United States. Congress.

Abridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives online

. (page 120 of 199)
Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 120 of 199)
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the 2d article, which confers no power what-
ever, by what other letter or clause of the con-
stitution, I ask, is this power given to the
Executive department ? The appointing power,
and none other, can be relied on. The protest
says that " no ofiicer can be created by Congress,
for the purpose of taking charge " of the puhlio
money, " whose appointment would not, by the
constitution, at once devolve on the President,
and who would not be responsible to him for
the faithful performance of his duties." In
other words, the President has not immediately
the custody of the public money ; but, if the
law creates an ofiScer to keep it, the President,
by the incidental right of appointment, has the
power, under the constitution, of keeping the
ofiicer who keeps the money ! Such is the idea
of this power, as an incident to appointment
But section 2d, article 2d, of the constitution,
says : " The President shall nominate, and, by
and with the advice and consent of the Senate,
shall appoint ambassadors, or public ministers
and consuls, judges of the Supreme Court, and
all other officers of the United States, whose
appointments are not herein otherwise provided
for, and which shall be established bylaw.
Now, sir, if this clause had rested here even,
still many difficult questions would have to be
all decided in favor of the President's construc-
tion, before it could be received as politically
orthodox : as that, though the President alono



DEBATES OF CONGRESS.



487



Cvstody of the Public Moneys — Mr. Wise's Resolutions.



June, 1834.]



[H. OF E.



has the power to nominate, yet is not the
power to appoint a joint power between him
and the Senate? It is true, by abusing the
power "to fill up all vacancies that may happen
during the recess of the Senate, by granting
commissions which shall expire at the end of
their next session," he may change the tenure
of all offices, by annual appointments, to be
held under his absolute will alone, from expira-
tion to expiration of every session of the Sen-
ate ; and it is true that the best expounders of
the constitution in '89 decided he has the power
of removal ; yet, if the powers of appointment
and removal are both conceded to be in him
alone, still another important question arises:
do the duties of an oflSce, created by law, attach
to the authority from which the appointment is
derived, and upon which the power of removal
depends ; or do they attach and belong to the
office itself, derived from law ?

I have already conceded, to the extent which
I have described, that, where the law creates
an ofiBcer, clearly within the pale of the Execu-
tive department, such as one of the heads of
Departments, the keeper of the public moneys,
or to do and perform any duties required by
law, such an officer is thus far responsible to
the President, by virtue of his official relations.
But does responsibility, to any extent, from an
inferior to a superior officer, actually convey
the office itself, and its duties ? Because the
Secretary of the Treasury is responsible to the
President for acts which he is imperatively
required by law to do, or not to do, has the
President the right or the power to assume the
office itself? It would, indeed, seem so, from
his doctrine of responsibility of executive
powers, and from his late conduct. He may
fail to nominate the Secretary of the Treasury,
permit the appointment to expire, refuse to
nominate another, remove the Treasurer, Comp-
troller, and Register; or any or all of these
offices may be vacated by resignation or death,
as well as by removal — and what is the conse-
quence? Why, sir, according to the doctrine
that the custody of the public money is, by the
constitution, " an appropriate function of the
Executive department," the whole keeping of
the treasury would necessarily, in the absence
of all these officers, whom he may at will dis-
place and disband, result to the President him-
self, in whom all executive power concentrates.
And the public money having been removed
from the Bank of the United States, the place
where the law placed it, and there being now no
other place pointed out, he may put it into his
own coffers, and dispose of it, for aught there
is to prevent him, to his own use ! In fact, this
claim of the custody results in that of the use
of the public money. What, I ask, is there
now to prevent the President from taking, with-
out appropriation by law, one hundred thousand
dollars, instead of twenty -five thousand dollars,
to be appropriated by law, for his salary, in the
teeth of the constitution ? If this protest be
true, the checks and balances of the Govern-



ment are gone — -never existed ; and he who
does not dare to resist this attack upon the con-
stitution is fit to be a slave, and not worthy of
free Government.

It is clear, then, I repeat, that if the consti-
tution had gone thus far, and no farther, in the
clause referred to, the President's claim to
power would still be inadmissible. But, sir, I
leave all this debatable ground, and take a
stand which cannot be assailed by argument or
by force, unless the constitution itself be de-
molished, so that not one stone shall be left
upon another, from its deep foundation to the
top of its superstructure. Happily for the
country, this clause further provides : " But the
Congress may, by law, vest the appointment of
such inferior officers " — (what inferior officers?)
— " all other officers of the United States, whose
appointments are not herein otherwise provided
for, and which shall be established by law," be-
sides " ambassadors or other public ministers,
and consuls, and judges of the Supreme Court "
— " as they think proper, in the President
alone, in the courts of law, or in the heads of
Departments." Congress may, then, to-mor-
row, Deo -volente, by two-thirds, create a
Treasurer, or keeper of the public money, whose
"appointment would not devolve upon the
President." A Treasurer being " such inferior
officer " as whose appointment is not " in the
constitution otherwise provided for," being
neither ambassador or other public minister, or
consul, or judge of the Supreme Court, being
an officer " which shall be established by law,"
the Congress may, by law, passed by two-thirds
of both Houses, vest his appointment, as they
think proper, in the courts of law.

And if the appointment of Treasurer, and all
other treasury officers, should thus become
vested by law in the " courts of law," what,
then, would hecome of the President's doctrine
of responsibility ? Would the Treasurer still be
responsible to him by virtue of his office ? or,
mutatis mutandis, would the custody of the
public money then be an appropriate function
of the Judiciary ? Would the power of keeping
the public money then be incidental to the
power of appointing the agent to keep the public
money? No, sir; the judges would appoint,
and become, instanter, as to all other powers
touching the treasury, ^^ functus officio," pre-
cisely as the power of electors of President and
Vice-President die, as they should, in the very
discharge of their functions to appoint, to vote
for, or elect. The constitution positively nega-
tives the proposition of the protest, that " no
officer can be created by Congress for the pur-
pose of taking charge of the public money,
whose appointment would not, by the constitu-
tion, at once devolve on the President."

And, sir, the mode of demonstrating that this
power of the custody of the public money is not
given to the Executive, shows that it must be
in Congress. Such a power cannot be claimed
for the Judiciary, and, if not in the Executive,
where else can it be but in the Congress of the



488



ABRIDGMENT OF THE



H. OF E.]



Custody of the Public Moneys — Mr. Wise's Resolutians.



[Jdne, 1834,



United States ? We have seen that Congress
may, by law, vest the appointment of the agent
to keep the public money in either the Execu-
tive or the Judiciary ; that if that agent is not
appointed by the President, even the protest
does not claim the power ; and whether the
judges have the appointment vested in them or
not, they can never pretend to the custody.
But the eighth section of the first article settles
all controversy on this point, by providing that
" the Congress shall have power" —

" To lay and collect taxes, duties, imposts,
and excises ; to pay the debts," &c.

"To borrow money on the credit of the
United States."

" To coin money, regulate the value thereof,
and of foreign coin."

Thus Congress alone has the power to raise
the revenue, whether by taxation, loan, or by
the mint. And the ninth section of the first
article; providing that " no money shall be
drawn from the treasury but in consequence of
appropriations made bylaw," gives to Congress
the power of disbursing as well as raising the
public revenue. If the custody of the public
moneys is not expressly given in these clauses
of the constitution, it is nowhere expressly
given. The grants of the powers to raise and
appropriate, necessarily, to my mind, include
the power to keep the moneys of the United
States. But, if not expressly given to any, yet
all must admit that it belongs to some one
branch of the Government ; that it necessarily
results from the powers which are expressly
given ; and that it cannot result from any
express power so properly as from those of col-
lecting and appropriating the public moneys.
To which branch of the Government, then, does
it belong? To Congress, which has all the
powers, or to the Executive, which has none
of the powers of collecting and appropriating
the public revenues ? Most clearly, all powers,
necessarily and properly resulting from those
expressly given to Congress, belong to Congress.
But I advance a step farther, and contend that
all resulting powers whatever belong to the
Legislative, and the law-giving branch of our
Government. Whatever doubts may exist or be
raised in other Governments, where the Execu-
tive power is always strongest, there is a clause
of our constitution which leaves no room for
doubt on this point in this Government, where
the Executive is at best merely co-ordinate.
The constitution provides that Congress shall
have power " to make all laws which shall be
necessary and proper for carrying into execution
the foregoing powers, and all other powers
vested by this constitution in the Government
of the United States, or in any department or
officer thereof." If the custody of the public
moneys be a resulting power, then, and result-
ing, too, from a power expressly given to the
Executive even, it must, nevertheless, by this
clause of the constitution, belong to Congress.
But it is an express power, and expressly given
to Congress.



We have thus far been contending, however
for the custody alone of the pubhc moneys!
The first of these resolutions declares their con-
trol as well as their custody to be in the Con-
gress of the United States. Sir, upon examina-
tion of the protest, the conclusion is irresist^
ible, that all, all power over the public purse
is claimed by the Executive. I make not this
declaration generally, but in reference to par-
ticular facts.

All control, except that of prescribing the
place, is claimed over the moneys in the treas-
ury ; but let it be remembered that there are
moments when the public moneys, unappropri-
ated, and not disbursed under appropriations by
law, are not in the treasury. They are "m
transitu'''' to the treasury immediately after
collection, and from the treasury immediately
after appropriation. This is true of all the
revenue. What matters it, then, where the treas-
ury is, when the President, through " his " Sec-
retary, may prevent every dollar from ever going
there ? It is known to all, I presume, that the
moneys of the United States, collected at the
difierent ports of entry, are Isrought into the
treasury by an order of the Secretary to; the
collectors to pay the sums due by them at the
places of deposit, to the credit of the Treasurer
of the United States. When this order is
obeyed, the moneys are in the treasury, and not
before. Now, sir, what is there to compel the
Secretary to order the moneys to be paid into
the Treasury ? And if it be true that the Exec-
utive has their custody, what, in this state of
the public moneys, becomes of that provision of
the constitution which says that "no money
shall be drawn fi-om the treasury but in conse-
quence of appropriations made by law," and
which is the only check upon the President's
control of the public moneys ? Do not these
new protestant doctrines, which come neither
from Calvin nor Luther, lead directly to the
alarming consequence that the President, having
the custody of the moneys, in or out of the
treasury, might expend the moneys not credited
to the Treasurer, or use the amounts of collect-
ors' bonds, without appropriation by law, inas-
much as it is the money " from the treasury "
only which shall not be drawn but in conse-
quence of appropriations made by law ? Ay,
sir, I ask those who attended the discussion of
the appropriation bills, if moneys collected have
not been expended, before they were brought
into the treasury, without appropriations made
by law ? I inform the people that they have ;
that suits are multiplied unreasonably on collect-
ors' bonds ; and that collectors and district at-
torneys of the United States pay their fees and
the costs, and return the net proceeds only into
the treasury. And if a part may be withheld
without sanction of law, why not the whole ?
And if a part, or the whole may be withheld
for one object, why not for another ? Again,
sir: there are the immense revenues of the
Post Office Department, which are never
brought into the treasury, over which there



DEBATES OF CONGRESS.



489



June, 1834.]



Custody of the Public Moneys — Mr, Wise's Resolutions.



[H. OP E.



never was, and is not now, the guard or check
of Treasurer, Comptroller, or Eegister. "What,
I ask, is there to prevent the Executive from
pocketing them for its own use, or controlling
them for his own purposes, if Congress cannot
take their custody from the present agents ?
"Where are they now '?" is a question which
has heen reiterated in vain this winter, until its
repetition has ceased to annoy the few who only
know, and has left the interested many who
know not, in despair of ever knowing, until the
too far distant day of account shall come ! I say,
then, if the custody of the moneys of the Unit-
ed States, unappropriated, and not disbursed,
w^hether in or out of the treasury, be not in Con-
gress, their control must be in the President.
Are any here so basely servile as even to connive
at this doctrine ? None, I hope. I call upon all,
then, to vote for the first of these resolutions.
It says, that " the custody and control of the
moneys of the United States are placed under
the order and direction of Congress," to meet
the cringing argument which is used, that " Con-
gress has no hand to hold the public purse." It
is true, sir, that Congress, as a body, cannot keep
the public moneys ; but the ctistody of Congress
is the custody of the law, and the hand of the
law is the agent created by Congress.

The third resolution declares that Congress
can take out of the hands of the Executive de-
partment the custody and control, not only of
the public moneys, but of the pulslic property
of the United States. Sir, I shall not stop here
to refine upon the nice distinctions between the
words " money " and " property ; " and, though
there is a material and important difference
between "money in the treasury," and lands,
tenements, arms, and other " property " pur-
chased with money once appropriated by law,
yet I will admit that, in a broad sense, " public
money is but a species of public property." If
60, my argument is at once confirmed by the
constitution, which expressly provides (section
8d, art. 4th) that "the Congress shall have
power to dispose of, and make all needful rules
and regulations respecting the territory or other
property belonging to the United States ; " be-
sides the power given in the 16th clause of the
8th section of the 1st article.

I hope, sir, that I have now shown what are
the doctrines, and some of the errors of the pro-
test; that I have demonstrated the truths of
tliese resolutions, and maintained not only their
propriety and consistency, but laid bare their
absolute necessity to the very preservation of
our form of government. I therefore call upon
this House, by the danger of giving silent con-
sent to enormous and alarming claims of power
by the Executive, by the sacred trusts which
are reposed in it by the people, by its own dig-
nity, self-respect, just powers, and independ-
ence, and by the cause of civil liberty, to sustain
these resolutions, which contend for the laws
and the constitution.

To those who, with me, deprecate and deplore
the present condition of the country, I would



say, it is too true this is no longer a question of
restoration or not of the deposits, of " bank or
no bank," of dollars and cents, but a question
of constitutional freedom. How, though, are
we to redeem the constitution, vindicate our
own powers, and restore the rights of the peo-
ple, without acts as well as declarations ? It is
useless to declare the powers of Congress, with-
out attempting at least to exert them. The cry
of " Usurpation ! Usurpation ! " is a dull sound,
without efforts to second its notes. How cor-
rect the abuse of removing the deposits, but
by restoring them ? How restore a sound, uni-
form, and safe currency, but by adopting some
permanent plan of relief? How rebuke the
abuses and usurpations of power, but by coun-
teracting both ? Sir, I hope gentlemen in oppo-
sition are in earnest, and are actuated by patri-
otism more than by party spirit ; that they do
not mean only to cast odium on the acts of the
administration, without intending to apply a
remedy themselves. I hope they do not desire
the suffering of their countrymen to continue,
in order that they may be more than imbittered
against those in power ; that the cry they have
raised is not so much to destroy the popularity
of " the powers that be," but that it has a
meaning in it worthy of the patriot's warning,
and that they will continue at their posts until
this policy of doing nothing, of leaving all
power where it now is, is defeated and over-
thrown.

Sir, I respectfully ask gentlemen who support
the Administration in all these measures, if it
can possibly be their deliberate policy to ad-
journ without doing something for relief — not
pecuniary relief, that is now but as the dust in
the balance — I mean relief of the laws and
constitution ? I respectfully inquire of the
honorable chairman of the Committee of "Ways
and Means, if any other can be his design, or
the design of the party with whom he acts, by
the proposition of the measure he has reported ?
Can he or any man expect us to adopt that
measure, when it would but confirm the present
state of things ; but employ the worst of means
to effect the very evils complained of ; but add
the sanction of law to the very violations of
law ; and servilely grant, yield, and consent to
the usurpations of power which we are so
loudly called on sternly to deny, refuse, resist,
and denounce ? Does he not, did he not fore-
know that Congress will reject this proposition
to strip it of all its powers, and transfer them to
the Executive ? And if Congress does reject it,
as it is bound by law and duty to do, do gentle-
men flatter themselves that they can return to
their constituents with the insulting excuse, that
the Administration has done its part for the
people ? I imploringly ask gentlemen, if this is
to be their " 'ultimatum ? " If so, I venture to
predict that it will be the " ultimatum " of their
fate ? Sir, this may be the croaking of proph-
ecy, and they may feel secure as a tower of
strength in their present possession of power.
But if they continue to mock the complaints of



490



ABRIDGMENT OF THE



H. OF K.]



Kentvchy Contested Election — Letcher and Moore,



[Jdhe, 1834.



the people ; if they continue in that desperate
course which blindly plunges from had to
worse ; if they do not quickly retrace their
steps of folly, repent of past errors, (which they
may now do without making confession ;) if they
persist in this saci'ilegious policy which pollutes
the sacred vessels of the sanctuary ; they will
yet have to tremble, like Belshazzar, at the
hand-writing on the wall !

Sir, in the language of Fisher Ames, " if my
powers were commensurate with my zeal, I
would raise my voice to such a pitch of remon-
strance " against this cruel injnstice to a gener-
ous people, this mischievous policy of those in
whom that people have confided, this flagrant
outrage upon the laws and constitution, " that
it should reach every log-hoase beyond the
mountains." I would say to the inhabitants of
this land, to its utmost borders, rise in your
majesty and sovereignty, and hurl from his
place of power every public man within the
reach of a ballot-box, who has sought to perpe-
trate these atrocious evils upon the body poli-
tic, or who has been supine and inactive whilst
others have been guilty of their perpetration !
But, sir, as I cannot be heeded by the nation
beyond the district of my own constituents, I
would speak with a " still small voice" to those
who are near me. In my present relation to
the President, I cannot condescend, as an inde-
pendent representative of a people yet free, to
offer an apology for the course I have been
driven to pursue by the late measures of the Ex-
ecutive. I claim rather an atonement from the
man whom I supported for the presidency for
such acts of misrule. But if I were permitted
to expostulate with him, as still a sincere per-
sonal friend, I would warn him to " shake off
the serpent from his hand, ere poison and death
ensue from the bite of the reptUe !"

I will say to my personal friends in the ad-
ministration ranks : "I am no deserter, and
have a right to speak to a brother soldier. It
is true I have left your camp, not because I dis-
like the corps to which I belonged, but because
there were vermin there ; and I enlisted under
the banners of the ' Old Chief to fight for my
country, and not against her most sacred insti-
tutions and dearest rights. I call upon you
who are faithful to him to save the time-honor-
ed warrior from the ' deep damnation' of the
bitter curses of an injured and insulted people,
groaning under the pillaging policy of ' orderly
sergeants,' reckless alike of the country's wel-
fare and of the President's popularity, enriched
with the ' spoils of victory,' and flushed to
madness with the intoxication of repeated tri-
umphs!"

Sir, I will say to members, of whatever
party, " Show to the world that if there are
too many who love to be tempted to forget
their trust, by a well-managed venality, there
are a few who find a greater satisfaction in
being thought beyond its influence."

I will say to the people : " Ho ! every pa-
triot to the rescue 1" And, " if the worst comes



to the worst," I would put up to the God of
nations the prayer of "Warsaw's last champion—

" Oh Heaven ! my bleeding country save ! "

When Mr. Wisb had concluded,

Mr. Peyton replied, and closed by calling for
the reading of the amendment he had proposed
to the resolutions at the time they were offer-
ed.

Mr. MiLLEE moved that the memorial, resolu-
tions, and amendment be laid upon the table.

On this motion the yeas and nays were call-
ed, and stood — ^yeas 105, nays 97.



Thuesdat, June 13,

Kentucky Contested Election — Letcher aid
Moore.

The Speaker announced to the House that,
on the previous evening, he had some doubts
whether the election case, having been refer-
red to the Committee of the Whole, was agaiu
the order of the day. However, on reference
to the 90th rule, he was now of opinion that
it was no longer the special order, but it
was in the power of the House, he said, to take
it up if they thought proper.

So the House agreed to proceed to the
immediate consideration of the subject ; and,
on. motion of Mr. Sutheeland, resolved itself
into Committee of the Whole thereon, Mr. Hub-
bard in the chair.

Mr. McKay moved the foUowing resolu-
tions :

Resolved, That neither Thomas P. Moore nor
Robert P. Letcher be permitted to take a seat in this
House as the representative for the 5th congressional



Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 120 of 199)