APRIL 25, 1834.]

President's Protest.

[SENATE.

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 originate 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 to 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 declared, 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 SecretaBut if the President himself had 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 have 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 Secretating 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 mesecutive 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 bo 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 his 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 product; 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 errThe 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 him by

SENATE.]

President's Protest.

[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 vio the 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 dis the 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 considera to 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.

He claims every kind of executive power as vested in the President by the constitution.

Here it may be remarked, that the fifteenth section of the bank charter, under the expression "unless the 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." not 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 sys tracts 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, execu. tember, 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 heads 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 ex thereof, 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 cor laid under the responsibility "to receive and keep the responding grades of officers in all other executive de moneys 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 tide be 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

APRIL 25, 1834.]

President's Protest.

[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 officers, agents, and assistants.

Had the Treasury Department ceased to be Executive, 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 de In 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-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 stoop. 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." Such 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 succeedDoes 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 are 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.

VOL. X.-95

The protest contains General Jackson's theory of the constitution; Mr. Duane's case, and the subsequent acts, show the President's practice.

More alarming doctrines, or greater heresies, have never been preached from high places in the United States. I hold these to be axioms:

1st. That the constitution of the United States creates a government of limited powers in every department thereof.

2d. That a virtual curb and effective check upon the will of undelegated prevalent power, was intended by the constitution.

3d. That neither the acclamations of voluntary clubs and associations, nor the election of a President, can alter the existing constitution; nor shift, nor transfer, the distribution of powers ordered and ordained therein; nor sanction the assumption, by the Executive, of powers not delegated by the constitution.

4th. That neither the President, nor the two Houses of Congress, nor the three combined, can alter the constitution in any other manner than by the ratifications of the Legislatures, or of the conventions of three-fourths of the several States, or by a revolution.

5th. That the success of usurpation is not the standard of innocence, neither does it expiate the offence.

[APRIL 25, 1834.

Among the powers granted to Congress, are the following:

To lay and collect taxes, duties, imposts, and excises, &c. These powers are charged with their duties to pay the debts and provide for the common defence and general welfare of the United States.

To borrow money on the credit of the United States. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years.

To provide and maintain a navy.

To exercise exclusive legislation and authority over all places purchased for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.

To dispose of and make all needful rules and regula tions respecting the territory or other property belonging to the United States.

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the Government of the United States, or in any department or offi cer thereof.

According to common sense, the powers to collect moneys by taxes; to borrow money; to raise armies; to provide 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 leave no doubt as to the extent of what is claimed and intended by "the whole Executive power."

and the duty to preserve and safely keep, until distributed and paid, as to leave no vacancy for the implied preroga tive of the President to the custody of the means and money to gain a lodgment.

It is true that the constitution declares "the Executive 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 grade. It seems to me that the Treasury is not an Execu the 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 de ers 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 Government 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, limited 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 depart proportions among the several departments. Each de- ment of the Government belongs to the Legislative depart partment is, by the theory of the constitution, and ought ment. An agent elected or appointed to assist in execu to be in practice, confined within the circumference de- ting the powers, duties, and trusts, delegated to the Exec scribed 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 Judi enumerated, 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 have

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, whe 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.

So the necessary officers to aid and assist the House of Representatives in carrying into effect their legislative duties, are not legislators, but executive officers of this branch of the Legislature.

[SENATE.

I hope, then, that I shall be understood when I say that there are executive officers of the Government, who yet are not of or belonging to the Executive department, over whom the President has no control in the discharge of their duties; over whom an attempt to exercise such control, by virtue of his power of appointment and removal, would be a flagrant usurpation.

Neither the executive officers of the Senate, nor of the House of Representatives, owe any responsibility to the President, neither is he responsible for them. Yet they 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 interners, 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 unThe 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 great departments the officers respectively belong, and to which each officer owes his immediate and direct responsibility and obedience.

If he has the right to command or require, the duty of obedience is the correlative. Thus, the President claims the right to order the Auditors, and all the officers of the 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 arsigned 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 claimed 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 this 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, rers," 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 effecofficers of Government," (vol. 2, p. 50,) contains no in- tive protection to the purity 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 Utopia, 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