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[APRIL 25, 1834.
ure of great national interest, deeply affecting the char-retary of the Treasury, the more ample powers of Conacter and usefulness of his administration; and not a gress, the powers conferred on the President by law to spirit of dictation, which the President would be as care- sue a scire facias to repeal the charter, in the circuit court ful to avoid as ready to resist."
of the United States, and demand a trial upon process exHere the Secretary of the Treasury was told by Presi. ecuted only fifteen days before the term, were too slow dent Jackson, that the Secretary was responsible to Con- and quite insufficient for the President. If a scire facias gress; that the Secretary's reasons are to be judged by had been resorted to, then the corporation would have Congress; they must be good to relieve the Secretary's been informed of the nature of the accusation; must have responsibility.' lle is told that President Jackson does been heard in defence; the facts in issue must have been not desire the Secretary to do any act which he in his tried by witnesses and a jury; and the court must have conscience condemns" or "believes unlawful;” dictation pronounced upon the sufficiency of the accusation. This is not intended, but only a “frank” expression of opinion. process of law—the trial by witnesses and a jury and a Who that is himself frank and honest could have imagin- court-was not sufficiently forcible and powerful. The ed, after this, that when Mr. Duane gave his candid opin- bank monster was to be destroyed, and the operation could ion and judgment against a removal of the deposites, and only be trusted to another monster, a court of “criminal could see no good reasons to acquit his conscience, and equity," combining the legislative, judicial, and execuhis responsibility to Congress, in case he should order a tive powers, in the same person; where the accuser sat removal, that he would be dismissed from office by Pres-judge; heard the witnesses in secret, made the offence, ident Jackson, for refusing to submit to the dictation of and declared and inflicted the punishment-the offence, the President; for refusing to do an act " which he be the conviction, and the punishment, all being published lieves unlawful,” and “in bis conscience condemr.s?" to the accused and to the people at one and the same But when, on the 23d of September, Mr. Duane could see breath. no good reasons for the removal of the deposites, and But the rights of the corporation are not the only pritherefore refused to issue such order, the relative rights vate rights which have been invaded by this court of star and powers and duties of the President and the Secretary chamber, sitting in privy council, in criminal equity. The of the Treasury were suddenly changed.
corporation is a mere faculty—a person existing only in But of the contrast between the sentiments delivered contemplation of law. A corporation cannot commit before and after the refusal by Mr. Duane, I may speak treason, nor murder, nor felony, nor crimes. Criminal further hereafter.
offences may be charged upon the individuals acting as It is plain that the law required the moneys to be de- president and directors, not upon the mere faculty which posited for safe keeping in the Bank of the United States; exists in its name, and acts and moves only by the agency but a power to suspend the execution of this law, was of men. The president and directors, then, are the perconfided, not to the President, but to the Secretary of the sons who have offended, as charged in the manifesto, Treasury. "The power of suspending laws, or the exe against “the morals of the people, the freedom of the cution of them, ought never to be exercised but by the press, and the purity of the elective franchise." Now, Legislature, or by authority derived therefrom, to be ex- the president and directors are men of business, American ercised in such particular cases only as the Legislature citizens, of good name, fame, and reputation, possessing shall expressly provide for.” This is one of those max- the esteem and confidence of their fellow-citizens; chosen ims, those self-evident truths, declared by the bill of rights by men of business and property, to take charge of and of the States before the adoption of the Federal constitu- manage the joint concerns of a capital of thirty-five miltion, and which now appears in the bill of rights of eigh-lions of dollars, of which twenty-eight millions belong to teen States. The suspension of the law was not by the private persons. And yet these trustees, so reputable, authority of the Congress when the President thought fit so chosen, and so confided in, are, by the manifesto, charso to order, but only when the Secretary of the Treasury ged with aggravated breaches of trust, with corruptions, should so order, for reasons appearing to him to justify with converting the means of their confiding employers the act. The President having taken upon himself to sus. " 10 embroil the country in deadly feuds, and, under cover pend the law, when the discretion was not confided to of expenditures in themselves improper, extend its corbim, by overruling the discretion and judgment of the ruption through all the ramifications of society.” These Secretary, to whom the authority was particularly confi. are serious charges. They are promulgated by a Presided by the laws, did suspend a law of Congress without dent of the United States. He has tried them in a court authority, and in a case not provided for. The President of criminal equity, of his own creation, by witnesses heard would not suffer the law to take its course. But, under only by himself: he has punished the stockholders and the color of a power to see the laws faithfully executed, he country for offences, made known by accusation, convicdid break the law.
tion, and punishment, simultaneously announced to the Without trial, without a jury, without law, the char- offenders and to the public. The bank, created by the tered privileges and immunities, the private rights of the Congress and President Madison, was a “monstrous goldstockholders of the bank were despoiled, violated, and en calf," and President Jackson (as a modern Moses) has taken away. The information and trial were in secret, produced a new monster, a huge many-beaded serpent, to unavowed; the offence is not defined by any law; the of. swallow the golden calf. fence and the punishment were measured by the Presi- There are passages in the manifesto which ought not to dent's will.
pass unnoticed. Speaking of his message to Congress, The most odious features of the Star Chamber in Eng- recommending an inquiry into the affairs and conduct of land were, that the trials were for offences not defined by the bank, and the resolution of the House of Representalaw, created at the pleasure of the King and his privý tives consequent upon that inquiry, he says, “It is true council, “enjoining to the people that which was not en- that, in the message of the President which produced this joined by the laws, and prohibiting that which was not inquiry and resolution on the part of the House of Repprohibited, and dealing out censures and punishments by resentatives, it was his object to obtain the aid of that body the like unrestrained will." Lord Bacon called it a court in making a thorough examination into the conduct and of “criminal equity.” To have the definition of a court condition of the bank and its branches, in order to enable of criminal equity, we must look to a court claiming a the Executive department to decide whether the public large and liberal construction in ascertaining offences, and money was longer safe in its hands." a discretionary power in affixing the punishments--which “ But it was not his purpose (as the language of his is a monster in jurisprudence. The powers of the Sec-I message will show) to ask the representatives of the peo
APRIL 25, 1834.]
[SENATE. ple to assume a responsibility which did not belong to
Free-will they, one way, disavow,
Another, nothing else allow; them, and relieve the Executive branch of the Govern
All piety consists therein, ment from the duty which the law bad imposed upon it.”
In them, in other men, all sin." “Whatever may be the consequences, however, to him-With President Jackson it is all right, for him, to follow self
, he must finally form his own judgment, where the his own will, conscience, and responsibility, in construing constitution and the law makes it his duty to decide, and his powers and duties under the constitution and the laws; must act accordingly.” The translation of these sophisti- but, in other men, it is sinful to consult their conscien. cated sentences into plain language is this: that by the constitution and the law he has the custody of the publicces, judgment, and responsibility, as to their duties and
powers. money; as the Congress did not do in that behalf what he
But, to prevent the "blood and treasure expended by thought their duty required, he has taken the matter into our forefathers in the establishment of our happy system his own keeping, and will act accordingly. Do we live of government” from becoming "yain and fruitless," under a Government of laws or under the rule of one man? President Jackson tells us that he had determined on the Has be the right thus to rate the guardians of the public removal of the deposites, and that “its responsibility has treasure, and chide them for not doing bis will? Has the been assumed, as necessary to preserve the morals of the spirit of our fathers fled to brutish beasts, and left a petty people, the freedom of the press, and the purity of the race of men to peep about and find dishonorable graves? elective franchise.” This tyrant necessity, which knows Public opinion is seldom erroneous when founded on cor- no law, has been but too often the plea of ambition for rect information as to the true state of facts. But, re
overturning established systems of free government, for moved from the source of true intelligence, it is easy for the purpose of preserving the morals and freedom and those who have an interest in imposing upon the people happiness of the people from their own worst enemies, to mislead them to a concurrence in measures destructive themselves.” to their welfare and happiness. But there is a sense of
The system of government established by our forejustice and generosity in the public not often to be found fathers, declared that religion and the freedom of the in men who hold the reins of government. When the press were rights too sacred to be legislated upon. The people, by candid statements of facts, and by temperate Federal constitution declares that “Congress shall make arguments, find their opinions are erroneous, they readily no law respecting an establishment of religion, or prohibrenounce them, and turn their resentments against their iting the exercise thereof, or abridging the freedom of deceivers. The tax-payers have no interest in being de- speech or of the press.” The freedom of the press is exceived, or in deceiving the public—the tax-receivers have. cepted specially from the powers of legislation; and yet
But the President has complained of the Senate for hav. President Jackson bas, by necessity, found a power in the ing censured him without a hearing. Of that I shall speak President of the United States for punishing the presihereafter. But when he desired to censure the president dent, directors, and stockholders, for using the press in and directors, and to punish the bank by a removal of the defending themselves and their interests against their asdeposites, then no hearing, no trial, no avowal of charges sailants. Wben, and by what authority, was the Presior accusations was necessary. The example, set by God dent invested with the powers of a censor, to preserve the -himself, in calling Adam to answer before he was con- morals of the people and the liberty of the press from demned, has taught a lesson to mortals; it has been adopt- licentiousness? When was he invested with a supreme ed as fit to be observed by all just human tribunals. This
power to publish libels upon the character of respectable is, however, no rule of conduct when the President is to citizens, and to extinguish their rights of self-defence? act: but if he is to be acted upon, then this and other good
The liberty of the press is the great sentinel of the old principles of 1776, are all remembered and held up to state, the grand detector of governmental imposition and shield and protect him. If the President is to act, then usurpation; and when it dies, the spirit of free govern, his own responsibility, his own conscience and judgment ment and the liberties of the people are strangled and are to determine the true rule of his conduct and his duty buried in one common grave. But, when Mr. Duane was called to act, then his oath, his
That the President should thus proclaim that he had conscience, his judgment, his responsibility to Congress, taken under bis censorship “the morals of the people, were not to determine his course, but he was to follow the the freedom of the press, and the purity of the elective President's conscience and mode of thinking. When franchise," gives just cause of alarm. For that, in the President Jackson argues for an unqualified power in himself,* then the concurrent authority of President Wash: eye of power, is purity which upholds and lauds his do
ings, and that is licentious abuse which exposes his errors ington, of the Senate and House of Representatives, num- and misdeeds; examples of which have come but too near bers of whom had taken an active part in the convention which framed the Federal constitution, and in the State
2dly. The claim to control the public Treasury, set up conventions which adopted it,” are arguments irresistible by the President and carried into practical operation, is to his mind. But, when the bank is in question, then thus argued: The
whole Executive power is vested in the neither the concurrent authority of President Washing President by the constitution: the Treasury is an executive ton, of the Senate and House of Representatives of 1791, department: the power of the Secretary of the Treasury nor of the makers, nor of the ratifiers of the Federal con over the deposites is unqualified: the President has an stitution, nor the example of President Madison, nor the unqualified power of removing all the officers except the opinions of the Senate and House of Representatives of judges; and thus he has the control of the whole Execu1816, nor of the Supreme Court, are of any avail, t,“ mere tive power of the Government. This leads me to the precedent is a dangerous source of authority.” Now general head under which I proposed to consider the Exihese opposite opinions, promulgated according to times ecutive proceedings in relation to the public revenue; the and circumstances, remind me of certain lines in Iludi- manner in which ihey have been made to bear upon the bras, applied by the author to those fanatics in religion officers of the Treasury and the public revenue. and politics whose services Cromwell made available
The President took to himself an unqualified power of to overturn the Government of England and proclaim removing the public deposites, and when Mr. Duane dehimself “Lord Protector.” The inconsistencies of the livered his opinions and reasons, and refused to comply leaders are thus ridiculed by Butler, in the following lines: with the measure, he was dismissed. * The self same thing will abbor,
I concede to the President the power to remove all offiOne way, and long, another, for:
cers appointed by him, whose tenure of office is not re* Protest. + Veto message.
quired by the constitution to be during good behaviour.
[APRIL 25, 1834.
My opinion is, that it is a power resulting from the con- Until the President had dismissed Mr. Duane, and was stitution; and, furthermore, the Senate has not the right, compelled to find justification for this onward march, his in my opinion, to call upon the President for his reasons own construction of the constitution and the law taught for removing an officer.
him that the power over the public deposites was confided But. I ain far from admitting “that the President de to the Secretary of the Treasury, and not to the President; rived an unqualified power of removal from that instru- that the Secretary of the Treasury was responsible for his ment itself, which is beyond the reach of legislative au- own acts, not the President; as I will show from the thority,” as he has asserted in his protest, and exercised declarations and conduct of President Jackson. in the dismissal of Mr. Duane. This claim of an unquali- Here Mr. B. read from the message of the 10th July, fied power is new to me, either in the State or Federal 1832, assigning his reasons for refusing to approve the Governments. I reject it as inimical to the very genius bill, for prolonging the charter of the Bank of the United and life of our institutions. Offices are public trusts, not States, as follows: private property. The powers of the office are confer- “If the opinion of the Supreme Court covered the ied for public uses and benefits, not for the mere private whole ground of this act, it ought not to control the coemolument and gratification of the officers. Like all ordinate authorities of this Government. The Congress, trusts, the powers of the trustees are qualified by the uses the Executive, and the Court, must each for itself be and ends for which the trusts and powers were created guided by its own opinion of the constitution. Each puband conferred. The powers of taxation delegated to lic officer who takes an oath to support the constitution, Congress, although not expressly limited to any specific swears that he will support it as he understands it, and amount not to be exceeded, are nevertheless qualified, not as it is understood by others.” The constitution of that is to say, softened, diminished, and regulated by the the United States prescribes that all officers, "both of the uses and purposes “to pay the debts and provide for the United States and of the several States, shall be bound by common defence and general welfare of the United States." oath or affirmation to support this constitution.” Mr. So the power of removal of officers, although not ex- Duane, as Secretary of the Treasury, was bound by oath pressly limited by the constitution to any particular spe- to support the constitution of the United States, and by cified causes, is yet qualified and regulated by the public an additional oath, required by act of Congress, he was uses and benefits for which it was conferred; and is abu- bound " well and faithfully to execute the trust commitse:1 and perverted when exercised to attain illegal ends, or ted to him.” According to President Jackson's own solto subserve selfish ambition, or to obstruct the laws, or emn declaration in his message, Mr. Duane's oath bound produce detriment to the public weal.
him to support the constitution and discharge bis duty as The Senate did not pry into the reasons of the Presi- he understands it, and not as it may be understood by dent for removing Mr. Duane. But the causes are known Gen. Jackson. In the manifesto of the 18th September, from the river St. Lawrence to the Gulf of Mexico, from before Mr. Duane bad refused, the language of the Presithe Atlantic ocean to the Rocky mountains. They have dent was equally explicit in the passages I have before been published to the people by authority of the Presi- read from that document. “ The power of the Secretary dent; we have them avowed in his protest to the Senate. of the Treasury over the deposites is unqualified.” “His Mr. Duane was selected by the President for the office of responsibility to Congress;"' “the only object of the proSecretary of the Treasury. His talents were of a high vision is to make his reasons accessible to Congress, and order; his integrity was notorious and unsuspected; his enable that body the more readily to judge of their soundbabits of business and diligence were confirmed; his so- vess and purity;" “ far be it from him (the President) to briety might have admitted him as an honorary member expect or require that any member of the cabinet should, of the temperance society. His moral and intellectual at bis request, order, or dictation, do any act which he bequalifications for office were known and acknowledged by lieves unlawful or in his conscience condemns.” He dethe political opponents of the administration, as well as sires Mr. Duane to see only the frank and respectful by its supporters. He came into office bearing the confi- declarations of the opinions of the President; and not a dence of the President and of his country. He devoted spirit of dictation, which the President would be as carehis time and his talents to the duties of his office. But in ful to avoid as ready to resist." These are the sentia few months he was dismissed. Not because he was ments so explicitly declared and repeated by the Presinegligent, not for intemperance, not for incapacity, not dent. The power was the Secretary's--the responsibility for want of integrity. As to all the moral and intellect. to Congress was the Secretary's—the reasons were to be ual requirements for the office, Mr. Duane had in the good, and to be the Secretary's reasons. Can there be practice sustained the anticipations of public confidence any doubt about this. Suppose the Secretary had been and expectation. But the President anxiously looked to so weak as to yield a passive obedience to the will of the the removal of the public deposites from the Bank of the President, and had reported to Congress, as his justificaUnited States. The Secretary of the Treasury could not tion for removing the deposites, “ The President ordered see reasons to justify him for adopting such a measure. me and I did remove. My judgment opposed it as wrong; The fatal manifesto was read; the President signified (not but the President took its responsibility on bimself!” through another but in his proper person) that he desired Would such a report by the Secretary be deemed a comthe removal, and took the responsibility on himself. But pliance with the law? Would not such a report bave the Secretary of the Treasury was noi convinced by the been disgraceful to the Secretary? Would it not have logic of the manifesto. His reason and his conscience acknowledged a breach of the trust confided to him; a would not permit him to adopt the views of the Presi- contempt of the law, and a misdemeanor in office. Such dent: the law required him to report his own reasons to a report to Congress would be no better than the excuse Congress: his oathi and his judgment told him that he held by Eve, for a breach of the law, when she answered, the power of removal as a sacred trust, for the people, " The serpent beguiled me and I did eat.” not for the President only: he was responsible for his own But if the President believed that the power to remove conduct, and that the President could not absolve the the deposites belong to him, where was the necessity of Secretary from his oath and responsibility. Mr. Duane removing Mr. Duane. If he had the power, an order refused to order tlie removal. He refused to surrender under his own sign manual would have been as effectual a duty and trust committed to him by law; he refused to as if signed by his subordinate. If an order be issued to wrong his conscience and his judgment. Because he re- the commodore of a squadron to change his station, and fused to bend his knee in token of subjection and passive cruise in other latitudes, signed by the President with his obedience to Executive will, Mr. Duane was dismissed. proper name, would such an order be less authoritative
APRIL 25, 1834.)
than if signed by the Secretary of the Navy? If an or- dent, “agreeably to the constitution," and to conduct the der issued to the major general of an army or the com- business as the President “shall from time to time order mandant of a fort, be signed by the President himself, is or instruct.” But, in the Treasury Department, no auit less authoritative than if it had been signed by the Sec- thority is given or admitted that the President shall “enretary of the Department of War? If instructions to a join, order, or instruct,” the Secretary in the performforeign minister, as to the basis of a treaty, be signed by ance of his duties. His duties relate to the management, the President himself, would they be less authoritative improvement, and collection of the revenue; the supthan if signed by the Secretary of State! All these acts port of the public credit; the superintendence of the pubof the President would be lawful and effectual, because, lic expenditures, and sale of the lands; to making reby the constitution, he is the commander-in-chief of the ports to the Legislature, or to either branch, respecting army and the navy, and has the power to origiriate trea- all matters which appertain to his office; and to the perties for the advice and consent of the Senate. These formance of all such services relative to the finances as three departments are properly and in the strictest sense he shall be directed to perform. These are the general Executive departments, so named in the title, so known outlines of his duties, prescribed by the law creating the in the body of the acts constituting those departments. department. His duties relate to the powers and trusts The Secretaries are by the acts respectively directed to delegated by the constitution of the United States to the “perform and execute such duties as shall from time to Legislative department, not to any of the political powers time be enjoined on or intrusted to him by the Presi- or duties vested by the constitution in the President. The dent of the United States, agreeably to the constitution, Departments of State, War, and Navy, relate to powers relative to," &c., naming in the respective acts, the sub- and duties delegated and confined by the constitution to jects of the army, the navy, and our foreign relations. the Executive department of the Government. To my "And furthermore, that the said principal officer shall mind, it is clear, that the duties of the Treasury Depart. conduct the business of the said departments in such man- ment are not of or belonging io the Executive departner as the President of the United States shall from time ment, according to the distribution of powers between to time order or instruct.” These three departments the three great departments of the Government; but that (formerly but two, “the Department of Foreign Af- they do properly belong to the Legislative department; as fairs," and "the Department of War,” embracing army I shall explain more fully hereafter. and navy) relate to the powers and duties vested in the President Jackson déclared, in his message to ConPresident by the constitution—they are properly and gress of the 10th July, 1832, “ Each public officer who strictly Executive departments, to conduct the executive takes an oath to support the constitution, swears that he powers declared by the constitution as such, and vested will support it as he understands it, and not as it is underin the President. Wherefore any order issuing from stood by others.” In his manifesto of the 18th Septemeither of these departments, “agreeably to the constitu- ber, 1833, he declared the power over the deposites betion,” are signed for convenience, not of necessity, by longed to the Secretary--that the removal was to be justhe Secretaries respectively, in the name and by authori- tified by the Secretary for his own reasons, and upon his ty of the President, but if signed by the President him- own responsibility. In the message of the 6th December, self, would be regularly authoritative and to be obeyed. 1831, the President alluded to the report of the Secreta
But if the President himself bad signed with his own ry of the Treasury, and by that message it plainly apname an order to the collectors and officers of the cus-pears he had seen and read the report. The President toms and revenue for removing the deposites, such order alluded to the Bank of the United States. The Secretawould not have been authoritative and legally binding, ry of the Treasury recommended a prolongation of the otherwise the President would not bave been under the charter of the Bank of the United States. He therein renecessity to remove Mr. Duane, to accomplish that meas-fers to the act establishing the Treasury Department, to ure. But the Treasury Department is not an Executive the duties therein enjoined upon the Secretary of the department, in the sense used by the President. Much Treasury-that his report implies “no commitment of has been said about its being called an Executive depart- any other department of the Government, each being left ment by the bill originally reported in 1789, for consti- free to act,” &c. Upon the principle that the Secretuting the Treasury Department. Now, I shall not found tary was responsible for his own acts, and that the law an argument upon the mere cognomen given or withheld had imposed a particular duty on the Secretary, the Presin the title or body of an act of Congress, but shall look ident did not suppress this report, although it contained to the substance and nature of the power itself, and to the recommendations and arguments at war with the opinions department to which it is assigned by the constitution. then entertained by the President touching the Bank of But the claim by the President to the Treasury as an ex- the United States, if we may judge from his veto mes. ecutive department, has not even the feeble foundation of sage of the same session. the name to stand upon. Three bills were reported in In those times, the President acted upon the principle 1789, by a committee: one “for establishing an execu- that each public officer who takes the oath to support the tive department to be denominated the Department of constitution, and also the oath “well and faithfully to exeForeign Affairs;" a second for establishing an executive cute the trust confided to him," was responsible for bis department to be denominated the Department of War;" own actions and conduct; that he swore for himself; that the third, "for establishing an executive department to his conscience and his judgment were to govern his conbe denominated the Treasury Department.” They pro- duct; that he, the President, could not absolve the officer gressed under these respective titles, until committed; from his oath and his duty, and smother his conscience and the committee reported various amendments, and and his judgment under Presidential responsibility. the bill concerning the Treasury was shorn of its title as I agree with those former opinions of President Jackan executive department, and appeared and was passed son. I agree that an oath imposes a duty and responsiunder the title as it now appears in the statute-book-bility upon the person who takes it. It is an adamantine " An act to establish the Treasury Department.” So chain which binds his conscience to the judgment seat of that even the name did not pass in silence in 1789. In Him who is all wise, perfect in purity and in truth, and this there can be no mistake; the Journal is the witness. unchangeable: it subjects his conscience not to the err
The acts require the Secretaries of the Department of ing, changeable, passionate dictates of earthly power. Foreign Affairs, now the Department of State, and of the Where the heads of departments are the confidential Department of War, now divided into two, the-War and agents of the President, merely to execute his will in the Navy, to execute the duties enjoined by the Presi- cases of political power and discretion delegated to bim by
[APRIL 25, 1814.
the constitution, their acts are only examinable by the tri- currency of other banks, to receive and issue their notes bunal of public sentiment. But where the law itself as in the administration of the public receipts and disbursesigns to an officer the performance of a duty, and the Le- ments, and by his orders, patronage, and management, gislature vests a discretion in that officer, then he is the has endeavored to bring the currency of these selected officer of the law, answerable to the law, responsible for banks in competition, as far forth as he could, with the his own conduct: and if the President takes to himself currency of the Bank of the United States. This is a viothe power and discretion confided by law to that other, lation of the spirit and intent of the engagement to which he usurps an authority: and if he dismisses the officer for the faith of the United States was solemnly pledged, preferring his own honest judgment of his duty and trust which pledge ought to have been regarded most scruputo the will of the President, then he abuses the power of lously. The distinction between banks sustained by the removal confided for a legitimate beneficial use, and per- President, and banks sustained by law, to cripple the verts it to an arbitrary, despotic end.
currency of the country, may satisfy some casuists, of inSo the act of the President in ordering and controlling durated consciences, but to me it seems to be but a disthe removal of the public deposites from places of un- tinction between doing wrong and avoiding to do right. doubted safety appointed by law, to places chosen by the 3dly. The actings of the President in relation to the President, was the assumption of power not conferred public revenues, and the doctrines avowed by the proupon him; and the dismissal of Mr. Duane for refusing test in defence of his conduct, deserve serious considerato obey such dictation, was a gross abuse of the vested tion, as disturbing the distribution of powers, and the power of removal.
safeguards ordained by the constitution. Here it may be remarked, that the fifteenth section of He claims every kind of executive power as vested the bank charter, under the expression “unless the in the President by the constitution. Secretary of the Treasury shall at any time otherwise or- He considers all executive officers as his agents-that der and direct," conferred upon that officer a single he is responsile for them and they to him and that he naked discretionary authority to stop the deposites from has a right “to discharge them when he is no longer being made in the Bank of the United States. But it did willing to be responsible for their acts.” pot give an authority to select places to which the moneys He alludes to the British Government as that from should be removed, to choose State banks, make con- which many of the fundamental principles of our systracts and leagues, and institute a new system of finance. tem are derived; to the power vested, originally, in the By the act to establish the Treasury Department, of Sep-King to “appoint and remove at will all officers, executember, 1789, the duty of the Treasurer is enjoined " to tive and judicial. He says it was to take the judges out receive and keep the moneys of the United States," and of this general power of removal, and thus to make them to disburse them in the form and manner therein pre. independent of the Executive, that the tenure of their scribed. He is required, before he enters upon the du- offices was changed to good behaviour. Therefore he ties of the office, to enter into bond, with security, “for argues, that his power and control as to all other officers the faithful performance of the duties of his office, and for appointed by him, is left unchecked by the constitution;" the fidelity of the persons to be employed by him." that is, dependent on his will, subject to his order, and The Treasurer may consequently secure himself by re- bound to obey his direction. quiring from the persons to be employed by him, bond His power of removal he claims to be “unqualified,” and security for their fidelity. Whilst the moneys remain and that by this power he has the control over their conin the hands of the collectors, they and their sureties are duct, extending not only to the beads of departments, bound to keep them safely: when received by the Treas- but as “embracing every grade of executive officers, urer, or by persons by him employed, he and his sureties from the heads of departments to messengers of bureaus. are bound to keep them safely until disposed of accord- He claims the Treasury as an executive department; ing to law. When, by the act of 10th May, 1800, (vol. he claims the custody of all the public property and 3, p. 385,) collectors were directed to deposite the reve- money, as belonging to the Executive power, and as “an nues in the Bank of the United States, the Treasurer was appropriate function of the Executive department, in this released from the responsibility for the safe keeping of and all other governments.” the moneys, and responsible only for the disbursements He claims that “the Treasury Department is wholly exthereof, by warrants duly drawn in pursuance of appro- ecutive in its character and responsibilities”—"that the priations by law. So, also, when by the act of 1816, the Secretary of the Treasury is wholly an executive officer" moneys were ordered to be deposited in the new Bank of that he is the mere instrument of the Chief Magistrate the United States.
When the Secretary of the Treasury in the execution of the laws, subject, like all other heads undertook to order and direct that the public moneys of departments, to his supervision and control”--that should no longer be deposited in that bank, the power the Secretary of the Treasury, the Treasurer, Register, conferred upon him by the fifteenth section of the bank Comptrollers, Auditors, and clerks, who fill the offices charter was fulfilled; and thereupon the Treasurer was of that department, are on the same footing with corlaid under the responsibility “to receive and keep the responding grades of officers in all other executive demoneys of the United States, and to disburse the same," partments.” as prescribed by the act of 1789, (vol. 2, p. 49.) But He claims that his power of control extends, by virtue when the Secretary, by order of the President of the of his power of appointment and removal, to all officers United States, placed the moneys in the banks selected and their “subordinates,” (except the judges, and such by themselves, for whom the Treasurer is not responsi- officers whose appointments may, by the constitution, be ble, they intercepted the moneys from coming to the pos- vested in the courts of justice,) from the highest to the session and keeping of the Treasurer and the persons to lowest, from the secretaries to the messengers and tidebe employed by him; they released the Treasurer from waiters. But as if afraid of surrendering any power by his responsibility for safe keeping, imposed upon him by non-claim, or as if the Congress were to make to him a law; they did, by so doing, assume upon themselves "au- formal surrender of every power he does claim, he prothority and power not conferred by the constitution and ceeds to tell us, in a manner too explicit to admit of laws, but in derogation of both.” The Congress and the doubt, what he means by this entire executive power President together were not at liberty to establish ano-vested in him by the constitution. Ile proceeds, by certher bank during the existence of the present bank char- tain specifications, so to extend his control through all ter, for which the faith of the United States was pledged. the ramifications of the administration of the powers deleBut the President alone has undertaken to establish the gated to all the departments, wherever his power of re