SENATE.] Removal of the Deposites. [JAN. 17, 1834. ercise the power of raising armies and calling forth the tion for the conduct of the Executive officers, he has, militia, which Mr. Henry considered the power of the from the constitution also, as a necessary consequence, sword. the right to inspect, superintend, and control their pro In regard to the other portion of the honorable Sena- ceedings: and this right of superintendence is expressly tor's observations, touching the abuses which the Presi- and repeatedly recognised, on constitutional grounds, in dent might commit, in saying first to one, and then to the great debate in the first Congress, to which I have another Secretary, that if you will not do so and so, I will already referred. I will give a few only, of many similar turn you out of office, I can only say that the argument- extracts, in which it will be seen that this right of supercomes just forty-five years too late. In the very first Con- intendence, as a constitutional right, is distinctly and ungress which met under the constitution, it was decided, equivocally asserted. Mr. Madison said, "is there no upon the fullest consideration, that the President, accord- danger that an officer, when he is appointed by the coning to the true principles of that instrument, possessed currence of the Senate, and has friends in that body, may the power of removal from office, and that power was choose to risk his establishment on the favor of that branch expressly recognised in the acts constituting the Execu- rather than rest it upon the discharge of his duties to the tive Departments. The very argument which the hon- satisfaction of the Executive branch, which is constitutionorable Senator now uses, and every other which he has ally authorised to inspect and control his conduct! so earnestly pressed on this branch of the subject derived Mr. Lawrence: "In the constitution, the heads of Defrom possible abuses, was then repeatedly and strongly partments are considered as the mere assistants of the urged against the power of removal in the President. President in the performance of his executive duties. He But they were all over-ruled, on the ground that the Con- has the superintendence, the control, and the inspection, stitution, in "vesting the executive power in the Presi- of their conduct," &c. &c. dent," had made him responsible for the conduct of the Executive officers employed under him, whom, therefore, he ought to have the power to control, and that this responsibility of the President, thus established, was, in fact, to use the language of Mr. Madison, the highest security "for liberty and the public good. وو Mr. Ames: "The executive powers [are delegated," (of course, by the constitution)" to the President, with a view to have a responsible officer to superintend, control, inspect, and check, the officers necessarily employed in administering the law." We see, then, Mr. President, that throughout these deBut, sir, this matter deserves a fuller examination, and bates, which, as a contemporaneous exposition, as well as brings under review some opinions expressed by the hon- from the distinguished ability of the men who participated orable Senator a few days ago, which, as they involve the in them, must be regarded as an authority of the highest fundamental theory of the constitution in regard to the order, that the right of the President to superintend the Executive branch of the Government, I will proceed to Executive departments, was treated as a right flowing consider more in detail. The honorable Senator took from the fountain of the constitution itself, and existing especial exception to the principle asserted by the Presi- anterior to, and independent of legislative provision. Sir, dent in the paper read by him to his cabinet-"that the that this is the true character of the right, nothing could constitution has devolved upon him the duty of superin- more strikingly show than the form in which the question tending the operation of the Executive Departments." of the Presidential power of removal was finally settled He contended that the constitution had given him no such by the Congress, whose debates are here referred to. power-that by law those departments may, and in cer- In the original shape of the bills for the organization of tain cases have been, placed under the superintendence the Executive Departments it was provided that such and direction of the President-that so far, and no farther, and such Secretaries should be appointed," to be removahe has, by law, the superintendence of their operations; ble by the President." It was suggested, however, that but that the constitution has devolved on the President a clause of this sort might be considered as implying that no right of superintendence over the Executive Depart ments. the power of removal was granted by the law. To preclude such an influence, it was proposed to substitute a Now, sir, on this assertion, I must respectfully join mere incidental recognition of the power, serving to show issue with the honorable Senator; and I call to witness that the power was considered a pre-existing one derived the fathers of the constitution, and those who have had from the constitution and not from the law; and this was the largest and most enlightened experience in the admin- done in the section providing for cases of vacancy in the istration of its highest trusts. The fundamental theory head of the Department, by a simple declaration that of the constitution, in regard to the Executive power, is," whenever the principal officer shall be removed from Ist, its unity, 2dly, its responsibility; to secure which last, office by the President of the United States, or in any in an undivided and the most efficient manner, was the other case of vacancy," the chief clerk shall, during such great argument in favor of the first. In governmenis vacancy, have the charge and custody of the records, &c. of the monarchical kind, the Executive head is exempt &c. of the department. The original clause was stricken from all responsibility. But in our republican constitu- out, and this incidental recognition of the power substitution, the chief Executive Magistrate is under a triple re- ted, as will be seen by reference to the acts constituting sponsibility, through the medium of election, of impeach- the Executive Departments; and this was done expressly on ment, and of prosecution in the common course of law. the ground, which the language sufficiently imports, that He is not only responsible for his personal acts, but the the power of removal from office by the President, was "Executive power being vested in him," he is responsible a pre-existing power, flowing from the constitution, and for the whole Executive Department; and this responsi- not derived from the law. The power of superintenbility of the President was considered the great security dence, involved in that of removal, stands as we have for the proper and safe administration of that Department.seen, on the same ground. Mr. Madison, in the debates which took place in '89 on Sir, I beg leave now to call the attention of the Senate the President's power of removal, said, "It is evidently to an authority which, as that of one of the earliest and the intention of the constitution that the First Magistrate most uncompromising foes of tyranny, and the great should be responsible for the Executive Department," champion of popular rights, as he is the acknowledged Again, in the course of the same debate, he said, "The founder of the democratic party in this country, cannot principle of unity and responsibility in the Executive fail, I trust, to command the respect of those who, like Department, is intended for the security of liberty and the honorable Senator from Kentucky, profess to be the public good." fighting the battles of liberty on this floor. I allude, of The President being thus responsible by the constitu- course, to Mr. Jefferson. While no one more steadily JAN. 17, 1834.] Removal of the Deposites. [SENATE. opposed the undue accumulation of power in the hands tive authority have produced any bias in favor of a single of the chief Executive Magistrate, it will be seen that no Executive; because the parts I have acted have been in one more unequivocally maintained the constitutional the subordinate, as well as superior stations, and because, right of the President to superintend and control the ac- if I know myself, what I have felt and what I have wishtion of the Executive Departments. I will read, sir, an ed, I know I have never been so well pleased as when I extract from a letter addressed by him to M. de Tracy, could shift power from my own on the shoulders of others; the author of an able and enlightened commentary on the nor have I ever been able to conceive how any rational great work of Montesquieu. He is expressing his differ- being could propose happiness to himself from the exerence of opinion from M. de Tracy on the question of a cise of power over others." plural or single Executive, declares a decided preference for the latter, and after appealing to the history of the French Directory to show the evils and disadvantages of the former, he proceeds to notice the organization of our single Executive thus: In the letter from which I have read, we have seen Mr. Jefferson's theory of the constitution with regard to the Executive, and the practice of Washington. Let us now see, sir, the principles upon which he conducted his own administration of this high office. In a few months after "The failure of the French Directory, and from the his accession to the Presidency, in November 1801, he same cause, seems to have authorized a belief that the addressed a circular to the Heads of Departments, the form of a plurality, however promising in theory, is im- members of his Cabinet, for the purpose of laying down practicable, with men constituted with the ordinary pas- the rules which were to govern the official relations besions: while the tranquil and steady tenor of our single tween him and those Departments. He begins with reExecutive, during a course of twenty-two years of the peating what was the practice, in this respect, of General most tempestuous times the history of the world has ever Washington's administration, of which he had himself been presented, gives a rational hope that this important pro- a member-that the several Heads of Departments reblem is at length solved. Aided by the counsels of a gularly transmitted to the President the communications cabinet of heads of Departments, originally four, but now addressed to them in relation to the concerns of their refive, with whom the President consults, either singly or spective offices, with the answers proposed by them to all together, he has the benefit of their wisdom and in- be made, and received from him, in return, the signififormation, brings their views to one centre, and produces cation of his approbation, or else the suggestion of such an unity of action and direction in all the branches of the alterations as he might think necessary-and then proGovernment. The excellence of this construction of the ceeds: "By this means, he was always in accurate posExecutive power has already manifested itself here under session of all facts and proceedings in every part of the very opposite circumstances. During the administration Union, and to whatsoever Department they related; he of our first President, his cabinet of four members was formed a central point for the different branches, preequally divided, by as marked an opposition of principle served an unity" (this despotic unity again, sir!) “ of obas monarchism and republicanism could bring into con-ject and action among them; exercised that participation flict. Ilad that Cabinet been a Directory, like positive in the gestion of affairs which his office made incumbent and negative quantities in algebra, the opposing wills would have balanced each other, and produced a state of absolute inaction. But the President heard with calmness the opinions and reasons of each, decided the course to be pursued, and kept the Government steadily in it, unaffected by the agitation. The public knew well the dissensions in the Cabinet, but never had an uneasy thought on their account; because they knew also they had a regulating power, which would keep the machine in a steady movement." This passage, sir, requires no comment. It is evident that Mr. Jefferson considered the power of the President to control and "decide the course to be pursued by each" of the Departments, as the fundamental principle of our Executive organization-that it only can secure the necessary "unity of action and direction in all the branches" of the Executive administration—and that, in short, it is the "regulating power which keeps the whole machine in steady movement." In a subsequent part of the same letter, he speaks of "this power of decision in the President, as that which alike excludes internal dissensions, and repels external intrigues." [Mr. CLAY here enquired of Mr. RIVES, if this letter was written before or after Mr. Jefferson was President.] Mr. RIVES answered that it was written in January, 1811, in the philosophical retirement of Monticello, when he had withdrawn from all the disturbing scenes of public life and, as a patriot and sage, employed his leisure in meditating the lessons of his long experience, and recording them for the instruction of posterity. But, lest the honorable Senator may suppose, (as his question seems to imply,) that the possession of power had given an undue bias to the mind of Mr. Jefferson, (than whom there never lived a man more thoroughly imbued with an innate love of liberty,) he shall speak for himself. In the letter from which I have already quoted, he uses the following language: on him; and met himself the due responsibility," (General Washington and Mr. Jefferson too, it seems, were so reckless and daring as to meet the responsibility of their offices,) "for whatever was done. During Mr. Adams's administration, his long and habitual absences from the Seat of Government rendered this kind of communication impracticable, removed him from any share in the trans. action of affairs, and parcelled out the Government, in fact, among four independent heads, drawing sometimes in opposite directions." He then expresses his intention to adhere to the system, in this respect, of Washington, and adds-" my sole motives are those before expressed, as governing the first administration in chalking out the rules of their proceedings; adding to them only a sense of the obligation imposed on me by the public will to meet personally the duties to which they have appointed me." Here, sir, we have the interpretation of Washington and Jefferson, in the most authentic of all forms, (their own practice,) of the duties and powers of the Presidential office, creating in the Chief Magistrate himself a responsibility for whatever is done" in any of the Executive Departments, and giving him, by consequence, a power to superintend, control, and shape the action of those Departments. To these high constitutional models, realizing the well-ordered unity and responsibility of a single Executive, the present Chief Magistrate has sought to conform his administration, rather than by indolence, neglect, or shrinking from responsibility, to parcel out the Government among five or six independent Heads of Departments, thus converting it into a discordant and practically irresponsible directory. The honorable Senator from Kentucky has also taken exception to the President's reference to the clause of the constitution which declares "the President shall take care that the laws be faithfully executed;" the President having referred to it as giving him the power to superintend and direct the conduct and operations of the Execu "I am not conscious that my participations in Executive Departments. The honorable Senator contends SENATE.] Removal of the Deposites. [JAN. 17, 1834. that the true and sole operation of this clause is to em-charge of their duties was to be secured by a power of power the President, when the laws are forcibly resist- superintendence and control over them on the part of ed, to overcome that resistance by force. He says that the Chief Magistrate, who was made responsible for their he has made, and caused to be made, numerous research- conduct, and specially charged with the duty of seeing es into the contemporaneous constructions of the con- that the laws be faithfully executed. stitution, and that he can find nowhere any color for the I will now, Mr. President, advert to an argument of President's interpretation. Now, sir, I must be permit- the honorable Senator from Kentucky, which, I confess, ted to say that the honorable Senator's interpretation of struck me with considerable surprise. In order to susthis clause is far more latitudinarian than that of the Presi- tain his position that the constitution had not given the dent, and ascribes to it an operation infinitely more dan- President a power of superintendence and control over gerous and extensive. The President, sir, has no power the Executive Departments, he contended that, in cerof himself, under the constitution, to execute the laws tain cases, the heads of those Departments were responby force. This depends upon Congress, to whom the sible to, and compellable to act by the courts of justice; power is expressly given to "call forth the militia to exe- and, in support of this principle, he relied on the decicute the laws," &c. It is true, the President, by the son of the Supreme Court in the case of Marbury and constitution, is commander-in-chief of the army and na- Madison, an extract of which he read to the Senate. I vy, and of the militia, when called into actual service; was the more surprised, sir, at the doctrine and the aubut, as such, he is a mere instrument in the hands of thority coming from the honorable Senator from Kentucky, Congress, by whom the objects and purposes for which because he professes an adhesion to the creed of the he is to employ the forces under his command must first republican party of that day; and yet it may be confibe designated. dently affirmed that there never was a decision of that The construction of the honorable Senator, then, is tribunal which gave more dissatisfaction to the republican one of far more dangerous latitude than that of the Pre-party, than that did, and especially to the great chief and sident. The clause in question, sir, can have no refer- leader of the party, who has recorded, in various parts of ence to the execution of the laws by force, which is a his writings, the most earnest and energetic condemnamatter exclusively under the control of Congress. It tion of it. With all the deference I entertain for that exmust refer to the faithful execution of the laws by other alted tribunal, I must say that the doctrines of Marbury means-by the intervention of officers appointed for the and Madison appear to me utterly unsustainable, and purpose, whose fidelity in the discharge of their duties such, I believe, would be the judgment of all parties at may be secured by the superintendence of the chief Ex- the present day. The Senate, sir, doubtless recollect ecutive officer. The honorable Senator has said, that in the the circumstances of the case. Mr. Adams, on the eve various researches he has made, and caused to be made, of quitting the Presidency, had appointed, with the conhe has found no trace of this construction. If he had currence of the Senate, numerous officers, and, among taken the trouble to turn to the most obvious source of in- others, certain justices of the peace for this district. formation on the subject-the proceedings and debates Their commissions had been signed by him, and the of the first Congress on the organization of the Execu- seal of State, perhaps, affixed to them; but they had not tive Departments-he could not have failed to see that been delivered to the parties, when Mr. Jefferson came this clause was appealed to in the sense, and for the purinto office. Mr. Jefferson finding them still in the De. pose, which the President has done. I will not fatigue partment of State, when he succeeded to the Presidency, the Senate by multiplying citations from a portion of our and considering the appointments either as improper in legislative and constitutional history, which is, doubtless themselves, or improperly made, and that comissions, like familiar to the minds of all, but will content myself with deeds, were incomplete and revocable till delivery, deone or two brief extracts from a speech of Mr. Madison on termined to withhold them. The parties applied to the that occasion, an authority for which I know the hono. Supreme Court for a mandamus, directed to Mr. Madison, rable Senator from Kentucky entertains, as all must, then Secretary of State, to compel the delivery of the the highest respect. While discussing the question of commissions. The Court decided that, though they had the President's power of removal from office, he says. no jurisdiction to grant a mandamus in the case, (it not "But there is another part of the constitution which in- being embraced among those cases of original jurisdic. clines, in my judgment, to favor the construction I put tion committed to them,) yet that the parties had acupon it; the President is required to take care that the quired, by the signing and sealing of the commissions, laws be faithfully executed. If the duty to see the laws without delivery, an absolute and legal right to the faithfully executed be required at the hands of the Exe- offices in question, which might be enforced against an cutive Magistrate, it would seem that it was generally independent department of the Government by a judicial intended he should have that species of power which is tribunal. necessary to accomplish that end. Now, if the officer, I must leave it to Mr. Jefferson, in his own strong lanwhen once appointed, is not to depend upon the Presi- guage, and with a reasoning which appears to me irresisdent for his official existence, but upon a distinct body, Itible, to show the fundamental and dangerous errors of confess I do not see how the President can take care this decision, now relied on by the honorable Senator that the laws be faithfully executed." from Kentucky. In a letter addressed to Mr. Hay, attorney of the United States for the District of Virginia, during the progress of Burr's trial, at Richmond, he writes thus: Again, in the same speech: he says, "I conceive that the President is sufficiently accountable to the community; and if this power is vested in him, it will be vested where its nature requires it should be vested; if any thing in its "I observe that the case of Marbury vs. Madison has nature is executive, it must be that power which is em- been cited, and I think it material to stop at the threshployed in superintending and seeing that the laws are hold the citing that case as authority, and to have it defaithfully executed; the laws cannot be executed but by nied to be law. 1. Because the judges, in the outset, officers appointed for that purpose; therefore, those who disclaimed all cognizance of the case; although they then are over such officers naturally possess the executive went on to say what would have been their opinion had power." It is obvious then, that Mr. Madison viewed they had cognizance of it. This, then, was confessedly that clause in the light in which it has been referred to an extra-judicial opinion, and, as such, of no authority. by the President; that the faithful execution of the laws 2. Because, had it been judicially pronounced, it would committed to him was to be effected by "officers ap- have been against law; for, to a commission, a deed, a pointed for that purpose," and that fidelity in the dis-bond, delivery is essential to give validity. Until, there JAN. 17, 1834.] Removal of the Deposites. [SENATE fore, the commission is delivered out of the hands of the arrived, without any provision against impressment of Executive and his agents, it is not his deed. He may our seamen, I determined not to ratify it. The Senate withhold or cancel it at pleasure, as he might his private thought should ask their advice. I thought that would deed in the same situation. The constitution intended be a mockery of them, when I was predetermined against that the three great branches of the Government should following it, should they advice its ratification. The conbe co-ordinate, and independent of each other. As to stitution had made their advice necessary to confirm a acts, therefore, which are to be done by either, it has treaty, but not to reject it. This has been blamed by given no control to another branch. some; but I have never doubted its soundness. In the "The Executive and Senate act on the construction that cases of two persons, antenati, under exactly similar ciruntil delivery from the Executive Department, a commis- cumstances, the federal court had determined that one of sion is in their possession and within their rightful power; them (Duane) was not a citizen; the House of Represenand in cases of commissions not revocable at will, where,tatives, nevertheless, determined that the other, (Smith, after the Senate's approbation, and the President's sign- of South Carolina,) was a citizen, and admitted him to a ing and sealing, new information of the unfitness of the seat in their body. Duane was a republican, and Smith person has come to hand before the delivery of the com- a federalist, and these decisions were during the federal mission, new nominations have been made and approved, ascendency. These are examples of my position, that and new commissions have issued. each of the three departments has equally the right to decide for itself what is its duty under the constitution, without any regard to what the others may have decided for themselves under a similar question." "On this construction, I have hitherto acted; on this I shall ever act, and maintain it with the powers of the Government against any control which may be attempted by the judges in subversion of the independence of the Without entering at this time, sir, into any discussion Executive and Senate within their peculiar department." of those important principles, I will only say, that if the This answer of Mr. Jefferson, sir, to the Supreme present Chief Magistrate has sinned against the constituCourt, appears to me to be conclusive and irrefragable. tion by any doctrines which he has advanced, or is sup. It shows that the doctrine of Marbury vs. Madison was posed to entertain, on this subject, he has sinned in comwrong, not merely with regard to the merits of the par-pany with the great apostle of American liberty and of ticular case, but dangerously wrong in another aspect, in the rights of man. asserting a claim of the judiciary (which is now reiterated To sum up, then, in a few words, the results of what by the honorable Senator from Kentucky) to control an has been said, I think it has been shown that, according independent branch of the Government in matters confi- to the true theory of the constitution, the President of ded by the constitution to its separate and responsible the United States, in whom the "executive power is action. As this last aspect of the decision involves a vested," is made responsible for the conduct and proceedquestion of the gravest import-one affecting that funda-ings of all the Executive Departments-that, as a necesmental principle, not merely of our constitution, but of sary consequence of that responsibility, he has a constitufree government in general, which prescribes the separa- tional right to inspect, superintend, and control, the oper tion and mutual independence of the three great depart-ations of those Departments-and that at the very organments, Legislative, Executive, and Judicial-a question ization of the Government, immediately succeeding the too, in regard to which the imputed opinions of the adoption of the constitution, the correctness of these present Chief Magistrate have been freely commented principles was acknowledged in the most formal manner, upon in the course of this discussion, I beg permission of and after the fullest discussion, by an explicit recognition the Senate, while I have the writings of Mr. Jefferson in of the power of the President to remove from office any my hand, to read what was uttered by this great Republi- of the functionaries of the Executive Departments-a can Oracle on this important subject. In a letter address-power which has never since been questioned. ed by him, in 1819, to Judge Roane, himself one of the But, to avoid the application of these principles to the most profound constitutional jurists of our country, he subject under consideration, the extraordinary novelty expressed himself thus:-"My construction of the con- has been advanced that the Secretary of the Treasury is stitution is very different from that you quote. It is, that not an executive officer. How then has it happened, each department is truly independent of the others, and Mr. President, that, from the origin of the Government to has an equal right to decide for itself what is the meaning the present day, he has been associated with the Heads of of the constitution in the cases submitted to its action; and the other Departments in the Cabinet of the President? especially where it is to act ultimately and without appeal. By what title could the President of the United States I will explain myself by examples which, having occurred require of him, as we know has been often done, "his while I was in office, are better known to me, and the opinion in writing upon subjects relating to the duties of principles which governed them. A Legislature had his office," which the constitution authorizes him to do passed the sedition law. The federal courts had subject-only "of the principal officer in each of the Executive ed certain individuals to its penalties, of fine and impri- Departments?" Do gentlemen expect us to forget the sonment. On coming into office, I released the individu- most familiar facts which have been passing under our als by the power of pardon, committed to Executive eyes, for nearly half a century, in order to sustain their discretion, which could never be more properly exercised novel theories? On what, then, sir, is this new doctrine than where citizens were suffering without the authority of founded, that the Secretary of the Treasury is not an law, or, which was equivalent, under a law unauthorized executive officer? Is it that in the mere title of the act by the constitution, and therefore null. In the case of for the establishment of the Treasury Department, it Marbury and Madison, the federal judges declared that does not happen to be styled an Executive Department? commissions signed and sealed by the President, were The acts for the establishment of the other Departments valid, although not delivered. I deem delivery essential are styled, it seems, in the title, (forming no part of the to complete a deed, which, as long as it remains in the law itself) "an act to establish an Executive Department, hands of the party, is as yet no deed; it is in posse only, to be denominated the Department of War," and so likebut not in esse, and I withheld delivery of the commis-wise of the State and Navy Departments, while the act sions." (Yes, sir, I, the President, not the Secretary, for the establishment of the Treasury, is simply styled in withheld the commissions.) "They cannot issue a man-its title "an act to establish the Treasury Department.' damus to the President or Legislature, or to any of their Now, sir, if this difference in the title was not the officers-(the constitution controlling the common law in result of mere accident, as I am inclined to think it was, this particularly.) When the British treaty of 1807, for I find that the title was the same as of the other acts, SENATE.] Removal of the Deposites. [JAN. 17, 1834. in all the preliminary and intermediate proceedings, down the law, from the adoption of the constitution to the preto the very passage of the act, (after which, according to sent day. As little, sir, can the omission to denominate him the parliamentary custom, a formal entry is made on the an executive officer, in the mere title of the act establishjournal to this effect: “Ordered that the title of the act" ing the department of which he forms a part, have that be so and so;) if, sir, I say, this difference was not merely effect, (explained too, as that omission is by the circumaccidental, it is sufficiently explained by the different stances to which I have adverted,) if the functions asorganization of the Treasury Department, compared with signed to him by the act itself be, as I think all must the other Departments. The organization of the other admit them to be, executive in their nature. But there Departments is simple and homogeneous, consisting, in is still another criterion, if another were necessary, for each, of one principal officer, the head of the Depart- ascertaining the character of his office. I mean its tenment, and of clerks employed under him, to perform, as ure. The Secretary of the Treasury holds his office by he shall direct and arrange it, the business of the Depart- precisely the same tenure as every other head of a Department. But, on the other hand, the organization of the ment. He is removable by the President, precisely in the Treasury Department is complex and diversified. It same way as other Secretaries are; and that removability consists not only of one principal officer, the head of the is declared in the act creating the Treasury Department, Department and his clerks, but of various other officers, in identically the same terms and manner that the removaof a high and important grade, whose respective func- bility of the other Secretaries is declared in the acts contions are classified and arranged by the law itself-such stituting their respective departments. By reference to as the Comptroller, the Auditor, the Register, the Trea- the debates of Congress in '89, on the power of removal surer. The functions of some of these officers, of the by the President, it will be seen that the removability of Comptroller and of the Auditor for example, seem to public officers by the President was considered as departake somewhat of the judicial character; and it will be pending solely on the circumstance of their being Execuseen in the debates on the organization of the Treasury tive officers or otherwise. All Executive officers were Department that this idea was suggested in relation to the regarded as mere assistants and substitutes of the Presi Comptroller particularly, by Mr. Madison, who, for that dent, in the exercise of that Executive power which the reason, proposed to modify differently the tenure of his constitution had vested wholly in him, and, as such, ought office. The same idea, we have seen it stated in the to be, and were, removable by him at pleasure. The act newspapers, in regard to the character of the Auditor's establishing the Treasury Department, therefore, in exfunctions, has recently furnished, in my own State, the pressly recognising, as it does, the removability of the ground of an able and ingenious argument against the Secretary of the Treasury, by the President, virtually constitutionality of a particular act of Congress. In the declares him to be an executive officer. organization of the Treasury Department then, embracing The power of removal, existing alike in regard to the officers of this description, whose functions appeared to Secretary of the Treasury and the other heads of departpartake, in a considerable degree, of the judicial charac-ments, may be rightfully exercised for reasons so various ter, doubts might have arisen as to the propriety of that it is impossible to reduce them to any general classifi denominating the whole Department an Executive De- cation. The President, who possesses the power, is to partment; though certainly, in regard to the head of the judge, in the first instance at least, of the reasons for its Department himself, his functions are obviously and ex- exercise. In the debate of '89, so frequently appealed clusively executive. to on this subject, Mr. Madison said: "If a head of a De What, sir, are those functions as prescribed by the act partment shall not conform to the judgment of the Presi for the establishment of the Treasury Department? To dent, in doing the Executive duties of his office, he may report and prepare plans for the improvement and man- be displaced." The honorable Senator from New Jersey, agement of the revenue, &c.; to prepare and report esti- [Mr. SOUTHARD] who spoke a few days ago, cited the mates of the public expenditure, &c.; to superintend the opinion expressed by Mr. Madison in the same debate, collection of the revenue; to decide on the forms of keep- that the President might be impeached for a wanton reing and stating accounts, &c.; and to grant warrants for moval of a public officer. Sir, I do not doubt it; but I money to be issued from the Treasury, in pursuance of beg leave to remind the honorable Senator of a correlaappropriations by law; and to execute services relative to tive opinion delivered by Mr. Madison on the same occathe sales of public lands, &c. All these functions, I think, sion-that the President might be properly impeached sir, must be allowed to be Executive. The only other also for neglecting to remove a public officer, when the duty prescribed by the act is to make report and give in public interest demanded it. And this, sir, suggests the formation to either branch of the Legislature, &c. re- true mode of testing the question which has been specting all matters referred to him by them, or which raised of the President's constitutional power to remove shall appertain to his office, &c. It is this circumstance, the late Secretary of the Treasury, for his refusal (in the it seems, of reporting to Congress which is considered as language of Mr. Madison, just cited) "to conform to the divesting the Secretary of the Treasury of the character judgment of the President" on the subject of the public of an Executive officer. But, sir, does not the President deposites. Let us reverse the case, which actually ochimself, the chief Executive officer, report to Congress? curred, and suppose that the Secretary of the Treasury, is he not required by the constitution to "give, from time instead of the President, had desired a transfer of the public to time, to Congress, information of the state of the Union, deposites-that he did so without any sufficient reason, and and to recommend to them such measures as he shall was about to commit them to banks of questionable soljudge necessary and expedient;" in other words, to report vency or of notorious insolvency. If the President, ento Congress both facts and opinions, just as the Secretary tertaining a different opinion of the expediency and proof the Treasury does? Do not the other heads of De- priety, had stood by, and renouncing the salutary control partments, also, report, whenever required, to Congress? which the constitution had placed in his hands by the Are not resolutions adopted almost every day in the one power of removal, had permitted his Secretary quietly to house or the other, directing them to report on some consummate his purpose, on the ground that the Presimatter or other? dent had no right to interfere with a discretionary power The circumstance of reporting to Congress, then, sure- entrusted by Congress to a head of a Department, what ly, cannot divest the Secretary of the Treasury of the then would have been said? We should have heard, sir, character of an Executive officer; which character he has denunciations not less loud and vehement than those which borne in the practice of the Government, and in the un- have been uttered on the present occasion, thundering derstanding of the community, as well as in the view of against him, but upon a different principle. We should |