WASHINGTON, January 17, 1837.
To the Senate and House of Representatives of the United States:
I transmit to Congress herewith the copy of an act of the State of Missouri passed on the 16th ultimo, expressing the assent of that State to the several provisions of the act of Congress entitled "An act to extend the western boundary of the State of Missouri to the Missouri River," approved June 7, 1836. A copy of the act, duly authenticated, has been deposited in the Department of State.
ANDREW JACKSON.
JANUARY 18, 1837.
To the Senate of the United States:
In compliance with a resolution of the Senate at their last session, I herewith transmit the inclosed documents, which contain all the information on the subject of the claim of the heirs of George Galphin within the power of the Executive.
ANDREW JACKSON.
WASHINGTON, January 18, 1837.
To the Senate of the United States:
In compliance with the resolution of the Senate dated the 16th instant, I transmit a copy and a translation of a letter addressed to me on the 4th of July last by the President of the Mexican Republic, and a copy of my reply to the same on the 4th of September. No other communication on the subject of the resolution referred to has been made to the Executive by any other foreign government, or by any person claiming to act in behalf of Mexico.
ANDREW JACKSON.
COLUMBIA, IN TEXAS, July 4, 1836.
His Excellency General ANDREW JACKSON,
President of the United States of America.
MUCH ESTEEMED SIR: In fulfillment of the duties which patriotism and honor impose upon a public man, I came to this country at the head of 6,000 Mexicans. The chances of war, made inevitable by circumstances, reduced me to the condition of a prisoner, in which I still remain, as you may have already learned. The disposition evinced by General Samuel Houston, the commander in chief of the Texan army, and by his successor, General Thomas J. Rusk, for the termination of the war; the decision of the President and cabinet of Texas in favor of a proper compromise between the contending parties, and my own conviction, produced the conventions of which I send you copies inclosed, and the orders given by me to General Filisola, my second in command, to retire from the river Brasos, where he was posted, to the other side of the river Bravo del Norte.
As there was no doubt that General Filisola would religiously comply, as far as concerned himself, the President and cabinet agreed that I should set off for Mexico, in order to fulfill the other engagements, and with that intent I embarked on board the schooner Invincible, which was to carry me to the port of Vera Cruz. Unfortunately, however, some indiscreet persons raised a mob, which obliged the authorities to have me landed by force and brought back into strict captivity. This incident has prevented me from going to Mexico, where I should otherwise have arrived early in last month; and in consequence of it the Government of that country, doubtless ignorant of what has occurred, has withdrawn the command of the army from General Filisola and has ordered his successor, General Urrea, to continue its operations, in obedience to which order that general is, according to the latest accounts, already at the river Nueces. In vain have some reflecting and worthy men endeavored to demonstrate the necessity of moderation and of my going to Mexico according to the convention; but the excitement of the public mind has increased with the return of the Mexican army to Texas. Such is the state of things here at present. The continuation of the war and of its disasters is therefore inevitable unless the voice of reason be heard in proper time from the mouth of some powerful individual. It appears to me that you, sir, have it in your power to perform this good office, by interfering in favor of the execution of the said convention, which shall be strictly fulfilled on my part. When I offered to treat with this Government, I was convinced that it was useless for Mexico to continue the war. I have acquired exact information respecting this country which I did not possess four months ago. I have too much zeal for the interests of my country to wish for anything which is not compatible with them. Being always ready to sacrifice myself for its glory and advantage, I never would have hesitated to subject myself to torments or death rather than consent to any compromise if Mexico could thereby have obtained the slightest benefit. I am firmly convinced that it is proper to terminate this question by political negotiation. That conviction alone determined me sincerely to agree to what has been stipulated, and in the same spirit I make to you this frank declaration. Be pleased, sir, to favor me by a like confidence on your part. Afford me the satisfaction of avoiding approaching evils and of contributing to that good which my heart advises. Let us enter into negotiations by which the friendship between your nation and the Mexican may be strengthened, both being amicably engaged in giving being and stability to a people who are desirous of appearing in the political world, and who, under the protection of the two nations, will attain its object within a few years.
The Mexicans are magnanimous when treated with consideration. I will clearly set before them the proper and humane reasons which require noble and frank conduct on their part, and I doubt not that they will act thus as soon as they have been convinced.
By what I have here submitted you will see the sentiments which animate me, and with which I remain, your most humble and obedient servant,
ANTONIO LOPEZ DE SANTA ANNA.
HERMITAGE, September 4, 1836.
General ANTONIO LOPEZ DE SANTA ANNA.
SIR: I have the honor to acknowledge the receipt of your letter of the 4th day of July last, which has been forwarded to me by General Samuel Houston, under cover of one from him, transmitted by an express from General Gaines, who is in command of the United States forces on the Texan frontier. The great object of these communications appears to be to put an end to the disasters which necessarily attend the civil war now raging in Texas, and asking the interposition of the United States in furthering so humane and desirable a purpose. That any well-intended effort of yours in aid of this object should have been defeated is calculated to excite the regret of all who justly appreciate the blessings of peace, and who take an interest in the causes which contribute to the prosperity of Mexico in her domestic as well as her foreign relations.
The Government of the United States is ever anxious to cultivate peace and friendship with all nations; but it proceeds on the principle that all nations have the right to alter, amend, or change their own government as the sovereign power—the people—may direct. In this respect it never interferes with the policy of other powers, nor can it permit any on the part of others with its internal policy. Consistently with this principle, whatever we can do to restore peace between contending nations or remove the causes of misunderstanding is cheerfully at the service of those who are willing to rely upon our good offices as a friend or mediator.
In reference, however, to the agreement which you, as the representative of Mexico, have made with Texas, and which invites the interposition of the United States, you will at once see that we are forbidden by the character of the communications made to us through the Mexican minister from considering it. That Government has notified us that as long as you are a prisoner no act of yours will be regarded as binding by the Mexican authorities. Under these circumstances it will be manifest to you that good faith to Mexico, as well as the general principle to which I have adverted as forming the basis of our intercourse with all foreign powers, make it impossible for me to take any step like that you have anticipated. If, however, Mexico should signify her willingness to avail herself of our good offices in bringing about the desirable result you have described, nothing could give me more pleasure than to devote my best services to it. To be instrumental in terminating the evils of civil war and in substituting in their stead the blessings of peace is a divine privilege. Every government and the people of all countries should feel it their highest happiness to enjoy an opportunity of thus manifesting their love of each other and their interest in the general principles which apply to them all as members of the common family of man.
Your letter, and that of General Houston, commander in chief of the Texan army, will be made the basis of an early interview with the Mexican minister at Washington. They will hasten my return to Washington, to which place I will set out in a few days, expecting to reach it by the its of October. In the meantime I hope Mexico and Texas, feeling that war is the greatest of calamities, will pause before another campaign is undertaken and can add to the number of those scenes of bloodshed which have already marked the progress of their contest and have given so much pain to their Christian friends throughout the world.
This is sent under cover to General Houston, who will give it a safe conveyance to you.
I am, very respectfully, your obedient servant,
ANDREW JACKSON.
JANUARY 19, 1837.
To the Senate and House of Representatives of the United States:
I herewith transmit a copy of the annual report of the Director of the Mint, showing the operations of the institution during the past year and also the progress made toward completion of the branch mints in North Carolina, Georgia, and Louisiana.
ANDREW JACKSON.
WASHINGTON, January 20, 1837.
To the Senate and House of Representatives:
In compliance with the act of Congress of the 3d of March, 1829, I herewith transmit to Congress the report of the board of inspectors of the penitentiary of Washington, and beg leave to draw their attention to the fact presented with the report, "that the inspectors have received no compensation for their services for two years, viz, 1829 and 1830," and request that an appropriation be made for the same.
ANDREW JACKSON.
WASHINGTON, January 21, 1837.
To the Senate of the United States:
I transmit, for your constitutional action, a report from the War Department, accompanied by a treaty with the Stockbridge and Munsee Indians.
ANDREW JACKSON.
WASHINGTON, January 21, 1837.
To the Senate of the United States:
I transmit, for your constitutional action, a report from the War Department, accompanied by a treaty with a portion of the New York Indians.
ANDREW JACKSON.
WASHINGTON, January 25, 1837.
To the House of Representatives of the United States:
In compliance with the resolution of the House of Representatives of the 17th instant, I transmit a report25 from the Secretary of State, together with the documents by which it was accompanied.
ANDREW JACKSON.
WASHINGTON, January 27, 1837.
To the Senate and House of Representatives:
I transmit herewith certain papers from the War Department, relative to the improvement of Brunswick Harbor, Georgia.
ANDREW JACKSON.
WASHINGTON, January 30, 1837.
To the House of Representatives of the United States:
I herewith transmit to the House the copy of a letter addressed to me by the governor of the State of Maine on the 30th of June last, communicating sundry resolutions of the legislature of that State and claiming the reimbursement of certain moneys paid to John and Phineas R. Harford for losses and expenses incurred by them under circumstances explained in the accompanying papers.
ANDREW JACKSON.
WASHINGTON, February 6, 1837.
The SPEAKER OF THE HOUSE OF REPRESENTATIVES:
In compliance with the resolution of the House of Representatives of the 3d instant, I herewith transmit the report26 of the Secretary of the Navy, which affords all the information required by said resolution. The President begs leave to add that he trusts that all facilities will be given to this exploring expedition that Congress can bestow and the honor of the nation demands.
ANDREW JACKSON.
WASHINGTON, February 6, 1837.
To the Senate and House of Representatives of the United States:
At the beginning of this session Congress was informed that our claims upon Mexico had not been adjusted, but that notwithstanding the irritating effect upon her councils of the movements in Texas, I hoped, by great forbearance, to avoid the necessity of again bringing the subject of them to your notice. That hope has been disappointed. Having in vain urged upon that Government the justice of those claims and my indispensable obligation to insist that there should be "no further delay in the acknowledgment, if not in the redress, of the injuries complained of," my duty requires that the whole subject should be presented, as it now is, for the action of Congress, whose exclusive right it is to decide on the further measures of redress to be employed. The length of time since some of the injuries have been committed, the repeated and unavailing applications for redress, the wanton character of some of the outrages upon the property and persons of our citizens, upon the officers and flag of the United States, independent of recent insults to this Government and people by the late extraordinary Mexican minister, would justify in the eyes of all nations immediate war. That remedy, however, should not be used by just and generous nations, confiding in their strength for injuries committed, if it can be honorably avoided; and it has occurred to me that, considering the present embarrassed condition of that country, we should act with both wisdom and moderation by giving to Mexico one more opportunity to atone for the past before we take redress into our own hands. To avoid all misconception on the part of Mexico, as well as to protect our own national character from reproach, this opportunity should be given with the avowed design and full preparation to take immediate satisfaction if it should not be obtained on a repetition of the demand for it. To this end I recommend that an act be passed authorizing reprisals, and the use of the naval force of the United States by the Executive against Mexico to enforce them, in the event of a refusal by the Mexican Government to come to an amicable adjustment of the matters in controversy between us upon another demand thereof made from on board one of our vessels of war on the coast of Mexico.
The documents herewith transmitted, with those accompanying my message in answer to a call of the House of Representatives of the 17th ultimo, will enable Congress to judge of the propriety of the course heretofore pursued and to decide upon the necessity of that now recommended.
If these views should fail to meet the concurrence of Congress, and that body be able to find in the condition of the affairs between the two countries, as disclosed by the accompanying documents, with those referred to, any well-grounded reasons to hope that an adjustment of the controversy between them can be effected without a resort to the measures I have felt it my duty to recommend, they may be assured of my cooperation in any other course that shall be deemed honorable and proper.
ANDREW JACKSON.
WASHINGTON, February 7, 1837.
To the Senate of the United States:
I transmit communications from the War Department relating to the treaty with the Sacs and Foxes recently submitted to the Senate.
ANDREW JACKSON.
WASHINGTON, February 7, 1837.
To the Senate of the United States:
I transmit herewith, for the constitutional action of the Senate, a report from the War Department, accompanied by a treaty with the Saganaw tribe of Chippewa Indians.
ANDREW JACKSON.
WASHINGTON, February, 1837.
To the Senate of the United States:
I transmit, for your consideration and action, a treaty with certain Potawatamie Indians, accompanied by a report from the War Department.
ANDREW JACKSON.
WASHINGTON, February 9, 1837.
To the Senate and House of Representatives of the United States:
I communicate to Congress printed copies of the treaty of peace and commerce between the United States and the Empire of Morocco, concluded at Meccanez on the 16th day of September last, and duly ratified by the respective Governments.
ANDREW JACKSON.
WASHINGTON, February 11, 1837.
To the House of Representatives of the United States:
I herewith transmit to the House of Representatives a letter addressed to me on the 30th ultimo by the governor of the State of New Hampshire, communicating several resolutions of the legislature of that Commonwealth and claiming the reimbursement of certain expenses incurred by that State in maintaining jurisdiction over that portion of its territory north of the forty-fifth degree of north latitude, known by the name of Indian Stream, under circumstances explained in his excellency's letter.
ANDREW JACKSON.
WASHINGTON, February 13, 1837.
To the Senate of the United States:
I herewith transmit to the Senate a report27 from the Secretary of State, with accompanying papers, embracing a copy of the correspondence requested by the resolution of the 7th instant, and such additional documents as were deemed necessary to a correct understanding of the whole subject.
ANDREW JACKSON.
WASHINGTON CITY, February 14, 1837.
To the House of Representatives:
I transmit herewith a copy of the instructions, prepared under my direction by the War Department, for the commissioners appointed by me, in pursuance of the request contained in the resolution adopted by the House of Representatives on the 1st of July last, to investigate the causes of the hostilities then existing with the Creek Indians, and also copies of the reports on that subject received from the commissioners.
ANDREW JACKSON.
FEBRUARY 15, 1837.
To the Senate of the United States:
I herewith transmit to the Senate a report of the Postmaster-General, on the subject of the claims of Messrs. Stockton and Stokes, with a review of that report by the Solicitor of the Treasury, to whom, under a law of the last session of Congress, all the suspended debts of those contractors had been submitted; also a supplemental rejoinder by the Postmaster-General since the report of the Solicitor of the Treasury was made, with the papers accompanying the same, all of which are respectfully submitted for the consideration of the Senate.
ANDREW JACKSON.
WASHINGTON, February 15, 1837.
To the Senate of the United States:
I transmit herewith, for your consideration and action, a treaty lately made with the Sioux of the Mississippi, accompanied by a report from the War Department.
ANDREW JACKSON.
WASHINGTON, February, 1837.
To the Senate of the United States:
I transmit herewith a convention between the Choctaws and Chickasaws, which meets my approbation, and for which I ask your favorable consideration and action.
ANDREW JACKSON.
WASHINGTON, February 20, 1837.
To the House of Representatives of the United States:
In compliance with the resolution of the House of Representatives of the 9th ultimo, I transmit a report from the Secretary of State and the documents28 by which it was accompanied.
ANDREW JACKSON.
WASHINGTON, February 24, 1837.
To the House of Representatives:
I transmit a letter from the Secretary of War ad interim, accompanied by various documents, in relation to a survey recently made of the mouths of the Mississippi River under a law of the last session of Congress.
ANDREW JACKSON.
WASHINGTON, March 3, 1837.
To the Senate of the United States:
In the month of October last, the office of Secretary of War being vacant, I appointed Benjamin F. Butler, of the State of New York, to perform the duties thereof during the pleasure of the President, but with the expectation that the office would be otherwise filled, on the nomination of my successor, immediately on the commencement of his term of service. This expectation I have reason to believe will be fulfilled, but as it is necessary in the present state of the public service that the vacancy should actually occur, and as it is doubtful whether Mr. Butler can act under his present appointment after the expiration of the present session of the Senate, I hereby nominate the said Benjamin F. Butler to be Secretary of War of the United States, to hold the said office during the pleasure of the President until a successor duly appointed shall accept such office and enter on the duties thereof.
ANDREW JACKSON.
WASHINGTON, March 3, 1837.
To the Senate of the United States:
In my message to Congress of the 21st of December last I laid before that body, without reserve, my views concerning the recognition of the independence of Texas, with a report of the agent employed by the Executive to obtain information in respect to the condition of that country. Since that time the subject has been repeatedly discussed in both branches of the Legislature. These discussions have resulted in the insertion of a clause in the general appropriation law passed by both Houses providing for the outfit and salary of a diplomatic agent to be sent to the Republic of Texas whenever the President of the United States may receive satisfactory evidence that Texas is an independent power and shall deem it expedient to appoint such minister, and in the adoption of a resolution by the Senate, the constitutional advisers of the Executive on the diplomatic intercourse of the United States with foreign powers, expressing the opinion that "the State of Texas having established and maintained an independent government capable of performing those duties, foreign and domestic, which appertain to independent governments, and it appearing that there is no longer any reasonable prospect of the successful prosecution of the war by Mexico against said State, it is expedient and proper and in conformity with the laws of nations and the practice of this Government in like cases that the independent political existence of said State be acknowledged by the Government of the United States." Regarding these proceedings as a virtual decision of the question submitted by me to Congress, I think it my duty to acquiesce therein, and therefore I nominate Alcee La Branche, of Louisiana, to be chargé d'affaires to the Republic of Texas.
ANDREW JACKSON.
MARCH 3, 1837—11.45 p.m.
The bill from the Senate entitled "An act designating and limiting the funds receivable for the revenues of the United States" came to my hands yesterday at 2 o'clock p. m. On perusing it I found its provisions so complex and uncertain that I deemed it necessary to obtain the opinion of the Attorney-General of the United States on several important questions touching its construction and effect before I could decide on the disposition to be made of it. The Attorney-General took up the subject immediately, and his reply was reported to me this day at 5 o'clock p. m., and is hereunto annexed. As this officer, after a careful and laborious examination of the bill and a distinct expression of his opinion on the points proposed to him still came to the conclusion that the construction of the bill, should it become a law, would yet be a subject of much perplexity and doubt (a view of the bill entirely coincident with my own), and as I can not think it proper, in a matter of such vital interest and of such constant application, to approve a bill so liable to diversity of interpretations, and more especially as I have not had time, amid the duties constantly pressing on me, to give the subject that deliberate consideration which its importance demands, I am constrained to retain the bill, without acting definitively thereon; and to the end that my reasons for this step may be fully understood I shall cause this paper, with the opinion of the Attorney-General and the bill in question, to be deposited in the Department of State.
ANDREW JACKSON.
ATTORNEY-GENERAL'S OFFICE,
March 3, 1837.
The PRESIDENT OF THE UNITED STATES.
SIR: I have had the honor to receive the several questions proposed to me by you on the bill which has just passed the two Houses of Congress, entitled "An act designating and limiting the funds receivable for the revenues of the United States," and which is now before you for consideration. These questions may be arranged under three general heads, and in that order I shall proceed to reply to them.
I. Will the proposed bill, if approved, repeal or alter the laws now in force designating the currency required to be received in payment of the public dues, for lands or otherwise?
Will it compel the Treasury officers to receive the notes of specie-paying banks having the characteristics described in its first and second sections?
In what respect does it differ from and how far will it change the joint resolution of April 30, 1816?
Answer. In order to a correct reply to this question, and indeed to any other question arising on this obscurely penned bill, we must first obtain a general view of all its provisions.
The first section requires the Secretary of the Treasury to take measures for collecting the public revenue, first, in the legal currency of the United States (i.e., gold and silver), or, second, in the notes of such specie-paying banks as shall from time to time conform to certain conditions in regard to small bills, described in the section. This section does not expressly give the Secretary power to direct that any particular notes shall be received for lands or for duties, but it forbids the receipt of any paper currency other than such bank notes as are described in the section; and it requires the Secretary to adopt measures, in his discretion, to effectuate that prohibition.
The second section extends the prohibition still further, by forbidding the receipt of any notes which the banks in which they are to be deposited shall not, under the supervision and control of the Secretary of the Treasury, agree to pass to the credit of the United States as cash; to which is added a proviso authorizing the Secretary to withdraw the public deposits from any bank which shall refuse to receive as cash from the United States any notes receivable under the law which such bank receives in the ordinary course of business on general deposit.
The third and last section allows the receipt, as heretofore, of land scrip and Treasury certificates for public lands, and forbids the Secretary of the Treasury to make any discrimination in the funds receivable (other than such as results from the receipt of land scrip or Treasury certificates) between the different branches of the public revenue.
From this analysis of the bill it appears that, so far as regards bank notes, the bill designates and limits then: receivableness for the revenues of the United States, first, by forbidding the receipts of any except such as have all the characteristics described in the first and second sections of the bill, and, secondly, by restraining the Secretary of the Treasury from making any discrimination in this respect between the different branches of the public revenue. In this way the bill performs, to a certain extent, the office of "designating and limiting the funds receivable for the revenues of the United States," as mentioned in its title; but it would seem from what has been stated that it is only in this way that any such office is performed. This impression will be fully confirmed as we proceed.
The bill, should it be approved, will be supplementary to the laws now in force relating to the same subject, but as it contains no repealing clause no provision of those former laws, except such as may be plainly repugnant to the present bill, will be repealed by it.
The existing laws embraced in the above question, and applicable to the subject, are:
First. As to duties on goods imported.—The seventy-fourth section of the collection law of the 2d of March, 1799, the first of which, reenacting in this respect the act of the 31st of July, 1789, provides "that all duties and fees to be collected shall be payable in money of the United States or in foreign gold and silver coins at the following rates," etc. The residue of the section, as to rates, has been altered by subsequent laws, and the clause quoted was varied during the existence of the Bank of the United States, the notes of which were expressly made receivable in all payments to the United States, and during the existence of the act making Treasury notes receivable by such act; but in no other respects has it ever been repealed.
Second. As to public lands.—The general land law of the 10th of May, 1800, section 5, provided that no lands should be sold, "at either public or private sale, for less than $2 per acre, and payment may be made for the same by all purchasers either in specie or in evidences of the public debt of the United States, at the rates prescribed" by a prior law. This provision was varied by the acts relative to Treasury notes and the Bank of the United States in like manner as above mentioned. The second section of the general land law of the 24th of April, 1820, abrogated the allowance of credits on the sale of public lands after the its day of July then next; required every purchaser at public sale to make complete payment on the day of purchase, and the purchaser at private sale to produce to the register a receipt from the Treasurer of the United States or from the receiver of the district for the amount of the purchase money. The proviso to the fourth section of the same law enacted, in respect to reverted lands and lands remaining unsold, that they should not be sold for less price than $1.25 per acre, "nor on any other terms than that of cash payment." This latter act has been further modified by the allowing Virginia land scrip to be received in payment for public lands.
Third. As to both duties and lands.—The joint resolution of the 30th of April, 1816, provides that the Secretary of the Treasury "be required and directed to adopt such measures as he may deem necessary to cause, as soon as may be, all duties, taxes, debts, or sums of money accruing or becoming payable to the United States to be collected and paid in the legal currency of the United States, or Treasury notes, or notes of the Bank of the United States, as by law provided and declared, or in notes of banks which are payable and paid on demand in the said legal currency of the United States, and that from and after the 20th day of February next no such duties, taxes, debts, or sums of money accruing or becoming payable to the United States as aforesaid ought to be collected or received otherwise than in the legal currency of the United States, or Treasury notes, or notes of the Bank of the United States, or in notes of banks which are payable and paid on demand in the legal currency of the United States." According to the opinion given by me as a member of your Cabinet in the month of July last, and to which I still adhere, this resolution was mandatory only as it respected the legal currency of the United States, Treasury notes, and notes of the Bank of the United States, and in respect to the notes of the State banks, though payable and paid in specie, was permissive merely in the discretion of the Secretary; and in accordance with this opinion has been the practical construction given to the resolution by the Treasury Department. It is known to you, however, that distinguished names have been vouched for the opinion that the resolution was mandatory as to the notes of all specie-paying banks; that the debtor had the right, at his option, to make payment in such notes, and that if tendered by him the Treasury officers had no discretion to refuse them.
It is thus seen that the laws now in force, so far as they positively enjoin the receipt of any particular currency in payment of public dues, are confined to gold and silver, except that in certain cases Virginia land scrip and Treasury certificates are directed to be received on the sale of public lands. In my opinion, there is nothing in the bill before me repugnant to those laws. The bill does not expressly declare and enact that any particular species of currency shall be receivable in payment of the public revenue. On the contrary, as the provisions of the first and second sections are chiefly of a negative character, I think they do not take away the power of the Secretary, previously possessed under the acts of Congress, and as the agent of the President, to forbid the receipt of any bank notes which are not by some act of Congress expressly made absolutely receivable in payment of the public dues.
The above view will, I think, be confirmed by a closer examination of the bill. It sets out with the assumption that there is a currency established by law (i. e., gold and silver); and it further assumes that the public revenue of all descriptions ought to be collected exclusively in such legal currency, or in bank notes of a certain character; and therefore it provides that the Secretary of the Treasury shall take measures to effect a collection of the revenue "in the legal currency of the United States, or in notes of banks which are payable and paid on demand in the said legal currency," under certain restrictions, afterwards mentioned in the act.
The question then arises: Are bank notes having the requisite characteristics placed by the clause just quoted on the same footing with the legal currency, so as to make it the duty of the Secretary of the Treasury to allow the receipt of them when tendered by the debtor? In my judgment, such is not the effect of the provision.
If Congress had intended to make so important an alteration of the existing law as to compel the receiving officers to take payment in the bank notes described in the bill, the natural phraseology would have been, "in the legal currency of the United States and in notes of banks which are payable and paid in the legal currency," etc. And it is reasonable to presume that Congress would have used such, phraseology, or would have gone on to make a distinct provision expressly declaring that such bank notes should be receivable, as was done in the bank charters of 1790 and 1816, and as was also done by the acts relative to evidences of debt, Treasury notes, and Virginia land scrip. The form of one of these provisions (the fourteenth section of the act incorporating the late Bank of the United States) will illustrate the idea I desire to present:
"SEC. 14. And be it further enacted, That the bills or notes of the said corporation, originally made payable, or which shall have become payable, on demand, shall be receivable in all payments to the United States, unless otherwise directed by act of Congress."
The difference between the language there used and that employed in the present bill is too obvious to require comment. It is true that the word "or," when it occurs in wills and agreements, is sometimes construed to mean "and," in order to give effect to the plain intent of the parties; and such a construction of the word may sometimes be given when it occurs in statutes, where the general intent of the lawmakers evidently requires it. But this construction of the word in the present case is not only unnecessary, but, in my opinion, repugnant to the whole scope of the bill, which, so far from commanding the public officers to receive bank notes in cases not required by the existing laws, introduces several new prohibitions on the receipt of such notes.
Nor do I think this one of those cases in which a choice is given to the debtor to pay in one or other of two descriptions of currency, both of which are receivable by law. Such a choice was given by the land law of the 10th of May, 1800, section 5, between specie and the evidences of the public debt of the United States then receivable by law, and also by the joint resolution of the 30th of April, 1816, between "the legal currency of the United States, or Treasury notes, or notes of the Bank of the United States, as by law provided and declared." The option given by that resolution continued in force so long as the laws providing and declaring that Treasury notes and notes of the Bank of the United States should be receivable in payments to the United States, and ceased when those laws expired. The distinction between that description of paper currency which is by law expressly made receivable in payment of public dues, and the notes of the State banks, which were only permitted to be received, is plainly marked in the resolution of 1816. While the former are placed on the same footing with the legal currency, because by previous laws it had been so "provided and declared" the latter were left to be received or not received, at the discretion of the Secretary of the Treasury, except that he was restricted from allowing any to be received which were not payable and paid on demand in the legal currency. The bank notes spoken of in the bill before me, having never been made receivable by law, must be regarded as belonging to the latter class, and not to the former; and there can therefore be no greater obligation under the present bill, should it become a law, to receive them in payment than there was to receive the paper of the State banks under the resolution of 1816.
As to the difference between this bill and the joint resolution of 1816, the bill differs from that resolution in the following particulars:
First. It says nothing of Treasury notes and the notes of the Bank of the United States, which by the resolution of 1816 are recognized as having been made receivable by laws then in force in payment of public dues of all descriptions.
Second. It abridges the discretion left with the Secretary of the Treasury by that resolution, by positively forbidding the receipt of bank notes not having the characteristics described in the first and second sections of the bill; whereas the receipt of some of the notes so forbidden might, under the resolution of 1816, have been allowed by the Secretary.
Third. It forbids the making of any discrimination in respect to the receipt of bank notes between the different branches of the public revenue; whereas the Secretary of the Treasury, under the resolution of 1816, was subject to no such restraint, and had the power to make the discrimination forbidden by the bill, except as to the notes of the Bank of the United States and Treasury notes.
This bill, if approved, will change the resolution of 1816, so far as it now remains in force, in the second and third particulars just mentioned, but in my opinion, as already suggested, will change it in no other respect.
II. What is the extent of the supervision and control allowed by this bill to the Secretary of the Treasury over the notes to be received by the deposit banks?
And does it allow him to direct what particular notes shall or shall not be received for lands or for duties?
Answer. After maturely considering, so far as time has been allowed me, the several provisions of the bill, I think the following conclusions may fairly be drawn from them when taken in connection with the laws now in force, and above referred to, and that should it become a law they will probably express its legal effect.
First. That the Secretary of the Treasury can not direct the receipt of any notes except such as are issued by banks which conform to the first section of the law and such as will be passed by the proper deposit bank to the credit of the United States as cash.
Second. That he may direct the receipt of notes issued by banks which conform to the first section, provided the deposit bank in which the notes are to be deposited shall agree to credit them as cash.
Third. That if the deposit bank in which the money is to be deposited shall refuse to receive as cash the notes designated by the Secretary, and which such bank receives in the ordinary course of business on general deposit, he may withdraw the public deposits and select another depository which will agree to receive them.
Fourth. That if he can not find a depository which will so agree, then that the Secretary can not direct or authorize the receipt of any notes except such as the deposit bank primarily entitled to the deposits will agree to receive and deposit as cash.
Fifth. That although a deposit bank might be willing to receive from the collectors and receivers, and to credit as cash, notes of certain banks which conform to the first section, yet, for the reasons before stated, I am of opinion that the Secretary is not obliged to allow the receipt of such notes.
Sixth. The Secretary is forbidden to make any discrimination in the funds receivable "between the different branches of the public revenue," and therefore, though he may forbid the receipt of the notes of any particular bank or class of banks not excluded by the bill, and may forbid the receipt of notes of denominations larger than those named in the bill, yet when he issues any such prohibition it must apply to all the branches of the public revenue.
Seventh. If I am right in the foregoing propositions, the result will be that the proposed law will leave in the Secretary of the Treasury power to prohibit the receipt of particular notes provided his prohibition apply to both lands and duties, and power to direct what particular notes allowed by the law shall be received provided he can find a deposit bank which will agree to receive and [credit] them as cash.
III. Are the deposit banks the sole judges under this bill of what notes they will receive, or are they bound to receive the notes of every specie-paying bank, chartered or unchartered, wherever situated, in any part of the United States?
Answer. In my opinion the deposit banks, under the bill in question, will be the sole judges of the notes to be received by them from any collector or receiver of public money, and they will not be bound to receive the notes of any other bank whose notes they may choose to reject, provided they apply the same rule to the United States which they apply to their own depositors. In other words, the general rule as to what notes are to be received as cash, prescribed by each deposit bank for the regulation of its ordinary business, must be complied with by the collectors and receivers whose moneys are to be deposited with that bank. But it will not therefore follow that those officers will be bound to receive what the bank generally receives, because, as already stated, they may refuse of their own accord, or under the direction of the Secretary of the Treasury, any bank notes not expressly directed by act of Congress to be received in payment of the public dues.
I have thus answered the several questions proposed on the bill before me; and though I have been necessarily obliged to examine the subject with much haste, I have no other doubts as to the soundness of the construction above given than such as belong to discussions of this nature and to a proper sense of the fallibility of human judgment. It is, however, my duty to remind you that very different opinions were expressed in the course of the debates on the proposed law by some of the members who took part therein. It would seem from these debates that the bill, in some instances at least, was supported under the impression that it would compel the Treasury officers to receive all bank notes possessing all the characteristics described in the first and second sections, and that the Secretary of the Treasury would have no power to forbid their receipt. It must be confessed that the language is sufficiently ambiguous to give some plausibility to such a construction, and that it seems to derive some support from the refusal of the House of Representatives to consider an amendment reported by the Committee of Ways and Means of that House, which would substantially have given the bill, in explicit terms, the interpretation I have put on it, and have removed the uncertainty which now pervades it. Under these circumstances it may reasonably be expected that the true meaning of the bill, should it be passed into a law, will become a subject of discussion and controversy, and probably remain involved in much perplexity and doubt until it shall have been settled by a judicial decision. How far these latter considerations are to be regarded by you in your decision on the bill is a question which belongs to another place, and on which, therefore, I forbear to enlarge in this communication. I have the honor to be, sir, with high respect, your obedient servant,
B.F. BUTLER.