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versy with the President of the United States; a man who has rendered most distinguished services to his country, has hitherto possessed a degree of popular favour perhaps never exceeded, and whose honesty of motive and integrity of purpose are still admitted by those who maintain that his administration has fallen into lamentable errors. On some of the interesting questions in regard to which the President and Senate hold opposite opinions, the more popular branch of the legislature concurs with the executive. It is not to be concealed that the Senate is engaged against imposing odds. It can sustain itself only by its own prudence and the justice of its cause. It has no patronage by which to secure friends; it can raise up no advocates through the dispensation of favours, for it has no favours to dispense. Its very constitution, as a body whose members are elected for a long term, is capable of being rendered obnoxious, and is daily made the subject of opprobrious remark. It is already denounced as independent of the people, and aristocratic. Nor is it, like the other IIouse, powerful in its numbers; not being, like that, so large as that its members come constantly in direct and sympathetic contact with the whole people. Under these disadvantages, Sir, which, we may be assured, will be pressed and urged to the utmost length, there is but one course for us. The Senate must stand on its rendered reasons. It must put forth the grounds of its proceedings, and it must then rely on the intelligence and patriotism of the people to carry it through the COntest. As an individual member of the Senate, it gives me great pain to be engaged in such a conflict with the executive government. The occurrences of the last session are fresh in the recollection of us all ; and, having felt it to be my duty, at that time, to give my cordial support to highly important measures of the administration, I ardently hoped that nothing might occur to place me afterwards in an attitude of opposition." In all respects, and in every way, it would have been far more agreeable to me to have found nothing in the measures of the executive government which I could not cheerfully support. The present occasion of difference has not been sought or made by me. It is thrust upon me, in opposition to strong opinions and wishes, on my part not concealed. The interference with the public deposits dispelled all hope of continued concurrence with the administration, and was a measure so uncalled-for, so unnecessary, and, in my judgment, so illegal and indefensible,
6 Alluding to the speaker's course in reference to “The Force Bill.” See page 421, note 4.
that, with whatever reluctance it might be opposed, opposition was unavoidable. The paper before us has grown out of the consequences of this interference. It is a paper which cannot be treated with indifference. The doctrines which it advances, the circumstances which have attended its transmission to the Senate, and the manner in which the Senate may now dispose of it, will form a memorable era in the history of the government. We are either to enter it on our journals, assent to its sentiments, and submit to its rebuke, or we must answer it, with the respect due to the chief magistrate, but with such animadversion on its doctrines as they deserve, and with the firmness imposed upon us by our public duties. I shall proceed, then, Sir, to consider the circumstances which gave rise to this Protest; to examine the principles which it attempts to establish; and to compare those principles with the Constitution and the laws. On the 28th day of March, the Senate adopted a resolution declaring that, “in the late executive proceedings in relation to the public revenue, the President had assumed a power not conferred by the Constitution and laws, but in derogation of both.” In that resolution I concurred. It is not a direct question, now again before us, whether the President really had assumed such illegal power: that point is decided, so far as the Senate ever can decide it. But the Protest denies that, supposing the President to have assumed such illegal power, the Senate could properly pass the resolution; or, what is the same thing, it denies that the Senate could, in this way, express any opinion about it. It denies that . the Senate has any right, by resolution, in this or any other case, to express disapprobation of the President's conduct, let that conduct be what it may; and this, one of the leading doctrines of the Protest, I propose to consider. But, as I concurred in the resolution of the 28th of March, and did not trouble the Senate, at that time, with any statement of my own reasons, I will avail myself of this opportunity to explain, shortly, what those reasons were. In the first place, then, I have to say, that I did not vote for the resolution on the mere ground of the removal of Mr. Duane from the office of Secretary of the Treasury. Although I disapprove of the removal altogether, yet the power of removal does exist in the President, according to the established construction of the Constitution ; and therefore, although in a particular case it may be abused, and, in my opinion, was abused in this case, yet its exercise cannot be justly said to be an assumption or usurpation. We must all agree that Mr.
Duane is out of office. He has, therefore, been removed by a power constitutionally competent to remove him, whatever may be thought of the exercise of that power under the circumstances of the case. If, then, the act of removing the Secretary be not the assumption of power which the resolution declares, in what is that assumption found? Before giving a precise answer to this inquiry, allow me to recur to some of the principal previous eyents. At the end of the last session of Congress, the public moneys of the United States were still in their proper place. That place was fixed by the law of the land, and no power of change was conferred on any other human being than the Secretary of the Treasury. On him the power of change was conferred, to be exercised by himself, if emergency should arise, and to be exercised for reasons which he was bound to lay before Congress. No other officer of the government had the slightest pretence of authority to lay his hand on these moneys for the purpose of changing the place of their custody. All the other heads of departments together could not touch them. The President could not touch them. The power of change was a trust confided to the discretion of the Secretary, and to his discretion alone. The President had no more authority to take upon himself this duty, thus assigned expressly by law to the Secretary, than he had to make the annual report to Congress, or the annual commercial statements, or to perform any other service which the law specially requires of the Secretary. He might just as well sign the warrants for moneys, in the ordinary daily disbursements of government, instead of the Secretary. The statute had assigned the especial duty of removing the deposits, if removed at all, to the Secretary of the Treasury, and to him alone. The consideration of the propriety or necessity of removal must be the consideration of the Secretary; the decision to remove, his decision ; and the act of removal, his act. Now, Sir, on the 18th day of September last, a resolution was taken to remove these deposits from their legislative, that is to say, their legal custody. Whose resolution was this 2 On the 1st day of October, they were removed. By whose power was this done 2 The papers necessary to accomplish the removal (that is, the orders and drafts) are, it is true, signed by the Secretary. The President's name is not subscribed to them; nor does the Secretary, in any of them, recite or declare that he does the act by direction of the President, or on the President's responsibility. In form, the whole proceeding is the proceeding of the Secretary, and, as such, had the legal effect. The deposits were removed. But whose act was it, in truth and reality? Whose will accomplished it? On whose responsibility was it adopted ? These questions are all explicitly answered by the President himself, in the paper, under his own hand, read to the Cabinet on the 18th of September, and published by his authority. In this paper the President declares, in so many words, that he begs his Cabinet to eonsider the proposed measure as his own ; that its responsibility has been assumed by him; and that he names the first day of October as a period proper for its execution. Now, Sir, it is precisely this which I deem an assumption of power not conferred by the Constitution and laws. I think the law did not give this authority to the President, nor impose on him the responsibility of its exercise. It is evident that, in this removal, the Secretary was in reality nothing but the scribe : he was the pen in the President's hand, and no more. Nothing depended on his discretion, his judgment, or his responsibility. The removal indeed has been admitted and defended in the Senate, as the direct act of the President himself. This, Sir, is what I call assumption of power. If the President had issued an order for the removal of the deposits in his own name, and under his own hand, it would have been an illegal order, and the bank would not have been at liberty to obey it. For the same reason, if the Secretary's order had recited that it was issued by the President's direction, and on the President's authority, it would have shown, on its face, that it was illegal and invalid. No one can doubt that. The act of removal, to be lawful, must be the bona fide act of the Secretary; his judgment, the result of his deliberations, the volition of his mind. All are able to see the difference between the power to remove the Secretary from office and the power to control him, in all or any of his duties, while in office. The law charges the officer, whoever he may be, with the performance of certain duties. The President, with the consent of the Senate, appoints an individual to be such officer; and this individual he may remove, if he so please; but, until removed, he is the officer, and remains charged with the duties of his station,-duties which nobody else can perform, and for the neglect or violation of which he is liable to be impeached. . The distinction is visible and broad between the power of removal and the power to control an officer not removed. The President, it is true, may terminate his political life; but he cannot control his powers and functions, and act upon him as a machine, while he is allowed to live. This power of control and direction, nowhere given, certainly, by any express provision of the Constitution or laws, is derived, by those who maintain it,
from the right of removal ; that is to say, it is a constructive power. But the right of removal itself is but a constructive power; it has no express warrant in the Constitution. A very important power, then, is raised by construction in the first place; and, being thus raised, it becomes a fountain out of which other important powers, raised also by construction, are to be supplied. There is no little danger that such a mode of reasoning may be carried too far. It cannot be maintained that the power of direct control necessarily flows from the power of removal. Suppose it had been decided in 1789, when the question was debated, that the President does not possess the power of removal: will it be contended that, in that case, his right of interference with the acts and duties of executive officers would be less than it now is ? The reason of the thing would seem to be the other way. If the President may remove an incumbent when he becomes satisfied of his unfaithfulness and incapacity, there would appear to be less necessity to give him also a right of control, than there would be if he could not remove him. We may try this question by supposing it to arise in a judicial proceeding. If the Secretary of the Treasury were impeached for removing the deposits, could he justify himself by
saying that he did it by the President's direction? If he could,’
then no executive officer could ever be impeached, who obeys the President; and the whole notion of making such officers impeachable at all would be farcical. If he could not so justify himself, (and all will allow he could not,) the reason can only be, that the act of removal is his own act; the power, a power confided to him, for the just exercise of which the law looks to his discretion, his honesty, and his direct responsibility. Now, Sir, the President wishes the world to understand that he himself decided on the question of the removal of the deposits; that he took the whole of the measure upon himself; that he wished it to be considered his own act; that he not only himself decided that the thing should be done, but regulated its details also, and named the day for carrying it into effect. I have always entertained a very erroneous view of the partition of powers, and of the true nature of official responsibility under our Constitution, if this be not a plain case of the assumption of power. The legislature had fixed a place, by law, for the keeping of the public money. They had, at the same time, and by the same law, created and conferred a power of removal, to be exercised contingently. This power they had vested in the Secretary, by express words. The law did not say that the deposits should be made in the bank, unless the President should order