Chapter I: YESTERDAY, sir, gave notice that I should ask leave to introduce (3)

THIS measure had been first introduced into congress at the session before the last, under circumstances which must be within the recollection of every member of the senate. Its object was, to dispose of the proceeds of the public lands for a limited time. The subject had been greatly discussed not only in congress, but throughout the country. The principles and provisions of the bill were well and generally understood. The subject had attracted the attention of the chief magistrate himself, and this bill was made the subject of commentary in his message at the commencement of the last session of congress. It must, therefore, be considered as a subject perfectly well understood by the president, for it was not to be supposed that he would have commented upon it, and recommended it to the attention of congress, if it had not been understood. During the last session, this bill, which had previously been before the house, was introduced in this body, and was passed, and sent to the other house, whence it was returned with a slight amendment, taking away the discretion which had been vested in the state legislatures as to the disposal of the proceeds. This bill, which had been before congress the session before the last, which had passed at the last session, having been before the country for a whole year, when it passed the two houses, was placed before the executive, with a number of other measures, just before the close of the last congress. As the subject had been before the president for consideration so long previously to the passage of the bill, and he had reflected upon it, it was not to have been expected that he would take advantage of the shortness of the session to retain the bill until this time. Yet such had been the fact, and a proceeding had taken place which was unprecedented and alarming, and which, unless the people of this country were lost to all sense of what was due to the legislative branch of the government, to themselves, and to those principles of liberty which had been transmitted to them from the revolution, they would not tolerate. It was at least due to the legislature, that the president should have sent a few lines, courteously informing them, that when his own mind was made up he would communicate the result. But, without deigning to make known his intention, or to impart the reasons which influenced him, he despotically kept silence, and retained the bill. He begged leave to congratulate the senate on the return of the bill. The question which now presented itself was, whether the bill was dead, in consequence of the non-action of the president, or whether it had become an existing law. He was not now about to discuss that question; but he had felt himself called on to make a few observations on the extraordinary course, and to say that it was due to congress, to the people, and to the executive himself, to have informed the last congress in reference to this subject, concerning which he must have made up his mind. He would now move to lay this bill on the table, and would afterwards give notice of a day when he should ask leave to bring in a bill in order to submit it again to the action of the senate.

Mr. Kane wished to know if it was the intention of the senator from Kentucky that the bill should lie permanently on the table, or only to be called up at an early day.

Mr. Clay replied that the only alternative was to consider the bill as defunct, or as an existing law. If the gentleman from Illinois could point out any other course, he had read some clause in the constitution which he (Mr. Clay) had never been so fortunate as to find.

Mr. Benton said he would wish to make a remark; and, if he was precluded by the pressing of this question, he would find some other opportunity of making it.

The question was then taken on the motion to lay the bill upon the table, and decided in the affirmative――ays nineteen.

Mr. Benton then moved to take up the message for consideration.

After further discussion, Mr. Clay said, he did not rise to reply to any one who had felt himself called upon to rise in the senate to _vindicate_ the president. If there were any such member, he did not wish to disturb him in his office of vindicator of the president, or to affect the complacency with which he might regard _his_ vindication. But he (Mr. Clay) stood here to sustain his own course, to vindicate the constitution, and to vindicate the rights of congress under it. And he must repeat, that the withholding of the land bill, at the last session, under the circumstances of the case, was a violation of the constitution, and disrespectful to the senate. What were the circumstances?

At two different sessions of congress, the land subject was before it. At that which preceded the last, a bill had been introduced to distribute among the states the proceeds of the public lands. The whole subject, by the bill and by reports of committees, was laid before congress and spread before the country. A copy of the bill, when it was first introduced, according to the constant practice of congress, was sent to the president. He was thus, as well as the country generally, put in entire possession of the matter. It attracted great public attention. It engaged that of the president. And, accordingly, at the commencement of the last session, in his annual message, he adverted to it, in a manner which evidently showed that the writer of the message fully understood it, and all the views which had been developed about it.

[Here Mr. Clay read the message of the last session, so far
as it related to the public lands, to show that the president
had himself invited the attention of congress to it, as one
of urgent and pressing importance; that the _discretion_ of
congress to make any disposition of the public lands, which
they might deem best for the harmony, union, and interest
of the United States, was uncontrolled; that the question
ought _speedily_ to be settled; and that the president had
_considered_, but objected to the bill of the previous session,
proposing, as a substitute, a plan of his own, which, while the
message on the table argued that the public lands belonged to
_all_ the states, proposed to give the unsold lands to _some_
of them.]

Thus was congress, at the commencement of the last session, officially invited to act, and to act speedily, respecting the public lands; and thus did the president manifest his knowledge of the provisions of the bill of the previous session. Well, sir, congress again took up the question. The identical bill of the previous session was again introduced, and again, prior to its passage, placed before the president, along with the other printed documents, according to standing usage. And it was passed by both houses, substantially in the shape in which at the previous session it was passed by the senate, except that the restriction as to the power of the states to apply the sum to be distributed among the several states, after the deduction of the twelve and a half per centum first set apart for the new states, was stricken out.

In this form, the bill was laid before the president on the second day of March last. It was no stranger, but an old acquaintance. He had seen it repeatedly before; and he must have been well informed as to its progress in congress. He had commented on the very project contained in the bill, when he had brought forward his own in his message, at the opening of the session. Without deigning to communicate to congress what disposition he had made, or meant to make of it, he permitted the body to rise, in utter ignorance of his intentions.

It may be true, that there was a great press of business on the president on the second of March, and that he may have acted upon some ninety or one hundred bills. But this is what occurs with every president on the day before the termination of the short session of congress. With most of those bills the president must have been less acquainted than he was with the land bill. Of some of them he probably had never heard at all. Not one of them possessed the importance of the land bill. How did it happen that the president could find time to decide on so many new bills, and yet had not time to examine and dispose of one which had long been before him and the public; one embracing a subject which he thought the union, harmony, and interests of the states required should be _speedily_ adjusted; one which he himself had pronounced his judgment upon at the commencement of the session? By withholding the bill, the president took upon himself a responsibility beyond the exercise of the veto. He deprived congress altogether of its constitutional right to act upon the bill, and to pass it, his negative notwithstanding.

The president is, by the constitution, secured time to consider bills which shall have passed both branches of congress. But so is congress equally secured the right to act upon bills which they have passed, and which the president may have thought proper to reject. If he exercises his veto, and returns the bill, two thirds may pass it. But if he withholds the bill, it cannot become a law, even although the two houses should be unanimously in its favor.

Mr. Clay denied that the constitution gave to the president ten days to consider bills, except at the long session. At that session, the period of its termination is uncertain, and dependent upon the will of congress. To guard against a sudden adjournment, by which the president might be deprived of due time to deliberate on an important bill, the constitution provides for ten days at that session. But, at the short session, it is not an adjournment but a dissolution of congress, on the third of March, and the day of that dissolution is fixed in the constitution itself, and known to all.

Mr. Clay contended, therefore, that the act of withholding the bill was arbitrary and unconstitutional, by which congress, and the senate especially, in which the bill originated, were deprived of their constitutional right of passing on the bill, after the president had exercised his powers. Respect to congress required of the president, if he really had not time to form a judgment on the bill, or, having formed it, had not time to lay his reasons before the body, a communication to that effect. But, without condescending to transmit one word upon the subject to congress, he suffered the session to terminate, and the members to go home destitute of all information, until this day, of his intentions.

Mr. Benton then withdrew his motion to take up the bill.

ON THE REMOVAL OF THE PUBLIC DEPOSITS FROM THE BANK
OF THE UNITED STATES.

IN THE UNITED STATES SENATE, DECEMBER 26, 1833.

[THE house of representatives, on the second of March, 1833,
adopted, by a vote of one hundred and ten to forty-six, the
following resolution: ‘that the government deposits may, in the
opinion of the house, be safely continued in the bank of the
United States.’ Notwithstanding this resolution, the president
of the United States, (general Jackson,) in September following,
read a paper to his cabinet, declaring his intention to cause
the deposits to be removed from the bank. He then removed
the secretary of the treasury, Mr. Duane, from office, in
consequence of his refusal to comply with the president’s
orders in this respect, and appointed Mr. Taney secretary in
his place; who removed the deposits from the United States bank,
on the first of October, 1833, and placed them in sundry state
banks. At the ensuing session of congress, the secretary of the
treasury, Mr. Taney, having made his report on that transaction,
the subject came up for consideration in the senate, when Mr.
Clay submitted the following resolutions, which he accompanied
with the subjoined speech.]

RESOLVED, that by dismissing the late secretary of the treasury,
because he would not, contrary to his sense of his own duty,
remove the money of the United States in deposit with the bank
of the United States and its branches, in conformity with the
president’s opinion; and by appointing his successor to effect
such removal, which has been done, the president has assumed the
exercise of a power over the treasury of the United States not
granted to him by the constitution and laws, and dangerous to
the liberties of the people.

Resolved, that the reasons assigned by the secretary of the
treasury for the removal of the money of the United States,
deposited in the bank of the United States and its branches,
communicated to congress on the third of December, 1833, are
unsatisfactory and insufficient.

WE are in the midst of a revolution, hitherto bloodless, but rapidly tending towards a total change of the pure republican character of the government, and to the concentration of all power in the hands of one man. The powers of congress are paralysed, except when exerted in conformity with his will, by frequent and an extraordinary exercise of the executive veto, not anticipated by the founders of our constitution, and not practiced by any of the predecessors of the present chief magistrate. And, to cramp them still more, a new expedient is springing into use, of withholding altogether bills which have received the sanction of both houses of congress, thereby cutting off all opportunity of passing them, even if, after their return, the members should be unanimous in their favor. The constitutional participation of the senate in the appointing power is virtually abolished by the constant use of the power of removal from office, without any known cause, and by the appointment of the same individual to the same office, after his rejection by the senate. How often have we, senators, felt that the check of the senate, instead of being, as the constitution intended, a salutary control, was an idle ceremony? How often, when acting on the case of the nominated successor, have we felt the injustice of the removal? How often have we said to each other, well, what can we do? the office cannot remain vacant, without prejudice to the public interest, and, if we reject the proposed substitute, we cannot restore the displaced; and, perhaps, some more unworthy man may be nominated.

The judiciary has not been exempt from the prevailing rage for innovation. Decisions of the tribunals, deliberately pronounced, have been contemptuously disregarded. And the sanctity of numerous treaties openly violated. Our Indian relations, coeval with the existence of the government, and recognised and established by numerous laws and treaties, have been subverted, the rights of the helpless and unfortunate aborigines trampled in the dust, and they brought under subjection to unknown laws, in which they have no voice, promulgated in an unknown language. The most extensive and most valuable public domain that ever fell to the lot of one nation, is threatened with a total sacrifice. The general currency of the country――the life-blood of all its business――is in the most imminent danger of universal disorder and confusion. The power of internal improvement lies crushed beneath the veto. The system of protection of American industry was snatched from impending destruction, at the last session; but we are now coolly told by the secretary of the treasury, without a blush, ‘that it is understood to be _conceded on all hands_, that the tariff for protection merely is to be finally abandoned.’ By the third of March, 1837, if the progress of innovation continues, there will be scarcely a vestige remaining of the government and its policy, as they existed prior to the third of March, 1829. In a term of eight years, a little more than equal to that which was required to establish our liberties, the government will have been transformed into an elective monarchy――the worst of all forms of government.

Such is a melancholy but faithful picture of the present condition of our public affairs. It is not sketched or exhibited to excite, here or elsewhere, irritated feeling. I have no such purpose. I would, on the contrary, implore the senate and the people to discard all passion and prejudice, and to look calmly, but resolutely, upon the actual state of the constitution and the country. Although I bring into the senate the same unabated spirit, and the same firm determination which have ever guided me in the support of civil liberty, and the defence of our constitution, I contemplate the prospect before us with feelings of deep humiliation and profound mortification.

It is not among the least unfortunate symptoms of the times, that a large portion of the good and enlightened men of the union, of all parties, are yielding to sentiments of despondency. There is, unhappily, a feeling of distrust and insecurity pervading the community. Many of our best citizens entertain serious apprehensions, that our union and our institutions are destined to a speedy overthrow. Sir, I trust that the hopes and confidence of the country will revive. There is much occasion for manly independence and patriotic vigor, but none for despair. Thank God, we are yet free; and, if we put on the chains which are forging for us, it will be because we deserve to wear them. We should never despair of the republic. If our ancestors had been capable of surrendering themselves to such ignoble sentiments, our independence and our liberties would never have been achieved. The winter of 1776–7 was one of the gloomiest periods of the revolution; but on _this day_, fifty-seven years ago, the father of his country achieved a glorious victory, which diffused joy and gladness and animation throughout the states. Let us cherish the hope that, since he has gone from among us, Providence, in the dispensation of his mercies, has near at hand in reserve for us, though yet unseen by us, some sure and happy deliverance from all impending dangers.

When we assembled here last year, we were full of dreadful forebodings. On the one hand we were menaced with a civil war, which, lighting up in a single state, might spread its flames throughout one of the largest sections of the union. On the other, a cherished system of policy, essential to the successful prosecution of the industry of our countrymen, was exposed to imminent danger of immediate destruction. Means were happily applied by congress to avert both calamities; the country was reconciled, and our union once more became a band of friends and brothers. And I shall be greatly disappointed, if we do not find those who were denounced as being unfriendly to the continuance of our confederacy, among the foremost to fly to its preservation, and to resist all executive encroachment.

Mr. President, when congress adjourned, at the termination of the last session, there was one remnant of its powers, that over the purse, left untouched. The two most important powers of civil government are, those of the sword and the purse. The first, with some restriction, is confided by the constitution to the executive, and the last to the legislative department. If they are separate, and exercised by different responsible departments, civil liberty is safe; but if they are united in the hands of the same individual, it is gone. That clear-sighted and sagacious revolutionary orator and patriot, Patrick Henry, justly said, in the Virginia convention, in reply to one of his opponents:

‘Let him candidly tell me where and when did freedom exist,
when the sword and purse were given up from the people? Unless a
miracle in human affairs interposed, no nation ever retained its
liberty after the loss of the sword and the purse? Can you prove
by any argumentative deduction, that it is possible to be safe
without one of them? If you give them up you are gone.’

Up to the period of the termination of the last session of congress, the exclusive constitutional power of congress over the treasury of the United States had never been contested. Among its earliest acts was one to establish the treasury department, which provided for the appointment of a treasurer, who was required to give bond and security in a very large amount, ‘to receive and keep the moneys of the United States and to disburse the same, upon warrants drawn by the secretary of the treasury, countersigned by the comptroller, recorded by the register, _and not otherwise_.’ Prior to the establishment of the present bank of the United States, no treasury or place had been provided and designated by law for the safe-keeping of the public moneys, but the treasurer was left to his own discretion and responsibility. When the existing bank was established, it was provided that the public moneys should be deposited with it, and consequently that bank became the treasury of the United States. For whatever place is designated by law for the keeping of the public money of the United States, under the care of the treasurer of the United States, is for the time being the _treasury_. Its safety was drawn in question by the chief magistrates, and an agent was appointed, a little more than a year ago, to investigate its ability. He reported to the executive, that it was perfectly safe. His apprehensions of its solidity were communicated by the president to congress, and a committee was appointed to examine the subject. They, also, reported in favor of its security. And, finally, among the last acts of the house of representatives, prior to the close of the last session, was the adoption of a resolution, manifesting its entire confidence in the ability and solidity of the bank.

After all these testimonies to the perfect safety of the public moneys, in the place appointed by congress, who could have supposed that the place would have been changed? Who could have imagined, that within sixty days of the meeting of congress, and, as it were, in utter contempt of its authority, the change should have been ordered? Who would have dreamed, that the treasurer should have thrown away the single key to the treasury, over which congress held ample control, and accepted in lieu of it some dozens of keys, over which neither congress nor he has any adequate control? Yet, sir, all this has been done; and it is now our solemn duty to inquire, first, by whose authority it has been ordered? and, secondly, whether the order has been given in conformity with the constitution and laws of the United States?

I agree, sir, and I am happy whenever I can agree with the president, as to the immense importance of these questions. He says, in a paper which I hold in my hand, that he looks upon the pending question as involving higher considerations than the ‘mere transfer of a sum of money from one bank to another. Its decision may affect the character of our government for ages to come.’ And, with him, I view it as of transcendent importance, both in its consequences and the great principles which the question involves. In the view which I have taken of this subject, I hold the bank as nothing, as perfectly insignificant, faithful as it has been in the performance of all its duties, efficient as it has proved in regulating the currency, than which there is none in all christendom so sound, and deep as is the interest of the country in the establishment and continuance of a sound currency, and the avoidance of all those evils which result from a defective or unsettled currency. All these I regard as questions of no importance, in comparison with the principles involved in this executive innovation. It involves the distribution of power by the executive, and the taking away a power from congress which it was never before doubted to possess――the power over the public purse. Entertaining these views, I shall not, to-day, at least, examine the reasons assigned by the president, or by the secretary of the treasury; for if the president had no power to perform the act, no reasons, however cogent or strong, which he can assign as urging him to the accomplishment of his purpose, no reasons, can sanctify an unconstitutional and illegal act.

The first question, sir, which I intimated it to be my purpose to examine, was, by whose direction was this change of the deposits made?

Now, sir, is there any man who hears me, who requires proof on this point? Is there an intelligent man in the whole country who does not know who it was that decided on the removal of the deposits? Is it not of universal notoriety? Does any man doubt that it was the act of the president? That it was done by his authority and at his command? The president, on this subject, has himself furnished evidence which is perfectly conclusive, in the paper which he has read to his cabinet; for, although he has denied to the senate an official copy of that paper, it is universally admitted that he has given it to the world, as containing the reasons which influenced him to this act. As a part of the people, if not in our senatorial character, we have a right to avail ourselves of that paper, and of all which it contains. Is it not perfectly conclusive as to the authority by which the deposits have been removed? I admit that it is an unprecedented and most extraordinary power. The constitution of the United States admits of a call, from the chief magistrate, on the heads of departments, for their opinions in writing.

It appears, indeed, that this power which the constitution confers on the president, had been exercised, and that the cabinet were divided, two and two; and one, who was ready to go on either side, being a little indifferent how this great constitutional power was settled by the president. The president was not satisfied with calling on his cabinet for their opinions, in the customary and constitutional form; but he prepares a paper of his own, and instead of receiving reasons from them, reads to them, and thus indoctrinates them according to his own views. This, sir, is the first time in the history of our country, when a paper has been thus read, and thus published. The proceeding is entirely without precedent. Those who now exercise power, consider all precedents wrong. They hold precedents in contempt; and, casting them aside, have commenced a new era in administration. But while they thus hold all precedents in contempt, disregarding all, no matter how long established, no matter to what departments of the government they may have given sanction, they are always disposed to shield themselves behind a precedent, whenever they can find one to subserve their purpose.

But the question is, who gave the order for the removal of the deposits? By whose act were they removed from the bank of the United States, where they were required by the law to be placed, and placed in banks which the law never designated? I tell the gentlemen who are opposed to me, that I am not to be answered by the exhibition of an order signed by R. Taney, or any one else. I want to know, not the clerk who makes the writing, but the individual who dictates――not the hangman who executes the culprit, but the tribunal which orders the execution. I want the original authority, that I may know by whose order, on whose authority, the public deposits were removed, and I again ask, is there a member of this senate, is there an intelligent man in the whole country, who doubts on this point? Hear what the president himself says, in his manifesto, read to his cabinet:

‘The president deems it HIS duty, to communicate in this manner
to his cabinet _the final conclusions_ OF HIS OWN MIND, and the
reasons on which they are founded,’ and so forth.

At the conclusion of this paper what does he say?

‘The president again repeats, that he begs his cabinet to
consider the proposed measure as HIS OWN, in the support of
which he shall require no one of them to make a sacrifice of
opinion or principle. ITS RESPONSIBILITY HAS BEEN ASSUMED, after
the most mature reflection, as necessary to preserve the morals
of the people, the freedom of the press, and the purity of the
elective franchise, without which all will unite in saying,
that the blood and treasure expended by our forefathers in the
establishment of our happy system of government will have been
vain and fruitless. Under these convictions, he feels that a
measure so important to the American people cannot be commenced
too soon; _and_ HE _therefore names the first day of October
next_ as a period proper for the change of the deposits, or
sooner, provided the necessary arrangements with the state banks
can be made.’

Sir, is there a senator here who will tell me that this removal was not made by the president? I know, indeed, that there are in this document many of those most mild, most gracious, most condescending expressions, with which power too well knows how to clothe its mandates. The president coaxes, he soothes the secretary, in the most bland and conciliating language:

‘In the remarks he has made on this all-important question,
he _trusts_ the secretary of the treasury will see only the
frank and _respectful_ declarations of the opinions which
the president has formed on a measure of great national
interest, deeply affecting the character and usefulness of
his administration; and _not a spirit of dictation_, which the
president would be as _careful to avoid_, as ready to resist.
Happy will he be, if the facts now disclosed produce uniformity
of opinion and unity of action among the members of the
administration.’

Sir, how kind! how gentle! How very gracious must this have sounded in the gratified ear of the secretary of the treasury! Sir, it reminds me of an historical anecdote, related of one of the most remarkable characters which our species has ever produced. While Oliver Cromwell was contending for the mastery of Great Britain, or Ireland, (I do not now remember which,) he besieged a certain catholic town. The place made a stout resistance; but at length the town being likely to be taken, the poor catholics proposed terms of capitulation, stipulating therein for the toleration of their religion. The paper containing the terms was brought to Oliver, who, putting on his spectacles to read it, cried out, ‘oh, granted, granted, certainly;’ he added, however, ‘but if one of them shall dare to be found attending mass, he shall be hanged;’ (under what section is not mentioned; whether under a second, or any other section, of any particular law, we are not told.)

Thus, sir, the secretary was told by the president, that he had not the slightest wish to dictate――oh, no; nothing is further from the president’s intention; but, sir, what was he told in the sequel? ‘If you do not comply with my wishes――if you do not effect the removal of these deposits within the period I assign you――you must quit your office.’ And what, sir, was the effect? This document bears date on the eighteenth of September. In the official paper, published at the seat of government, and through which it is understood that the government makes known its wishes and purposes to the people of the United States, we were told, under date of the twentieth of September, 1833, two days only after this cabinet paper was read, as follows:

‘We are authorized to state’――[_authorized_; this is the word
which gave credit to this annunciation――] ‘We are authorized to
state, that the deposits of the public money will be changed
from the bank of the United States to the state banks, as soon
as necessary arrangements can be made for that purpose; and that
it is believed they can be completed in Baltimore, Philadelphia,
New York, and Boston, in time to make the change _by the first
of October, and perhaps sooner_, if circumstances should render
an earlier action necessary on the part of the government.’

Yes, sir, on the eighteenth of September this measure was decided on; and on the twentieth, it is announced to the people, that the deposits would be removed by the first of October, or sooner, if practicable! Mr. Duane was continued in office till the twenty-third, on which day he was dismissed; and between the twenty-third and the twenty-sixth, on which latter day the mere clerical act of signing the order for removal was performed, Mr. Taney, by whom it was done, was appointed secretary of the treasury, having conformed to the will of the president, against his own duty, which Mr. Duane would not do. Yes, sir, on the twentieth went forth this proclamation, by authority, of the removal of the deposits, although Mr. Duane remained in office till the twenty-third. On this point we have conclusive proof in a letter of the president to that gentleman, dated on the twenty-third, which letter, after all the gracious, friendly, and conciliating language of the cabinet paper, concludes in these terms:

‘I feel constrained to notify you, that your further services as
secretary of the treasury are no longer required.’

Such, Mr. President, is the testimony on the one side to prove the truth of the proposition, that the removal of the deposits from the bank of the United States, was a measure determined on by the president himself――determined on while the latter secretary of the treasury was still in office, and against the will of the secretary; although Mr. Taney may have put his signature to the order on the twenty-sixth――a mere ministerial act, done in conformity with the previous decision of the president, that the removal should take place on or before the first of October.

I now call the attention of the senate to testimony of the other party; I mean Mr. Duane. After giving a history of the circumstances which accompanied his appointment to office, and what passed antecedently to his removal, he proceeds to say:

‘Thus was I thrust into office: thus was I thrust from office;
not because I had neglected any duty; not because I had differed
with him about the bank of the United States; but because I
refused, without further inquiry by congress, to remove the
deposits.’

Can testimony be more complete to establish the proposition I have advanced? And is it possible, after the testimony of the president on one side, and of his secretary on the other, that the former had decided that the deposits should be removed, and had removed the secretary because he would not do it, that any man can doubt that the removal was the president’s own act?――that it was done in accordance with his command?

And now, sir, having seen that the removal was made by the command and authority of the president, I shall proceed to inquire whether it was done in conformity with the constitution and laws of the United States.

I do not purpose at this time to go into the reasons alleged by the president or his secretary, except so far as those reasons contain an attempt to show that he possessed the requisite authority. Because if the president of the United States had no power to do this thing――if the constitution and laws, instead of authorizing it, required him to keep his hands off the treasury――it is useless to inquire into any reasons he may give for exercising a power which he did not possess. Sir, what power has the president of the United States over the treasury? Is it in the charter establishing the bank? The clause of the charter relating to the public deposits declares,

‘That the deposits of the money of the United States, in places
in which the said bank and branches thereof may be established,
shall be made in said bank or branches thereof, unless the
secretary of the treasury shall at any time otherwise order
and direct; in which case the secretary of the treasury shall
immediately lay before congress, if in session, and if not,
immediately after the commencement of the next session, the
reasons of such order or direction.’

This is in strict consonance with the act creating the treasury department in 1789. The secretary of the treasury is by that act constituted the agent of congress; he is required to report to congress annually the state of the finances, and his plans respecting them; and if congress in either of its branches shall require it, he is to report at any time on any particular branch of the fiscal concerns of the country. He is the agent of congress to watch over the safety of the national deposits; and if, from any peculiar circumstances, the removal of them shall be required, he is to report the fact――to whom? to the president? No, sir; he must report to congress, together with his reasons therefor. By the charter of the bank, the president of the United States is clothed with two powers respecting it, and two only. By one of its clauses he is authorized to nominate, and by and with the consent of the senate, to appoint the government directors, and to remove them, by the other clause he is empowered to issue a _scire facias_ when he shall apprehend that the charter of the institution has been violated. These, I say, are the only powers given him by the charter; all others are denied to him, and are given to others. The bank is not bound to report the state of its affairs to him, but to the secretary of the treasury; and it is thus to report whenever he shall call upon it for information; but when it becomes necessary to go further, a committee of congress is authorized to examine the books of the bank, and to look into the whole state of its affairs, and to report, not to the president, but to congress, who appointed them. The president, as I have said, is restricted to the two powers of appointing directors, and issuing a _scire facias_.

And has the president any power over the treasury by the constitution? None, sir――none. The constitution requires that no money shall be drawn from the treasury except by appropriation, thus placing it entirely under the control of congress. But the president himself says; ‘upon him has been devolved, by the constitution and the suffrages of the American people, the duty of superintending the operation of the executive departments of the government, and seeing that the laws are faithfully executed.’ Sir, the president, in another part of this same paper, refers to the same suffrages of the American people, as the source of some other and new powers over and above those in the constitution, or at least as expressive of their approbation of the exercise of them. Sir, I differ from the president on this point; and though it does not belong exactly in this place in the argument, I will add a remark or two on this idea. His reëlection resulted from his presumed merits generally, and the confidence and attachment of the people; and from the unworthiness of his competitor; nor was it intended thereby to express their approbation of all the opinions he was known to hold. Sir, it cannot be believed that the great state of Pennsylvania, for instance, which has so justly been denominated the key-stone of our federal arch, in voting again and again for the present chief magistrate, meant by that act to reverse her own opinions on the subject of domestic industry. Sir, the truth is, that the reëlection of the president proves as little an approbation by the people of all the opinions he may hold, even if he had ever unequivocally expressed what those opinions were, (a thing which he never, so far as my knowledge extends, has yet done,) as it would prove that if the president had a carbuncle or the king’s evil, they meant, by reëlecting him, to approve of his carbuncle.

But the president says, that the duty ‘has been devolved upon him,’ to remove the deposits, ‘by the constitution and the suffrages of the American people.’ Sir, does he mean to say that these suffrages created of themselves a new source of power? That he derived an authority from them which he did not hold as from any other source? If he means that their suffrages made him the president of the United States, and that, as president, he may exercise every power pertaining to that office under the constitution and the laws, there are none who controvert it; but then there could be no need to add the suffrages to the constitution. But his language is, ‘the suffrages of the American people and the constitution.’ Sir, I deny it. There is not a syllable in the constitution which imposes any such duty upon him. There is nothing of any such thing; no color to the idea. It is true, that by law, all the departments, with the exception of the treasury, are placed under the general care of the president. He says this is done by the constitution. The laws, however, have appointed but three executive departments; and it is true, that the secretaries are often required by law to act in certain cases according to the directions of the president. _So far_ it is admitted that they have been, by the law, (not by the constitution,) placed under the direction of the president. Yet, even as to the state department, there are duties devolving upon the secretary over which the president has no control; and for the non-performance of which that officer is responsible, not to the president, but to the legislative tribunals or to the courts of justice. This is no new opinion. The supreme court, in the case of Marbury and Madison, expressed it in the following terms:

‘By the constitution of the United States, the president
is invested with certain important political powers, in the
exercise of which, he is to use his own discretion, and is
accountable only to his country in his political character, and
to his own conscience. To aid him in the performance of these
duties, he is authorized to appoint certain officers, who act by
his authority, and in conformity to his orders.

* * * * *

‘In such cases, their acts are his acts: and whatever opinion
may be entertained of the manner in which executive discretion
may be used, still there exists, and can exist, no power to
control that discretion. The subjects are political. They
respect the nation, not individual rights, and being intrusted
to the executive, the decision of the executive is conclusive.
The application of this remark will be perceived by adverting to
the act of congress for establishing the department of foreign
affairs. This officer, as his duties were prescribed by that act,
is to conform precisely to the will of the president. He is the
mere organ by whom that will is communicated. The acts of such
an officer, as an officer, can never be examined by the courts.

‘But when the legislature proceeds to impose on that officer
other duties; when he is directed peremptorily to perform
certain acts, (that is, when he is not placed under the
direction of the president,) when the rights of individuals are
dependent on the performance of those acts, he is so far _the
officer of the law_; is amenable _to the laws_ for his conduct;
and cannot at his discretion sport away the vested rights of
others.

‘The conclusion from this reasoning is that where the heads
of departments are the political or confidential agents of
the executive, merely to execute the will of the president,
or rather to act in cases in which the executive possesses
a constitutional or legal discretion, nothing can be more
perfectly clear than that their acts are only politically
examinable. But where a specific duty is assigned by law, and
individual rights depend upon the performance of that duty, it
seems equally clear that the individual who considers himself
injured, has a right to resort to the laws of his country for
a remedy.’

Though the president is mistaken in his assertion, that the constitution devolves upon the president the superintendence of the departments, there is one clause of that instrument which he has very correctly quoted, and which makes it his duty to ‘see that the laws are faithfully executed,’ as it is mine now to examine what authority he obtains by this clause in the case before us. Under it, the most enormous pretensions have been set up for the president.

It has been contended, that if a law shall pass which the president does not conceive to be in conformity with the constitution, he is not bound to execute it; and if a treaty shall have been made, which, in his opinion, has been unconstitutional in its stipulations, he is not bound to enforce them. And it necessarily follows, that, if the courts of justice shall give a decision, which he shall in like manner deem repugnant to the constitution, he is not expected or bound to execute that law. Sir, let us look a little into this principle, and trace it out into some of its consequences.

One of the most important acts performed at the departments is, to settle those very large accounts which individuals have with the government; accounts amounting to millions of dollars; to settle them, an auditor and a comptroller have been appointed by law, whose official acts may affect, to the extent of hundreds of thousands of dollars, the property of individual contractors. If the pretensions of the president are well founded, his power goes further than he has exerted it. He may go into the office of the auditor, or the office of the comptroller, and may say to him, sir, Mr. A. B. has an account under settlement in this office, one item of which, objected to by you, I consider to be in accordance with the constitution; pass that account and send it to the auditor; and he may then go to the auditor and hold similar language. If the clause of the constitution is to be expounded, as is contended for, it amounts to a complete absorption of all the powers of government in the person of the executive. Sir, when a doctrine like this shall be admitted as orthodox, when it shall be acquiesced in by the people of this country, our government will have become a _simple_ machine enough. The will of the president will be the whole of it. There will be but one bed, and that will be the bed of Procrustes; but one will, the will of the president. All the departments, and all subordinate functionaries of government, great or small, must submit to that will; and if they do not, then the president will have failed to ‘see that the laws are faithfully executed.’

Sir, such an extravagant and enormous pretension as this must be set alongside of its exploded compeer, the pretension that congress has the power of passing any and all laws which it may suppose conducive to ‘the general welfare.’

Let me, in a few words, present to the senate what are my own views as to the structure of this government. I hold that no powers can legitimately be exercised under it but such as are expressly delegated, and those which are necessary to carry these into effect. Sir, the executive power, as existing in this government, is not to be traced to the notions of Montesquieu, or of any other writer of that class, in the abstract nature of the executive power. Neither is the legislative nor the judicial power to be decided by any such reformer. These several powers with us, whatever they may be elsewhere, are just what the constitution has made them, and nothing more. And as to the general clauses in which reference is made to either, they are to be controlled and interpreted by those where these several powers are specially delegated, otherwise the executive will become a great vortex that must end in swallowing up all the rest. Nor will the judicial power be any longer restrained by the restraining clauses in the constitution, which relate to its exercise. What then, it will be asked, does this clause, that the president shall see that the laws are faithfully executed, mean? Sir, it means nothing more nor less than this, that if resistance is made to the laws, he shall take care that resistance shall cease. Congress, by the first article of the eighth section of the constitution, is required to provide for calling out the militia to execute the laws, in case of resistance. Sir, it might as well be contended under that clause, that congress have the power of determining what are, and what are not, the laws of the land. Congress has the power of calling out the military; well, sir, what is the president, by the constitution? He is commander of the army and navy of the United States, and of the militia when called out into actual service. When, then, we are here told that he is clothed with the whole physical power of the nation, and when we are afterwards told, that he must take care that the laws are faithfully executed, is it possible that any man can be so lost to the love of liberty, as not to admit that this goes no further than to remove any resistance which may be made to the execution of the laws? We have established a system in which power has been carefully divided among different departments of the government. And we have been told a thousand times, that this division is indispensable as a safeguard to civil liberty. We have designated the departments, and have established in each, officers to examine the power belonging to each. The president, it is true, presides over the whole; his eye surveys the whole extent of the system in all its movements. But has he power to enter into the courts, for example, and tell them what is to be done? Or may he come here, and tell us the same? Or when we have made a law, can he withhold the power necessary to its practical effect? He moves, it is true, in a high, a glorious sphere. It is his to watch over the whole with a paternal eye; and, when any one wheel of the vast machine is for a time interrupted by the occurrence of invasion or rebellion, it is his care to propel its movements, and to furnish it with the requisite means of performing its appropriate duty in its own place.

That this is the true interpretation of the constitutional clause to which I have alluded, is inferred from the total silence of all contemporaneous expositions of that instrument on the subject. I have myself, (and when it was not in my power personally, have caused others to aid me,) made researches into the numbers of the Federalist, the debates in the Virginia convention, and in the conventions of other states, as well as all other sources of information to which I could obtain access, and I have not, in a solitary instance, found the slightest color for the claims set up in these most extraordinary times for the president, that he has authority to afford or withhold at pleasure the means of enforcing the laws, and to superintend and control an officer charged with a specific duty, made by the law exclusively his. But, sir, I have found some authorities which strongly militate against any such claim. If the doctrine be indeed true, then it is most evident that there is no longer any other control over our affairs, than that exerted by the president. If it be true, that when a duty is by law specifically assigned to a particular officer, the president may go into his office and control him in the manner of performing it, then is it most manifest that all barriers for the safety of the treasury are gone. Sir, it is that union of the purse and the sword, in the hand of one man, which constitutes the best definition of tyranny which our language can give.