SENATE.]

President's Protest.

[MAY 7, 1834.

censure upon the President's conduct! Suppose, sir, that through which to make public these opinions. After we should see him enlisting troops, and raising an army; this, it would seem too late to enjoin on the Houses of can we say nothing, and do nothing? Suppose he were Congress a total forbearance from all comment on the to declare war against a foreign power, and put the army measures of the Executive. and the fleet in action; are we still to be silent? Suppose

The two

we should see him borrowing money on the credit of the resist, by vote, declaration, or resolution, whatever it may Not only is it the right of both Houses, or of either, to United States; are we yet to wait for impeachment? In-deem an encroachment of Executive power, but it is also deed, sir, in regard to this borrowing money on the credit undoubtedly the right of either House to oppose, in like of the United States, I wish to call the attention of the manner, any encroachment by the other. Senate not only to what might happen, but to what has Houses have each its own appropriate powers and auactually happened. We are informed that the Post Office thorities, which it is bound to preserve. They have, too, Department, a department over which the President different constituents. The members of the Senate are claims the same control as over the rest, has actually bor-representatives of States; and it is in the Senate alone rowed near half a million of money on the credit of the that the four-and-twenty States, as political bodies, have United States. of this Government. a direct influence in the Legislative and Executive powers rights, who maintains that this body, thus representing He is a strange advocate of State 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.

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 de gree. It may be said that it is not true that this money rights of the States, as secured by the organization of the If any thing be done or threatened derogatory to the is borrowed on the credit of the United States, but that it Senate, may we not lift up our voices against it? Supposé is borrowed on the credit of the Post Office Department. the House of Representatives should vote that the Senate But that would be mere evasion. a name. It is an office, and nothing more. The department is but ought not to propose amendments to revenue bills; would have not lent this money to any officer. If Congress proceeding? Or, if we were to see the President isThe banks it be the duty of the Senate to take no notice of such should abolish the whole department to-morrow, would suing commissions of office to persons who had never the banks not expect the United States to replace this been nominated to the Senate, are we not to remonborrowed money? The money, then, is borrowed on the strate? credit of the United States; an act which Congress alone is competent to authorize. ment may borrow money, so may the War Department the slightest scrutiny; they are blown away by the first If the Post Office Depart- The doctrines of the protest, in this respect, cannot stand Sir, there is no need of cases, no end of illustration. and the Navy Department. borrowed, ten millions may be borrowed. If half a million may be breath of discussion. if this transaction shall be justified, is to hinder the Ex-claring its sentiments respecting the conduct of the ExWhat, then, And yet, sir, it is easy to perceive why this right of deecutive from borrowing money, to maintain fleets and ar-ecutive, is denied to either House, in its legislative camies, or for any other purpose, at his pleasure, without pacity. It is merely that the Senate might be presented any authority of law? Yet, even this, according to the in the odious light of trying the President, judicially, doctrine of the protest, we have no right to complain of. without regular accusation or hearing. The protest deWe have no right to declare that an executive depart- clares that the President is charged with a crime, and, ment has violated the constitution and broken the law, by without hearing or trial, found guilty and condemned. borrowing money on the credit of the United States. Nor This is evidently an attempt to appeal to popular feeling, could we make a similar declaration, if we were to see and to represent the President as unjustly treated and unthe Executive, by means of this borrowed capital, enlist-fairly tried. Sir, it is a false appeal. The President has ing armies and equipping fleets. And yet, sir, the Pres-not been tried at all; he has not been accused; he has not ident has found no difficulty, heretofore, in expressing been charged with crime; he has not been condemned. his opinions, in a paper, not called for by the exercise of Accusation, trial, and sentence, are terms belonging to any official duty, upon the conduct and proceedings of the judicial proceedings. But the Senate has been engaged two Houses of Congress. At the commencement of this in no such proceeding. The resolution of the 28th of session he sent us a message commenting on the land bill March was not an exercise of judicial power, either in which the two puses passed at the end of the last ses-form, in substance, or in intent. Every body knows that sion. That bill he had not approved, nor had he return- the Senate can exercise no judicial power, until articles ed it with objections. Congress was dissolved; and the of impeachment are brought before it. bill, therefore, was completely dead, and could not be re-ceed, by accusation and answer, hearing, trial, and judgvived. No communication from him could have the least ment. But there has been no impeachment, no answer, It is then to propossible effect as an official act. Yet, he saw fit to send a no hearing, no judgment. All that the Senate did was to message on the subject, and in that message he very free-pass a resolution, in legislative form, declaring its opinion ly declares his opinion, that the bill which had passed of certain acts of the Executive. both Houses began with an entire subversion of every one puted no crime; it charged no corrupt motive; it proof the compacts by which the United States became pos- posed no punishment. It was directed, not against the This resolution imsessed of their Western domain; that one of its provisions President, personally, but against the act; and that act it was in direct and undisguised violation of the pledge giv-declared to be, in its judgment, an assumption of authoren by Congress to the States; that the constitution pro-ity not warranted by the constitution. vides that these compacts shall be untouched by the Legis-It is in vain that the protest attempts to shift the resolative power, which can only make needful rules and lution on to the judicial character of the Senate. The undelegate and that all beyond that is an assumption of case is too plain for such an argument to be plausible. have already said, contends that neither the Senate nor But in order to lay some foundation for it, the protest, as 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 im

These are the f

act of the two Houses in which the President speaks of an I no communication which Congress; in no official paper, in to them; but in a messagwas necessary for him to make adopted only as a mode

MAY 7, 1834.]

President's Protest.

[SENATE.

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.

peachment did not exist, these two Houses, though they ficial conduct of the Executive, so have their representabe representative bodies, though one of them be filled tives. We have been taught to regard a representative by the immediate representatives of the people, though of the people as a sentinal on the watch-tower of liberty. they be constituted like other popular and representative Is he to be blind, though visible danger approaches? Is bodies, could not utter a syllable, although they saw the he to be deaf, though sounds of peril fill the air? Is he to Executive either trampling on their own rights and privi-be dumb, while a thousand duties impel him to raise the leges, or grasping at absolute authority and dominion cry of alarm? Is he not, rather, to catch the lowest over the liberties of the country! Sir, I hardly know how whisper which breathes intention or purpose of encroachto speak of such claims of impunity for Executive en- ment on the public liberties, and to give his voice breath croachment. I am amazed that any American citizen and utterance at the first appearance of danger? Is not should draw up a paper containing such lofty pretensions; his eye to traverse the whole horizon, with the keen and pretensions which would have been met with scorn, in eager vision of an unhooded hawk, detecting, through all England, at any time since the revolution of 1688. A disguises, every enemy advancing, in any form, towards man who should stand up, in either House of the British the citadel which he guards? Sir, this watchfulness for Parliament, to maintain that the House could not, by vote public liberty, this duty of foreseeing danger and proor resolution, maintain its own rights and privileges, claiming it, this promptitude and boldness in resisting atwould make even the tory benches hang their heads for tacks on the constitution from any quarter, this defence very shame. There was, indeed, a time when such pro- of established landmarks, this fearless resistance of whatceedings were not allowed. Some of the kings of the ever would transcend or remove them, all belong to the Stuart race would not tolerate them. A signal instance representative character, are interwoven with its very naof royal displeasure with the proceedings of Parliament ture, and of which it cannot be deprived, without conoccurred in the latter part of the reign of James the First. verting an active, intelligent, faithful agent of the people The House of Commons had spoken, on some occasion, into an unresisting and passive instrument of power. A "of its own undoubted rights and privileges." The King representative body which gives up these rights and duthereupon sent them a letter, declaring that he would not ties, gives itself up. It is a representative body no longer. allow that they had any undoubted rights; but that what It has broken the tie between itself and its constituents, they enjoyed they might still hold by his own royal grace and henceforth is fit only to be regarded as an inert, selfand permission. Sir Edward Coke and Mr. Granville sacrificed mass, from which all appropriate principle of were not satisfied with this title to their privileges; and, vitality has departed forever. 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 of ficers of state, tore out the offensive resolution with his The first object of a free people is the preservation of own royal hand. He then dissolved Parliament, and sent their liberty; and liberty is only to be preserved by mainits most refractory members to the tower. I have no taining constitutional restraints and just divisions of politifear, certainly, sir, that this English example will be fol- cal power. Nothing is more deceptive or more danger. lowed, on this occasion, to its full extent; nor would I in-ous than the pretence of a desire to simplify government. sinuate that any thing outrageous has been thought of, The simplest governments are despotisms; the next simor intended, except outrageous pretensions; but such plest, limited monarchies; but all republics, all govern. pretensions I must impute to the author of this protest, ments of law, must impose numerous limitations and whoever that author be. qualifications of authority, and give many positive and When this and the other House shall lose the freedom many qualified rights. In other words, they must be subof speech and debate; when they shall surrender the ject to rule and regulation. This is the very essence of rights of publicly and freely canvassing all important free political institutions. The spirit of liberty is, indeed, measures of the Executive; when they shall not be al- a bold and fearless spirit; but it is also a sharp-sighted lowed to maintain their own authority and their own priv-spirit; it is a cautious, sagacious, discriminating, far-seeing ileges, by vote, declaration, or resolution, they will then intelligence; it is jealous of encroachment, jealous of be no longer free representatives of a free people, but slaves power, jealous of man. It demands checks, it seeks for themselves, and fit instruments to make slaves of others. guards, it insists on securities; it intrenches itself behind The protest, Mr. President, concedes what it doubtless strong defences, and fortifies, with all possible care, regards as a liberal right of discussion to the people them- against the assaults of ambition and passion. It does not selves. But its language, even in acknowledging this trust the amiable weaknesses of human nature, and thereright of the people to discuss the conduct of their ser-fore it will not permit power to overstep its prescribed vants, is qualified and peculiar. The free people of the limits, though benevolence, good intent, and patriotic United States, it declares, have an undoubted right to dis-purpose come along with it. Neither does it satisfy itself cuss the official conduct of the President, in such lan-with flashy and temporary resistance to illegal authority. guage and form as they may think proper, "subject only Far otherwise. It seeks for duration and permanence. to the restraints of truth and justice." But then who is It looks before and after; and, building on the experience to be the judge of this truth and justice? Are the peo- of ages which are past, it labors diligently for the benefit ple to judge for themselves, or are others to judge for of ages to come. This is the nature of constitutional libthem? The protest is here speaking of political rights, erty; and this is our liberty, if we will rightly understand and not moral rights; and if restraints are imposed on po- and preserve it. Every free government is necessarily litical rights, it must follow, of course, that others are to complicated, because all such governments establish redecide, whenever the case arises, whether these restraints straints, as well on the power of government itself, as on have been violated. It is strange that the writer of the that of individuals. If we will abolish the distinction of protest did not perceive that, by using this language, he branches, and have but one branch; if we will abolish jury was pushing the President into a direct avowal of the trials, and leave all to the judge; if we will then ordain doctrines of 1798. The text of the protest, and the that the legislator shall himself be that judge; and if we text of the obnoxious act of that year, are nearly identical. will place the executive power in the same hands, we But, sir, if the people have a right to discuss the of- may readily simplify government. We may easily bring

SENATE.]

President's Protest.

[MAY 7, 1834.

it to the simplest of all possible forms, a pure despotism. are employed in prescribing the organization, and enuBut a separation of departments, so far as practicable, merating the powers, of the three departments. The first and the preservation of clear lines of division between article treats of the Legislature, and its first section is: them, is the fundamental idea in the creation of all our "All legislative power, herein granted, shall be vested in constitutions; and, doubtless, the continuance of regulated a Congress of the United States, which shall consist of a liberty depends on maintaining these boundaries. Senate and House of Representatives."

In the progress, sir, of the Government of the United The second article treats of the Executive power, and its States, we seem exposed to two classes of dangers or dis- first section declares that "the executive power shall be turbances; one external, the other internal. It may hap-vested in a President of the United States of America." pen that collisions arise between this Government and the The third article treats of the Judicial power, and its Governments of the States. That case belongs to the first section declares that "the judicial power of the first class. A memorable instance of this kind existed United States shall be vested in one Supreme Court, and last year. It was my conscientious opinion, on that oc-in such inferior courts as the Congress may, from time to casion, that the authority claimed by an individual State time, ordain and establish." was subversive of the just powers of this Government, It is too plain to be doubted, I think, sir, that these and, indeed, incompatible with its existence. I gave a descriptions of the persons or officers in whom the exechearty co-operation, therefore, to measures which the utive and the judicial powers are to be vested, no more crisis seemed to require. We have now before us what define the extent of the grant of those powers, than the appears, to my judgment, to be an instance of the latter words quoted from the first article describe the extent of kind. A contest has arisen between different branches of the legislative grant to Congress. All these several titles, the same Government, interrupting their harmony, and heads of articles, or introductory clauses, with the generthreatening to disturb their balance. It is of the highest al declarations which they contain, serve to designate the importance, therefore, to examine the question carefully, departments, and to mark the general distribution of and to decide it justly. 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.

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 es- If we look into the State constitutions, we shall find tablished in any government of the world, and, perhaps, the line of distinction between the departments still less never can be. The general principle is of inestimable perfectly drawn, although the general principle of the value, and the leading lines of distinction sufficiently plain; distinction is laid down in most of them, and, in some of yet there are powers of so undecided a character, that them, in very positive and emphatic terms. In some of they do not seem necessarily to range themselves under these States, notwithstanding the principle of distribution either head. And most of our constitutions, too, having is adopted and sanctioned, the Legislature appoints the laid down the general principle, immediately create ex-judges; and in others it appoints both the governor and ceptions. There do not exist in the general science of the judges; and in others again, it appoints not only the government, or the received maxims of political law, such judges, but all other officers.

precise definitions as enable us always to say of a given The inferences which, I think, follow from these views power whether it be legislative, executive, or judicial. of the subject are two: first, that the denomination of a And this is one reason, doubtless, why the constitution, in department does not fix the limits of the powers conferconferring power on all the departments, proceeds not red on it, nor even their exact nature; and, second, by general definition, but by specific enumeration. And (which, indeed, follows from the first,) that, in our Ameragain, its grants a power in general terms, but yet, in the ican Governments, the chief Executive magistrate does same, or some other article or section, imposes a limita- not necessarily, and by force of his general character of tion or qualification on the grant; and the grant and the supreme Executive, possess the appointing power. He limitation must, of course, be construed together. Thus may have it, or he may not, according to the particular the constitution says that all legislative power, therein provisions applicable to each case, in the respective congranted, shall be vested in Congress, which Congress shall stitutions. consist of a Senate and House of Representatives; and yet, The President appears to have taken a different view in another article, it gives to the President a qualified of this subject. He seems to regard the appointing negative over all acts of Congress. So the constitution power as originally and inherently in the Executive, and declares that the judicial power shall be vested in one Su- as remaining absolute in his hands, except so far as the preme Court, and such inferior courts as Congress may constitution restrains it. This I do not agree to, and establish. It gives, nevertheless, in another provision, shall have occasion hereafter to examine the question judicial power to the Senate; and, in like manner, though further. I have intended, thus far, only to insist on the it declares that the executive power shall be vested in the high and indispensable duty of maintaining the division President, using, in the immediate context, no words of of power, as the constitution has marked that division out; limitation, yet it elsewhere subjects the treaty-making and to oppose claims of authority not founded on express power, and the appointing power, to the concurrence of grants or necessary implication, but sustained merely by the Senate. The irresistible inference, from these con- argument, or inference, from names or denominations siderations is, that the mere denomination of a department given to departments.

as one of the three great and commonly acknowledged Mr. President, the resolutions now before us declare, departments of government, does not confer on that de- that the protest asserts powers as belonging to the Prespartment any power at all. Notwithstanding the depart. ident, inconsistent with the authority of the two Houses ments are called the legislative, the executive, and the of Congress, and inconsistent with the constitution; and judicial, we must yet look into the provisions of the con- that the protest itself is a breach of privilege. I believe stitution itself, in order to learn, first, what powers the all this to be true. constitution regards as legislative, executive, and judicial; The doctrines of the protest are inconsistent with the and, in the next place, what portions or quantities of authority of the two Houses, because, in my judgment, these powers are conferred on the respective departments; they deny the just extent of the law-making power. i because no one will contend that all legislativepower be take the protest as it was sent to us, without inquiring longs to Congress, all executive power to the President, how far the subsequent message has modified or explained or all judicial power to the courts of the United States. it. It is singular, indeed, that a paper, so long in prepThe first three articles of the constitution, as all know, laration, 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 ex plain its contents. Explained, or unexplained, however, the paper contains sentiments which justify us, as I think, in adopting these resolutions.

[SENATE.

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 In the first place, I think the protest a clear breach of four Senators, and paraded against them the sentiments privilege. It is a reproof, or rebuke, of the Senate, in of their Legislatures? There can be no other purpose. language hardly respectful, for the exercise of a power The protest says, indeed, that "these facts belong to the clearly belonging to it as a legislative body. It entirely history of these proceedings!" To the history of what misrepresents the proceedings of the Senate. I find this proceedings? To any proceeding to which the President paragraph in it, among others of a similar tone and char- was party? To any proceeding to which the Senate was acter: "A majority of the Senate, whose interference party? Have they any thing to do with the resolution of with the preliminary question has, for the best of all rea- the 28th of March? But it adds, that these facts are imsons, been studiously excluded, anticipate the action of portant to the just development of the principles and inthe House of Representatives, assume not only the func-terests involved in the proceedings. All this might be tion which belongs exclusively to that body, but convert said of any other facts. It is mere words. To what themselves into accusers, witnesses, counsel, and judges, principles, to what interests, are these facts important? and prejudge the whole case. Thus presenting the ap-They cannot be important but in one point of view; and palling spectacle, in a free state, of judges going through that is, as proof, or evidence, that the Senators have disa labored preparation for an impartial hearing and decis- obeyed instructions, or acted against the known will of ion, by a previous ex parte investigation and sentence their constituents, in disapproving the President's conagainst the supposed offender." duct. They have not the slightest bearing in any other

Now, sir, this paragraph, I am bound to say, is a total way. They do not make the resolution of the Senate misrepresentation of the proceedings of the Senate. A more or less true, nor its right to pass it more or less majority of the Senate have not anticipated the House of clear. Sir, these proceedings of the Legislatures were Representatives; they have not assumed the functions of introduced into this protest for the very purpose, and no that body; they have not converted themselves into ac- other, of showing that the members of the Senate have cusers, witnesses, counsel, or judges. They have made acted contrary to the will of their constituents. Every no ex parte investigation; they have given no sentence. man sees and knows this to have been the sole design; This paragraph is an elaborate perversion of the whole and any other pretence is a mockery to our understandings. design and the whole proceedings of the Senate. A pro- And this purpose is, in my opinion, an unlawful purpose; test, sent to us by the President, against votes which the it is an unjustifiable intervention between us and our conSenate has an unquestionable right to pass, and contain stituents; and is, therefore, a manifest and flagrant breach ing, too, such a misrepresentation of these votes as this of privilege. paragraph manifests, is a breach of privilege.

In the next place, the assertions of the protest are inBut there is another breach of privilege. The Pres- consistent with the just authority of Congress, because ident interferes between the members of the Senate and they claim for the President a power, independent of their constituents, and charges them with acting contrary Congress, to possess the custody and control of the pubto the will of those constituents. He says it is his right and lic treasures. Let this point be accurately examined; duty to look to the Journals of the Senate, to ascertain and, in order to avoid mistake, I will read the precise who voted for the resolution of the 28th of March, and words of the protest: then to show that individual Senators have, by their votes "The custody of the public property, under such regon that resolution, disobeyed the instructions, or violated ulations as may be prescribed by legislative authority, the known will of the Legislatures who appointed them. has always been considered an appropriate function of the All this he claims, as his right and his duty. And where Executive department in this and all other Governments. does he find any such right, or any such duty? What In accordance with this principle, every species of propright has he to send a message to either House of Con-erty belonging to the United States, (excepting that gress, telling its members that they disobey the will of which is in the use of the several co-ordinate departments their constituents? Has any English sovereign, since of the Government, as means to aid them in performing Cromwell's time, dared to send such a message to Par- their appropriate functions,) is in charge of officers apbament? Sir, if he can tell us that some of us disobey pointed by the President, whether it be lands, or buildour constituents, he can tell us that all do so; and if we ings, or merchandise, or provisions, or clothing, or arms consent to receive this language from him, there is but and munitions of war. The superintendents and keepone remaining step; and that is, that since we thus dis-ers of the whole are appointed by the President, and reabey the will of our constituents, he should disperse us, movable at his will. and send us home. In my opinion, the first step in this "Public money is but a species of public property. It process is as distinct a breach of privilege as the last. If cannot be raised by taxation or customs, nor brought into Cromwell's examples shall be followed out, it will not be the treasury in any other way except by law; but whenever more clear then than it is now, that the privileges of the or howsoever obtained, its custody always has been, and Senate have been violated. There is yet something, sir, always must be, unless the constitution be changed, intrustwhich surpasses all this; and that is, that after this directed to the Executive department. No officer can be created interference, after pointing out those Senators whom he by Congress, for the purpose of taking charge of it, whose would represent as having disobeyed the known will of appointment would not, by the constitution, at once detheir constituents, he disclaims all design of interfering at volve on the President, and who would not be responsiall! Sir, who could be the writer of a message, which, ble to him for the faithful performance of his duties.” in the first place, makes the President assert such mon- And, in another place, it declares that "Congress canstrous pretensions, and, in the next line, affront the un-not, therefore, take out of the hands of the Executive derstanding of the Senate by disavowing all right to do department the custody of the public property or money, that very thing which he is doing? If there be any thing, without an assumption of executive power, and a subsir, in this message, more likely than the rest of it to move version of the first principles of the constitution." These, one from his equanimity, it is this disclaimer of all design sir, are propositions which cannot receive too much atto interfere with the responsibility of members of the tention. They affirm, that the custody of the public

SENATE.]

President's Protest.

[MAY 7, 1834.

money constitutionally and necessarily belongs to the Ex- thus arrives at the conclusion that it must always be in the ecutive; and that, until the constitution is changed, Con- hands of those who are appointed by the President, and gress cannot take it out of his hands, nor make any pro- who are removable at his pleasure. And it is very clear vision for its custody, except by such superintendents and that the protest means to maintain that the tenure of office keepers as are appointed by the President, and remova- cannot be so regulated by law, as that public officers shall ble at his will. If these assertions be correct, we have, not be removable at the pleasure of the President. indeed, a singular constitution for a republican Govern- The President considers the right of removal as a fixed, ment; for we give the Executive the control, the custo-vested, constitutional right, which Congress cannot limit, dy, and the possession of the public treasury, by original control, or qualify, until the constitution shall be altered. constitutional provision; and when Congress appropriates, This, sir, is doctrine which I am not prepared to admit. it appropriates only what is already in the President's hands. I shall not now discuss the question, whether the law may Sir, hold these propositions to be sound in neither not place the tenure of office beyond the reach of Execu branch. I maintain that the custody of the public money tive pleasure; but I wish merely to draw the attention of does not, necessarily, belong to the Executive, under this the Senate to the fact, that any such power in Congress Government; and I hold that Congress may so dispose of is denied by the principles and by the words of the proit, that it shall be under the superintendence of keepers test. According to that paper, we live under a constinot appointed by the President, nor removable at his tution, by the provisions of which the public treasures will. I think it competent for Congress to declare, as are, necessarily and unavoidably, always under Executive Congress did declare, in the bank charter, that the public control; and as the Executive may remove all officers, deposites should be made in the bank. When in the bank, and appoint others, at least temporarily, without the conthey were not kept by persons appointed by the Presi- currence of the Senate, he may hold those treasures, in dent, or removable at his will. He could not change that the hands of persons appointed by himself alone, in deficustody, nor could it be changed at all, but according to ance of any law which Congress has passed or can pass. provisions made in the law itself. There was, indeed, a It is to be seen, sir, how far such claims of power will reprovision in the law authorizing the Secretary to change ceive the approbation of the country. It is to be seen the custody. But, suppose there had been no such pro- whether a construction will be readily adopted which vision; suppose the contingent power had not been given thus places the public purse out of the guardianship of to the Secretary, would it not have been a lawful enact the immediate representatives of the people. ment? Might not the law have provided that the public But, sir, there is, in this paper, something even yet moneys should remain in the bank, until Congress itself more strange than these extraordinary claims of power. should otherwise order, leaving no power of removal any There is, sir, a strong disposition, running through the where else? And if such provision had been made, what whole protest, to represent the Executive department of power, or custody, or control, would the President have this Government as the peculiar protector of the public possessed over them? Clearly, none at all. The act liberty, the chief security on which the people are to reof May, 1800, directed custom-house bonds, in places ly against the encroachments of other branches of the where the bank, which was then in existence, was situated, Government. Nothing can be more manifest than this or in which it had branches, to be deposited in the bank or purpose. To this end, the protest spreads out the Presiits branches for collection, without the reservation of any dent's official oath, reciting all its words in a formal quotapower of removal to the Secretary or anybody else. tion; and yet the oath of members of Congress is exactly Now, sir, this was an unconstitutional law, if the protest, equivalent. The President is to swear that he will "prein the part now under consideration, be correct; because serve, protect, and defend the constitution;" and memit placed the public money in a custody beyond the con-bers of Congress are to swear that they will "support trol of the President, and in hands of keepers not ap- the constitution." There are more words in one oath pointed by him, nor removable at his pleasure. One may than the other, but the sense is precisely the same. Why, readily discern, sir, the process of reasoning by which then, this reference to his official oath, and this ostentathe author of the protest brought himself to the conclu- tious quotation of it? Would the writer of the protest sion that Congress could not place the public moneys be- argue that the oath itself is any grant of power; or that, yond the President's control. It is all founded on the because the President is to "preserve, protect, and depower of appointment, and the power of removal. These fend the constitution," he is, therefore, to use what means powers, it is supposed, must give to the President com- he pleases, or any means, for such preservation, protecplete 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.

tion, and defence, except those which the constitution and laws have specifically given him? Such an argument would be preposterous; but if the oath be not cited for this preposterous purpose, with what design is it thus disIt is true, that the appointment of all public officers, played on the face of the protest, unless it be to support with some exceptions, is, by the constitution, given to the the general idea that the maintenance of the constitution President, with the consent of the Senate; and as, in most and the preservation of the public liberties are especially cases, public property must be held by some officer, its confided to the safe discretion, the sure moderation, the keepers will generally be persons so appointed. But this paternal guardianship of Executive power? The oath o is only the common, not a necessary consequence, of the President contains three words, all of equal import giving the appointing power to the President and Senate. that is, that he will preserve, protect, and defend the Congress may still, if it shall so see fit, place the public constitution. The oath of members of Congress is ex treasure in the hand of no officer appointed by the Presi- pressed in shorter phrase; it is, that they will support the dent, or removable by him, but in hands quite beyond his constitution. If there be any difference in the meaning control. Subject to one contingency only, it did this very of the two oaths, I cannot discern it; and yet the protes thing by the charter of the present bank; and it did the solemnly and formally argues thus: "The duty of defend same thing absolutely, and subject to no contingency, by ing, so far as in him lies, the integrity of the constitution the law of 1800. The protest, in the first place, seizes would indeed have resulted from the very nature of he on the fact that all officers must be appointed by the Pres-office; but, by thus expressing it in the official oath o ident, or on his nomination; it then assumes the next step, affirmation, which, in this respect, differs from that that all officers are, and must be, removable at his pleas-every other functionary, the founders of our republi ure; and then, insisting that public money, like other have attested their sense of its importance, and have gi public property, must be kept by some public officer, iten to it a peculiar solemnity and force."