Chapter XXXIV: Appendix: Impressment (33)

It is to be observed, Sir, that the Protest imposes silence on the House of Representatives as well as on the Senate. It declares that no power is conferred on either branch of the legislature, to consider or decide upon official acts of the executive, for the purpose of censure, and without a view to legislation or impeachment. This, I think, Sir, is pretty high-toned pretension. According to this doctrine, neither house could assert its own rights, however the executive might assail them; neither house could point out the danger to the people, however fast executive encroachment might be extending itself, or whatever danger it might threaten to the public liberties. If the two houses of Congress may not express an opinion of executive conduct by resolution, there is the same reason why they should not express it in any other form, or by any other mode of proceeding. Indeed, the Protest limits both houses, expressly, to the case of impeachment. If the House of Representatives are not about to impeach the President, they have nothing to say of his measures or of his conduct; and unless the Senate are engaged in trying an impeachment, their mouths, too, are stopped. It is the practice of the President to send us an annual message, in which he rehearses the general proceedings of the executive for the past year. This message we refer to our committees for consideration. But, according to the doctrine of the Protest, they can express no opinion upon any executive proceeding upon which it gives information. Suppose the President had told us, in his last annual message, what he had previously told us in his cabinet paper, that the removal of the deposits was _his_ act, done on _his_ responsibility; and that the Secretary of the Treasury had exercised no discretion, formed no judgment, presumed to have no opinion whatever, on the subject. This part of the message would have been referred to the committee on finance; but what could they say? They think it shows a plain violation of the Constitution and the laws; but the President is not impeached; therefore they can express no censure. They think it a direct invasion of legislative power, but they must not say so. They may, indeed, commend, if they can. The grateful business of praise is lawful to them; but if, instead of commendation and applause, they find cause for disapprobation, censure, or alarm, the Protest enjoins upon them absolute silence.

Formerly, Sir, it was a practice for the President to meet both houses, at the opening of the session, and deliver a speech, as is still the usage of some of the State legislatures. To this speech there was an answer from each house$ and those answers expressed, freely, the sentiments of the house upon all the merits and faults of the administration. The discussion of the topics contained in the speech, and the debate on the answers, usually drew out the whole force of parties, and lasted sometimes a week. President Washington's conduct, in every year of his administration, was thus freely and publicly canvassed. He did not complain of it; he did not doubt that both houses had a perfect right to comment, with the utmost latitude, consistent with decorum, upon all his measures. Answers, or amendments to answers, were not unfrequently proposed, very hostile to his own course of public policy, if not sometimes bordering on disrespect. And when they did express respect and regard, there were votes ready to be recorded against the expression of those sentiments. To all this President Washington took no exception; for he well knew that these, and similar proceedings, belonged to the power of popular bodies. But if the President were now to meet us with a speech, and should inform us of measures, adopted by himself in the recess, which should appear to us the most plain, palpable, and dangerous violations of the Constitution, we must, nevertheless, either keep respectful silence, or fill our answer merely with courtly phrases of approbation.

Mr. President, I know not who wrote this Protest, but I confess I am astonished, truly astonished, as well at the want of knowledge which it displays of constitutional law, as at the high and dangerous pretensions which it puts forth. Neither branch of the legislature can express censure upon the President's conduct! Suppose, Sir, that we should see him enlisting troops and raising an army, can we say nothing, and do nothing? Suppose he were to declare war against a foreign power, and put the army and the fleet in action; are we still to be silent? Suppose we should see him borrowing money on the credit of the United States; are we yet to wait for impeachment? Indeed, Sir, in regard to this borrowing money on the credit of the United States, I wish to call the attention of the Senate, not only to what might happen, but to what has actually happened. We are informed that the Post-Office Department, a department over which the President claims the same control as over the rest, _has actually borrowed near half a million of money on the credit of the United States_.

Mr. President, the first power granted to Congress by the Constitution is the power to lay taxes; the second, the power to borrow money on the credit of the United States. Now, Sir, where does the executive find its authority, in or through any department, to borrow money without authority of Congress? This proceeding appears to me wholly illegal, and reprehensible in a very high degree. It may be said that it is not true that this money is borrowed on the credit of the United States, but that it is borrowed on the credit of the Post-Office Department. But that would be mere evasion. The department is but a name. It is an office, and nothing more. The banks have not lent this money to any officer. If Congress should abolish the whole department to-morrow, would the banks not expect the United States to replace this borrowed money? The money, then, is borrowed on the credit of the United States, an act which Congress alone is competent to authorize. If the Post-Office Department may borrow money, so may the War Department and the Navy Department. If half a million may be borrowed, ten millions may be borrowed. What, then, if this transaction shall be justified, is to hinder the executive from borrowing money to maintain fleets and armies, or for any other purpose, at his pleasure, without any authority of law? Yet even this, according to the doctrine of the Protest, we have no right to complain of. We have no right to declare that an executive department has violated the Constitution and broken the law, by borrowing money on the credit of the United States. Nor could we make a similar declaration, if we were to see the executive, by means of this borrowed money, enlisting armies and equipping fleets. And yet, Sir, the President has found no difficulty, heretofore, in expressing his opinions, _in a paper not called for by the exercise of any official duty_, upon the conduct and proceedings of the two houses of Congress. At the commencement of this session, he sent us a message, commenting on the land bill which the two houses passed at the end of the last session. That bill he had not approved, nor had he returned it with objections. Congress was dissolved; and the bill, therefore, was completely dead, and could not be revived. No communication from him could have the least possible effect as an official act. Yet he saw fit to send a message on the subject, and in that message he very freely declares his opinion that the bill which had passed both houses _began with an entire subversion of every one of the compacts by which the United States became possessed of their Western domain_; that one of its provisions _was in direct and undisguised violation of the pledge given by Congress to the States_; that the Constitution provides that these compacts shall be untouched by the legislative power, which can only make needful rules and regulations; and that all beyond that is _an assumption of undelegated power_.

These are the terms in which the President speaks of an act of the two houses; not in an official paper, not in a communication which it was necessary for him to make to them; but in a message, adopted only as a mode through which to make public these opinions. After this, it would seem too late to enjoin on the houses of Congress a total forbearance from all comment on the measures of the executive.

Not only is it the right of both houses, or of either, to resist, by vote, declaration, or resolution, whatever it may deem an encroachment of executive power, but it is also undoubtedly the right of either house to oppose, in like manner, any encroachment by the other. The two houses have each its own appropriate powers and authorities, which it is bound to preserve. They have, too, different constituents. The members of the Senate are representatives of States; and it is in the Senate alone that the four-and-twenty States, as political bodies, have a direct influence in the legislative and executive powers of this government. He is a strange advocate of State rights, who maintains that this body, thus representing the States, and thus being the strictly federal branch of the legislature, may not assert and maintain all and singular its own powers and privileges, against either or both of the other branches.

If any thing be done or threatened derogatory to the rights of the States, as secured by the organization of the Senate, may we not lift up our voices against it? Suppose the House of Representatives should vote that the Senate ought not to propose amendments to revenue bills; would it be the duty of the Senate to take no notice of such proceeding? Or, if we were to see the President issuing commissions to office to persons who had never been nominated to the Senate, are we not to remonstrate?

Sir, there is no end of cases, no end of illustrations. The doctrines of the Protest, in this respect, cannot stand the slightest scrutiny; they are blown away by the first breath of discussion.

And yet, Sir, it is easy to perceive why this right of declaring its sentiments respecting the conduct of the executive is denied to either house, in its legislative capacity. It is merely that the Senate might be presented in the odious light of _trying_ the President, judicially, without regular accusation or hearing. The Protest declares that the President is _charged with a crime, and, without hearing or trial, found guilty and condemned_. This is evidently an attempt to appeal to popular feeling, and to represent the President as unjustly treated and unfairly tried. Sir, it is a false appeal. The President has not been tried at all; he has not been accused; he has not been charged with crime; he has not been condemned. Accusation, trial, and sentence are terms belonging to judicial proceedings. But the Senate has been engaged in no such proceeding. The resolution of the 28th of March was not an exercise of judicial power, either in form, in substance, or in intent. Everybody knows that the Senate can exercise no judicial power until articles of impeachment are brought before it. It is then to proceed, by accusation and answer, hearing, trial, and judgment. But there has been no impeachment, no answer, no hearing, no judgment. All that the Senate did was to pass a resolution, in legislative form, declaring its opinion of certain acts of the executive. This resolution imputed no crime; it charged no corrupt motive; it proposed no punishment. It was directed, not against the President personally, but against the act; and that act it declared to be, in its judgment, an assumption of authority not warranted by the Constitution.

It is in vain that the Protest attempts to shift the resolution to the judicial character of the Senate. The case is too plain for such an argument to be plausible. But, in order to lay some foundation for it, the Protest, as I have already said, contends that neither the Senate nor the House of Representatives can express its opinions on the conduct of the President, except in some form connected with impeachment; so that if the power of impeachment did not exist, these two houses, though they be representative bodies, though one of them be filled by the immediate representatives of the people, though they be constituted like other popular and representative bodies, could not utter a syllable, although they saw the executive either trampling on their own rights and privileges, or grasping at absolute authority and dominion over the liberties of the country! Sir, I hardly know how to speak of such claims of impunity for executive encroachment. I am amazed that any American citizen should draw up a paper containing such lofty pretensions; pretensions which would have been met with scorn in England, at any time since the Revolution of 1688. A man who should stand up, in either house of the British Parliament, to maintain that the house could not, by vote or resolution, maintain its own rights and privileges, would make even the Tory benches hang their heads for very shame.

There was, indeed, a time when such proceedings were not allowed. Some of the kings of the Stuart race would not tolerate them. A signal instance of royal displeasure with the proceedings of Parliament occurred in the latter part of the reign of James the First. The House of Commons had spoken, on some occasion, "of its own undoubted rights and privileges." The king thereupon sent them a letter, declaring that _he would not allow that they had any undoubted rights; but that what they enjoyed they might still hold by his own royal grace and permission_. Sir Edward Coke and Mr. Granville were not satisfied with this title to their privileges; and, under their lead, the house entered on its journals a resolution asserting its privileges, _as its own undoubted right_, and manifesting a determination to maintain them as such. This, says the historian, so enraged his Majesty, that he sent for the journal, had it brought into the Council, and there, in the presence of his lords and great officers of state, tore out the offensive resolution with his own royal hand. He then dissolved Parliament, and sent its most refractory members to the Tower. I have no fear, certainly, Sir, that this English example will be followed, on this occasion, to its full extent; nor would I insinuate that any thing outrageous has been thought of, or intended, except outrageous pretensions; but such pretensions I must impute to the author of this Protest, whoever that author may be.

When this and the other house shall lose the freedom of speech and debate; when they shall surrender the rights of publicly and freely canvassing all important measures of the executive; when they shall not be allowed to maintain their own authority and their own privileges by vote, declaration, or resolution,--they will then be no longer free representatives of a free people, but slaves themselves, and fit instruments to make slaves of others.

The Protest, Mr. President, concedes what it doubtless regards as a liberal right of discussion to the people themselves. But its language, even in acknowledging this right of the _people_ to discuss the conduct of their servants, is qualified and peculiar. The free people of the United States, it declares, have an undoubted right to discuss the official conduct of the President in such language and form as they may think proper, "subject only to the restraints of truth and justice." But, then, who is to be judge of this truth and justice? Are the people to judge for themselves, or are others to judge for them? The Protest is here speaking of _political_ rights, and not moral rights; and if restraints are imposed on _political_ rights, it must follow, of course, that others are to decide whenever the case arises whether these restraints have been violated. It is strange that the writer of the Protest did not perceive that, by using this language, he was pushing the President into a direct avowal of the doctrines of 1798. The text of the Protest and the text of the obnoxious act[1] of that year are nearly identical.

But, Sir, if the people have a right to discuss the official conduct of the executive, so have their representatives. We have been taught to regard a representative of the people as a sentinel on the watch-tower of liberty. Is he to be blind, though visible danger approaches? Is he to be deaf, though sounds of peril fill the air? Is he to be dumb, while a thousand duties impel him to raise the cry of alarm? Is he not, rather, to catch the lowest whisper which breathes intention or purpose of encroachment on the public liberties, and to give his voice breath and utterance at the first appearance of danger? Is not his eye to traverse the whole horizon with the keen and eager vision of an unhooded hawk, detecting, through all disguises, every enemy advancing, in any form, towards the citadel which he guards? Sir, this watchfulness for public liberty; this duty of foreseeing danger and proclaiming it; this promptitude and boldness in resisting attacks on the Constitution from any quarter; this defence of established landmarks; this fearless resistance of whatever would transcend or remove them,--all belong to the representative character, are interwoven with its very nature. If deprived of them, an active, intelligent, faithful agent of the people will be converted into an unresisting and passive instrument of power. A representative body, which gives up these rights and duties, gives itself up. It is a representative body no longer. It has broken the tie between itself and its constituents, and henceforth is fit only to be regarded as an inert, self-sacrificed mass, from which all appropriate principle of vitality has departed for ever.

I have thus endeavored to vindicate the right of the Senate to pass the resolution of the 28th of March, notwithstanding the denial of that right in the Protest.

But there are other sentiments and opinions expressed in the Protest, of the very highest importance, and which demand nothing less than our utmost attention.

The first object of a free people is the preservation of their liberty; and liberty is only to be preserved by maintaining constitutional restraints and just divisions of political power. Nothing is more deceptive or more dangerous than the pretence of a desire to simplify government. The simplest governments are despotisms; the next simplest, limited monarchies; but all republics, all governments of law, must impose numerous limitations and qualifications of authority, and give many positive and many qualified rights. In other words, they must be subject to rule and regulation. This is the very essence of free political institutions. The spirit of liberty is, indeed, a bold and fearless spirit; but it is also a sharp-sighted spirit, it is a cautious, sagacious, discriminating, far-seeing intelligence; it is jealous of encroachment, jealous of power, jealous of man. It demands checks; it seeks for guards; it insists on securities; it intrenches itself behind strong defences, and fortifies itself with all possible care against the assaults of ambition and passion. It does not trust the amiable weaknesses of human nature, and therefore it will not permit power to overstep its prescribed limits, though benevolence, good intent, and patriotic purpose come along with it. Neither does it satisfy itself with flashy and temporary resistance to illegal authority. Far otherwise. It seeks for duration and permanence. It looks before and after; and, building on the experience of ages which are past, it labors diligently for the benefit of ages to come. This is the nature of constitutional liberty; and this is _our_ liberty, if we will rightly understand and preserve it. Every free government is necessarily complicated, because all such governments establish restraints, as well on the power of government itself as on that of individuals. If we will abolish the distinction of branches, and have but one branch; if we will abolish jury trials, and leave all to the judge; if we will then ordain that the legislator shall himself be that judge; and if we will place the executive power in the same hands, we may readily simplify government. We may easily bring it to the simplest of all possible forms, a pure despotism. But a separation of departments, so far as practicable, and the preservation of clear lines of division between them, is the fundamental idea in the creation of all our constitutions; and, doubtless, the continuance of regulated liberty depends on maintaining these boundaries.

In the progress, Sir, of the governments of the United States, we seem exposed to two classes of dangers or disturbances; one external, the other internal. It may happen that collisions arise between this government and the governments of the States. That case belongs to the first class. A memorable instance of this kind occurred last year. It was my conscientious opinion, on that occasion, that the authority claimed by an individual State[2] was subversive of the just powers of this government, and, indeed, incompatible with its existence. I gave a hearty co-operation, therefore, to measures which the crisis seemed to require. We have now before us what appears, to my judgment, to be an instance of the latter kind. A contest has arisen between different branches of the same government, interrupting their harmony, and threatening to disturb their balance. It is of the highest importance, therefore, to examine the question carefully, and to decide it justly.

The separation of the powers of government into three departments, though all our constitutions profess to be founded on it, has, nevertheless, never been perfectly established in any government of the world, and perhaps never can be. The general principle is of inestimable value, and the leading lines of distinction sufficiently plain; yet there are powers of so undecided a character, that they do not seem necessarily to range themselves under either head. And most of our constitutions, too, having laid down the general principle, immediately create exceptions. There do not exist, in the general science of government, or the received maxims of political law, such precise definitions as enable us always to say of a given power whether it be legislative, executive, or judicial. And this is one reason, doubtless, why the Constitution, in conferring power on all the departments, proceeds not by general definition, but by specific enumeration. And, again, it grants a power in general terms, but yet, in the same or some other article or section, imposes a limitation or qualification on the grant; and the grant and the limitation must, of course, be construed together. Thus the Constitution says that all legislative power, therein granted, shall be vested in Congress, which Congress shall consist of a Senate and a House of Representatives; and yet, in another article, it gives to the President a qualified negative over all acts of Congress. So the Constitution declares that the judicial power shall be vested in one Supreme Court, and such inferior courts as Congress may establish. It gives, nevertheless, in another provision, judicial power to the Senate; and, in like manner, though it declares that the executive power shall be vested in the President, using, in the immediate context, no words of limitation, yet it elsewhere subjects the treaty-making power, and the appointing power, to the concurrence of the Senate. The irresistible inference from these considerations is, that the mere nomination of a department, as one of the three great and commonly acknowledged departments of government, does not confer on that department any power at all. Notwithstanding the departments are called the legislative, the executive, and the judicial, we must yet look into the provisions of the Constitution itself, in order to learn, first, what powers the Constitution regards as legislative, executive, and judicial; and, in the next place, what portions or quantities of these powers are conferred on the respective departments; because no one will contend that _all_ legislative power belongs to Congress, _all_ executive power to the President, or _all_ judicial power to the courts of the United States.

The first three articles of the Constitution, as all know, are taken up in prescribing the organization, and enumerating the powers, of the three departments. The first article treats of the legislature, and its first section is, "All legislative power, _herein granted_, shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The second article treats of the executive power, and its first section declares that "the executive power shall be vested in a President of the United States of America." The third article treats of the judicial power, and its first section declares that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish."

It is too plain to be doubted, I think, Sir, that these descriptions of the persons or officers in whom the executive and the judicial powers are to be vested no more define the extent of the grant of those powers, than the words quoted from the first article describe the extent of the legislative grant to Congress. All these several titles, heads of articles, or introductory clauses, with the general declarations which they contain, serve to designate the departments, and to mark the general distribution of powers; but in all the departments, in the executive and judicial as well as in the legislative, it would be unsafe to contend for any specific power under such clauses.

If we look into the State constitutions, we shall find the line of distinction between the departments still less perfectly drawn, although the general principle of the distinction is laid down in most of them, and in some of them in very positive and emphatic terms. In some of these States, notwithstanding the principle of distribution is adopted and sanctioned, the legislature appoints the judges; and in others it appoints both the governor and the judges; and in others, again, it appoints not only the judges, but all other officers.

The inferences which, I think, follow from these views of the subject, are two: first, that the denomination of a department does not fix the limits of the powers conferred on it, nor even their exact nature; and, second (which, indeed, follows from the first), that in our American governments, the chief executive magistrate does not necessarily, and by force of his general character of supreme executive, possess the appointing power. He may have it, or he may not, according to the particular provisions applicable to each case in the respective constitutions.

The President appears to have taken a different view of this subject. He seems to regard the appointing power as originally and inherently in the executive, and as remaining absolute in his hands, except so far as the Constitution restrains it. This I do not agree to, and I shall have occasion hereafter to examine the question further. I have intended thus far only to insist on the high and indispensable duty of maintaining the division of power _as the Constitution has marked out that division_, and to oppose claims of authority not founded on express grants or necessary implication, but sustained merely by argument or inference from names or denominations given to departments.

Mr. President, the resolutions now before us declare, that the Protest asserts powers as belonging to the President inconsistent with the authority of the two houses of Congress, and inconsistent with the Constitution; and that the Protest itself is a breach of privilege. I believe all this to be true.

The doctrines of the Protest are inconsistent with the authority of the two houses, because, in my judgment, they deny the just extent of the law-making power. I take the Protest as it was sent to us, without inquiring how far the subsequent message has modified or explained it. It is singular, indeed, that a paper, so long in preparation, so elaborate in composition, and which is put forth for so high a purpose as the Protest avows, should not be able to stand an hour's discussion before it became evident that it was indispensably necessary to alter or explain its contents. Explained or unexplained, however, the paper contains sentiments which justify us, as I think, in adopting these resolutions.

In the first place, I think the Protest a clear breach of privilege. It is a reproof or rebuke of the Senate, in language hardly respectful, for the exercise of a power clearly belonging to it as a legislative body. It entirely misrepresents the proceedings of the Senate. I find this paragraph in it, among others of a similar tone and character: "A majority of the Senate, whose interference with the preliminary question has, for the best of all reasons, been studiously excluded, anticipate the action of the House of Representatives, assume not only the function which belongs exclusively to that body, but convert themselves into accusers, witnesses, counsel, and judges, and prejudge the whole case; thus presenting the appalling spectacle, in a free state, of judges going through a labored preparation for an impartial hearing and decision, by a previous _ex parte_ investigation and sentence against the supposed offender."

Now, Sir, this paragraph, I am bound to say, is a total misrepresentation of the proceedings of the Senate. A majority of the Senate have not anticipated the House of Representatives; they have not assumed the functions of that body; they have not converted themselves into accusers, witnesses, counsel, or judges; they have made no _ex parte_ investigation; they have given no sentence. This paragraph is an elaborate perversion of the whole design and the whole proceedings of the Senate. A Protest, sent to us by the President, against votes which the Senate has an unquestionable right to pass, and containing, too, such a misrepresentation of these votes as this paragraph manifests, is a breach of privilege.

But there is another breach of privilege. The President interferes between the members of the Senate and their constituents, and charges them with acting contrary to the will of those constituents. He says it is his right and duty to look to the journals of the Senate to ascertain who voted for the resolution of the 28th of March, and then to show that individual Senators have, by their votes on that resolution, disobeyed the instructions or violated the known will of the legislatures who appointed them. All this he claims as his right and his duty. And where does he find any such right or any such duty? What right has he to send a message to either house of Congress telling its members that they disobey the will of their constituents? Has any English sovereign since Cromwell's time dared to send such a message to Parliament? Sir, if he can tell us that some of us disobey our constituents, he can tell us that all do so; and if we consent to receive this language from him, there is but one remaining step, and that is, that since we thus disobey the will of our constituents, he should disperse us and send us home. In my opinion, the first step in this process is as distinct a breach of privilege as the last. If Cromwell's example shall be followed out, it will not be more clear then than it is now that the privileges of the Senate have been violated. There is yet something, Sir, which surpasses all this; and that is, that, after this direct interference, after pointing out those Senators whom he would represent as having disobeyed the known will of their constituents, _he disclaims all design of interfering at all_! Sir, who could be the writer of a message, which, in the first place, makes the President assert such monstrous pretensions, and, in the next line, affront the understanding of the Senate by disavowing all right to do that very thing which he is doing? If there be any thing, Sir, in this message, more likely than the rest of it to move one from his equanimity, it is this disclaimer of all design to interfere with the responsibility of members of the Senate to their constituents, after such interference had already been made, in the same paper, in the most objectionable and offensive form. If it were not for the purpose of telling these Senators that they disobeyed the will of the legislatures of the States they represent, _for what purpose was it_ that the Protest has pointed out the four Senators, and paraded against them the sentiments of their legislatures? There can be no other purpose. The Protest says, indeed, that "these facts belong to the history of these proceedings"! To the history of what proceedings? To any proceeding to which the President was party? To any proceeding to which the Senate was party? Have they any thing to do with the resolution of the 28th of March? But it adds, that these facts _are important to the just development of the principles and interests involved in the proceedings_. All this might be said of any other facts. It is mere words. To what principles, to what interests, are these facts important? They can be important but in one point of view; and that is as proof, or evidence, that the Senators have disobeyed instructions, or acted against the known will of their constituents in disapproving the President's conduct. They have not the slightest bearing in any other way. They do not make the resolution of the Senate more or less true, nor its right to pass it more or less clear. Sir, these proceedings of the legislatures were introduced into this Protest for the very purpose, and no other, of showing that members of the Senate have acted contrary to the will of their constituents. Every man sees and knows this to have been the sole design; and any other pretence is a mockery to our understandings. And this purpose is, in my opinion, an unlawful purpose; it is an unjustifiable intervention between us and our constituents; and is, therefore, a manifest and flagrant breach of privilege.

In the next place, the assertions of the Protest are inconsistent with the just authority of Congress, because they claim for the President a power, independent of Congress, to possess the custody and control of the public treasures. Let this point be accurately examined; and, in order to avoid mistake, I will read the precise words of the Protest.

"The custody of the public property, under such regulations as may
be prescribed by legislative authority, has always been considered
an appropriate function of the executive department in this and all
other governments. In accordance with this principle, every species
of property belonging to the United States, (excepting that which
is in the use of the several co-ordinate departments of the
government, as means to aid them in performing their appropriate
functions,) is in charge of officers appointed by the President,
whether it be lands, or buildings, or merchandise, or provisions,
or clothing, or arms and munitions of war. The superintendents and
keepers of the whole are appointed by the President, and removable
at his will.

"Public money is but a species of public property. It cannot be
raised by taxation or customs, nor brought into the treasury in any
other way except by law; but whenever or howsoever obtained, its
custody always has been, and always must be, unless the
Constitution be changed, intrusted to the executive department. No
officer can be created by Congress, for the purpose of taking
charge of it, whose appointment would not, by the Constitution, at
once devolve on the President, and who would not be responsible to
him for the faithful performance of his duties."

And, in another place, it declares that "Congress cannot, therefore, take out of the hands of the executive department the custody of the public property or money, without an assumption of executive power, and a subversion of the first principles of the Constitution." These, Sir, are propositions which cannot receive too much attention. They affirm, that the custody of the public money constitutionally and necessarily belongs to the executive; and that, until the Constitution is changed, Congress cannot take it out of his hands, nor make any provision for its custody, except by such superintendents and keepers as are appointed by the President and removable at his will. If these assertions be correct, we have, indeed, a singular constitution for a republican government; for we give the executive the control, the custody, and the possession of the public treasury, by original constitutional provision; and when Congress appropriates, it appropriates only what is already in the President's hands.

Sir, I hold these propositions to be sound in neither branch. I maintain that the custody of the public money does not necessarily belong to the executive, under this government; and I hold that Congress may so dispose of it, that it shall be under the superintendence of keepers not appointed by the President, nor removable at his will. I think it competent for Congress to declare, as Congress did declare in the bank charter, that the public deposits should be made in the bank. When in the bank, they were not kept by persons appointed by the President, or removable at his will. He could not change that custody; nor could it be changed at all, but according to provisions made in the law itself. There was, indeed, a provision in the law authorizing the _Secretary_ to change the custody. But suppose there had been no such provision; suppose the contingent power had not been given to the Secretary; would it not have been a lawful enactment? Might not the law have provided that the public moneys should remain in the bank, until Congress itself should otherwise order, leaving no power of removal anywhere else? And if such provision had been made, what power, or custody, or control, would the President have possessed over them? Clearly, none at all. The act of May, 1800, directed custom-house bonds, in places where the bank which was then in existence was situated, or in which it had branches, to be deposited in the bank or its branches for collection, without the reservation to the Secretary, or anybody else, of any power of removal. Now, Sir, this was an unconstitutional law, if the Protest, in the part now under consideration, be correct; because it placed the public money in a custody beyond the control of the President, and in the hands of keepers not appointed by him, nor removable at his pleasure. One may readily discern, Sir, the process of reasoning by which the author of the Protest brought himself to the conclusion that Congress could not place the public moneys beyond the President's control. It is all founded on the power of appointment and the power of removal. These powers, it is supposed, must give the President complete control and authority over those who actually hold the money, and therefore must necessarily subject its custody, at all times, to his own individual will. This is the argument.

It is true, that the appointment of all public officers, with some exceptions, is, by the Constitution, given to the President, with the consent of the Senate; and as, in most cases, public property must be held by some officer, its keepers will generally be persons so appointed. But this is only the common, not a necessary consequence, of giving the appointing power to the President and Senate. Congress may still, if it shall so see fit, place the public treasure in the hand of no officer appointed by the President, or removable by him, but in hands quite beyond his control. Subject to one contingency only, it did this very thing by the charter of the present bank; and it did the same thing absolutely, and subject to no contingency, by the law of 1800. The Protest, in the first place, seizes on the fact that all officers must be appointed by the President, or on his nomination; it then assumes the next step, that all officers are, and _must be_, removable at his pleasure; and then, insisting that public money, like other public property, must be kept by _some public officer_, it thus arrives at the conclusion that it _must_ always be in the hands of those who are appointed by the President, and who are removable at his pleasure. And it is very clear that the Protest means to maintain that the _tenure of office cannot be so regulated by law, as that public officers shall not be removable at the pleasure of the President_.

The President considers the right of removal as a fixed, vested, constitutional right, which Congress cannot limit, control, or qualify, until the Constitution shall be altered. This, Sir, is doctrine which I am not prepared to admit. I shall not now discuss the question, whether the law may not place the tenure of office beyond the reach of executive pleasure; but I wish merely to draw the attention of the Senate to the fact, that any such power in Congress is denied by the principles and by the words of the Protest. According to that paper, we live under a constitution by the provisions of which the public treasures are, necessarily and unavoidably, always under executive control; and as the executive may remove all officers, and appoint others, at least temporarily, without the concurrence of the Senate, he may hold those treasures, in the hands of persons appointed by himself alone, in defiance of any law which Congress has passed or can pass. It is to be seen, Sir, how far such claims of power will receive the approbation of the country. It is to be seen whether a construction will be readily adopted which thus places the public purse out of the guardianship of the immediate representatives of the people.

But, Sir, there is, in this paper, something even yet more strange than these extraordinary claims of power. There is a strong disposition, running through the whole Protest, to represent the executive department of this government as the peculiar protector of the public liberty, the chief security on which the people are to rely against the encroachment of other branches of the government. Nothing can be more manifest than this purpose. To this end, the Protest spreads out the President's official oath, reciting all its words in a formal quotation; and yet the oath of members of Congress is exactly equivalent. The President is to swear that he will "preserve, protect, and defend the Constitution"; and members of Congress are to swear that they will "support the Constitution." There are more words in one oath than the other, but the sense is precisely the same. Why, then, this reference to his official oath, and this ostentatious quotation of it? Would the writer of the Protest argue that the oath itself is any grant of power; or that, because the President is to "preserve, protect, and defend the Constitution," he is therefore to use what means he pleases for such preservation, protection, and defence, or any means except those which the Constitution and laws have specifically given him? Such an argument would be absurd; but if the oath be not cited for this preposterous purpose, with what design is it thus displayed on the face of the Protest, unless it be to support the general idea that the maintenance of the Constitution and the preservation of the public liberties are especially confided to the safe discretion, the sure moderation, the paternal guardianship, of executive power? The oath of the President contains three words, all of equal import; that is, that he will _preserve_, _protect_, and _defend_ the Constitution. The oath of members of Congress is expressed in shorter phrase; it is, that they will _support_ the Constitution. If there be any difference in the meaning of the two oaths, I cannot discern it; and yet the Protest solemnly and formally argues thus: "The duty of defending, so far as in him lies, the integrity of the Constitution, would, indeed, have resulted from the very nature of his office; but by thus expressing it in the official oath or affirmation, which, in this respect, differs from that of every other functionary, the founders of our republic have attested their sense of its importance, and have given to it a peculiar solemnity and force."

Sir, I deny the proposition, and I dispute the proof. I deny that the duty of defending the integrity of the Constitution is, in any peculiar sense, confided to the President; and I deny that the words of his oath furnish any argument to make good that proposition. Be pleased, Sir, to remember _against whom it is_ that the President holds it _his_ peculiar duty to defend the integrity of the Constitution. It is not against external force; it is not against a foreign foe; no such thing; _but it is against the representatives of the people and the representatives of the States_! It is against these that the founders of our republic have imposed on him the duty of defending the integrity of the Constitution; a duty, he says, of the importance of which they have attested their sense, and to which they have given peculiar solemnity and force, by expressing it in his official oath!

Let us pause, Sir, and consider this most strange proposition. The President is the chief executive magistrate. He is commander-in-chief of the army and navy; nominates all persons to office; claims a right to remove all at will, and to control all, while yet in office; dispenses all favors; and wields the whole patronage of the government. And the proposition is, that the duty of defending the integrity of the Constitution against the representatives of the States and against the representatives of the people, _results to him from the very nature of his office_; and that the founders of our republic have given to this duty, thus confided to him, peculiar solemnity and force!

Mr. President, the contest, for ages, has been to rescue Liberty from the grasp of executive power. Whoever has engaged in her sacred cause, from the days of the downfall of those great aristocracies which had stood between the king and the people to the time of our own independence, has struggled for the accomplishment of that single object. On the long list of the champions of human freedom, there is not one name dimmed by the reproach of advocating the extension of executive authority; on the contrary, the uniform and steady purpose of all such champions has been to limit and restrain it. To this end the spirit of liberty, growing more and more enlightened and more and more vigorous from age to age, has been battering, for centuries, against the solid butments of the feudal system. To this end, all that could be gained from the imprudence, snatched from the weakness, or wrung from the necessities of crowned heads, has been carefully gathered up, secured, and hoarded, as the rich treasures, the very jewels of liberty. To this end, popular and representative right has kept up its warfare against prerogative, with various success; sometimes writing the history of a whole age in blood, sometimes witnessing the martyrdom of Sidneys and Russells, often baffled and repulsed, but still gaining, on the whole, and holding what it gained with a grasp which nothing but the complete extinction of its own being could compel it to relinquish. At length, the great conquest over executive power, in the leading western states of Europe, has been accomplished. The feudal system, like other stupendous fabrics of past ages, is known only by the rubbish which it has left behind it. Crowned heads have been compelled to submit to the restraints of law, and the PEOPLE, with that intelligence and that spirit which make their voice resistless, have been able to say to prerogative, "Thus far shalt thou come, and no farther." I need hardly say, Sir, that into the full enjoyment of all which Europe has reached only through such slow and painful steps we sprang at once, by the Declaration of Independence, and by the establishment of free representative governments; governments borrowing more or less from the models of other free states, but strengthened, secured, improved in their symmetry, and deepened in their foundation, by those great men of our own country whose names will be as familiar to future times as if they were written on the arch of the sky.

Through all this history of the contest for liberty, executive power has been regarded as a lion which must be caged. So far from being the object of enlightened popular trust, so far from being considered the natural protector of popular right, it has been dreaded, uniformly, always dreaded, as the great source of its danger.

And now, Sir, who is he, so ignorant of the history of liberty, at home and abroad; who is he, yet dwelling in his contemplations among the principles and dogmas of the Middle Ages; who is he, from whose bosom all original infusion of American spirit has become so entirely evaporated and exhaled, that he shall put into the mouth of the President of the United States the doctrine that the defence of liberty _naturally results to_ executive power, and is its peculiar duty? Who is he, that, generous and confiding towards power where it is most dangerous, and jealous only of those who can restrain it,--who is he, that, reversing the order of the state, and upheaving the base, would poise the pyramid of the political system upon its apex? Who is he, that, overlooking with contempt the guardianship of the representatives of the people, and with equal contempt the higher guardianship of the people themselves,--who is he that declares to us, through the President's lips, that the security for freedom rests in executive authority? Who is he that belies the blood and libels the fame of his own ancestors, by declaring that _they_, with solemnity of form, and force of manner, have invoked the executive power to come to the protection of liberty? Who is he that thus charges them with the insanity, or the recklessness, of putting the lamb beneath the lion's paw? No, Sir. No, Sir. Our security is in our watchfulness of executive power. It was the constitution of this department which was infinitely the most difficult part in the great work of creating our present government. To give to the executive department such power as should make it useful, and yet not such as should render it dangerous; to make it efficient, independent, and strong, and yet to prevent it from sweeping away every thing by its union of military and civil authority, by the influence of patronage, and office, and favor,--this, indeed, was difficult. They who had the work to do saw the difficulty, and we see it; and if we would maintain our system, we shall act wisely to that end, by preserving every restraint and every guard which the Constitution has provided. And when we, and those who come after us, have done all that we can do, and all that they can do, it will be well for us and for them, if some popular executive, by the power of patronage and party, and the power, too, of that very popularity, shall not hereafter prove an overmatch for all other branches of the government.

I do not wish, Sir, to impair the power of the President, as it stands written down in the Constitution, and as great and good men have hitherto exercised it. In this, as in other respects, I am for the Constitution as it is. But I will not acquiesce in the reversal of all just ideas of government; I will not degrade the character of popular representation; I will not blindly confide, where all experience admonishes me to be jealous; I will not trust executive power, vested in the hands of a single magistrate, to be the guardian of liberty.