days, to purchase and to pay for this amount of that article; but no hu¬ man being conm cted with the banka ever calcu¬ lated on the value of the material itself for the re¬ demption of their paper, or did the banks ever is¬ sue their paper upon such a capital. No, sir, their reliance was on the gold and silver in their vaults, on their specie funds; but more than all on the intrinsic value of the discounted paper; and whenever banks undertake to issue paper to pass current as money, equivalent to specie, based on no metallic capital, but upon the produce of the country—upon the pork and flour of the West -—and to rely, for the redemption of their paper, upon the sales of such produce, sooner or later, by the fluctuations of trac^e, the sudden -depres¬ sions of the staples of our country, such banks must experience severe losses, if not an entire prostration. I repeat it, sir, and l appeal to every man con¬ versant with banking for the correctness of my position, that the solvency and security of banks must depend essentially upon the intrinsic value of its discounted paper, in connection with its spe¬ cie funds, which ordinarily amounts to one-third of its whole circulation. Some bank, peculiarly cir¬ cumstanced, and possessing great facilities and ex¬ traordinary privileges, may have within its control specie equal to its whole circulation, but not equal to its whole liabilities. The banks of New Eng¬ land, on an average, do not possess a specie capi¬ tal within their control, or specie funds, exceeding one-third of the whole amount of their paper circu¬ lation, and actual liabilities; but they rely for their entire solvency on the worth of the debts due to them, on the intrinsic value of their discounted paper; and every man conversant with banking must know that it is a safe reliance, and that a bank doing business upon the principles I have stated can never he so embarrassed as to put in jeopardy its own bank notes. The Secretary of the Treasury has, as usual, re¬ ceived his full share of abuse for his supposed con¬ nection with, and participation in, the order of the 11th of July. It remains yet to be ascertained whether that act shall receive the approbation or disapprobation of the American people. 1 leave the matter with them: the issue is made up—the reasons for and against the measure have been set forth— let judgment be rendered. In the decision of that tribunal to which the Executive has so suc¬ cessfully and so triumphantly appealed on former occasions, he will most ch< erfully acquiesce. But the attacks which have been made upon the Secretary of the Treasury pending this debate, have not been confined to the specie circular. His want of judgment, of financial skill, of tact, and of talent, has been made most clearly to appear (as has been said) in his estimate of the receipts and expenditures for the year 1836, as presented in his official report at the commencement of the last session of Congress. This charge has become somewhat stale, worn out bp its long-continued use. These reiterated attacks upon that officer establish one fact beyond all possibility of doubt—that the gentlemen who make these charges consider that t j lev _t expectations of the community. It was the forbearance of the Secretary which has saved, if not the banks themselves, certainly- the commercial and mercantile community, from se¬ verer trials, emban assments, and sacrifices. The Secretary could not have done less; he might have done more; and the few failures which have oc¬ curred in our commercial cities, in carrying into effect the provisions of the deposite bill, are evi¬ dence of the high character, resources, and re¬ sponsibilities, of our mercantile community. It w r as early all ged that the Treasury Depart¬ ment would not execute the deposite bill; that under some pretence or other the Secretary would delay carry ing into effect its provisions, and thereby frustrate the just expectation* of the peo¬ ple. These allegations were made and reiterated after the adjournment of Congress, bi cause the money was not immediately rem ved from those places where too much had accumulated, to points where there was little or none of the public funds. The act to regulate the deposites of the public money was approved on the 23d of June last, and it is a fact well known, that on the following day the Secretary of the Treasury commenced a cor¬ respondence, having for its object the selection of additional banks for the d posite and keeping of the public money. It was m nifcslly the duty of the Secretary of the Treasury “to select as soon as may be practicable, and employ as the deposi- _r «.t.- 0 f t!i e United States,” such new hanks as may be locate i at. ux/j-axni ur con¬ venient to the points or places at which the reve¬ nues may be collected or disbursed, requiring him at all events to s< loct at 1 oast one bank in each State and Territory, if one can be found willing to be employed as a depository of the public money; and the act requires that the Se¬ cretary of the Treasury shall not suffer to remain in any deposi'e bank an amount of the public mo¬ neys more than three-fourths of the amount of its capital stock actual y paid, for a longer time than may be necessary to make the transfers, for pur¬ poses of equalization; and in the event of too great an accumulation of deposits in any bank, sjuch transfers sliali be made to the nearest de- pos te banks which are considered safe and se¬ cure.” Such were some of the provisions of the bill regulating merely the deposites of the public mo¬ ney in the deposite banks. The Secretary w&s then obliged, as soon a 3 practicable, to select in the different States the additional deposite banks made nec ssary. He was not at liberty to postpone or to delay this ser¬ vice. The act was imperat.ve ; f<>r the great and leading argment urged in favor of this bill was, that such an accumulation of the public money at particular points, and in particular ba -ks, was ex¬ posing to hazard the public funds; and he was. 12 therefore, in the most explicit manner, required not to suffer a greater amount of the public money than a sum equal to three fourths of the capital of any deposite bank to remain in such deposite b»nk, but at once to remove such excess to other places of deposite, for the purpose of equ diza- tion ” The duty enjoined upon the Secretary under these provisions of the deposite bill, was c ear and explicit, and that duty was promptly met and faithfully performed. The banks were selected with as little delay as possible ; and the document now on the table, will show how early these trans¬ fers were made for the purpose of equalization, and to prevent any bank retaining in deposite of the public money an amount beyond three- fourths of its capital, “for any longer time than was necessary.” So much for the charge made against the Secretary at the time for neglecting to execute the deposite bill. But yv en the money began to be m ved, after the additional deposite batiks had been selected, and after due notice had been given to those banks which then held in deposite of the pub¬ lic money, an amount beyond three-foui ths of their capita), that they must prepare to make the requisite transfers, then forsooth , an u iversal j hue and cry was raised against the Secretary, for making any removal of any portion of the public money, until the first of January; alleging that it was arbitrary and oppressive on the part of the Secretary, not required by the letter or by the spirt of the act; and that such an unreasonable proceeding would produce unnecessary distress among the banks, and the unavoidable ruin of thousands of our mercantile community. Thusblow- mg both hot and cold, blaming the Secretary for his pretended acts of omission, and for his real acts of commission. Under ±h» p»m^ons'Of the act to which I have referred, the Secretary doubted whether he should have the power before the first day of January, 1837, to remove from particular points in any one State where there should be accumulated a great excess of the public money to any place beyond the limits of such State; and so settled was the public mind as to the course to be pursued in such a case, and so decided was the public sentiment, that no sooner were those doubts known to exist, than Congress passed the act “ supplemental y to the act to regulate the depo¬ sits s of the public money,” which provides “that nothing in the act to which this is a supplement, shall be so construed as to prevent the Secretary of the Treasury from making transfers from banks in one State or Territory, to banks in another State or Territory, whenever such trans¬ fers may be required, in order to prevent large and inconvenient accumulations in particular places, or in order to produce a due equality and just proportion, according to the provisions of taid act.” 'I lie Secretary was bound, then, according to the plain English of these two acts, without delay, to set himself about removing from one set of banks, which then held cf the public money an amount beyond three-fourths of their capital, about 18jd millions of dollars, and to deposite this in various other banks in the different States; and to this may be added twenty-two millions, col¬ lected since the passage of the bill. All this was to be done independent of those provisions of the act which required that the surplus in the Treasury, on the first of January, above five millions, should be deposited with the several States. The money on the passage of the deposite bill, which was on deposite in banks in the city of New York, could nat be left in that city, because the money then there, and w hat was there collect¬ ing montlily from imports, would make an aggre¬ gate exceeding three-fourths of their whole bank¬ ing capital. r \ here was in deposite in that city, on the 23d of June last, about thirteen millions; there is collected ordinarily from customs, about one and a quarter million each mon li. Their whole banking capital does not, it is believed, exceed eighteen millions. The Secretary then cou d not, without a direct violation of his duty, have suffered this amount of money there to remain, even if every banking company in that city had been willing to have been employed as a depository. 1 have stated that the Secretary found it necessary, in the d s- charge of his duty, to remove about eighteen and one-third millions of dollars. This very operation is cause enough for the pressure which exists in our great commercial cities. No one at all ac¬ quainted with business, but must admit, that every dollar of this money had been loaned by one set of banks to their customers; and the process of transferring, made it necessary to collect from those customers, for those banks, in order that it might be removed to another set of banks. This was a real and an important money transaction. It was not an affair which could have ordi¬ narily been done without an actual collection of the money from the debtors of the deposite banks. By the cl.eoosite bill itself, th. T ^o., ncia the public money were required to pay interest on all over one-fourth of the money in deposite; and it must, then, have been fait-'y presumed that the money of the Government which had been placed in the deposite banks was out on loan. The fact was so; and, as l have before said, the very process of collecting from one set of customers at one set of banks, and paying over to another, furnishes cause enough for the prevailing pressure. Who does not recoil ct the complaint made by the Bank of the United States in 1833, for the re¬ moval of th® deposites from that institution, ksi by one-half in amount than changed places undr r the late act of Congress? Who does not recollect the pretended distress and ruin which was alleged to be (he consequence of that act of removal, when even the actual amount then taken from the Bank of the United States was not removed »t once, but only as needed to pay warrants. Where there were great excesses of the public money in any State, as in New York, Louisiana, and Mississippi, it was expected that the Secretary would at once remove such excesses to other States having little or none of the public money. While those States had millions upon millions, New Jersey and De¬ laware had none; and beyond ail question it was this sentiment which produced the supplemental act. It was then the bounden duty of the Secreta¬ ry to take from thorn points where it had accumu¬ lated too much, and to put the money were there 13 m was a deficiency. He would have been false to his duty, he would have failed to have answered public expectation, if he had not done this. He was bound to make these tiansfers and these changes as gradual and as easy, and in a way to produce as little sudden fluctuation,,as possible. To make them, he was under an imperious obliga¬ tion. But ihe deposite bill has other important provisions, imposing oilier and different duties and obligations upon the Secretary of the Treasu ry. He was required to make an equalization of the public money among the States, and to collect and to pay over to the States (with the exception of five millions) what should be in the Treasury on the first of January, 1837. He was in truth to prepare to apportion among the States nearly forty millions of dollars; and on the first of January, he was to deposite one-fourth of the sum with the States, in proportion to their representation in both Houses of Congress; and the whole surplus then in the Treasury was to be transferred on or before the first day of October from the deposite banks, and placed with the several States; and this part of the duty of the Secretary has been com¬ menced and prosecuted with as little embarrass¬ ment as possible to Ihe commercial and mercantile community. The distribution has notyrt all taken place; far different. From what has been said here and elsewhere, one would naturally infer that the Secretary of the Treasury had actually removed to the several States their respective proportions of the surplus which would be in thn Treasury on the first of January next. Let us for a moment see how this matter is. There is now in New York an excess of six millions; and when Congress adjourn ed, New York had in deposite nearly thirteen mil¬ lions. Upon the basis of dividing among the States thirty-seven mi'lions, she would be en’itled to retain only a little over five millions. She has now in deposite, as appears from the last returns, deve i millions and six hundred thousand dollars. New York, then, has not been depleted. The col¬ lections there made for customs have very nearly kept pace with the transfers which have been or¬ dered from that city. There is now an excess in Massachusetts of over a million; she has received $300,000 more than she had when the bill passed, and she then had $300,000 more than her share of thirty-seven millions. In Louisiana there is an excess of over three millions; in Mississippi one and a half; in Missouri over a million; in Alabama, Ohio, India¬ na, and Michigan, there are now excesses of the public monfy, as will appear by an examination of the table appended to the annual report of the Se¬ cretary of the Treasury. On the 231 of June last, eighteen, out of the then twenty-four States, had less of the public money in deposite within their limits, than they would be entitled to have under the provisions of the deposite act. While New York, Massachusetts, Louisiana, Mississippi, Mis souri, and Alabama, then had and now have ex¬ cesses; and not a single one of the eighteen, by transfers, has yet i eccived its proportion of the thirty-seven millions. The Secretary clrarly had the power to fill up and equalize the whole; h > >rbearance alone has saved, as 1 have remarked, if not the banks themselves certainly many of the commercial community, from entire, ruin. For i am most fiee to admit that the present distress and pecuniary pr essure is most severe. What would have been the consequenc es if the Secretary had caused to be transferred the whole thirty-seven millions, can better be imagined than described. I have said that Ohio and Indiana have now an excess. The fact is so; and it arises from the sales of the public lands in Indiana, The nearest deposite banks to Indiana are those in Ohio. The banks in Indiana, and they are all employed, have now an excess beyond the proportion of that State of nearly a million. The Secretary was bound to make transfers, from time to time, from those banks, and lienee it accounts tor some of the trans¬ fers to, and deposite in Ohio. Upon the basis of depositing thirty-seven mil¬ lions with the States, from the last returns, it will appear that Maine is deficient in the sum of $700,000 New Hampshire - - - 250,000 Vermont ... 700,000 Connecticut ... 250,000 New Jersey - - - 400,000 Pennsylvania - 1,080,000 Virginia - 1,600,000 North Carolina - 1,200,000 South Carolina - - - 400,000 Georgia - - - - 800,000 Tennessee - - - 1,580,000 And that Rhode Island, Delaware, Illinois, Ar¬ kansas, Maryland, Kentucky, arc also deficient; which deficiencies make an aggregate of more than ten millions; and at the same time, of the five millions left in the Treasury, not less than three and a half would ordinarily be required in the States above named. The Secretary has begun gradually, proceeded gradually, and will accomplish gradually, the de posites among the States. The whole cannot bo completed until the first of October, 1837; more than half will have to be done after the first of January. It has been said, by way of objection to the course of the Secretary of the Treasury, that all this should have been done by keeping the whole money in the great commercial cities until wanted. That officer would have been faithless in the performance of bis public duty had he so done. The deposite bill was passed to remove such great accumulations of the public money to places of greater s curity. 'Phis w ¥'1111111 the last eighteen months the capital of the country h s, to a certain extent, taken a new direction. It has changed hands; it is no longer under the control of our commercial and mercan¬ tile community, a community which is now more severely and Intensely suffering from the pressure than any other class. I say that it was the surplus in the Treasury—it was the amount of tmem~ ployed public money, which has brought this evil upon us; which has induced every species of speculation; which has quickened the zeal, ani¬ mated the spirit, and put in requisition all the ac¬ tive energies of the adventurer. The history of the times shows that there have been most unpre¬ cedented speculations and over trading. Specu¬ lations not in the public lands only, but in stocks, in banks, in railroads, in canals, in lots, in every thing ths^t the wit of man could devise This ma¬ nia for speculation has pervaded our whole coun¬ try; it pas reached the villages of New England, and but few individuals have entirely escaped from its influence. In addition to this, the course pursued by some of the banks themselves has contributed to bring about the present state of things. The means of those institutions have been employed, not as u ( ual,1n the transaction of the regular business of our mercantile community, but in the shaving of notes, exchanges, and slocks. The seven or eight millions of the money of the Government now in the Bank of the United States, it may be presumed, has been in active use in that way. To these may be added the great pressure now existing in the money market of England, which has produced its effects here. In my judgment, these have been among the causes which have aided in producing the present state of things. It is to be hoped that it will only be temporary— it i ( s to be hoped that the crisis has already passed; that the good sense, the high intelligence, the pure patriotism of cur commercial and mercantile community, will be able to bring to a speedy end this unexampled, this most extraordinary, this violent pecuniary pressure in our cities. It has been said that the pressure is not as great as is represented. I know it to be most severe. When the best notes in our cities are sold at a discount, $nd sold so as to yield an interest of two, three, and even four per cent, per month, let no one say that the pressure is mere pretence. It is an aw¬ ful and cruel reality. It is but the effect of our own policy. If vve had left in the pockets of the people the money not wanted for the ordinary uses of the Government—if we had prevented the accumulation of such an enormous surplus—if we had been compelled annually to contract loans to meet current expenditures, business would not have been diverted from its accus¬ tomed channels, wild speculation would not have stalked through our land, and the present pres¬ sure and distress would not have been felt. We should, Mr, President, now unite in preventing the repetition of the evil, by removing its cause. The surplus found in your Treasury was the ori¬ ginal cause of the present pressure. It was ouf acts of the last session which were auxiliary in bringing about the present state of things. I know that it is very convenient to make the organa of Congress (while faithfully, but forbearingly, executing the laws) scapegoats, not only for the effect of those laws, but for all the improvidence, rashness, over trading, and speculation of Europe, as well as of America. I have nothing further to add, in answer to thk charge made againat the Secretary, for the course pursued by him in the execution of the deposite 15 bill. I should not have troubled the Senate with 1 any remarks, had 1 not wished to avail myself of this opportunity to speak of that measure. I gave my vote in favor of that bill, and, I have reason to believe, that that vote has received the decided sanction of the yeomanry of New Hampshire. The bill passed both houses of Congress by un¬ exampled majorities, and yet the minority in the Senate, as well as in the House of Representa¬ tives, comprise some of our most distinguished statesmen and purest patriots. The bill as it passed, wasl most emphatically and most truly no¬ thing more nor less than a bill for the regulation, deposite, and safe keeping of the common trea¬ sure of ihe whole country. There is no room for doubt, with respect to the character of th*\t mea¬ sure. The thirteenth section of that bill, among other things, provides that the States receiving their proportion of the surplus, shall pledge th-ir faith “to pay the said moneys, and every part thereof, from time to time, whenever the same shall be required by the Secretary of the Trea¬ sury, for the purpose of defraying any wants of the public Treasury.” Whatever may be he practical operation of this measure, it was regard¬ ed at the time in no other light than a bjjff to re¬ gulate the local banks, having the public money in deposite, and to transfer from those banks por¬ tions of the common fund to places of greater security, the respective treasuries of the several States i I cannot believe that among those then belonging to the Senate, who gave to this bill their support, there was a single individual of the number, who would fora moment countenance the i lea of taxing, directly or indirectly , the people for the purpose of distributing money to the people. I never could have yielded my assent to any such principle; and in voting for the deposite bill, no! Senator could believe that he was thereby yielding his assent to any such doctrine. 1 hold it to be subversive of the very foundation upon which rests our representative Government. Such a principle is opposed to the best and purest feelings of patriot¬ ism, to the letter, the spirit, the genius of our free institutions, i never could have given my vote for this bill as a distribution bill. This character has b*en most unjustly given to this measure here and elsewhere. The Senator from Mississippi is mistaken if he supposes that it is so understood by the great body of the people of the States. The legislative s act of New Hampshire shows most clearly the sentiment of that State with reference to this measure. She has voted to receive her portion of the money; but the legislation of that State has most sacredly guarded the principal as rightfully belonging to the United Srates; that while she considers herself justly entitled to the beneficial use of her portion of the surplus, so long as it shall remain uncalled for, she holds the prin¬ cipal to be of right the property of the General Government. It is true that New Hampshire by her act will deposite her share of the fund among the several towns ol that State for safe keeping. But the State possesses the power, by her dis¬ tress warrants, to enforce collection at any time, ^gainst any town which should neglect or refuse i^^pay when demanded,and the pending actsubjec's ihe town to indictment, in case any part of the principal of the money therein deposited, should be used for any purpose; and the court are re¬ quired to impose on such a town, a fine equal to the part of the principal thus appropriated, and to issue execution against any such town, to be levied and collected in the usual mode. Thus had his own state managed in relation to this matter; and gentlemen may be assured that whenever occasion shal demand that any portion of this money should be returned t© the National Treasury, for the use of the General Government, that State will prompt¬ ly and properly comply with such a demand. I did not consider, that when I gave my vote in favor of that bill that 1 was in effect making a donation to the several States. My purpose was merely to add to the places of deposite. To give to the States the use of a portion of the public money, instead of confining the use exclusively to the banks. It was not my purpose longer to leave all the public funds in the deposite banks, which were under the exclusive control of the Govern¬ ment. I knew full well that it was the earnest wish of the head of the Treasury Department to be relieved from the responsibility, the care and control of the public treasure; whatever might be said of the desire of this Administration to exercise an unlimited dominion over the public pur e, the Secretary of the Treasury h'mself was extremely solicitous to be delivered from that particular charge. In voting for this bill, I gave in no assent to the policy of a systematic distribution—nothing could have been further from my mind. The money was on hand, and no regulation of the tariff could have any effect upon the accumuhtion then in the Treasury; no public or private appropriations, ne¬ cessarily called for, could exhaust the fund. The question was, what shall be done with it? how can it be disposed of until the same shall be required? The question vt as answered; wisely, judiciously, and properly answered, by the passage of the de¬ posite bill. Tiie question now is, what can be done to prevent any further surplus? It is an im¬ portant question—it should be well considered. For one, I would desire, in some way or other, to bring down the revenue to a point below the ordinary wants of the Government I am one of those who believe that an economical expenditure of the public money can only be attained by being absolutely required, year following year, to devise ways and means to meet current expenses. 18 would be far better, for the peace and prosperity of the nation, to be obliged to borrow annually rather than be obliged to tax our ingenuity how to dispose of surplusses. Our expenditure should never be forced to absorb our means. But means should be forced to meet our expenditures. I have said, Mr. President, all that I wish to say upon the deposite bill of the last session, and upon the manner of its execution. And if the ef¬ fects of this measure, and of the specie circular, shall be to check the spirit of speculation which is abroad in the land, to confine trade, commercial, and mercantile enterprise within their proper limits; if the effects shall be to render secure the public funds, and to preserve the public do¬ main, for the legitimate benefit of the General Go¬ vernment, then we shall not fail to rejoice at their adoption. ( REPORT IN THE CASE OF HE^VRT OWE*IIj, ESQUIRE, A JUSTICE OF THE PEACE OF PHILADELPHIA COUNTY. READ IV THE HOUSE OF REPRESENTATIVES, MARCH 1, 1833. Mr. Lewis, from the committee on the judiciary system, to whom was referred the communication of the Secretary of the Commonwealth, transmitting the testimony taken on a com¬ plaint against Henry O'Neal, a justice of the peace of the county of Philadelphia, made the following report, viz: The 10th section of the 5th article of the constitution of this commonwealth, after conferring upon the Governor the power of appointing justices of the peace, declares that they shall be commissioned during good behaviour; but may be removed, on conviction of misbehaviour in office, or of any infamous crime, or on the address of both houses of the legislature. On the 14th January, 1804, an act of the legislature was passed, prescribing the mode of preferring complaints for the removal of justices of the peace, and the manner of taking testimony before a judge, to be by him transmitted to the Secretary of the Commonwealth, to be laid before the legislature. In pursuance of this act of as¬ sembly,’the’testimony was taken on the complaint against Hen¬ ry O’Neal, (the complainants and the justice being respectively represented by counsel at the taking of the same ) After open¬ ing and examining the testimony, it was ascertained that the justice desired to be heard by his counsel before the committee. 'With‘this request the committee cheerfully complied, and the counsel for tne justice was heard, no one appearing for the com¬ plainants. The complaint sets forth, that the said Henry O’Neal has been at various times guilty of mal-practice and misdemeanor in of¬ fice, and is utterly ignorant and incompetent; and specifies, among other things, “Tnat upon a complaint made to him of an assault and batte- 2 ry upon Owen Owens, committed jointly by Charles Jobbs, Jesse Rutherford and another, he issued separate warrants of arrest against each of the said defendants, with separate pro¬ ceedings, and made out three bills of costs, the whole amount of which he received from each of the defendants, in manifest violation of his duty.” It appears by the evidence of Jesse S. Rutherford, Charles Jobbs, John Hobbs, and Thomas Shoema¬ ker, the constable, that Rutherford, Jobbs and Hobbs, were brought before Justice O’Neal together, on a charge of assault and battery upon Owen Owens; that two witnesses were exam¬ ined; that C. B. F. O’Neal, a son of Justice O’Neal, acted as at¬ torney for the complainant; and, according to the testimony of Rutherford and Jobbs, “acted as attorney and justice both;” that through the agency of the said C. B. F. O’Neal, an agree¬ ment was entered into in writing, and signed by all the parties, for the settlement of the complaint, upon the terms of defend¬ ants $6 38 costs, and g 10 as an attorney fee to the justice’s son, amounting, in all, to the sum of 816 38, exclusive of wit¬ nesses fees. The sum of g,6 38 costs for constable and jus¬ tice, is made up by charging separate bills of costs against each of the defendants; and in justification of this, it is alleged that separate warrants and proceedings were had against each. According to the testimony of Rutherford and Jobbs, only one warrant was issued against the whole three; Hobbs seems to be of the same opinion. The constable, Shoemaker, who has recei¬ ved three sets of fees, says that there were three warrants and three commitments. In this conflict of testimony, the justice’s docket, or the warrants themselves, would have been material, but they have not been produced, although called for by the councel for the complainants during the examination before the judge, and subsequently by the committee. It is true, that it is stated in behalf of justice O’Neal, that his docket was stolen immediately after the commencement of the present complaint against him, and that it is out of his power to produce it. The Warrants and commitments would be quite as satisfactory as the docket itself, in determining whether the justice actually ren¬ dered separate services in separate proceedings against these defendants, or merely charged treble fees for services in one proceeding. But these, also, are said to have been stolen. Justice O’Neal has had able counsel to conduct his defence, and the committee feel authorized to presume that he has been ad¬ vised of the competency of his own oath to prove the loss of any document necessary to the present investigation, and of the consequences of withholding evidence in his power to produce. The committee expressed to his councel during the investiga¬ tion before them, a desire for the production of the docket, or some satisfactory proof of its loss, on oath of the justice him¬ self, or some other person cognizant of the fact. Since this re¬ quest was made, time and opportunity have been given by means of a resolution of this House to furnish the evidence de¬ sired. But no such evidence of the loss of the docket or war¬ rants has been produced. It appears, by the testimony, that a transcript of these procedings was demanded of the justice by the parties interested, accompanied by a tender of the fees for making it out. This was before there was any pretence of the loss of the docket. But the justice withheld the transcript. His answer to the demand was, “I see what you are at, you are a white livered mon, I see your liver’s white.” It is true that the act of Assembly, requiring a justice to deliver a tran¬ script upon demand and tender of the fees, does not extend to a commitment, or binding over on a criminal charge, but is confined to proceedings in civil suits. Still, the reply and the want of decorum in the manner of it, when taken in connexion with the continued withholding of the docket, and all documen¬ tary evidence on the subject is, in the opinion of the committee, the foundation of a just inference, that the justice is not so soli¬ citous as the public interest requires to administer justice in such a manner as to secure the public confidence; and that the docket and warrants contain evidence unfavorable to the inter¬ ests of justice O’Neal, and are, on that account, withheld. A justice of the peace may, in his discretion, issue separate war¬ rants against different individuals for a joint offence, and would, in that case, be entitled to fees for all the services rendered. But that discretion is to be exercised with a due regard to the public interest, and, in case of an investigation, the justice should De prepared to assign some satisfactory reason for the proceed¬ ing. If the motive appeared to be a good one, the Legislature would be liberal in extending to the magistrate the most libe¬ ral and ample protection. But, in the present case, the justice has not had sufficient respect for the favorable judgment of his country to offer a single reason in justification of his conduct in this particular. There is nothing to show that such a procee¬ ding was necessary. It is difficult to imagine any reason for such an accumulation of costs. Even admitting that the pub¬ lic interest might require the issuing of separate warrants for ea£h defendant, still, after all were brought before the justice together, and examined together, it is very difficult to conceive of any reason which could requre the swearing of the same wit¬ ness three several times; his entering into three different re¬ cognizances, and the issuing of three commitments for the same defendants. On an attentive examination of the evidence in reference to this charge, it is impossible to avoid seeing that the justice either charged three sets of fees where he had only rendered one set of services; or, what is equally, if not more unjustifiable, that separate proceedings were improperly and oppressively instituted for the mere purpose of private gain by the accumulation of costs. But this is not the only charge of the kind against Justice O’Neal. It is alleged that on or about the 16 th of March last, he issued separate warrants on a complaint of Francis Mul- holland, against Jesse Flitcraft, and ten or more others, and charged and received separate fees. Four warrants for the commitments of the eleven defendants are produced in sup¬ port qf this charge, and it appears by the testimony of James 4 D. Pratt, that' the complaint was joint, the alleged offence joint, and that the costs were multiplied by means of separate writs and proceedings, until they amounted to the sum of $22, which the justice demanded as the costs, exclusive of the com¬ mitments . It appears that these commitments were made out, after James D. Pratt had been accepted as bail by the justice,; who declined to take the bail at that time ; but desired him to call again for the purpose. It also appears by the evidence of James D. Pratt, whose testimony is not contradicted, that the magistrate, and Constantine his son, declared before the hearing of the case , that they wojuld have the defendants in prison be¬ fore 12 o’clock that night. The defendants were charged with an assault and battery of no very alarming; character, and the committee cannot imagine any cause requiring the justice, in the exercise of his discretion, to proceed separately against each. They are constrained reluctantly to infer, that this transaction is of a character with the one already spoken of, and evinces a greater desire on the part of the magistrate to make gain of his office, than for the promotion of public jus¬ tice. It is alleged in another specification, that the justice asked and obtained from Thomas Jackson, a defendant in a prosecu¬ tion for fornication, the sum of five dollars, for favouring the said Thomas in that proceeding, then pending before the jus¬ tice. This charge is sworn to by Thomas Jackson, a man of colour. After testifying to an agreement made by the justice* before the hearing, to make James Jackson the prosecutor, pay the costs, if Thomas would secure the justice five dollars, Tho¬ mas Jackson, the witness, complains that the justice, instead of fulfilling his engagement fairly, according to the understand¬ ing between them, allowed James Jackson to deduct it out of money which he was indebted to Thomas- James Jackson, and his wife Eliza, also people of colour, testify that the jus¬ tice paid three dollars of the 1 fine to them aS a compensation for the injury complained of, on a settlement of the case, re- 1 taining two dollars in addition to 62i cents paid by com¬ plainant at the issuing of the warrant, for the costs. If Tho¬ mas Jackson is credited, the justice is guilty of a corrupt pro¬ stitution of his official station, to the purposes of gain. 1 Whe tber he be believed or not, still it appears by all the testimony on the subject, that the justice obtained $2 62-i cents in a way which both consider unjust, and contrary to the agreement. It is difficult to understand from the evidence, in the absence of the docket, how the justice’s and constable’s fees could amount to so much as the sum retained by the justice. Whe¬ ther the justice actually sold his judgment to the black man for the price of live dollars, or not, the committee have no he¬ sitation in expressing their opinion, from the evidence, that Justice O’Neal has, on this occasion, evinced his accustomed propensity to make gain of his office, by the charge of exhor- fcitant fees. ■ The justice is charged with administering the marriage ce- rfcrnony between two persons, one of whom he knew at the time to be a married man. As few men do wrong without a motive, there ought to be some inducement existing, before we can give credence to such a charge: the one supposed to exist, is, the desire to obtain the fees. It appears, by the testimony of Thomas Helveston, that the witness went with constable Shoemaker, to arrest a man of co¬ lour for fornication and bastardy. After the man was brought before the justice, he was told by the magistrate that he could settle it by marrying the woman. The man consented, and the justice was about to perform the ceremony, when he was informed by the witness that it was likely the man had one wife already, as the witness saw a black woman and several children in the house where he was arrested the night before. The justice asked the prisoner if that woman was his wife? He said she was. He nevertheless married them, and demand¬ ed his fees. Recording to the testimony of George Paxton, the name of the man thus married was Sam : he lived in Southwark, and Constantine, the son of the justice, was to go down to South¬ wark to get his fees : but Paxton did not hear any thing about the man’s having ^pother wife, although near enough to hear. The general rule is, that where one witness swears positive¬ ly to a fact, he is to be credited, although other persons, pre¬ sent at the same time* testify that they did not see or hear the occurrence. When the established propensity of the justice to make money by his office is considered, in connexion with the fact that the justice’s son was to be sent all the way from Frankford*to Southwark for the fees payable to the justice for marrying the parties, less evidence than that which would be required under more favourable circumstances, is sufficient to produce conviction of the truth of this charge. If true, it un doubtedly deserves reprobation. Another charge of near relationship with the foregoing, is that of issuing an execution on a judgment before him, after the debt and costs were tendered. Thomas Shoemaker, the constable of Frankford, swears that he served a warrant, issued by justice O’Neal, against one George Spear, at the suit of one Stevenson ; that before the hearing, the justice told Stevenson not to make his demand for damages more than five dollars, to prevent an appeal; that af¬ ter judgment was rendered for that sum and costs, the defend¬ ant, Spear, asked what was the whole amount he had to pay, and was told by the justice : the man then pulled out the mo¬ ney, held it in his hand, and offered to pay it; but the justice continued writing until he had made out an execution, which was handed to the witness, [a constable,] to whom the defend ant forthwith paid the debt and costs, with the addition of six¬ ty-eight cents, costs occasioned by the issuing of the execution % after the defendant had offered to pay the judgment! The exe¬ cution is produced, by which it appears that the rendition of the judgment, the issuing of the execution, and the payment 6 of the money into the justice’s hands, all occurred on the 26th March. Stevenson, the plaintiff, denies being; told by the jus¬ tice to limit his demand to five dollars, and was not present when the execution was issued, and the tender made. It appears that the defendant in the suit was a poor man, a mower, who made his living by day labour. This course of proceeding ought not to be countenanced by the Legislature : It operates oppressively upon that class of community least able to bear the exactions of the extortioner. It is evident that the justice has, in this instance, as in others, evinced a much greater desire to make gain of his office, than to admi¬ nister justice in such a manner as to command the confidence of a just and enlightened people. The next charge is, that the justice took cognizance of a suit, and gave judgment in favour of his son, Henry O’Neal, jr., against Warner Webster. According to the testimony of Webster, the latter had signed the petition for an investigation into justice O'Neal’s conduct. Henry, the son of the justice, had a claim against Webster, and without asking him for the money, brought a suit before his father, and obtained judgment for two dollars debt and eighty-eight cents costs. A father has no right to take cognizance of a suit in favour of his son. He cannot be supposed indifferent in such a case. His proceedings in a cause where one of the parties stands in a near relation to him, must, necessarily, create suspicion, and tend to destroy confidence in his decision, and thus impair his usefulness as a public officer. It is perfectly immaterial whe¬ ther the magistrate has acted right or wrong in rendering his judgment: He ought not to act at all in such a case. But when the time and circumstances of this case are considered, the committee can see nothing to extenuate—much to aggra= vate. It betrays such an ignorance of what is due to official character and public feeling, as to make him an unsafe agent in administering justice. It appears by the evidence in support of another charge, that the justice has been in the habit of permitting the parties to settle criminal offences, felonies as well as misdemeanors, belore the recognizances or proceedings on the examination are returned to court. In these cases, it appears to have been a common practice to demand fees for the Attorney General, and, in some cases, to charge double fees where two or more defendants are arrested on the same charge. In some cases it seems that he has paid over fees to the prosecuting officer, and obtained his receipt, together with his consent, for the justice to enter a nolli prosequi, if in his opinion the circumstances were such as to justify it. This proceeding is said to have the me¬ rit of being sanctioned by a practice of some standing, in the county of Philadelphia, with the assent of the officers who at successive periods were the legal representatives of the com¬ monwealth. On this account, it is contended by the counsel for Justice O’Neal, that the latter should not be held answera¬ ble for his conduct in this particular; and, if the practice be as i alleged, there is force in the argument. Be that as it may, the committee think it a fit occasion to say, that this practice is lia¬ ble to great abuse; that the Attorney General is not entitled to any fees on proceedings remaining before the justice and set¬ tled there; that a justice has no right by law, to allow the par¬ ties to settle before him any other cases than those of assault and battery named in the act; that having no right by law, he cannot derive any right from any other source, to exercise that control over criminal prosecutions which the law has confided to the judgment and discretion of the prosecuting officer for the commonwealth. A mass of testimony has been examined, relative to the cha¬ racter and competency of Justice O’Neal as a magistrate. Isaac Whitlock, Isaac Shallcross, a justice of the’peace, Thomas Shoe¬ maker, constable, Samuel W. Pickering, a physician, Robert Glenn, James Churchman, William Lancaster, Thomas Roser, James D. Pratt, Thomas Helveston, Warren Webster, George M. Dallas, Peter Cartor and Henry Folkrod, witnesses, called on behalf of complainants, testify fully in support of these charges. Mr. Dallas states that, in his opinion, Justice 0 , Neal is not intellectually competent; all the others swear that his character, as a justice of the peace, is bad, and Isaac Whitlock, late a burgess of the borough of Frankford, where Justice O’Neal resides, states, that “his character is universally bad, his office a nuisance; that his mode of conducting business appears to be altogether upon a money making plan, and entirely oppressive to the poorer class.” To the point of good character as a jus¬ tice, the respondent examined Henry R. Shark, Daniel Thomas, Samuel Swope, John Barndollar, John Dunjs, Patrick Mundy, Hugh M’Cafferty, Joseph Thomas, Hugh Carroll, James Stew¬ art, Charles A. Snyder, Philip Murphy, Peter Burkins and Charles Stewart, Of these last named, some do not speak di¬ rectly to the question of general character, but merely state their own opinions of the man; others appear to have had but very limited means of having correct information upon the sub¬ ject. Six admit that, although his character was, in their opin¬ ion, good before the circulation of the petition against him, still it is now bad; and Joseph Thomas, auctioneer of Frankford, and one of those six, says, that as to the character of Henry O’Neal, as a justice of the peace, there is a large majority against him. There are other charges which the committee have not sup¬ posed it necessary to notice. It was alleged by the counsel of Justice O’Neal, that many of the charges referred to amount to a misdemeanor in office, if true, and that on that account they were not the proper subjects for the action of the Legislature, but that the justice ought to be proceeded .against by indictment. The committee can perceive no propriety in sanctioning a principle which will close one of the doors of removal, which has been in their opinion, wisely laft open by the framers of the constitution. That instrument v provides that justices may be removed, either by conviction of 3 01 061584048 misbehaviour irt office, or of any infamous crime, or on the ad¬ dress of both houses of the Legislature. Both modes of proceed¬ ing are open, the first is confined to cases of misbehaviour in office, and of infamous crime; the last not only embraces the same class of cases, but all others, and is limited only by the discretion of the Legislature. If a magistrate has been tried and acquitted on a charge of a crime, or misdemeanor in office, it is still in the power of the legislature to look beyond the re¬ cord of acquittal and if they believe him guilty, a false verdict in his favor or one obtained by mistake, cannot save his office, although it may be conclusive so far as to save his person from punishment. On the other hand it is not necessary that the Legislature should believe the officer guilty of either one of¬ fence or the other, to justify a removal. It is enough that in their Opinion the interests of the community require a change. If an officer be intellectually incompetent; if, from intempe¬ rate habits, or from age or infirmity of body or mind he has become unable to discharge the duties of the office, to the sa- sisfaction of the community, he ought to retire to the walks of private life, and leave the station to be filled by one better able to discharge its duties. If, on the other hand, he is be¬ lieved to be competent, but from a love of gain, a want of tem¬ per and decorum, or aiiy other cause, he discharges the duties of the office in such a manner as to excite general and exten¬ sive doubts of the purity of his motives, and great discontent among the people, it is ample cause of removal. In a government founded upon public opinion, an officer can have no right to retain his station, after he shall have ceased to give public satisfaction. Retaining such individuals in public stations* after their conduct has excited great and general dis¬ satisfaction, tends, more than any thing else, to bring into dis¬ repute the administration of justice—to destroy public confi¬ dence in our happy form of government, and to endanger the permanency of our free institutions. It is to the difficulties heretofore experienced by the people, in their endeavours to remove from office those who have ceased to give public sa¬ tisfaction, that the committee ascribe, in a great measure the numerous applications for an amendment of the constitution. Under these views of the subject, the committee have not thought it expedient to pronounce Justice O’Neal guilty of any specific offence—they prefer leaving him to answer for his crimes and misdemeanors, if guilty, to the laws of his coun¬ try, and if convicted, to suffer the punishment due to his of¬ fence. It is sufficient for them on the present occasion, to say, that, on a careful examination of the evidence taken on the complaint against Henry O’Neal, the committee are unani¬ mously of opinion, that the public interest requires his remo¬ val from office. They therefore offer the following resolution : Resolved, That a committee be appointed to draft an address for the removal of Henry O’Neal, from the office of justice of the peace of the county of Philadelphia. (Q^The report was adopted ; Yeas 91 ; Nays 2.