On this point, I refer to the case of the United States vs. Barney, (3 Hall's American Law Journal, 128,) before Judge Winchester, in the United States district court for the Maryland district, in 1809. The indictment charged the defendant with having wilfully obstructed the passage of the public mail. The defendant set up, in his defence, that he had fed the horses employed in carrying the mail for a considerable time, and that a sum of money was due to him for food furnished before the time of their detention; a case which, as between individuals only, would clearly, at common law, have entitled the party to a special lien. It was decided that the defendant was not justified, on the principle of the common law, in stopping the mail; for, as the Government could not be sued, no lien could exist.

In the course of his opinion, Judge Winchester states, as the ground of his decision, that "no other remedy exists for a creditor of the Government, than an application to Congress for payment. A lien cannot be permitted to exist against the Government; for liens are only known or adinitted in cases where the relation of debtor and creditor exists, so as to maintain a suit for the debt or duty which gives rise to the lien, in case the pledge be destroyed, or the possession thereof lost. As in the case of a carrier of the mail: he cannot sue for the hire, nor retain the mail, because he cannot sue. Yet a carrier of private property may sue or retain, because Government is not answerable. Justice is the same, whether due from one to a million, or a million to one man; but the modes of obtaining that justice must vary. An individual may sue and be sued. The United States cannot be sued. Suability is incompatible with the idea of sovereign power. The adversary proceedings of a court of judicature can never be admitted against an independent Government, or the public stock or property. The ties of faith, public character, and constitutional duty, are the sure pledges of public integity; and to them the public creditors must, and I trust with confidence may, look for justice. They must not measure it out for themselves." The same general principles are also recognised in the cases of "the Commonwealth vs. Mattack," (4 Dallas, 303,) and the United States vs. Wells, (2 Wash. C. C. R., 161,) to which I shall hereafter have occasion to refer for another purpose.

This doctrine is peculiarly applicable to the present case. From the 17th of July, 1834, when the last semi-annual dividend became payable, the bank must be deemed to have been in the possession of so much money belonging to the Government, and as holding it in the same manner, and subject to the same obligations and liabilities, as any other receiver or depositary of public moneys. It may not have passed the amount in its books to the credit of the Treasurer of the United States, but its own omission to do an act merely formal cannot alter the substance of the transaction, nor impair the rights of the Government. Though not technically brought into the Treasury, this money was not the less a part of the public treasure, and, as such, it must be protected from lawless misapplication.

The constitutional provision that "no money shall be drawn from the Treasury, except in consequence of appropriations made by law," was undoubtedly intended to secure to the National Legislature the exclusive power of deciding how, and when, the public money shall be applied to the discharge of the expenses, debts, or other engagements or liabilities of the Government. But this provision would be liable to be evaded and defeated, if the public money, whilst in the hands of receivers and depositaries, were

not exempt from the claims, pretended or real, of those agents. To apply any portion of the public money to the satisfaction of a claim against the Government, not sanctioned by any act of Congress, must be equally a violation of the spirit and intent of the constitution, whether the money has been formally brought into the Treasury, or whether it be lying in the hands of a depositary. To give full effect to its provisions, the law of lien, and every other legal rule existing between individuals, which, in its practical operation, would produce such a result, must give way to the paramount efficacy and importance of the supreme law.

But, independently of any constitutional provision, the result would be the same. Once established the fact that the money in question is the money of the nation, and its exemption from ordinary liens must necessarily follow. This exemption is not merely a prerogative; it flows from the nature and necessities of Government, and is essential to the full attainment of the benefits intended to be secured by it. And there is even more necessity for extending it to moneys in the hands of collectors and depositaries which have not reached the public Treasury, than to those which, having been received into the Treasury, are afterwards drawn from it, and intrusted to disbursing agents for the purpose of expenditure. It is for the most part, on means of the former description, that the public estimates are founded and the legal appropriations made; and all the fiscal arrangements of the nation would be liable to he defeated, if the agents employed to collect the public revenue were allowed to withhold it from the Treasury, under the pretext of satisfying their own claims on the honor or justice of the nation. In the very case now before me, the dividends in question were a part of the ways and means enumerated in the estimates duly submitted to Congress for the present year, and were undoubtedly taken into account by that body, in the appropriations made by them. And though the amount of public money now detained was not large enough to produce any very serious embarrassment, yet I perceive, in the correspondence submitted to me, an explicit declaration by the president of the bank, that the corporation has another claim against the Government for compensation and indemnity, which is "reserved in full force, to be asserted at such time and in such manner as may hereafter be deemed expedient," and under which it is possible that other moneys, and perhaps even the large amount of stock belonging to the Government, may hereafter be withheld. Indeed, it is obvious that if the course now adopted be warranted by law, it may with equal propriety be pursued by the bank in respect to the claim it has reserved; and that all other receivers and depositaries of public moneys or other property will be equally at liberty, in like cases, to imitate the example. The principle, if sound, would also have included the disbursing agents; but, fortunately for this branch of the public service, Congress, by the second section of the act of the 31st of January, 1823, "concerning the disbursement of public money," have expressly enacted that, every officer or agent of the United States, who shall receive public money which he is not authorized to retain as salary, pay, or emolument, shall render his accounts quarterly-yearly to the proper accounting officers of the Treasury, with the vouchers necessary to the correct and prompt settlement thereof, within three months, if resident in the United States, and within six, if resident abroad; thus, by necessary implication, excluding all pretence for retaining the public money for any outstanding demand, however equitable or valid. And, by the third section of the same act, it is further provided,

that every disbursing officer or agent violating this enactment shall be forthwith reported to the President," and promptly dismissed from the public. service, unless he shall satisfactorily account for his default." The first section of the act of the 2d March, 1809, amending the several acts for the establishment and regulation of the Treasury, War, and Navy Departments, also provides, that all such officers "shall render distinct accounts of the application of the public moneys, according to the appropriation under which the same shall have been drawn ; and that the sums appropriated for each branch of expenditure shall be solely applied to the objects fos which they were respectively appropriated, and to no other;" an enactment which plainly makes it unlawful for the persons embraced within its purview to appropriate the public money to the discharge of their own claims, unless a distinct appropriation for that purpose shall have been made by law. Other provisions of the like nature might be referred to, but I will only mention, in addition, the prohibition contained in the act of the 25th of January, 1828, "to prevent defalcations on the part of the disbursing agents of the Government, and for other purposes," against paying to any person, who is in arrears to the United States, any money for his compensation, "until such person shall have accounted for, and paid into the Treasury, all sums for which he may be liable." These various statutory provisions are in affirmance of the preceding views; and they show, very clearly, that Congress deem the unauthorized detention of the public moneys by the disbursing agents an offence so aggravated in its character, and so dangerous in its tendency, as to justify very severe and summary proceedings. And if they have not guarded the public treasure, whilst in the hands of its original receivers and depositaries, with equal efficiency of regulation, the omission is doubtless to be ascribed to the belief that no one of those agents, however faithless in other respects, would attempt to sequester or detain it, under the pretext of satisfying a claim never presented to Congress, nor recognised as valid by any department or officer of the Government; and to the fact, that until the occurrence of the present case, no such attempt has ever been made, or, if made, brought to the notice of the Legislature. But if the measure now under review shall be ultimately sanctioned by the judicial tribunals, this omission of statutory provision will no longer be safe. The whole revenue of the country will be exposed to such hazards as to call for the prompt exertion of the legislative power.

There are, however, various legislative provisions now in force, in regard to the collectors of the customs and receivers of moneys on the sale of public lands, which plainly imply that they have no authority to withhold from the Treasury the moneys collected by them, except so far as expressly authorized by act of Congress. And the act of the 15th of May, 1820, providing for the better organization of the Treasury Department, provides, "that if any collector of the revenue, receiver of public money, or other officer, who shall have received the public money before it is paid into the Treasury of the United States, shall fail to render his account, or pay over the same in the manner, or within the time, required by law, it shall be the duty of the First Comptroller of the Treasury to cause to be stated the account of such collector, receiver of public money, or other officer, exhibiting truly the amount due to the United States, and to certify the same to the agent of the Treasury, who is authorized and required to issue a warrant of distress against such delinquent officer and his sureties." The act then proceeds to prescribe the course to be pursued on the warrant, by sale of

the goods and chattels and lands of the delinquent and his sureties, and, in a certain event, by committing the delinquent to prison. This enactment is, also, by the third section of the act, extended to disbursing officers; and although provision is made for enabling any person, who conceives himself aggrieved by the issuing of any such warrant, to obtain an injunction from a district judge upon a bill in equity, "setting forth the nature and extent of the injury of which he complains," yet no authority is given to the judge to allow any other deductions than those to which the complainant shall be found to be equitably entitled under some legislative provision. This act, and all the other acts of Congress on the subject of the collection and safe keeping of the public revenue, seem to me to have been framed upon principles directly the reverse of those involved in the recent measure of the Bank of the United States.

It would be easy to extend this topic by other pertinent remarks; but the utter incompatibility of a right in the public agent to appropriate to his own use, under any pretext, public property committed to his care, with the first principles of civil government and official duty, is too apparent to need further observation.

But independently of the weighty considerations above stated, there are other objections to the existence of a lien in the present case, which, though not equally important, are not less decisive.

A factor, agent, or other person, to whose hands money or other property is intrusted, upon a special agreement that the same is to be paid or delivered in a particular manner, or under an implied understanding to that effect, is not usually entitled to a general lien, even for debts subsequently contracted; and is never allowed to assert such a lien, in respect to antecedent demands. The reason is, because it would be a departure from the obligations, express or tacit, (as the case may be,) of the contract, and would operate as a fraud on the owner of the property. Considering the peculiar relations of the bank to the Government--and I think it must be generally conceded that the stock of the United States was originally invested, and has since been left in the bank, under the full understanding, on both sides, that the dividends accruing on it would be punctually, and without deduction or charge, paid into the Treasury-the rule now referred to is, therefore, fairly applicable.

Again: Where a person, acting as trustee or agent for another, fairly discloses the name of his principal, and the authority under which he acts, and where, by virtue of a contract made under these circumstances, within the scope of his authority, a debt or duty to a third person is incurred, the creditor is never permitted to assert a lien for such debt or duty on the property of the agent. In the whole transaction connected with the draft on the French Government, the United States acted as trustees and agents of the persons entitled to indemnity under the treaty, as was fully known to the bank when it received the bill; and though it might with propriety rely on the ability and disposition of the United States, as the parties through whose hands the moneys to be paid under the treaty were ultimately to pass, to make provision, out of those moneys, for any just claim growing out of the transaction; yet it certainly had no right to rely, and, it is to be presumed, did not rely, on the dividends or other funds exclusively belonging to the Government, for the satisfaction of any such claim. The principle now stated is, therefore, also applicable to the present case. Once more: A general lien does not extend to unliquidated demands ;

and, according to the law of Pennsylvania, as will appear in the sequel of this opinion, a claim for damages on a protested bill of exchange is such a demand.

Other limitations of the law of lien, which forbid its application to the present case, might also be mentioned; but I deem it unnecessary to pursue the subject further.

II. I shall now proceed to examine the question, whether, if a suit be brought by the United States to recover the balance of the dividends withheld by the bank, the claim of the latter can be presented for trial and decision, by way of set-off to the demand of the plaintiffs in such suit.

The very announcement of a pretension to set-off this claim, considering that its validity and justice have never been sanctioned by Congress; that no provision has been made by law for its discharge; and that it has always been a subject of controversy between the bank and the Executive, is certainly sufficiently novel to excite surprise, and much too important not to demand the most serious consideration. It necessarily involves the assumption, that, in the judgment of those who make this pretension, the judicial tribunals are the proper functionaries to decide upon the justice and validity of the claim against the Government; and, if that decision be favorable, to provide, through the medium of judicial forms, and without any aid from the legislative department, for its discharge. And this idea is accordingly quite prominent in the communication addressed to you, on the 8th of July last, by the president of the bank.

To this suggestion I cannot assent. The particular clain of the bank is one of those demands which, had it even been allowed by the accounting officers when presented, could not have been paid out of the Treasury, because no legal appropriation had then, or has yet, been made for it. In order to its direct payment, in the usual manner, out of the Treasury, it is indispensable, according to the injunctions of the constitution, that a law should first be passed, allowing the demand, and making provision for its payment. It follows, that any course of legal proceeding, which shall have the effect to transfer from the Legislature to the Judiciary the authority to decide on this claim, and to apply the public money to its liquidation, without the sanction of a law previously passed, will plainly involve a palpable violation of the spirit, if not of the words, of the constitution. Now, it is a familiar maxim of law, founded on common sense and natural justice, and therefore very generally applied, that a party shall never be allowed to do indirectly, what the law will not permit him to do directly. And the remarks already made for the purpose of showing the incompatibility of a lien on the money or other property of the Government, within the meaning and object of the constitution, are equally applicable to this part of the case.

I am not aware of any case in which a credit or set-off has been allowed to a party sued by the United States, which was not covered by some special or general appropriation made by law; and it is very obvious that none can be allowed, except where such an appropriation has been made, without transferring from the legislative department, to whom it exclusively belongs, the control of the public purse, and the power of distributing its contents. In several recent cases, reported in 7 Peters, the Supreme Court have carried the right of set-off, in Government cases, to its utmost limit; but in all of them they proceeded on the ground that there were legal provisions which sanctioned the credits claimed, and which provided