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APRIL 25, 1834.]
(SENATE. moval can reach the officer, either directly, or by indirec- retaries and their subordinates, “down to messengers of tion, through the head of the department; and most ex- bureaus,” “superintendents and keepers,” been altered? plicitly extends it to the Treasury Department, and all its Had the Treasury Department ceased to be Executive, officers, agents, and assistants.
or the Secretary and his subordinates ceased to be the (Here Mr. B. read passages from the protest, in which mere "instruments” of the Chief Magistrate, by the rethose powers were asserted as belonging to the President marks of the Senators? Had the power of Congress been by the constitution. The passages following, he said, enlarged in these four days, so as to enable them to create claimed marked attention.]
an officer to take charge of the public moneys and prop“The custody of the public property, under such regula- erty, whose appointment would not devolve upon and tions as may be prescribed by legislative authority, has al- who would not be responsible to the President? Had the ways been considered an appropriate function of the constitution been changed so that the custody of the pubExecutive department, in this and all other governments. lic moneys might not be intrusted to the Executive deIn accordance with this principle, every species of partment. Not a particle of the Executive power asserted property belonging to the United States, (excepting that over the public treasury is intended to be relinquished. which is in the use of the general co-ordinate departments The cloven foot had been protruded too far into light. of the Government, as means to aid them in perform- It stood in such bold relief in the picture, as to intimidate ing their appropriate functions,) is in charge of officers and alarm. The knowing worshippers at the shrine of appointed by the President, whether it be lands, or prerogative and patronage, were afraid of the success of buildings, or merchandise, or provisions, or clothing, or such an exhibition. Therefore, a pleasing veil was to be arms and munitions of war. The superintendents and drawn over the deformed limb, to obscure it from the keepers of the whole are appointed by the President, view of the simple followers. No claim of prerogative responsible to him, and removable at his will.”
is abandoned. It is retained under the words “unless But to prevent all doubt about the claim and control as- he be an officer whose appointment is, under the constituserted over the Treasury, the protest proceeds: tion and laws, devolved upon the President," "and for
“Public money is but a species of public property. whose conduct he is constitutionally responsible.” For It cannot be raised by taxation or customs, nor brought the protest yet asserts “no officer can be created by into the Treasury in any other way, except by law; but Congress for the purpose of taking charge of it, (the whenever or howsoever obtained, its custody always has money,) whose appointment would not, by the constitubeen and always must be (unless the constitution be tion, at once devolve on the President, and who would changed) intrusted to the Executive department. No not be responsible to him for the faithful performance of officer can be created by Congress for the purpose of his duties." The President yet asserts that he is respontaking charge of it, whose appointment would not by the sible for the agents of his own choice to aid him in the constitution at once devolve on the President, and who performance of his duties, and that he has an unqualified would not be responsible to him for the faithful perform-l power to “dismiss them when he is no longer willing to ance of his duties. The Legislature may undoubtedly be responsible for their acts.” The Chief Magistrate has bind him and the President by any laws they may think been made to stvop. In this seeming explanation he plays proper to enact; they may prescribe in what place partic- a part in the drama wholly beneath him and the dignity ular portions of the public money may be kept, and for of his station. The explanation is but a cunning device, what reason it shall be removed,” &c. -"yet will the cus- too shallow to deceive any but such as are willing to be tody remain in the Executive department of the Govern- deceived. ment."
The grasp of the public moneys has not been yielded “ Congress cannot, therefore, take out of the hands of the by the President. The reasons reported by his agents, Executive department the custody of the public property appointed to aid and assist him, have not met with the or money, without an assumption of executive power, approbation of the Congress. They have been disapand a subversion of the first principles of the constitu- proved by the Senate, and have no approbation by the tion.” Sueh are the transcendent prerogatives so expli- vote of the House of Representatives. At yet the pubcitly claimed by the President in his protest transmitted lic moneys are not restored to the place appointed by law to the Senate on Thursday the 17th. But on Monday for safe keeping, and cannot be, unless by the concurthe 21st, an explanation, as it is called, was sent “to pre-rence of two-thirds of both Houses, the President yet vent misapprehension." Here Mr. B. read from that holding to his possession, and having the power to intermessage:
pose his veto. “ I admit, without reserve, as I have before done, the He has told us " the Secretary did not concur, and deconstitutional power of the Legislature to prescribe, by clined giving the necessary order and direction” for relaw, the place or places in which the public money or moving the deposites; that the President therefore used other property is to be deposited; and to make such reg- the painful alternative of dismissing the head of one of ulations concerning its custody, removal, or disposition, the departments, (Mr. Duane;) “his place I supplied as they may think proper to enact. Nor do I claim for with one whose opinions were well known to me, He the Executive any right to the possession or disposition of has told us “that the law establishing the bank did not, the public property or treasure, or any authority to inter- as it could not, change the relation between the President fere with the same, except when such possession, dispo- and the Secretary.' sition, or authority, is given to him by law. Nor do I By the President's own avowal in his protest, we have claim the right in any manner to supervise or interfere these facts: that he decided on the removal of the deposwith the person intrusted with such property or treasure, ites: that the Secretary of the Treasury (Mr. Duane) unless he be an officer whose appointment is, under the did not concur in that opinion: that the Secretary refused constitution and laws, devolved upon the President alone, to give the necessary order and direction: that the Presior in conjunction with the Senate, and for whose conduct dent therefore dismissed him, and appointed another, he is constitutionally responsible.”
whose opinions he well knew: that Secretary, so succeed. Does this explanation renounce or gainsay any part of ing Mr. Duane, with the sanction of the President, “ with the prerogative claimed in the protest? Had the investi- my sanction,” proceeded to remove the public moneys ture of the whole Executive power in the President been from the Bank of the United States, into the banks sechanged between the 17th and 21st? Had the power of lected for the occasion. appointment and removal been changed in these four These acts are the practical illustrations of the powers days? Had the Executive power of control over the Sec- claimed, exercised, avowed, and defended by the protest.
[APRIL 25, 1834.
The protest contains General Jackson's theory of the Among the powers granted to Congress, are the folconstitution; Mr. Duane's case, and the subsequent acts, lowing: show the President's practice.
To lay and collect taxes, duties, imposts, and excises, More alarming doctrines, or greater heresies, have nev- &c. These powers are charged with their duties to pay er been preached from high places in the United States. the debts and provide for the common defence and genI hold these to be axioms:
eral welfare of the United States. 1st. That the constitution of the United States creates To borrow money on the credit of the United States. a government of limited powers in every department To raise and support armies, but no appropriation of thereof.
money to that use shall be for a longer term than two 2d. That a virtual curb and effective check upon the years. will of undelegated prevalent power, was intended by the To provide and maintain a navy. constitution.
To exercise exclusive legislation and authority over all 3d. That neither the acclamations of voluntary clubs places purchased for the erection of forts, magazines, and associations, nor the election of a President, can alter arsenals, dock yards, and other needful buildings. the existing constitution; nor shift, nor transfer, the dis- To dispose of and make all needful rules and regulatribution of powers ordered and ordained therein; nor tions respecting the territory or other property belongs sanction the assumption, by the Executive, of powers not ing to the United States. delegated by the constitution.
To make all laws which shall be necessary and proper 4th. That neither the President, nor the two Houses of for carrying into execution the foregoing powers, and all Congress, nor the three combined, can alter the constitu- other powers vested by this constitution in the Governtion in any other manner than by the ratifications of the ment of the United States, or in any department or offiLegislatures, or of the conventions of three-fourths of cer thereof. the several States, or by a revolution.
According to common sense, the powers to collect 5th. That the success of usurpation is not the standard moneys by taxes; to borrow money; to raise armies; to pro, of innocence, neither does it expiate the offence. vide a navy; to erect forts, magazines, arsenals, dock
By these self-evident truths I shall test the claims of yards, and other needful buildings; to dispose of the ter. power exercised by the President, in relation to the pub- ritory and other property of the United States; connected lic revenue, and avowed in the protest.
with the imperious duty to support the armies, maintain The first position which he assumes is, “that the whole the navy, and pay the debts of the Government, carry Executive power” is vested in the President by the con- along with them the correlative and necessary powers to stitution. This is not a claim confined to the specific keep and preserve the money and the means out of which powers delegated to the President by the enumeration in they are to support, maintain, and pay. The power and the constitution, but is extended to the whole executive obligation of Congress to support, maintain, and pay, action of the Government. It is extended over the Treas-connected with the power to provide and collect the ury Department, as a part of that whole so vested in the means and money, are so necessarily united with the power President. The words and the actions of the President and the duty to preserve and safely keep, until distributed leave no doubt as to the extent of what is claimed and in- and paid, as to leave no vacancy for the implied preroga. tended by “the whole Executive power.”
tive of the President to the custody of the means and It is true that the constitution declares “ the Executive money to gain a lodgment. power shall be vested in a President of the United States The President claims the Treasury as an Executive of America," but this grant is limited to the executive department, and asserts a right to the custody of the mon. powers specifically enumerated in the second and third eys, and a jurisdiction and control over all the officers sections of the second article. So all legislative powers of the Treasury, from the Secretary down to the lowest are vested in the Congress. But this grant is limited to de. It seems to me that the Treasury is not an Executhe subjects and objects enumerated and expressed in the tive department, in the sense and to the end for which constitution. It is not a delegation of all legislative pow. the President so calls it. He makes the Executive deers over all subjects and all things which, in other Gov-partment, as contradistinguished from the Legislative and ernments, are classed under the definition of legislative Judicial action of the Government, to be the favorite repower. So the Judicial power is vested in one Supreme siduary legatee of the whole operative power and active Court and such inferior courts as the Congress may, from agency of the Government, outside of the halls of the time to time, ordain and establish. But these judicial legislature and of the courts. powers are confined to the subjects and cases specifically The constitution, when ratified, was but a scheme upon enumerated.
paper; it existed in theory. Agents to bring it into active The constitution is a grant of limited powers, not of life and actual operation as a Governmert were required general and indefinite powers, to cither department; the to be elected and appointed. These agents are but the Government, consisting of all the three great departments, servants and trustees to assist in executing the powers and legislative, judicial, and executive, is yet a government of trusts of the general departments, legislative, executive, Jimited powers. The whole mass of powers delegated to and judicial. An agent elected to assist in executing the this Government by the States, is distributed in fixed powers and duties delegated to the Legislative departproportions among the several departments. Each de- ment of the Government belongs to the Legislative departpartment is, by the theory of the constitution, and ought ment. An agent elected or appointed to assist in executo be in practice, confined within the circumference de- ting the powers, duties, and trusts, delegated to the Execscribed by the constitution.
utive department of the Government, belongs to that The grant in the constitution of executive power to the department. An agent appointed to assist in executing President, is a limited grant. All other powers not so the powers and trusts delegated and confided to the Judienumerated, can only be rightfully exercised by the Pres- cial department, belongs to that department. ident, in pursuance of a legislative grant to him.
But it must be perceived that the Senate must bave But the custody of the public property and public agents to aid and assist in executing the powers and trusts moneys is not to be found among the enumerated powers delegated to this branch of the Federal Legislature, who of the President. If he has it, he must take it by impli- yet are not Senators, but executive agents of the Senate, cation. This implication cannot be indulged, because it The secretary, clerks, serjeant-at-arms, door-keepers, and is in conflict with the powers granted to the Congress, messengers, are executive agents of the Senate; executive and at war with the genius and spirit of all free government. officers of one branch of the Legislative department.
April 25, 1834.]
So the necessary officers to aid and assist the House of I hope, then, that I shall be understood when I say that Representatives in carrying into effect their legislative there are executive officers of the Government, who yet duties, are not legislators, but executive officers of this are not of or belonging to the Executive department, branch of the Legislature.
over whom the President has no control in the discharge Neither the executive officers of the Senate, nor of the of their duties; over whom an attempt to exercise such House of Representatives, owe any responsibility to the control, by virtue of his power of appointment and rePresident, neither is he responsible for them. . Yet they moval, would be a flagrant usurpation. are officers, executive officers, of and belonging to the According to the powers and prerogatives claimed by Legislative department of the Government. The two the President in this protest, and exemplified by the disHouses united and concurring in legislative action, must missal of Mr. Duane, the Executive department, and the have agents under them to aid and assist them in carry. President as the head, claims the whole administrative auing into practical effect and operation the powers and thority of the Government. He does not confine himself trusts delegated to Congress; and such agents are execu-to the political powers delegated to him by the constitutive officers belonging to the Legislative department. tion, and enumerated, but he stretches his hand over and
So the Judicial department must have executive officers grasps all the effective administration of powers delegated to assist them whilst advising, and to carry into execu- to the other departments. Nothing is left to the other tion the judgments, sentences, and decrees of the Su- departments but to make laws and to decide in the courts preme and inferior courts. The clerks, marshals, coro- of justice. But the President claims to be the sole interbers, grand and petit jurors, bailiffs, &c., are not judges, preter of the laws for all executive officers appointed by but executive agents and officers, whose duties appertain him and removable at his pleasure; he claims the right to the Judicial department; who are responsible for their to enjoin upon them what he considers their duty requires; conduct to that department and not to the President. and if they refuse, he claims (and has exercised) an un
The nature of the duties and trusts to be performed qualified right of removing them for disobedience. must be regarded, in determining to which of the three If he has the right to command or require, the duty of great departments the officers respectively belong, and to obedience is the correlative. Thus, the President claims which each officer owes his immediate and direct respon- the right to order the Auditors, and all the officers of the sibility and obedience.
Treasury, to pass and pay a claim or demand. If obeIn this sense and meaning of executive officers, it must dience is refused, he will dismiss and appoint, so as to be evident that there are executive officers of the Legis- have his order obeyed. In like manner he may order lative and the Judicial departments, as well as executive that a claim be rejected; and, by the same means, enforce officers to administer the powers and duties and trusts his order. Of what use is the constitutional provision delegated to the Executive department. The duties as- that no appropriations of money to raise or support ar. signed to the officers respectively, compared with the mies shall be made for a longer term than two years? If constitutional division and distribution of powers among the President has the custody of the money, and can conthe respective departments, must determine the depart- trol the officers of the Treasury, he can control whatever ment to which each officer belongs, and owes his direct money is in the Treasury. If Cæsar had been the head responsibility and obedience. By regarding this meaning of the department of the Roman treasury, having thereof the term “Executive,” in its more comprehensive and by the custody and control, it would not have been negeneric sense, as well as the distinctive features between cessary for him to drive off Metellus by the terrors of the several species of the duties and trusts to be perform-death. ed by the executive officers, the powers delegated to each Under this unqualified power of control claim.ed and of the three great departments, by the constitution, will, and exercised over subjects not delegated by express enuin the practical operation and execution of the plan and meration to the President by the constitution, but claimed theory of Government, be preserved to each of the de under the unqualified power of appointment and remopartments, Legislative, Executive, and Judicial, in the ex- val, what is to prevent him from sending to the marshal a act proportions and divisions prescribed and ordained by list of grand and petit jurors, when a victim is to be sacrithe great charter of the constitution. By disregarding ficed? What is to prevent him from saying to the marshal, this distinction, and the general import of “ Executive, The bail offered in tliis case is insufficient, you must not the whole order, proportion, checks and balances, pro- take it-and thereby indirectly depriving the citizen of his vided for by the constitution, will be disordered and con- liberty, and of the benefits of the provisions of law upon fused. The powers of the Chief Executive Magistrate civil and criminal process? The whole administration of will become augmented by the transfer of powers plainly justice is drawn within the Presidential power; he may delegated to the other departments; and his office will order that the judgments and decrees of the Supreme and thereby become one of overgrown dimensions and of inferior courts be not executed. In fine, this claim brings most gigantic and dangerous strength.
into the vortex of Executive power and control, all the In this generic import of the term “ executive offi- active administrative powers of the other departments, cers," as contra-distinguished from legislators and judges, and concentrates the whole in the will of one man. 'The and yet including executive officers appertaining to the whole is consolidated in a single individual, and the whole Legislative, Executive, and Judicial departments of the responsibility is melted into one mass, the responsibility of Government, the act of Congress of 11th September, the President. And what is that responsibility? To im1789, "for establishing the salaries of the executive peachment. That has long since ceased to be any effec. officers of Government," (vol. 2, p. 50,) contains no in-tive protection to the puriiy of the constitution. It is consistency between the title and the body of the act. in danger of being lost, even to the idea of it," in EngGentlemen have argued, because the officers of the 'Treas- land, as has been stated by Mr. Burke; it “has ceased to ury are provided for by the body of this act, under the be even a scarecrow” in the United States, as said by Mr. title of executive officers, that therefore they are execu- Jefferson in his day. It has become but little better than tive officers of the Executive department, and the mere a tale to amuse, like Utopiæ, or Swift's Flying island. But, agents of the President, But this style of arguing would the President says " he may also be indicted and punishprove, by the same act, that the judges of the Territories ed according to law;" "is also liable to the private action are also executive officers of the Executive department of any party who may have been injured by his illegal of the Government, and under the control of the Presi-mandates or instructions." This is truly a most marveldent; for this act does provide a salary “ to the three lous responsibility, a most wonderful protection to the judges of the Western Territory."
constitution and to individual rights. An indictment, or
[APRIL 25, 1834.
a suit against the President of the United States, for ille- ments have pursued those ministers who so advised and gal mandates or instructions! The illegal act is committed acted. These are the maxims of the British monarchy. in Maine, or Massachusetts, or in Louisiana, and the Pres. As to the general bills of 1789, establishing the three ident is to be indicted or sued, where, when, and by departments, I have before given the history of the striwhom? Is the President to go to this mountain of respon- king out so much of the title from the Treasury bill as sibility, or is the mountain to come to the President? Put called it an executive department, and remarked upon the this mountain in labor as you may, and it will bring forth difference in the enactments, in the Foreign Affairs and nothing but a ridiculous mouse.
War Department, from the Treasury Department. The No, Mr. President, such is not the theory of our Goy- President has alluded to the debate. That debate was
Each officer is answerable for his own acts of upon the Department of Foreign Affairs. That the result commission or omission; the President is answerable only of that debate, connected with the body of the enaction for his own acts of commission or omission. Each officer as finally agreed to, do prove the opinion of thie Conswears for himself, judges for himself, is responsible for gress, that the power of removal was vested in the Presihimself to the public and to the individual aggrieved. dent by the constitution, I am willing to admit. I have The constitution provides that the “President, Vice Pres- before so expressed my opinion of the constitution. But ident, and all civil officers of the United States, shall be the President's inferences are, that the power is “upremoved from office on impeachment for and conviction qualified;" and that the debate and the result prove the of treason, bribery, or other high crimes and misdemean- Treasury to be an executive department of the political ors.” The courts of justice hold each officer responsible power vested in the President by the constitution. That for his crimes or trespasses or other injuries to society or to the power of removal was argued as unqualified," does individuals. Whether the illegal act has been done ma- not appear; on the contrary, Mr. Madison expressly arliciously or corruptly, is a question upon criminal process; gued thus: “ The danger then consists merely in this: the but mistake does not exempt him from responsibility upon President can displace from office a man whose merits recivil process. The courts of justice cannot receive from quire that he should be continued in it. What are the an officer as excuse for breach of law or neglect of duty, motives which the President can feel for such abuse of his that the President liad so ordered: and I trust this Senate power, and the restraints that operate to prevent it? In has never advised or consented to the appointment of an the first place, he will be impeachable, by this House, beattorney general, or district attorney, who would advise fore the Senate, for such an act of mal-administration; for that an officer was exempt from prosecution, criminal or I contend, that the wanton removal of meritorious officers civil, for an illegal act, upon the mere pretext of a com. would subject him lo impeachment and removal from bis mand or instruction of the President.
own high trust.” Others argued in favor of the power of In making claim to the unqualified power of removal, removal, as necessary to the public good, in cases of negand the control over all executive officers, the President lect, infidelity, loss of character, suspicions of intention has alluded to the former power of the King to remove to betray the public trust, as well as for those crimes and the judges, and to the act of Congress of 1989, establish- misdemeanors to be reached by impeachment, but which ing the three departments of Foreign Affairs, War, and latter proceeding might be tou tardy to prevent the misTreasury, and to the solemn debate on the bill for estab-chief intended to be defeated by removal. The debate lishing the Department of Foreign Affairs.
does not contend for an unqualified power, an arbitrary It is true that the King of England formerly had the despotic will, but for a qualified power, connected with power of appointing, paying, and removing the judges at the public good. his will. Under this prerogative, he did claim the power I find that the causes of removal recognised in England of directing and controlling the judges in the performance by usage or by statute, are incapacity by age or sickness, of their offices. Under this power, the King did appoint or by engagement in other business; want of sufficient espliant judges, whose opinions he controlled. He sold de- tate in the country, or living in an inconvenient part of it; cisions in private controversies: he commanded the judges or extortion, or neglect, or misbehaviour. The power to decide in favor of one party, and it was done: he com- now claimed and exercised over Mr. Duane, exceeds the manded them not to give judgment, and the judgment prerogative claimed in the hereditary monarchy of Engwas delayed, denied, and deferred, at the will of the land. The odious abuses of the power of removal abolKing: he convicted and attainted subjects of treason, and ished by magna charta in England, and fenced against by plundered their estates: he despoiled corporations of their the constitution of the United States, are here revived chartered rights and privileges at his will, and by the over all officers whose tenure is not during good beliaforced judgments of his judges. But these proceedings viour. The power is asserted, not for the purpose of genwere considered by the nation as enormous abuses of pre- eral supervision, and ensuring diligence, fidelity, and carogative, and produced those famous provisions in the pacity, but for control over their consciences and conduct magna charta of English liberty: “ Nulli vendemus, nulli and judgment; for the very control which was used to negabimus aut differemus justiam aut rectum.” We shall sell, delay, and binder justice and right, and for despoilsell to no man, we shall deny to no man, we shall defer to sing corporations and individuals of their franchise and plo man, justice or right. And this power of paying and estates. removing the judges at pleasure, was finally taken from The provisions of the statutes as to the two Depart. the King by act of Parliament. The nation did consider, ments of Foreign Affairs and of War, expressly subjected and yet considers, that the interference with the officers the Secretaries to the directions of the President, with in the discharge of tlieir duties, for the purpose of con- the qualification that they were "agreeable to the constitrolling by the power of appointment and removal, is a tution;" plainly imposing upon these officers the duties stretch of prerogative danderous and alarming to the lib- not to obey blindly and passively. These departments erties of the people. It is a maxim, that the King's pre-related to the execution of political powers vested in the rogative extends not to do any injury; it is given for the President by the constitution, such as sending and receive benefit of the people, and, therefore, cannot be exerted ing ambassadors, ministers, and consuls, making treaties, for their prejudice; "it stretcheth not to the doing of any &c., and as comander-in-chief of the army and navy. But, wrong. The King's prerogative is far from being an un- as to the Treasury, the title of executive department was qualified power. It is the discretionary power of acting not retained, and the officers were not subjected, in any for the public good where the positive laws are silent; if part of their duties, to the orders or directions of the it is abused to the public detriment, “such prerogative is President. Why this marked distinction in the enaction? exerted in an unconstitutional manner"-and impeach. Because the control of the Treasury was, by the constituAPRIL 25, 1834.]
tion, committed to the Congress, not to the President; “ against all their enemies and opposers whatsoever.” and neither the constitution nor the Congress intended to the officers of the army and navy understand that the unite the power over the army and the navy with the order of the President of the United States cannot pro. power over the Treasury.
tect them from their responsibility to the constitution and But the President alludes to his oath of office. All the laws; every civil officer knows that his oath and his bond other officers are sworn to discharge the duties of their are not to be satisfied with an order from the President. respective offices—to discharge faithfully the trusts com- A Roman emperor wished the necks of all the citizens mitted to them; also to support the constitution. There of Rome united in one, that he might strike off their is a difference in the form of the President's oath, which heads at a blow. The President has united in one, the is appropriate to the difference in the nature and duties of necks of all the holders of offices and places by his apthe trusts confided.
pointment, either immediately or mediately, throughout The liberties of the people have been assailed in other the whole Government, from the highest to the lowest, countries and in other times, by the person at the head of (except the judges and those appointed by them,) not the Executive power, commanding the armies, and dis- indeed for the blood-thirsty purpose of striking off their tributing honors and emoluments. The President was heads, but, that they shall live, and move, and have their intrusted with these more forcible means, which might being in his will, and subserve his purposes. This is be perverted to break and overturn the constitution; against the genius and frame of our constitution. therefore, his oath was more specific, to remind him of One of the great securities for liberty consists in the his duty to support, protect, and defend it. So is the division of the powers of government, in distributing them duty of us all.
to different departments, and to plurality of persons in Does the President mean that this oath of office en- the same department. Thus safety in Legislation is conlarges his powers!-that his oath invests him with the sulted by having many Senators and many Representapower to make other men break their oaths! This oath tives. Safety in the Judicial department is consulted to preserve, protect, and defend the constitution, to the by having a plurality of judges. The errors, defibest of his ability,” as well as the injunction to "take ciencies, mistakes, prejudices, or partialities of one, may care that the laws be faithfully executed,” do not con- be supplied, corrected, countervailed, and checked, by tain any grant of new powers; they cannot give him the assistance of his fellows. So the safety in the Execpower to override the constitution and the laws, and to utive department, consists in distributing the powers into be the only interpreter of both. The oath and injunc- numerous compartments, assigning portions to each, so tion are intended to bind him to a great principle of free that no one shall exercise a dangerous power, subjecting dom, established even in limited monarchies: “ The laws each officer, by oath and by duty, to a personal responought to prevail above the commands of men. “ Rex sibility, and to the law; whereby a government of law 3 debet esse sub lege et servare leges.” The king ought is created, and not a government at the will of one man. to be subject to the law, be a servant of the law, and ex- An elective monarchy was not the government our ecute the law.
forefathers fought for and established. They intended But if this doctrine prevails, that the President has a to establish a free representative republic, with checks legal ubiquity; that all officers are but bis instruments; and balances, to prevent the encroachments of arbitrary that he is present and represented in the person of every power. They did not rely upon the judgment, prudence, officer not holding during good behaviour or appointed and goodness of one man to preserve, protect, and defend by him directly or by the heads of departments or their constitution and their liberties. "The best and the others; and that he has a right to command them to do wisest often err, the perverse and foolish always. They this or not do that; then indeed he has a most fearful did not, in framing the constitution, trust to what a Moses, power. The laws act or cease to act as he wills; the or a Samuel, or a Washington, would do; but they looked decision of courts stands still if he so wills. The army back to history, to what men had done, to the claims of and navy, the more numerous array of civil officers, power and prerogative which they had resisted by the agents, and contractors, registered in the Blue Book, with war of the Revolution, and intended to secure against that others whose names are not there, not forgetting govern- which may come into the fancy of a furious, or wicked, ors and judges of Territories, and justices of the peace, or ambitious man, who might aitempt to usurp a suprenie all, all are to move at the will of one man.
He makes power. and unmakes at his pleasure: “ This is my will and that Whence did the writers of this protest derive their is your duty-I take the responsibility--obey me, or 1 notions of unqualified power, of responsibility of officers disiniss you, and supply your place by one whose opinions to the President, of his responsibility for them, and his are well known to me. Can it be true? Does any free custody of public property and money, as “an approman believe it to be true, that all officers subject to the priate function of the Executive department in this and power of removal, are also subject to the order and di: in all other governments?". Not from elementary treatises rection of the President in the exercise of the duties and upon free governments and civil liberty. Not from the trusts which their offices impose, and which they are pure fountains of American constitutions. Not from the bound by oath to execute faithfully? Is the President writings and speeches of the patriots and sages who have the sole interpreter of the constitution and laws for them? been distinguished in the United States in settling the Are they but his “mere instruments” and “agents" of foundations of the State and Federal Governments. The his own choice, to aid him? This prerogative power far custoly of the public property and money “has always exceeds any possessed by the King of England: for been considered an appropriate function of the Executive there it is an established maxim “that no man shall dare department in this and all other governments." What a assist the crown in contradiction to the laws of the land." reckless assertion! If they had looked into the American The sacred majesty of royalty itself cannot absolve the constitutions, they would have seen that the State treasofficer from his oath and his responsibility to the laws. urers are elected by the State Legislatures, and are indeOur officers are officers of the law, not of the President; pendent of the control of the governors. In the number our government is a government of laws, not a govern- of the States so electing their treasurer, they would ment at the will of one man. Our officers of the army, have found the examples of the good old thirteen down to the non-commissioned and even the private sul- States who achieved the Revolution and established diers, are required by law to take an oath to support the the constitution of the United States, as also many of constitution of the United States; to bear true allegiance the States who have since been admitted into the Union. to the United States; to serve them faithfully and honestly. They might have learned from the speeches and writings