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ought not to be compelled to criminate themselves, we are clearly of the opinion, that the Directors of the Bank have been guilty of no contempt of the authority of the House, in having, respectfully, declined to submit their books for inspection, except as required by charter." Such, too, seemed the opinion of the House, and perhaps of the committee itself, as no further measure was seriously sought upon the subject.

445. In Senate, on the 20th December, Mr. Clay, beside a resolution censuring the President, which we shall hereafter notice, reported another, declaring, “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 3d day of December, 1833, are unsatisfactory and insufficient." The debate on these resolutions continued until the 4th February; when, that, relating, immediately,to the Secretary, was referred to the Committee on Finance, Mr. Webster chairman, whose report, on the succeding day, closed with the recommendation to the Senate to adopt the resolution; which was done, on the 28th March, by a vote of 28 to 18.

On the 28th May, Mr. Clay offered two joint resolutions to the Senate; one similar to that we have just mentionedthe other directing the public money accruing on and after the 1st July, 1834, to be deposited with the Bank of the United States, pursuant to the charter. The first was passed by a vote of 30 to 16, and the second by a vote of 28 to 16. Being sent to the House of Representatives, they were laid upon the table, there to sleep in oblivion. Thus, the majority of the House again shrunk from the question of the sufficiency of Mr. Taney's reasons; and though effectually sustaining his measures, dared not meet the responsibility of formally justifying them.

446. A bill for regulating the disposition of the public money, was subsequently passed in the House of Representatives, but as it went to legitimate the outrage which had been perpetrated upon the country and the chartered rights of the Bank, it was rejected in Senate. The power of the public treasure, always, in free governments, jealously denied to the Executive, is for the present, in the President. Its use serves to perpetuate the power exercised over the co-ordinate authorities of the Government, and tends to concentrate in the executive department the whole power of the State. The Legislature and the people are enveloped in

toils, which, even now, cannot be easily broken; and the continuation of the Jackson dynasty, by the election of Mr. Van Buren or any other person carrying out the principles which have prevailed during the past six years, must, inevitably, produce a Government so corrupting and corrupt, as to be unworthy of preservation.

CHAPTER XX.

EXECUTIVE ASSUMPTIONS OF POWER.

447. We propose to group in this chapter several assumptions of power on the part of the Executive, for which we have not found place in our preceding views. The first and most important is the right claimed over all the officers appointed by the President, and its consequence, the control of the Treasury. But preparatory to the examination of this claim, we must narrate the circumstances which led to its assertion.

We have seen, that, by the law, the power over the deposits of the public money in the Bank of the United States, was submitted to the discretion of the Secretary of the Treasury; and that, its exclusive existence in him was expressly recognized by the President; but that, notwithstanding, the President removed the Secretary, because he would not submit that discretion to him, assuming an absolute right to direct that officer in all his duties.

A more important question than this claim induces, has never come before the country since the organization of the Federal Government. It involves nothing less than the distribution of the powers of the Government. If the assumption be sustained, all the officers of the Government cease to be the agents of the laws, and become the mere deputies of the President. Its first, and worst result, is to give him absolute control over the Treasury-to unite in the same hand the sword and the purse. This is the strongest case which can be put, of the mischief of such power, and in relation to it we shall consider the assumption.

Upon a review of the Acts of Congress, no unprejudiced mind can, we think, fail to conclude, that it was designed to organize the Treasury Department, upon principles of responsibility, different from those adopted in the other depart ments. The act of 2d September, 1789, drops from the title the word "Executive," not by accident, but by design, as it was in the bill, as originally reported; but what is more to the purpose, that act imposes upon him specific duties, and requires him "to make report and give information to either branch of the Legislature, in person or in writing, as he may

be required, respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office; and generally, to perform all such services relative to the finances, as he shall be directed to perform. Whilst the acts constituting the departments of State, of War, and of the Navy, impose upon their respective Secretaries such duties as the President may direct, and require them to report to him, the Secretary of the Treasury is to perform the duties relative to finance, as directed by Congress, and is required to report to them.

Although the Secretary of the Treasury may have duties of an executive character to perform, yet his, is not an executive department, in the performance of acts which concern the custody and security of the public monies in the treasury. His department is not, in this, a presidential department. To have placed the custody of the public treasure within the executive department, would have been a constitutional incongruity-putting the power of the purse and the sword in the same hand-marring the harmony and simplicity of the whole scheme, by leaving to Congress the duty of paying the debts and providing for the common defence and welfare, while the money collected for these objects was not under their control. It would make, and the adoption of the doctrine has made, the power of appropriation entirely futile; because, by force of it, the public money is as little under the control of Congress before appropriation as after; and it gives the control of the public treasure, so far as the position and distribution of it can give such control, to a department that can wield the whole force of the revenue against the legislative department and the people.

448. Impressed with these views, Mr. Clay offered to the Senate, the following resolution:

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.

This resolution, after a protracted debate, was modified by

the mover, and passed by a vote of twenty-six senators out of forty-six, in the following words:

Resolved, That, the President in the late executive proceedings, in relation to the public revenue, has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both."

449. This rebuke, inferior only to conviction on impeachment, excited the President to a novel and exceptionable measure, in the form of a protest against the act of the Senate as illegal and unconstitutional. In this very extraordina ry document, the President maintained the power he had assumed, upon the following principles. 1. That the executive power is vested in him by the Constitution: 2. That it is his sworn duty to take care that the laws be faithfully executed: 3. That it is his right and duty to nominate, and by and with the advice and consent of the Senate to appoint, all officers of the United States whose appointments, are not otherwise provided for. From these premises, he infers, that, the whole Executive Power being vested in him, who is responsible for its exercise, it is a necessary consequence, that he should have a right to employ agents of his own choice to aid him in the performance of his functions, and to discharge them when he is no longer willing to be responsible for their acts. In strict accordance with this principle the power of removal, which like that of appointment, is an original executive power, is left unchecked by the Constitution in relation to all executive officers, for whose conduct the President is responsible, while it is taken from him in relation to judicial officers, for whose acts he is not responsible.

450. We have already shown, that the executive power vested in the President is that, and that only, which is derived from the Constitution-that there is, in the Federal Government no executive power prior to, and above that instrument no original executive power whatever:-and, that, consequently, no power of removal, as the President contends, was taken from him, by the Constitution. We have shown, also, that, the responsibility here assumed by the President is ideal. He does not suppose, that he is liable to impeachment and punishment for the misconduct of any officer. The utmost extent of his responsibility is to public opinion-a tribunal which will always acquit him of the misconduct of his appointees, unless they be appointed from corrupt motives, or be retained, in office, after unquestionable malversation, as in the case of the Postmaster General.

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