ring guide-the wisdom of experience-has ordained and established that a majority of the whole number is both a safe and practicable quorum. It is a fixed principle of the constitution, that the whole number of each branch of the Legislature, or a majority thereof, is competent to transact business; and, both being equally competent, the same rule is impartially applied to both; and in case of the veto, two thirds are invariably required to pass the bill or resolu

tion.

The amendment leaves unassailed the principle that the whole number, or a bare majority, are equally competent to legislate, and yet gives a different rule or measure of power in reference to the President's negative. With a bare majority, the unanimous concurrence of a competent body is required; whilst, with the whole number present, a bare majority is deemed sufficient-the very smallest number which could originally adopt any measure. This inequality of operation is, of itself, an insurmountable objection to the contemplated plan. The uniform and just provision of the 7th section of the 1st article highly recommends its unaltered preservation.

The committee might here conclude this part of the matter under review, being well satisfied that they have clearly demonstrated the superiority of the existing arrangement over the modification contained in the amendment. But as, peradventure, there may be some lurking hostility to the very existence of the "veto," your committee will indulge in a brief inquiry into the propriety of its introduction into the constitution.

The wise framers of our constitution, discarding the apprehension "that a vigorous Executive is inconsistent with the genius of a republican Government," proceeded upon the idea that "energy in the Executive is a leading character in the definition of good government;" preserving, however, in the organization of this department, "a due dependence on the people; a due responsibility." Requisite energy can only be imparted to the Executive by the bestowal of "competent powers." Among the "competent powers," the same wise and virtuous statesmen thought it necessary to include "the qualified negative of the President upon the acts or resolutions of the two Houses of the Legislature; or, in other words, his power of returning all bills, with objections, which will have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body." The qualified negative thus bestowed on the President, with a single exception-the question of adjournment-may be applied, according to his own sense of the propriety or necessity of the case, without restraint or discrimination, to any act or resolution of the two Houses of Congress. There was a two-fold object in granting this power. In the first place, it was designed as a means of self-defence to the Executive, to enable the President to counteract such proceedings of the legislative branch as tend to absorb the proper powers or infringe the just rights of the Executive. In the second place, it was intended to afford to the people themselves, through the instrumentality of a President of their own free choice, and possessing their confidence, "an additional security against the enaction of improper laws."

Your committee will not dwell on the tendency of the legislative body occasionally, especially in a free representative Government, to absorb the powers of the other departments; nor will they detain the House by a reference to the previous history of State and Federal legislation, to prove that sometimes a majority of the legislative body may happen to act under the influence of factious feelings, of an ill-advised precipitancy, or some hasty impulse unfriendly to the public good. Your committee are contented to allude to facts attested by all experience, and which no man of candor will deny. It is not a disturbed and feverish imagination which supposes, it is the recorded evi

[24th CONG. 2d SESS.

dence of American experiments in the science of government which establishes, that there are evils inherent in, and inseparable from, a legislative body composed of representatives freely chosen by the great mass of the people. For these evils a remedy was sought in the creation of a counterpoise. The creation of a counterpoise was evidently the result of that wise patriotism which designs to call philosophy to its aid. The sagacity to perceive imperfections, without the philosophical prudence to provide the antidote, might, in a moment of hasty despair, induce the abandonment of the whole system of representative government; because the finite intellect of man was insufficient to make it perfect, or secure it at all times from the influence of the passions, the prejudices, and wickedness, of those who might be intrusted with its administration. It is considered undeniable that the plan of representative government-of conferring the law-making power upon delegates freely and fairly elected-is not only beneficial, but absolutely necessary, to the advancement of human happiness to the greatest attainable degree. It must be conceded, however, that this plan must unavoidably partake, in some degree, of the imperfections of human nature-must inevitably, at times, be exposed to partial or temporary evils. The maturest wisdom plainly dictates that it is far better to temper, to modify, to ameliorate, to counteract, these partial and temporary tendencies to evil, than to avoid their occurrence by a total abandonment of the system.

Has the institution of the qualified negative afforded the remedy for those occasional and temporary, but inherent, evils of a representative legislative body to which your committee have alluded? Or has its application, taking into view the whole period of the existence of the Federal Government, produced opposite evils, more durable and of greater magnitude? Has the exercise of this power, since the adoption of the federal constitution, been arbitrary, capricious, and altogether too frequent? Or has this power, upon the whole, been exerted to defend the people and the States against the bad effects of a legislative usurpation of powers belonging to other departments, as also against hasty, improvident, and unconstitutional enactments? The answer to these interrogatories will furnish a satisfactory solution of the problem, whether the principle of a qualified negative has been wisely and safely introduced into our federal system.

During the term of the present incumbent, this power has been exerted on several occasions of great moment; and your committee cannot doubt but that this circumstance has suggested, to those disapproving the conduct of the Executive in those instances, the proposed modification. would be an improper consumption of time, and would extend this report to an unreasonable length, to engage in a discussion of the merits of these several applications of the

"veto.

It

They were subjects of protracted, animated, and able debate, before the common constituents of the Legislature and Executive. The multiplied developments of public sentiment cannot have failed to produce the conviction, on the mind of every candid and attentive observer of passing events, that, in all the various conflicts in relation to the "veto," the President has been fully sustained by the people, and by a majority of the States composing this confederacy.

Your committee, taking a cursory view of this portion of the history of the Federal Government, do not find any instance which they are prepared to condemn as a wanton or tyrannical display of this executive shield. They do not believe that its protection has been sought capriciously, or with too much frequency. Judging, therefore, from anterior occurrences, and looking to the future with an unjaundiced eye, no ground can be discovered upon which to rest the smallest apprehension of subsequent obstruction to wise legislation, or of a violation or suppression of the con

24th CONG. 2d SESS.]

are

stitutional rights of Congress. Whilst it is true that "there men who, under any circumstances, will have the courage to do their duty at every hazard," yet "the superior weight and influence of the legislative body, in a free Government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and that, in its exercise, there would oftener be room for a charge of timidity than of rashness." From a careful examination of the arguments adduced, both in favor of the qualified negative and in opposition to it, your committee have drawn the conclusion that it is a wise, prudent, and salutary provision; and that the constitution, in this particular, should be permitted to rest undisturbed.

The next branch of the proposed amendment, in the estimation of your committee, aims a still more fatal blow at the independence and integrity of the Executive. The committee have most carefully examined it; they have bestowed on it that deliberate reflection which its importance and its novelty seemed to demand. In the language of the constitution, "the executive power is vested in a President of the United States of America." Congress may, and it is their duty to, enact any law which may be both necessary and proper, for carrying into execution the power vested in the President. The constitution authorizes the President to require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. The constitution, therefore, expressly authorizes "executive departments," and a "principal officer" in each; which " 'principal officers" are elsewhere denominated "heads of departments." These "executive departments," with their principal and inferior officers, were intended as auxiliaries to the President; to enable him, by a proper use of their labor and services, efficiently to exercise his powers, and faithfully to fulfil his duties. It could not have been intended to vest in them, either separately or aggregately, any part of the executive power; for this, as we have seen, is vested in a President of the United States of America."

Congress may, as they have done, very properly pass laws to establish and organize the contemplated executive departments; but may not, without a palpable violation of the constitution, impart to any one, or to all, any portion of executive power. The framers of the constitution, by vesting the executive power solely in the President, have rejected the doctrine of the plurality, and have established that of the unity, of the Executive. Among the powers of the Executive, as settled at the very outset of the Government, is the appointment and removal of officers. The power of appointment is qualified; for it is the duty of the President to nominate, and then to appoint, by and with the advice and consent of the Senate. So the treaty-making power belongs to the President; but, in its exercise, it is his duty to consult the Senate. There are instances in which the Executive is bound to consult one branch of the legislative body; and the refusal of their advice and consent prevents the performance of the intended act. They are not instances of a division of executive power, or of its joint exercise by the President and Senate. The want of advice and consent restrains and arrests the proposed action of the Executive; but restraint or check upon a given power is surely not a participation in its exercise. The qualified negative of the President is a check upon legislative power; but certainly the President is no part of the law-making power, which is vested in "a Congress of the United States, which shall consist of a Senate and House of Representatives." These distinctions are not nice metaphysical subtleties; they are plain and obvious, and are necessary to the preservation of the great principle laid down, in effect, in the constitution: that the Legislative and Executive shall be kept separate and distinct, so

that neither exercise the powers properly belonging to the other.

Article 1st, section 1st, of the constitution, declares "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."

Article 2d, section 1st, declares "the executive power shall be vested in a President of the United States of America." These two sections, placed in juxtaposition, and viewed in contrast, fully show that a complete separation of the legislative and executive powers was designed. Each part of the constitution should be so construed as to give effect to the whole; and no construction should be countenanced, if it can be possibly avoided, which does violence to one of the great fundamental principles which the best writers on government consider, and have demonstrated to be, essential to a wise administration of delegated power; and, indeed, to the security of civil liberty. The power of removal from office, however, is unqualified: it may be exerted without the advice and consent of the Senate. The Treasury Department, as established and organized at the commencement of the Government, was considered to be one of the "executive departments" mentioned in the constitution, and has been so regarded ever since. If it be not an executive department, it is not known to or authorized by the constitution. It will not be pretended that it is a legislative or judicial department; if, therefore, it be not “executive,” it is a nondescript, an exotic, and not of indigenous growth upon the soil of the constitution. From the foregoing views, your committee are justified in asserting, that there is unity in the Executive, and no division of its power; that the Treasury Department is an executive department; that the Secretary of the Treasury is consequently an executive officer, appointed by the President, by and with the advice and consent of the Senate; and removable by the President, without the advice and consent of the Senate. These are the settled principles of the constitution, with which the practice of the Government has conformed from its establishment to the present time.

It is now proposed, by an amendment, or rather by an alteration of the constitution, to change the present mode of appointing the Secretary of the Treasury to that of an annual election by joint vote of the two Houses of Congress ; and, also, to divest the President of that part of the executive power which may be exerted in relation to revenue laws and revenue officers, and to vest the same in the Secretary of the Treasury. It is a proposition, then, to divide the executive power between the President and the Secretary of the Treasury. The idea of dividing executive power-of giving one portion separately and independently to one officer, and another portion separately and independently to another officer-is believed to be purely novel. The examination which your committee have had time to make has not enabled them to learn that this principle has ever been introduced into the Government of any eivilized nation. Whilst, therefore, it surely comes to us with all the attractions which novelty may give it, yet it cannot claim any veneration or respect from its antiquity, or pretend that its utility and wisdom have been tested by experience. About the time of the formation of the constitutions of the old States, and of the adoption of the present federal constitution, there was some division of opinion, and much discussion, as to the merits of a single and plural Executive. An eminent writer has remarked that "unity may be destroyed in two ways-either by vesting the power in two or more magistrates of equal dignity and authority, or by vesting it ostensibly in one man; subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States."

In both the modes designated, the unity of the Executive may be destroyed, but in neither instance is there a partition of executive power. A superficial reference to Roman history, in the time of the Consuls, might induce the belief that the executive power was divided; it is, how ever, not so. The Consuls were executive officers, with joint and equal power; but either, in the absence of the other, might exercise the executive power singly. Hence, by consent, they often divided the Government. One governed Rome and its environs, the other governed one or more of the provinces; yet the executive power was not divided, for each, within his limits, exercised the whole executive power. Your committee repeat that they can find no precedent in ancient or modern times. Unable, therefore, to derive any advantage from historical research on this subject, they can only consult the dictates of common sense and sober judgment. Your committee are of opinion that, in relation to the Federal Government particularly, every argument which may be urged against a plurality in the Executive applies with equal if not greater force against a disjointed Executive. No one of ordinary intelligence and candor can doubt the necessity of vigor and energy in the Executive. No one will question the great philosophical truth, that concentration promotes strength, and that diffusion or division impairs. Hence, if the executive power be diffused among a plurality, or divided among several, we must necessarily have a weak and inefficient Executive. And it has with strict propriety been remarked that a feeble Executive implies a feeble execution of the Government; a feeble execution is but another phrase for a bad execution; and a Government ill executed, whatever it may be in theory, must be, in practice, a bad Government." Should this portion of executive power be taken from the President, and conferred on the Secretary of the Treasury-should the President be deprived of all communion with, and control over, "all officers whose principal duties consist either in collecting, or receiving, or in disbursing, or in keeping accounts concerning, the revenue, or any part thereof," how could he, in such a condition of things, with regard to the fiscal concerns of the United States, "from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient?" How could he "take care that the laws be faithfully executed?" In the practical administration of the Government, therefore, this proposed division of power would seem likely to produce the most pernicious effect. Only extend this principle of a division of executive power; apply it to each of the other departments; confide to the head of each department the entire control over the business allotted to it, independent of, and unconnected with, the President; almost the whole mass of executive power will then have been parcelled out to officers not chosen by the people, but the dependants of Congress; and thus the Pres ident will be rendered comparatively powerless and inefficient; confusion of business, distraction of councils, imbecility of administration, will be the natural and deplorable effects of division. The simplicity of our system will be lost in a variety and complication, incomprehensible to the plain sense of ordinary men. If your committee have succeeded, as they trust they have, in showing that the proposed division of executive power ought not to be incorporated into the constitution, then it might be considered superfluous to examine the proposed mode of appointment. It is, however, a fit occasion to suggest that the election annually of an executive officer, with extensive power and patronage, by Congress, might, in time, become a fruitful source of intrigue and corruption; and the consequent dependence of this officer upon Congress might, virtually, violate that sound principle of keeping separate and distinct the legislative and executive branches of the Government.

Upon the supposition that the Secretary of the Treasury,

[24th CONG. 2d SESS.

under the contemplated change of the constitution, was to be really and bona fide an independent executive officer, it has, nevertheless, been shown that the principle of division is in itself wrong, and cannot be sustained. But whilst it is readily conceded that, under the new arrangement, he would be independent of the President, it is, however, denied that he would be independent of the Legislature. It is a miserable solecism to pronounce that officer independent who is expressly made to depend annually, or oftener if needful, upon Congress, for his place and his compensation; he could not be other than a fawning creature of Congress, watching the indications of their inclinations for his guidance, rather than consulting his own dispassionate judgment. Should this constitutional alteration be effected, Congress will, practically and essentially, have absorbed a large share of executive power; and the sanction of this scheme will add another to the many proofs of the tendency, especially in free Governments, of the legislative to appropriate to itself some of the powers properly belonging to the other branches.

It will not escape the observation of a discerning public, that certain executive proceedings in relation to the deposite and custody of the moneys of the United States are, in all probability, the groundwork of this attempted innovation upon the settled principles of the constitution. A bare order issued by the Secretary of the Treasury, under the direction and with the approbation of the President, directing that the then Bank of the United States should be discontinued as the depository of the collected revenue of the country, and that, after a given time, the collectors and receivers should deposite it "elsewhere" for safe keeping, was seized upon as a suitable occasion for a concerted clamor throughout the Union, that the Treasury had been lawlessly violated, and that the union of the sword and purse, in the person of the President, menaced the liberties of the nation with immediate destruction. It is no part of the business of the committee to discuss, in this place, the propriety of the removal of a former head of the Treasury Department, or to examine the legality and expediency of the removal of the deposites; they have referred to these matters for the purpose of tracing to its true source this charge of a union of the sword and purse, which is used as a pretext for a radical alteration of the fundamental law. Should it be made manifest that this imputed union of the sword and purse is the creature of a vivid fancy, rather than a real existence, the argument which rests upon such an assumption will have been annihilated. What, let it be candidly inquired, constitutes a concentration of the power of the sword and purse in the hands of the same person? When an individual, either by gross usurpation, or by the unfortunate and ill-advised consent of the community, has attained the high prerogative of declaring war at his own mere will and caprice; of raising armies at his own pleasure to prosecute such war; of levying and collecting money by his own arbitrary edict, and of disbursing this extorted treasure at his own unlimited discretion; such an individual would combine in his own hands the power of the sword and purse. In such a state of things, the country would be under the rule of a tyrant; and revolution, of the most sanguinary kind, for the rescue of liberty from the rapacious grasp of despotism, would justly claim the approbation of men and angels. Looking, however, into the provisions of our constitution, and the practice of the Government under it, there can be seen no color for the charge of such an unholy connexion. The President cannot make war; for this power is expressly given to Congress. The President cannot raise armies, or build and man a navy: "to raise and support armies,' "to provide and maintain a navy," are expressly embraced in the legislative power granted in the constitution, and vested in the Congress. The President cannot, in any form, or by any device, levy any tax or contribution upon his fellow-citizens: