SENATE.] Removal of the Deposites. [DEC. 26, 1833. United States, deposited in the Bank of the United States stitution, I contemplate the prospect before us with feeland its branches, communicated to Congress on the 3dings of deep humiliation and profound mortification. day of December, 1833, are unsatisfactory and insufficient. The resolutions having been read, It is not among the least unfortunate symptoms of the times, that a large proportion of the good and enlightened Mr. CLAY addressed the Senate as follows: We are, men of the Union, of all parties, are yielding to sentisaid he, in the midst of a revolution, hitherto bloodless, ments of despondency. There is, unhappily, a feeling of but rapidly tending towards a total change of the pure distrust and insecurity pervading the community. Many republican character of the Government, and to the con- of our best citizens entertain serious apprehensions that centration of all power in the hands of one man. The our Union and our institutions are destined to a speedy powers of Congress are paralyzed, except when exerted overthrow. Sir, I trust that the hopes and confidence of in conformity with his will, by frequent and an extraor- the country will revive. There is much occasion for dinary exercise of the executive veto, not anticipated by manly independence and patriotic vigor, but none for dethe founders of the constitution, and not practised by any spair. Thank God, we are yet free; and, if we put on of the predecessors of the present Chief Magistrate. the chains which are forging for us, it will be because we And, to cramp them still more, a new expedient is spring- deserve to wear them. We should never despair of the ing into use, of withholding altogether bills which have republic. If our ancestors had been capable of surrenreceived the sanction of both Houses of Congress, thereby dering themselves to such ignoble sentiments, our indecutting off all opportunity of passing them, even if, after pendence and our liberties would never have been achievtheir return, the members should be unanimous in their ed. The winter of 1776-'7, was one of the gloomiest favor. The constitutional participation of the Senate in periods of our revolution; but on this day, fifty-seven the appointing power is virtually abolished, by the con- years ago, the father of his country achieved a glorious stant use of the power of removal from office without victory, which diffused joy, and gladness, and animation any known cause, and by the appointment of the same throughout the States. Let us cherish the hope that, individual to the same office, after his rejection by the since he has gone from among us, Providence, in the disSenate. How often have we, Senators, felt that the pensation of his mercies, has near at hand, in reserve for check of the Senate, instead of being, as the constitution us, though yet unseen by us, some sure and happy deintended, a salutary control, was an idle ceremony? How liverance from all impending dangers. often, when acting on the case of the nominated succes- When we assembled here last year, we were full of sor, have we felt the injustice of the removal? How often dreadful forebodings. On the one hand, we were menhave we said to each other, well, what can we do? the aced with a civil war, which, lighting up in a single office cannot remain vacant without prejudice to the pub- State, might spread its flames throughout one of the lic interests; and, if we reject the proposed substitute, largest sections of the Union. On the other, a cherished we cannot restore the displaced, and perhaps some more system of policy, essential to the successful prosecution unworthy man may be nominated? of the industry of our countrymen, was exposed to imThe Judiciary has not been exempted from the prevail- minent danger of destruction. Means were happily aping rage for innovation. Decisions of the tribunals, de- plied by Congress to avert both calamities, the country was liberately pronounced, have been contemptuously disre-reconciled, and our Union once more became a band of garded, and the sanctity of numerous treaties openly friends and brothers. And I shall be greatly disappointviolated. Our Indian relations, coeval with the existence ed, if we do not find those who were denounced as being of the Government, and recognised and established by unfriendly to the continuance of our confederacy, among numerous laws and treaties, have been subverted; the the foremost to fly to its preservation, and to resist all rights of the helpless and unfortunate aborigines trampled executive encroachments. in the dust, and they brought under subjection to un- Mr. President, when Congress adjourned at the termiknown laws, in which they have no voice, promulgated nation of the last session, there was one remnant of its in an unknown language. The most extensive and most powers--that over the purse--left untouched. The two valuable public domain that ever fell to the lot of one most important powers of civil government are those of nation is threatened with a total sacrifice. The general the sword and purse; the first, with some restrictions, is currency of the country, the life-blood of all its business, confided by the constitution to the executive, and the last is in the most imminent danger of universal disorder and to the legislative department. If they are separate, and confusion. The power of internal improvement lies crush- exercised by different responsible departments, civil libed beneath the veto. The system of protection of Ame- erty is safe; but if they are united in the hands of the rican industry was snatched from impending destruction same individual, it is gone. That clear-sighted and reat the last session; but we are now coolly told by the Se-volutionary orator and patriot Patrick Henry justly said, cretary of the Treasury, without a blush, "that it is un- in the Virginia convention, in reply to one of his oppoderstood to be conceded on all hands that a tariff for pro-nents, "Let him candidly tell me where and when did tection merely is to be finally abandoned." By the 3d of freedom exist, when the sword and purse were given up March, 1837, if the progress of innovation continue, there from the people? Unless a miracle in human affairs inwill be scarcely a vestige remaining of the Government terposed, no nation ever retained its liberty after the loss and its policy, as they existed prior to the 3d of March, of the sword and the purse. Can you prove, by any ar1829. In a term of years, a little more than equal to gumentative deduction, that it is possible to be safe withthat which was required to establish our liberties, the out one of them? If you give them up, you are gone." Government will have been transformed into an elective Up to the period of the termination of the last session monarchy-the worst of all forms of government. of Congress, the exclusive constitutional power of ConSuch is a melancholy but faithful picture of the present gress over the treasury of the United States had never condition of our public affairs. It is not sketched or ex-been contested. Among its earliest acts was one to eshibited to excite, here or elsewhere, irritated feeling: tablish the Treasury Department, which provided for the have no such purpose. I would, on the contrary, implore appointment of a Treasurer, who was required to give the Senate and the people to discard all passion and pre- bond and security, in a very large amount, "to receive judice, and to look calmly but resolutely upon the actual and keep the moneys of the United States, and disburse state of the constitution and the country. Although I the same upon warrants drawn by the Secretary of the bring into the Senate the same unabated spirit, and the Treasury, countersigned by the Comptroller, recorded same firm determination, which have ever guided me in by the Register, and not otherwise." Prior to the estabthe support of civil liberty, and the defence of our con-lishment of the present Bank of the United States, no DEC. 26, 1833.] Removal of the Deposites. [SENATE. treasury or place had been provided or designated by law The first question which I have intimated it to be my for the safe keeping of the public moneys, but the Trea-purpose to consider is, by whose authority, power, or disurer was left to his own discretion and responsibility. rection, was the change of the deposites made? Now, is When the existing bank was established, it was provided there any Senator who hears me that requires proof on that the public moneys should be deposited with it, and this point? Is there an intelligent man in the Union who consequently that bank became the treasury of the United does not know who it was that decided the removal of States; for, whatever place is designated by law for the the deposites? Is it not a matter of universal notoriety? keeping of the public money of the United States, under Does any one, and who, doubt that it was the act of the the care of the Treasurer of the United States, is, for the President?--that it was done by his express command? time being, the treasury. Its safety was drawn in ques-The President, on this subject, has himself furnished pertion by the Chief Magistrate, and an agent was appointed a little more than a year ago to investigate its ability. He reported to the Executive that it was perfectly safe. His apprehensions of its solidity were communicated by the President to Congress, and a committee was appointed to examine the subject: they, also, reported in favor of its security. And, finally, among the last acts of the House of Representatives, prior to the close of the last session, was the adoption of a resolution, manifesting its entire confidence in the ability and solidity of the bank. After all these testimonies to the perfect safety of the public moneys in the place appointed by Congress, who could have supposed that the place would have been changed? Who could have imagined that, within sixty days of the meeting of Congress, and, as it were, in utter contempt of its authority, the change should have been ordered? Who would have dreamed that the Treasurer should have thrown away the single key to the treasury, over which Congress held ample control, and accepted, in lieu of it, some dozens of keys, over which neither Congress nor he has any adequate control? Yet, sir, all this has been done; and it is now our solemn duty to inquire, 1st, by whose authority it has been ordered; and 2d, whether the order has been given in conformity with the constitution and laws of the United States. fectly conclusive evidence, in the paper read by him to his cabinet. It is, indeed, a most extraordinary document, without precedent in the executive annals of this or any other civilized country. If the proceeding were not unconstitutional, it was certainly such as was not contemplated by the constitution. That instrument confers on the President the right to require the opinion, in writing, of the principal officers of the executive departments, separately, on subjects appertaining to their respective offices. Instead of conforming to this provision, the President reads to those officers, collectively, his opinion and decision, in writing, upon an important matter which related only to one of them, and to him exclusively. This paper is afterwards formally promulgated to the world, with the President's authority. And why? Can it be doubted that it was done under the vain expectation that a name would quash all inquiry, and secure the general approbation of the people? Those who now exercise power in this country appear to regard all the practices and usages of their predecessors as wrong. They look upon all precedents with contempt, and, casting them scornfully aside, appear to be resolved upon a new era in administration. Yet, when hard pressed, they display a readiness to take shelter under any precedent, however ill adapted it may be to their condition. Although the President has denied to the Senate an official copy of that singular paper, as a part of the people of the United States, for whose special benefit it was published, we have a right to use it. I agree, sir, and I am very happy whenever I can agree with the President, as to the immense importance of these questions. He says, in the paper which I hold in my hand, that he looks upon the pending question as involving higher considerations than the mere transfer of a The question is, by virtue of whose will, power, dictasum of money from one bank to another. Its decision tion, was the removal of the deposites effected? By whose may affect the character of our Government for ages to authority and determination were they transferred from come." And, with him, I view it as "of transcendent the Bank of the United States, where they were required importance, both in the principles and the consequences by the law to be placed, and put in banks which the law it involves." It is a question of all time, for posterity as had never designated? And I tell gentlemen opposed to well as for us-of constitutional government or mon- me that I am not to be answered by the exhibition of a archy-of liberty or slavery. As I regard it, I hold the formal order bearing the signature of R. B. Taney, or bank as nothing, as perfectly insignificant, faithful as it has any one else. I want to know, not the amanuensis or been in the performance of all its duties. I hold a sound clerk who prepared or signed the official form, but the currency as nothing, essential as it is to the prosperity of authority or the individual who dictated or commanded it; every branch of business, and to all conditions of society, not the hangman who executes the culprit, but the tribu and efficient as the agency of the bank has been in pro-nal which pronounced the sentence. I want to know that viding the country with a currency as sound as ever existed, and unsurpassed by any in christendom. I consider even the public faith, sacred and inviolable as it ever should be, as comparatively nothing. All these questions are merged in the greater and mightier question of the constitutional distribution of the powers of the Govern- Hear what the President himself says in his manifesto ment, as affected by the recent executive innovation. read to his cabinet: "The President deems it his duty to The real inquiry is, shall all the barriers which have been communicate in this manner to his cabinet the final conerected by the caution and wisdom of our ancestors, for clusions of his own mind, and the reasons on which they the preservation of civil liberty, be prostrated and trod-are founded." And, at the conclusion of this paper, what den under foot, and the sword and the purse be at once does he say? "The President again repeats that he begs united in the hands of one man? Shall the power of his cabinet to consider the proposed measure as his own, Congress over the treasury of the United States, hitherto in the support of which he shall require no one of them never contested, be wrested from its possession, and be henceforward wielded by the Chief Magistrate? Entertaining these views of the magnitude of the question before us, I shall not, at least to day, examine the reasons which the President has assigned for his act. If he has no power to perform it, no reasons, however cogent, can justify the deed. None can sanctify an illegal or unconstitutional act. power in the Government, that original and controlling authority, which required and commanded the removal of the deposites. And, I repeat the question, is there a Senator, or intelligent man in the whole country, who entertains a solitary doubt? to make a sacrifice of opinion or principle. Its responsi bility has been assumed, after the most mature deliberation and reflection, as necessary to preserve the morals of the people, the freedom of the press, and the purity of the elective franchise, without which all will unite in saying that the blood and treasure expended by our forefathers, in the establishment of our happy system of government, will have been vain and fruitless. Under these SENATE.] Removal of the Deposites. [DEC. 26, 1833. convictions, he feels that a measure so important to the if the necessary arrangements can be made; and the American people cannot be commenced too soon; and he gazette announces the same 1st day of October, and pertherefore names the 1st day of October next as a period haps sooner, if circumstances should render it necessary. proper for the change of the deposites, or sooner, pro- Mr. Duane remained in office until the 23d of September, vided the necessary arrangements with the State banks on which day he was dismissed. Is this not conclusive can be made." Sir, is there a Senator here who will now testimony that the measure was the President's; that he, tell me that the removal was not the measure and the act not the Secretary of the Treasury, decided upon it; that of the President? I know, indeed, that there are in this it was resolved on whilst Mr. Duane was yet in office; and document many of those most mild, most gracious, most that it was formally announced to the world before his condescending expressions, in which power so well knows dismission? As to the day of his dismission, we have inhow to clothe its mandates. The President flatters, and contestable evidence in the letter addressed to him on the coaxes, and soothes Secretary Duane, in the most gentle, 23d of September by the President, in which, notwithbland, and conciliating language. "In the remarks," standing all the amicable, gracious, and affectionate lansays the President, "he has made on this all-important guage of the cabinet paper, the President says, "I feel question, he trusts the Secretary of the Treasury will see constrained to notify you that your further services as only the frank and respectful declaration of the opinions Secretary of the Treasury are no longer required." On which the President has formed on a measure of great that same day, (the 23d,) Mr. Taney was appointed; and national interest, deeply affecting the character and use- on the 26th, in conformity with the will of the President, fulness of his administration; and not a spirit of dictation, he performed the clerical act of affixing his signature to which the President would be as careful to avoid as the order for the removal of the deposites, and thus made ready to resist. Happy will he be if the facts now dis- himself a willing instrument to consummate what the sterner closed produce uniformity of opinion and unity of action integrity of his predecessor disdained to execute. Such among the members of the administration." How kind! is the testimony, on one side, to sustain the proposition how gentle! and how very gracious all these civil and that the removal of the deposites was the President's own loving expressions must have sounded in the gratified ear measure, determined on whilst the late Secretary was still of Mr. Duane! They remind me of an historical anec-in office, and against his will; and establishing, beyond dote related of one of the most remarkable characters contradiction, that the subsequent act of the present Secrewhich our species has produced. When Oliver Crom-tary was in form ministerial, in substance the work of well was contending for the mastery in Great Britain or another. Can more satisfactory testimony be ever needed? Ireland, (I do not remember which,) he besieged a cer- Yet it is even still more complete. We have that of Mr. tain Catholic town. The place made a brave and stout Duane, as if no single link in the chain should be left resistance; but, at length, being likely to be taken, the unsupplied. In a late publication from that gentleman, poor Catholics proposed terms of capitulation, among addressed to the American people, after giving a history which was one stipulating for the toleration of their reli- of the circumstances which preceded and accompanied gion. The paper containing the conditions being pre- his appointment, and those which attended his expulsion sented to Oliver, he put on his spectacles, and, after de- from office, he says: "Thus was I thrust from office-not liberately examining them, cried out, "Oh, yes, granted, because I had neglected any duty; not because I had granted, certainly;" but he added, with stern determina- differed with the President on any other point of public tion, "if one of them shall dare to be found attending mass, policy; not because I had differed with him about the he shall be instantly hanged," (under what section--whe- Bank of the United States; but because I refused, withther the second or some other, I believe the historian out further inquiry for action by Congress, to remove does not relate.) the deposites." Thus the Secretary was told by the President that he Is it possible that evidence can be more complete? Will had not the slightest wish to dictate-Oh! no; nothing was any one, after this exhibition of concurring proof, derived further from his intention; that he would carefully avoid; directly from the President on one side, and from the late the President desired only to convince his judgment, but Secretary on the other, that the removal of the deposites not at all to interfere with his free exercise of an author- was not only the President's own act, but was contrary to ity exclusively confided to him. But what was the refrac- the will and judgment of the Secretary, who was himself tory Duane told in the sequel? If you do not conform removed because he would not remove them, for a single to my wishes; if you do not surrender your own judg-instant doubt on the subject? Can any one rise here, in ment, and act upon mine; if you do not effect the removal his place, and assert that the removal was not accomplishof these deposites within the short period prescribed by ed by the President's authority or command? me, you shall quit your office. And what was the fact? And now, sir, having distinctly seen whose measure this This cabinet paper bears date the 18th September last. is, I shall proceed to inquire whether it has been adopted In the official paper, published at the seat of Government, in conformity with the constitution and laws of the United through which the Executive promulgates its acts, inten- States. I repeat that it is not my purpose now to examine tions, and wishes to the people of the United States, on the reasons assigned for the act, further than as they may the 20th of the same month, two days only after the cabi-tend to show a right in the President to perform it. For net had been indoctrinated, it was stated, "We are au- if the President had no power over the abject; if the thorized to state"-"authorized!"-this is the term which gave credit to the annunciation-"We are authorized to state, that the deposites of the public money will be changed from the Bank of the United States to the State banks, as soon as the necessary arrangements can be made for that purpose, and it is believed they can be completed in Baltimore, Philadelphia, New York, and Boston, in time to make the change by the 1st of October, and perhaps sooner, if circumstances should render an earlier action necessary on the part of the Government." We see, between the cabinet paper and this official article, not merely a coincidence of time, but of language, as if the same head had dictated, and the same pen had written both. The President names the 1st day of October, or sooner constitution and laws, instead of conveying to him an authority to act as he has done, required him to keep his hands off the public treasury, and confided its care and custody to other hands, no reasons can justify the usurpation. What power has the President over the public treasury? Is it in the bank charter? That gives him but two clearly defined powers: one to appoint, with the concurrence of the Senate, and to remove the Government directors; and the other, to order a scire facias when the charter shall be violated by the bank. There is no other power conferred on him by it. The clause of the charter relating to the public deposites declares, "that the deposites of the money of the United States, in places in which the said bank and the branches thereof may be DEC. 26, 1833.] Removal of the Deposites. [SENATE. established, shall be made in said bank or branches there- of the constitution, if not overruling it. At all events, he of, unless the Secretary of the Treasury shall, at any seems to regard the issue of the election as an approbatime, otherwise order and direct; in which case the Sec- tion of all constitutional opinions previously expressed by retary of the Treasury shall immediately lay before Con- him, no matter in what ambiguous language. I differ, sir, gress, if in session, and, if not, immediately after the com- entirely from the President. No such conclusions can be mencement of the next session, the reasons of such order legitimately drawn from his re-election. He was re-elector direction." Can language, as to the officer who is ed from his presumed merits generally, and from the atcharged with the duty of removing the deposites, be tachment and confidence of the people, and also from the more explicit? The Secretary of the Treasury alone is unworthiness of his competitor. The people had no idea, designated. The President is not, by the remotest allu- by that exercise of their suffrage, of expressing their apsion, referred to. And, to put the matter beyond all probation of all the opinions which the President held. controversy, whenever the Secretary gives an order or Can it be believed that Pennsylvania, so justly denomidirection for the removal, he is to report his reasons-to nated the keystone of our federal arch, which has been whom? To the President? No! directly to Congress. so steadfast in her adherence to certain great national inNor is the bank itself required to report its periodical terests, and, among others, to that of the Bank of the condition to the President, but to the Secretary of the United States, intended, by supporting the re-election of Treasury, or to Congress, through the organ of a com- the President, to reverse all her own judgments, and to mittee. The whole scheme of the charter seems to have demolish all that she had built up? The truth is, that the been cautiously framed with the deliberate purpose of re-election of the President no more proves that the peoexcluding all intervention of the President, except in the ple had sanctioned all the opinions previously expressed two cases which have been specified. And this power, by him, than, if he had had the king's evil or a carbuncle, given exclusively to the Secretary, and these relations it would demonstrate that they intended to sanction his maintained between him and Congress, are in strict con-physical infirmity. formity with the act of September, 1789, creating and But the President infers his duty to remove the depoestablishing the Treasury Department. Congress reserv-sites from the constitution and the suffrages of the Ameed to itself the control over that department. It refused rican people. As to the latter source of authority, I to make it an executive department. Its whole structure think it confers none. The election of a President, in manifests cautious jealousy and experienced wisdom. itself, gives no power, but merely designates the person The constitution had ordained that no money should be who, as an officer of the Government, is to exercise powdrawn from the treasury but in consequence of appro- er granted by the constitution and laws. In this sense, priations made by law. It remained for Congress to pro-and in this sense only, does an election confer power. vide how it should be drawn. And that duty is perform- The President alleges a right in himself to superintend ed by the act constituting the Treasury Department. the operations of the executive departments from the According to that act, the Secretary of the Treasury is constitution and the suffrages of the people. Now, to prepare and sign, the Comptroller to countersign, the neither grants any such right. The constitution gives him Register to record, and, finally, the Treasurer to pay a the power, and no other power, than to call upon the warrant issued, and only issued, in virtue of a prior act heads of each of the executive departments to give his of appropriation. Each is referred to the law as the opinion, in writing, as to any matter connected with his guide of his duty; each acts on his own separate re- department. The issue of the election simply puts him sponsibility; each is a check upon every other; and in a condition to exercise that right. By the laws, not by all are placed under the control of Congress. The Se- the constitution, all the departments, with the exception cretary is to report to Congress, and to each branch of of that of the treasury, are placed under the direction of Congress. The great principle of division of duty, and the President. And, by various laws, specific duties of of control and responsibility--that principle which lies at the Secretary of the Treasury (such as contracting for the bottom of all free government-that principle, with- loans, &c.) are required to be performed under the diout which there can be no free government-is upheld|rection of the President. This is done from greater prethroughout. So, in the bank charter, Congress did not caution; but his power, in these respects, is derived from choose to refer the reasons of the Secretary to the Pre- the laws, and not from the constitution. Even in regard sident; but, whenever he changed the deposites, the Se- to those departments other than that of the treasury, in cretary was commanded to report his reasons directly to relation to which by law, and not by the constitution, a Congress, that they might weigh, judge, and pronounce control is assigned to the Chief Magistrate, duties may be upon their validity. required of them, by the law, beyond his control, and for Thus is it evident that the President, neither by the act the performance of which their heads are responsible. creating the Treasury Department, nor by the bank This is true of the State Department, that which, above charter, has any power over the public treasury. Has he all others, is most under the immediate direction of the any by the constitution? None, none. We have already President. And this principle, more than thirty years seen that the constitution positively forbids any money ago, was established in the case of Marbury against Madifrom being drawn from the treasury but in virtue of a son. The Supreme Court, in that case, expressed itself previous act of appropriation. But the President himself in the following language: says that "upon him has been devolved, by the constitu- "By the constitution of the United States the Presition, and the suffrages of the American people, the duty dent is invested with certain important political powers, of superintending the operation of the executive depart- in the exercise of which he is to use his own discretion, ments of the Government, and seeing that the laws are and is accountable only to his country in his political chafaithfully executed." If there existed any such double racter, and to his own conscience. To aid him in the source of executive power, it has been seen that the performance of these duties, he is authorized to appoint Treasury Department is not an executive department; certain officers, who act by his authority, and in conformibut that, in all that concerns the public treasury, the Sec-ty with his orders. retary is the agent or representative of Congress, acting "In such cases their acts are his acts; and, whatever in obedience to their will, and maintaining a direct inter- opinion may be entertained of the manner in which execourse with them. By what authority does the President cutive discretion may be used, still there exists, and can derive power from the mere result of an election? In exist, no power to control that discretion. The subjects another part of this same cabinet paper he refers to the are political. They respect the nation, not individual suffrages of the people as a source of power independent rights; and, being intrusted to the Executive, the decision VOL. X.-5 SENATE.] Removal of the Deposites. [DEC. 26, 1833. of the Executive is conclusive. The application of this chine, simple enough. There will be but one will in the remark will be perceived by adverting to the act of Con- State; but one bed, and that will be the bed of Progress for establishing the Department of Foreign Affairs. crustes! All the departments, legislative, judicial, and This officer, as his duties were prescribed by that act, is executive, and all subordinate functionaries, must lie to conform precisely to the will of the President. He is quietly on it; but it will be the repose of despotism and the mere organ by whom that will is communicated. The death. acts of such an officer, as an officer, can never be examinable by the courts. "But when the Legislature proceeds to impose on that officer other duties, when he is directed peremptorily to perform certain acts, [that is, when he is not placed under the direction of the President,] when the rights of individuals are dependent on the performance of those acts, he is so far the officer of the law, is amenable to the laws for his conduct, and cannot, at his discretion, sport away the vested rights of others. Sir, such an enormous and extravagant pretension cannot be sanctioned. It must be put alongside of its exploded compeer, the power once asserted for Congress to pass any and all laws called for by "the general welfare." Allow me, in a few words, to present to the Senate my ideas of the structure of our Federal Government. It has no power but granted power; and the power granted must be found in the constitution, the instrument granting it. If the question arise, is a specific power granted? the grant must be shown, or the power must be proven to be "The conclusion from this reasoning is, that where necessary and proper to carry into effect a granted power. the heads of departments are the political or confidential Our executive power, such as it is, must be looked for in agents of the Executive, merely to execute the will of the constitution, which has created and modified it, and the President, or rather to act in cases in which the not in the forms in which executive power practically Executive possesses a constitutional or legal discretion, exists in other countries, nor in the nature which is supnothing can be more perfectly clear than that their acts posed to belong to it in the writings of Montesquieu, or are only politically examinable. But where a specific any other speculative author. And so of our legislative duty is assigned by law, and individual rights depend upon and judicial powers. With respect to each of the three the performance of that duty, it seems equally clear that great departments into which Government is divided, the individual who considers himself injured has a right to we are to look for their respective powers into the conresort to the laws of his country for a remedy." stitution itself, and not into the theories of abstract or speAlthough I am constrained to believe that the President culative philosophers. They have neither more nor less has been mistaken in asserting that the duty has been de- power than what is given. As to each, the constitution volved upon him by the constitution and by the suffrages uses general language, which is to be interpreted not so of the American people to superintend the operation of much by its terms, as by the specific delineations of authe executive departments, and consequently to order thority which are subsequently made. In reference to the removal of the public deposites, if be deemed such the general duty assigned to the President to "take care removal was expedient, he is charged by the constitution that the laws be faithfully executed," what does that to "take care that the laws be faithfully executed." mean? According to the exposition which I am consider. And the question is, what does this injunction really im-ing, the President would absorb all the powers of Gov port? It has been contended, under it, that the execu- ernment. For, in each particular case of the execution tive aid or co-operation ought not, in any case, to be of a law, if his judgment was not satisfied that it was given, but when the Chief Magistrate himself is persuaded law, he might withhold the requisite executive agency. If that it is to be lent to the execution of a law of the United a treaty were to be carried into effect; if a law to be exeStates; and that, in all instances where he believes that cuted; or a judicial decision to be enforced, denying that the law is otherwise than it has been settled or adjudi- the treaty was valid, the law constitutional, or the decicated, he may withhold the means of execution with sion agreeable to law, he might refuse the necessary means which he is invested. In other words, this enormous to enforce the execution of them respectively; and the pretension of the Executive claims that if a treaty or law practical result of the whole would be, that nothing under exists, contrary to the constitution, in the President's Government could be done but what was agreeable to the opinion; or if a judicial opinion be pronounced, in his President. Such a view of our Government must be reopinion repugnant to the constitution, to a treaty, or to a jected. In my opinion, when the constitution enjoined law, he is not bound to afford the executive aid in the the President to take care that the laws be faithfully execution of any such treaty, law, or decision. If this be executed," it required nothing more than this, to employ sound doctrine, it is evident that every thing resolves the means intrusted to him to overcome resistance whenitself into the President's opinion. There is an end to all ever it might be offered to the laws. Congress, by the constitutional government, and a sole functionary en- fourteenth clause of the eighth section of the first article of grosses the whole power supposed hitherto to have been the constitution, is invested with power to provide for assigned to various responsible officers, checking and calling forth the militia to execute the laws of the Union, checked by each other. Can this be true? Is it possible suppress insurrections, and repel invasions. It might as that there is any one so insensible to the guaranties of well be contended that Congress, under this power, decivil liberty as to subscribe to this monstrous pretension? ciding what was and what was not law, could direct, by In respect even to affairs of ordinary administration, how the militia, that only to be executed which Congress deemenormous would it be! Various officers of Government ed to be law. By the second section of the second artiare charged with the liquidation of most important ac- cle of the constitution, the President is made commandercounts of contractors and others concerned in the dis-in-chief of the army and navy of the United States, and bursement, annually, of large sums of the public revenue. of the militia when called into actual service; and, by a The rejection or allowance of a single item of these ac- subsequent clause, the injunction in question is given to counts may fix the fate of the contractor or disbursing him. Thus invested with the command and employment agent. Hitherto this matter was supposed to be judicial of the physical force of the Union, can a doubt remain in its nature, and beyond executive control; but let this that the purpose of the direction which the constitution new heresy be sanctioned, and the President may say to gives to him to take care that the laws be faithfully exean Auditor or Comptroller, pass this, or reject that item cuted, was that he should, when properly called on by in the account, (such is my opinion of the law;) and if you the civil authority, employ that force to subdue unlawful do not, I will remove you from office. Let this doctrine resistance? Understood in any other sense, those few be once established, and there is an end to all regulated words become a vortex, into which the whole powers of government, to all civil liberty. It will become a ma-Government are irresistibly drawn. We have established |