WHEN a Speech of a Representative is published in a pamphlet, and transmitted by its author through the country, it becomes a fair subject for a free candid examination. It is addressed, not to the house, but to the people; to convince, not his fellow members, but his fellow citizens: and invites a discussion, not with­in but without doors. In my opinion, no subject better deserves discussion, than that which this Speech embraces. It supports a principle, which, as I view it, must be de­stroyed, or it will destroy the government: for, if my judgment be right, both cannot survive. Yet the opinion which I am about to support, is, by the author of the Speech, even while he professes to disclaim political infal­libility, bluntly declared to be palpably absurd, and as no­vel as it is absurd. Many things in the Speech will satisfy us, that the victory of the Constitution over the House of Representatives, on the subject of the appropriations for the British Treaty, is affected to be considered by this [Page 2]speaker, as but half won; and this Speech, on a more popular subject, is spread over the country, to prepare the minds of the people for a more popular, and perhaps more successful opposition to Constitutional principles, on a fu­ture occasion. The past disappointment, the time for re­flection, the character of the speaker, and the humility with which his colleagues in opposition compliment him with the palm, as the coryphaeus of the party; induce a belief, that his doctrine is now displayed in all its force, and to the utmost expectable advantage. If the opposite doctrine can be made to appear neither absurd nor novel, it will be gaining a point; and if, on investigation, it shall appear to be rational and constitutional, it will be gaining a great point, for the security of the Government, and the happiness of the people of the United Sates.

As the incidental topics of the Speech are less or not essential, I shall confine my observations to the constitu­tional principle involved in the debate which occasioned the Speech.

The Constitution, which vested the executive power in the President of the United States, declared that he shall nominate, and, by and with the advice and consent of the Senate, shall appoint, ambassadors, other public mi­nisters, and consuls.

In July, 1790, Congress passed a law, authorising the President to draw from the treasury a sum not exceeding forty thousand dollars annually, for the support of such persons as he shall commission, to serve the United States in foreign parts; and providing, "that the President shall not allow to any minister plenipotentiary a greater sum, than at the rate of nine thousand dollars per annum, as a compensation for all his personal services and other ex­pences; nor a greater sum for the same, than four thou­sand [Page 3]five hundred dollars per annum to a chargè des af­faires." This law, as is often done when power is wished to be retained, Congress limited to a duration of two years and the end of the subsequent session^*. In February, 1793, it was continued for other two years^†; and in May, 1796, it was continued for one year; still with the addi­tion of the subsequent session of Congress^‡.

Of the different grades of public ministers known to the law of nations, these laws provided for the compensa­tion of two; the grade of minister plenipotentiary, and that of chargè des affaires. Before May, 1796, the higher of these grades, a minister plenipotentiary, had been ap­pointed only to Britain, to France, and to Spain; to any other court a minister of the inferior grade had been ap­pointed. In May, 1796, the President thought proper to appoint a minister plenipotentiary to Lisbon; and, in 1797, to appoint a minister plenipotentiary to Berlin: and correspondent appropriations were provided by Con­gress, in May, 1796, and July, 1797, for those years^§.

The limitation of the former laws rendered it necessary to bring the subject of foreign intercourse again before Congress, in the present session, and continue the law of 1790. In discussing this clause of the law, "That the President shall not allow to a minister plenipotentiary a greater sum than at the rate of nine thousand dollars per annum, as a compensation for all his personal services and other expences; nor a greater sum for the same than four thousand five hundred dollars per annum to a chargè des affaires." Mr. Nicholas, an opposition member, proposed to depart from the manner of expression used in the law [Page 4]of 1790, and ever since; by striking out the word "ple­nipotentiary," and inserting, in lieu thereof, the words "to Great Britain, France and Spain;" and striking out the words "chargè des affaires," and inserting, in lieu thereof, the words "any minister to any other foreign nation."

This was an artful way of keeping the constitutional question out of view, by seeming only to fix salaries.— It seemed to say, that only ministers to Britain, France, and Spain should have a salary of nine thousand dollars; and a minister to any other court, a salary of but four thou­sand five hundred. But as it fixed the salaries, not as heretofore, according to the princiles of the law of nati­ons, by the grade of the minister, but by the court to which he is sent; it really said, that the President should not appoint a minister plenipotentiary to any other court than Britain, France, and Spain. It acknowledged the stated salaries to be justly proportioned to the grades, but restrained the grades. It limited the power of the Presi­dent not only in compensating but in appointing ministers. This is admitted in this speech of Mr. Gallatin, in sup­port of Mr. Nicholas's amendment. He avows, "that the effect of the amendment will be to prevent an exten­sion of our political connections with foreign nations; and though this amendment will not annihilate that establish­ment, it will effectually check its extension." Limitation of compensation will be a limitation of appointment; and though the Constitution has vested the President with the power of appointment, and the power of conducting fo­reign intercourse; Mr. G. contents, that it has vested Congress with a power to defeat this power. This is the great point of his Speech.

[Page 5] He premises a doubt, "whether, although the President may appoint ambassadors, a law may not be necessary to create the office, before an appointment takes place." On the justice of this doubt he will not rely, and he discards it as useless. What more proper introduction to an argument, pro­fessing to shew a doctrine insupportable, novel, and absurd, could a man use, who endeavoured to prove what he did not believe; than to begin with raising a doubt of a doc­trine, acknowledged to be neither improbable nor novel; and not venturing to deny the doctrine, nor assert the doubt?

He thus states and reasons on it. "The section of the constitution empowering the President to appoint ministers, &c. recognises only the possible existence of ministers, and does not create the office; the office to any foreign court, where we have not had any before, is created by the Pre­sident's appointment. And it may even be doubtful, whe­ther a law be not necessary to create the office, before an appointment takes place. This clause recognises also the existence of judges of the supreme court, and not only does it declare, that they, like foreign ministers, may ex­ist, but another declares, that they shall exist^*; yet it has not been contended, that the office of judges of the su­preme court was created by the Constitution, or could be created by the mere appointment of the President, without the previous authorization of a law, or that he had discre­tion to appoint an unlimited number, or that he can now appoint more than the number limited by law: yet, if the Constitution, in the case of judges, gave the power contend­ed for, in the case of ministers, the law limiting the number of judges would be unconstitutional; for Congress cannot [Page 6]divest the President of any of his constitutional power.— "Still" says he, "it is not my intention to lay any stress on this argument; a discrimination may be drawn between the offices, and a different construction has prevailed;— and it is not necessary to prove the constitutionality of our doctrine."

Nothing contributes more to error in reasoning, than ambiguity of words, and the use of words, now in one sense, now in another, or applying different words to the same thing. By this use of language, any falsehood may be made to appear like truth. I am mistaken if the speech be not throughout a remarkable instance of this. It is stated in the above reasoning, that the office of a minister, or that of a judge of the supreme court, is not created by the Constitution; that the office of a minister, to any fo­reign court, where we have not had any before, is crea­ted by the President making the appointment; and that the office of a judge of the supreme court, is created by Congress.

Why, but to bewilder the judgement, the words, "where we have not had any before," were added, unless it be meant to confound office with officer, I do not see. The appointment of a minister to a court, where we have not had any before, will, by this reasoning, be creating an of­fice; but, if it were to a court, where there ever was a minister before, it would not be creating an office; that is multiplying officers is creating offices. On the same principle, increasing the number of judges of the supreme court, is making new offices; it would look too absurd to say it was making a new judiciary, or a new supreme court; yet, the office and the authority is the same thing, and officer and the person who executes the authority is the same thing, but the person and the authority is not the [Page 7]same thing. The office exists, when there is no officer, as in the interval between the death, resignation, or dismis­sion of a sole officer, and the appointment of a successor: the office is then said to be vacant, not to cease. The powers of a sole officer may be exercised only occasionally, as the office of lord high-constable, or lord high-stew­ard of England, or a dictator in Rome; in the intervals between their exercise, the office is not abolished, but sus­pended; and the next appointment is not the creation of an office, but of an officer. The same may be the case with offices, whose powers are exercised not by one, but by several; and adding to the number is not multiplying offices, but officers. This is the case of the office of fo­reign intercourse, of agency, or commission to serve the United States in foreign parts^*. The foreign intercourse, the President's agency or commission in foreign parts, is the office; the ministers are the officers; and the appoint­ment of one or more, as occasion requires, is not the cre­ation of an office, but of officers. The constitution of Pennsylvania authorises the Governor, to appoint a com­petent number of justices of the peace, in each district; if, where there is but one, he should add another, is this creating a new office, or only a new officer?

Before the Constitution or any law of the United States existed, there were ministers, and there were judges.— There are many offices, as judges, sheriffs, coroners, jus­tices of the peace, and constables, whose authority is not specially defined, only by a written Constitution or Law, but also by customs and established opinions. When it is intended by a Constitution or a Law, to adopt any of these offices, the Constitution or Law does not go back to all the [Page 8]previous established definitions or limitations of authority, but conceiving them to exist, unless restrained, modifies them to the situation of the country or the principles of the government. In all nations, there is a legislative authority, a judicial authority, an executive authority, and an authority of foreign intercourse. These offices result­ing from their internal and relative circumstances, are created in each, whenever the nation takes its sovereign rank; and are exercised according to the several modi­fications of their government. While these states were in a subordinate condition, they had not office or authori­ty of foreign intercourse, they had no right to foreign in­tercourse, for they were not sovereign states. The De­claration of Independence, by separating the United States from Britain, and establishing them as a nation, created in the United States the office of foreign inter­course. The Confederation declared Congress the organ of this foreign intercourse. The Constitution changed this modification, and declared the President the organ of the United States in their foreign intercourse; and, from this declaration of the Constitution, the management of foreign intercourse became a part of the President's con­stitutional authority. From the exercise of this authority and all agency in it, Congress was excluded; and ministers to foreign nations were no longer the agents of Con­gress, but of the President.

The Constitution was a new modification of the govern­ment of the Union; and a federal judiciary, acting upon individuals, was a new power introduced into it. What­ever was given to it, was taken from the state judiciary. It therefore became necessary "to fix its jurisdiction," to define what part of the state judiciary was taken, and vest­ed in the federal judiciary. The Constitution only esta­blished [Page 9]a supreme court,—and a power in Congress to establish inferior courts, and limited the extent of federal judiciary, which Congress could take from the supreme court, and vest in the inferior courts. This last was ne­cessary, lest Congress, in the organization of inferior courts, should affect that part of jurisdiction, which is attached to the President, foreign intercourse. The constitution therefore excludes the inferior courts to be established by Congress from all jurisdiction "affecting ambassadors, other public ministers, and consuls^*." The first limita­tion was necessary, to prevent any federal court from in­croaching on the state judiciary.

But none of these reasons, and no reason existed, to in­duce the framers of the constitution, to define the limits of foreign intercourse. It was not a new principle, in the government of the union, for it existed under the confe­deration. It could not incroach on any state jurisdiction, for no state ever had it. It resulted from the nature of the case, and existed immediately after the declaration of In­dependence made the thirteen states, as to all others, one nation.

I will go farther and say, that the framers of the Consti­tution could not define or limit it. For it rested on prin­ciples over which the United States had no control; but in concurrence with other nations. The Constitution could dictate the relations of one state to another, but it could not dictate the relations of the United States with other nations. Those relations are defined by a power paramount, the law of nations—the constitution of the civilized world. This law of nations is to the Constitution of any nation, as the Constitution of the United States, to [Page 10]the Constitution of any state of America. This law, therefore, cannot be altered by the act of any one nation, without the concurrence of the others. The Constitution, therefore, is not so absurd as to meddle with fixing its jurisdiction, and contents itself with establishing its organ. Instead of the Congress of the Confederation, the Consti­tution establishes the President, restrained only by the Senate, as its organ of foreign intercourse, and to him, so restrained, leaves all the authority on this subject, which the Congress of the Confederation had, or the law of nati­ons gives to the organ of foreign intercourse in any other nation. Part of this the law of nations establishes to be, a power to send ministers of different grades according to the importance of the subject or the parties. The com­pensation to these grades must be determined, by what is necessary to support the views of the law of nations. And if any other branch of the federal government, in which the power of compensation is vested, in whole or in part, so far exercise this power, as to defeat the lawful discretion of the organ of foreign intercourse, that branch usurps a power not given it by the Constitution, exercises the pow­er, or, which is the fame thing, restrains the exercise of the power, of the organ of foreign intercourse, and violates not only the Constitution of the United States, but the Constitution of the great Confederation of the civilized world.

How far a law was necessary, to establish a Supreme Court, may not be necessary in the present discussion. I have stated that, though the office of a judiciary had existed in all states, a judiciary in the federal government over individuals was (let me adopt the word) "created" by the Constitution. That a law was necessary to create a [Page 11]Supreme court, cannot be inferred from the words of the Constitution, that the President shall appoint "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 by law ^*;" for these words expressly refer to other officers, than judges of the supreme court; nor from the words "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish ^†;" for these words ex­pressly refer to other courts, than the supreme court.

That where the Constitution does not, as in the case of the President and the two Houses of Congress, minutely describe the organization, a law is necessary to organize, is an idea more favoured by many than by me. Suppose now, (since much of the opposition argument rests on the supposition of the President acting extravagantly and ab­surdly) that Congress had acted so extravagantly and absurdly, as not to have organized a supreme court; and suppose that I were to contend for more than was contended for in the debate on the foreign intercourse bill; and to assert that the President could, without a law, have ap­pointed such a number of judges of the supreme court, as in his discretion were competent for the duties prescribed by the Constitution; I wish to know by what arguments from the Constitution my assertion could be opposed. I should have on my side, the constitutional authority, as stated in the Speech, "that there shall be a supreme court" with a jurisdiction fixed by the Constitution; and the constitutional authority of the President to "appoint judges of the supreme court." I might be answered, that Con­gress [Page 12]would furnish no salary. I would reply that Congress will not assist, but they will defeat a constitutional autho­rity.

That when Congress organized the court, and fixed the number of judges, the President in the exercise of his con­stitutional authority of appointment, should not exceed that number, is constitutional and proper, for their num­ber is properly a matter of internal legislation.

But "not to lay any stress on this argument;" for really the question is not, how the office of foreign intercourse was created, but to whose management the Constitution has committed it; I will state what I conceive to be the true limits of the constitutional authority.—To Congress the Constitution has committed the management of internal relations; to the President, checked only by the Senate, the management of external relations. The President, so checked, is the constitutional organ of all intercourse be­tween this and foreign nations. Congress, checked only by the qualified negative of the President, is the organ of all federal authority operating only on ourselves.

On the subject of foreign intercourse, the President, checked only by the Senate, has all legislative powers, and Congress has only executive authority. Congress has power in its descretion to make such laws, establish such offices, and appropriate such salaries for their support, as our internal circumstances require; and the President is positively bound to execute them, and appoint suitable of­ficers. The President has power in his discretion to make such treaties, and appoint ministers of such grades, as our circumstances relative to foreign nations require; and Con­gress is positively bound to make suitable provisions and ap­propriations for salaries, &c. If either the President or Congress fail in the execution of the authority thus given by [Page 13]the Constitution to each, their is a failure in duty, and the Constitution is violated:—And the President would not act more unconstitutionally and absurdly, in refusing to appoint officers, or in appointing incompetent officers; than Congress, in refusing to appropriate salaries, or in appropriating incompetent salaries.

Why should not the Constitution so distribute the le­gislative authority, according to the subjects on which it is to operate? Is not the Constitution the expression of the will of the people? Is not the President the represen­tative of the people. And if safety require, that the pow­er of making laws over only ourselves should be given to many; may not wisdom require, that the power of making contracts, the management of all agency with other nations, be given to one? What chance is there, that the best knowledge of our true interests should be found in a ma­jority of the House of Representatives, rather than in the President? What nation would treat with us, if the House of Representatives were part of the organ of fo­reign intercourse? The House of Representatives, with all its popular passions, would spend more time and money in discussing any foreign transaction, and with a result less wise, than the President with all his agents, in con­ducting and concluding it. I know not what others may think, and my opinion may be wrong, but I think, that communications of our proceedings, in our foreign inter­course, have been too freely made, and have opened dis­cussions and excited passions, which have little favoured our peace and prosperity.

I know, and could answer, what may be said of other nations. No nation is like ours: and I rest on constitutional prin­ciples. The Constitution is the standard by which this question must be tried, and to it, therefore, must we appeal.

[Page 14] I say, therefore, that the Constitution has vested in the President, checked only by the Senate, the sole manage­ment of foreign intercourse^*; and, I support this opinion by the words of the Constitution. "The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Se­nators present concur; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls; he shall receive ambassadors and other public ministers. All trea­ties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land^†." The Constitution having established an organ of foreign intercourse, and declared the efficacy of its acts, it was not necessary nor proper, that it should go farther; the law of nations, a Constitution paramount, would regulate the rest.

I say, also, that it is a general rule, that wherever, in the constitutional exercise of this authority, of managing the intercourse of the United States with foreign nations, there is a necessity for the President to call on Congress for money, they are bound to grant such a sum, as is ade­quate to the purposes, which he, in such exercise of his authority, thinks proper to adopt and execute. And I further say, that it is a general rule, that no department of the government can execute or defeat the constitutional acts of another; and that, when any department has con­stitutionally concluded an act, and the exercise of the [Page 15]authority of any other department is necessary for its execution, every other department is bound to exert its law­ful authority, so far as is necessary for a competent execu­tion of the act; and has no discretion to refuse such exertion of its authority. I support this opinion on the principles of the Constitution.

The sovereignty of the United States is not vested in one man, or in one body of men; to be exercised by that man or that body, or by the agents appointed and remove­able by either. The whole sovereignty is broken into portions or shares, and each portion or share is vested in a certain department; that each department exercising the whole of its own share of the sovereignty, and no department exercising any of the share of any other, the several departments may mutually check each other, and no department may engross the whole sovereignty.— Thus we have a legislative department, a judicial de­partment, an executive department. There is no supe­riority or control in any of those departments or shares of sovereignty, over the other; though one may appoint, and another pay, a third; all are equal and uncontrolled within the limits of their power. The executive may pardon or remit a sentence of the judiciary, for that is within its share of sovereignty; but it has no power to restrain the judges from passing a similar sentence, when they next pass sentence on a similar offence. The legis­lature may alter a law, for that is within its share of sovereignty, but it has no power without altering the law, to direct the judges to alter their construction of it. When the legislature has enacted a law, it cannot also construe it, or judge of any man's conduct or rights by it; but must leave that authority to the judiciary. When the judges have construed a law, or judged of any man's con­duct [Page 16]or rights by it, they cannot execute their judgement; but leave that authority to the executive. The executive cannot exercise any of the powers given to the legislature or to the judiciary; the judiciary cannot exercise any of the powers given to the executive or to the legislature; and the legislature cannot exercise any of the powers given to the executive or to the judiciary; except in so far as the Constitution may trust either with a portion of anothers power, and then it becomes in that respect a part of that other. Thus the departments mutually check each other, and (while none can encroach on the authority of another) mutually restrain each other from engrossing the whole of the sovereignty, and exercising arbitrary power. And all the departments are checked by the Constitution, and by the removing power of the elective branch. If the legislature or the executive exceed their several jurisdiction, the judi­ciary will declare the act void. If the judiciary exceed its jurisdiction, the executive may refuse its execution. Be­sides these checks of each department over the others, each department has checks within itself, over the exercise of its own power, to prevent its acts from being rashly con­clusive. Thus the Constitution of the United States gives the legislative power to a Congress, composed of a Senate and House of Representatives, and directs, that no bill or resolution shall be considered as an act of the legis­lature, unless it have obtained the assent of both Houses, and also of the President; or, if he refuse his assent, it must again pass through both Houses with the assent of two-thirds of each. Until it be passed in this solemn manner, it is not an act of the department.

The judicial power is vested in a supreme court, estab­lished by the Constitution, and circuit and district courts established by law. The judiciary department has its [Page 17]checks in courts and juries; courts determining law, ju­ries determining facts. Courts cannot determine law, till juries have determined facts; and the verdict of a jury is of no avail, without the judgment of the court. Thus courts and juries mutually check each other, and the su­perior courts check the inferior. The judgment of any court, acquiesced in, is an act of the department; if carri­ed to a superior court it becomes not an act of the depart­ment, till the judgment of the supreme court is given, or till a judgment of an inferior court is acquiesced in.

The executive power is vested in the President, and in most cases, in the President and the Senate. In those cases in which the concurrence of the Senate is necessary, the act of the President only is not an act of the department, till it acquires the sanction of the Senate. The concur­ring sanction of both makes an act of the department.

To this department is intrusted the management of fo­reign intercourse; but, as it is variously modified, I shall take the liberty to make a subdivision of this department, under the name of the department of foreign intercourse.— The management of this department of foreign intercourse is intrusted to the President. All who are employed in it, on the part of the United States, are his agents. He ge­nerally, but without any law to direct him, uses the agency of the Secretary of state, in his correspondence with fo­reign ministers here, or our ministers abroad: and all our ministers abroad are his agents. He may receive ambas­sadors and other public ministers from foreign states. But he cannot appoint any ambassador, other public minister, or consul, of the United States, without the advice and consent of the Senate. And he cannot, even by and with the advice and consent of the Senate, make a treaty, unless [Page 18]two-thirds of the Senators present concur^*. These are the constitutional checks within itself, on the department of foreign intercourse. The President may, by his own act, receive a minister from a foreign court, but he cannot appoint a minister to a foreign court, without the consent of the Senate; nor make a treaty, though he have the consent of a majority, without the consent of two-thirds of the Senators present. In determining therefore, what is an act of the department of foreign intercourse, we must consider what is the subject of the act. If it be the re­ceiving of an ambassador, it is an act of the department, on the reception by the President. If it be the appoint­ing of an ambassador, other public minister, or consul, it is an act of the department, on the appointment of the Presi­dent, by and with the advice and consent of the Senate. If it be the making of a treaty, it is an act of the department, on the ratification by the President, with the advice and consent of the Senate, provided two-thirds of the Senators present concur.

Such then are the checks provided by our Constitution; a power of some other department to prevent any act of any department from exceeding its constitutional jurisdic­tion; and a power within every department to prevent any of it acts from being rashly conclusive on any other department. Thus the whole sovereignty is exercised by all; but the whole sovereignty is not exercised by any; and so an arbitrary power is effectually prevented: pro­vided the Constitution be equally respected by all, or the removing power of the elective department be faithfully exerted. The authority intrusted by the Constitution, to one department, must not be influenced, directed, con­trolled, [Page 19]or defeated by any other; or there will be an usurpation of power, and the constitutional authority will not be exercised by the department, to which the Consti­tution intrusts it, but by it and some other, or by some other only, or by it under the control of some other.

The check provided by our Constitution is not a pow­er of any one department, to exercise any of the powers of another, or to restrain another in the execution of its powers, or to defeat their execution. One branch of a department may prevent the concluding of its own act; but one department cannot prevent or defeat the act of another. No department can either interrupt the pro­ceedings of another to a constitutional act of this other de­partment, nor, after this other department has concluded its act, defeat its execution, by refusing the exertion of constitutional power necessary for its execution.

What was the intention of the Constitution in distri­buting the sovereignty into portions or departments?— Was it that each or any should have a communication with the others or any of them? Surely not: for then no separation would have been made, and all the sovereignty would have been left in one body, and thus an arbitrary power given to it. To prevent an arbitrary power the separation was made, and the communication must lead to an arbitrary power; to prostrate first one department, and then another, under the feet of the department acquir­ing a communication of the powers of any other. The idea of communication is inconsistent with the idea of se­paration; separation is necessary to prevent arbitrary pow­er; communication tends to make the will of one depart­ment defeat that of all the others; and discretion in one, with communication with the others, is but another word for arbitrary power.

[Page 20] While the proper department was proceeding to its act, could any other have restrained the exertion of its consti­tutional powers? Can Congress make a law, that the supreme court shall not give judgment in an action de­pending therein? If any one department cannot prevent another to complete its act, after the act is complete, can it defeat it? All departments are the agents of the Con­stitution; and the Constitution, which authorizes the act, certainly requires its execution; and its intrusting the di­rection to one, and the execution to another agent, cannot be supposed to have been intended, that the powers be set against each other, and so nothing be done. Does not the prohibition to prevent the act, necessarily presume a prohibition to defeat its execution? Can it be a consti­tutional act, and yet an act not to be executed? Can the check of the one on the other, without this presumption, be effectual? Without this, will not the department in­trusted with the act, possess merely a shadow without a substance, and be like those philosophers who suppose there is nothing in nature but ideas; and worse than they, as wanting power even in imagination?

I may be told, that there is a department, which possesses power to defeat the act of another: for the President may, by a pardon, defeat the judgment of a criminal court. This power is expressly given by the Constitution. In England, the court of chancery can defeat the judgment of a civil court. The court of chancery is part of the judiciary department. There and here the supreme exe­cutive can, by pardon, defeat the judgment of a criminal court. I consider the power of pardon, in criminal cases, as analogous to the chancery power in civil cases; a power to mitigate the rigour of the law, and give relief, where law could not relieve. In this respect, I consider the execu­tive [Page 21]as acting in a judicial capacity, and concluding the act of that department. And I consider his discretion as a judicial discretion, and like the court of chancery, bound by rules drawn from experience, in the exercise of this discreti­on. As this idea has not perhaps been sufficiently attended to, I will not undertake to lay down rules for the exercise of the discretionary power of pardoning. But something like this may be suggested: that this power ought not to be exerted, where, according to the rules of law, a jury could have acquitted, or a court have discharged; but it may be exerted, where greater mischief may accure to the com­munity from the execution, than from the pardon of the judgment. Such exercise of discretion will not interfere with the constitutional power of the ordinary judiciary; for it is bound by rules, and cannot regard consequences. Fiat justitia ruat caelum.

My idea of true discretion is this: where the Constitu­tion, or where a constitutional act of any other depart­ment does not interfere, every department has a discretion to proceed or not to proceed, in a particular exertion of its authority. But where the Constitution, or a constitu­tional act of any department, requires an exertion of the authority of any other department, this other department has no discretion to proceed, or not to proceed, to the ne­cessary exertion; has no authority to examine, whether the department whose act requires its exertion, has exercised its constitutional discretion right or not. Every act legally concluded by any department, must, by every other de­partment, be considered as rightly concluded; and, like a mathematical maxim, be received without proof. And in this case, it is not one department that abridges the power of another; but as Mr. G. says, 'it is the Constitution, [Page 22]which abridges the powers of both:"—The first cannot proceed—the other cannot look back.

Such are my ideas of the uncontrolled power of the de­partments, their mutual checks, and their several discre­tion. And I hope it will appear to every candid, intelli­gent and attentive reader, that this doctrine "will stand the test of investigation, and leads to no palpable absur­dity;" and, so far from being "novel," will to every reader who has studied the principles and modification of the Constitution of the United States, appear familiar and just; and as old as the Constitution itself.

I shall now proceed to examine the reasoning of Mr. G. on these principles; and I hope I shall shew, that it is founded on a misapplication of words, and a misconstruc­tion of principles.

He founds his reasoning on this position;—"The Con­stitution has expressly and exclusively vested, in Congress, the power of raising, granting, and directing the applica­tion of money." For this he states his authority in the Constitution. "The 8th section of the first article de­clares, that Congress shall have power to levy and collect taxes, duties, imposts, and excises, and to borrow money on the credit of the United States. The 1st section em­phatically states, that all legislative powers herein granted shall be vested in Congress; and the 9th section provides, that no money shall be drawn from the treasury, but in consequence of appropriations made by law."

From his position so supported, he draws this conclusion, "that Congress are judges of the propriety or impropri­ety of making a grant, and have a right to exercise their discretion therein."

I would observe that his position is not stated in the words of the Constitution; and it is no uncommon thing, [Page 23]by changing the words of the Constitution, into words conveying the same sense, and something more, to draw from them a conclusion which the words of the Constitu­tion do not warrant. For instance, the 7th section of the 1st article of the Constitution says, that "All bills for raising a revenue shall originate in the House of Repre­sentatives." One would think in reasoning on this secti­on, there would be no harm in substituting the words money bills, instead of the words bills for raising a revenue. But besides bills for raising a revenue, there are appropria­tion bills, which are bills fixing a sum of money, and declaring an object to which it shall be applied, and a fund from which it shall be drawn. These may also be called money bills. Now by substituting, in the 7th section, the words money bills, instead of the words bills for raising a revenue, the section, so read, will be considered as restrain­ing the Senate from originating an appropriation bill;— though the Constitution restrains the Senate only from originating bills for raising a revenue. Yet an appropri­ation law may be made, without a law for raising a reve­nue, or without occasioning any such law.

I shall not dispute, whether the words of his position, raising, granting, and directing the application of money, do not sufficiently express the powers of Congress, as stated in his quotations from the Constitution; but, in the course of these observations, I shall have occasion to dispute, whether Mr. G. does not use them, to express those pow­ers, and something more, which the words of the Con­stitution neither express nor imply.

Not content with the words of the Constitution, "All le­gislative powers herein granted, shall be vested in a Con­gress;" Mr. G. says, that this is "emphatically" stated. Perhaps he inserted the word emphatically, thence to support [Page 24]his doctrine, by a conclusion, that the Constitution gives no legislative power but to Congress, and excludes the depart­ment of foreign intercourse from all legislative power.

The Constitution does not vest all legislative power in Congress; for it declares that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators pre­sent concur^*; and it declares, that this Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding^†.

It has been admitted that the House of Representatives claims no agency in making treaties; and even Mr. G. has admitted, that where a treaty needs no law to carry it into effect, or is not contradicted by any previous law, no interference of the House of Representatives is necessary; the Constitution declares a treaty to be a law of the Uni­ted States; and the House of Representatives is an essen­tial part of Congress; there is therefore other legislative powers granted by the Constitution, than those vested in Congress.

In laying down his position, having substituted words of his own, instead of the words of the Constitution, on which only his argument must rest, he thus reasons from it. "We say, that Congress, having the sole power of granting money, are judges of the propriety or impropri­ety of making a grant, that they have a right to exercise their discretion therein, and that the power of granting [Page 25]money, for any purposes whatever, belongs solely to the legislature, in which it is literally vested by the Constitu­tion. The power of determining the amount of an ap­propriation is a legislative power, the power of doing what is within the province of law, the power of fixing the rule by which a certain act is to be executed. The Pesident may appoint as many ministers as he thinks fit, and if Congress, without having any right to exercise discretion, be bound to make provision for them, the amount of mo­ney necessary for their support, would also depend upon him; and the power of granting money, in that instance, would be transferred from the legislature to the executive, and also the power of raising money; for it is immaterial to me, whether he does it directly, or whether the legisla­ture are bound to do it, according to his discretion."

In order to determine, whether his reasoning be fair, and his conclusion just, we must examine the justice of his position, by comparing it with the sections of the Consti­tution, by which he supports it. He supports it by his quota­tions from the 8th, the 1st, and the 9th sections, of the 1st article of the Constitution. Taking it for granted (and I believe it is true) that these quotations are the only parts of the Constitution, on which he could found his reason­ing to draw his conclusion; if his position, taking the words of it in the sense which his reasoning puts on them, be not supported by his quotations from the Constitution; his reasoning, and his conclusion must fall to the ground.

Presuming that he supports his power of raising money, by the 8th section; his power of granting, and directing the application of money, by the 9th; and the exclusive vesting of these powers in Congress, by the 1st; I shall take the liberty to substitute in his position, the words of the Constitution, instead of his words. The position and [Page 26]conclusion will then stand thus:—All legislative powers herein granted shall be vested in a Congress; Congress shall have power to lay and collect taxes, duties, imposts, and ex­cises, and to borrow money, on the credit of the United States; and no money shall be drawn from the Treasury, but in con­sequence of appropriations made by law; therefore, says he, Congress are judges of the propriety or impropriety of mak­ing a grant, and have a right to exercise their discretion therein.—STRANGE LOGIC!

In his short quotation from the 8th section, he has omit­ted some words, immediately after the power to lay and collect taxes, duties, imposts, and excises, and before the power to borrow money. I shall restore them to their place. "Congress shall have power

"To lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence, and general welfare of the United States:—

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

From the manner in which this part (and the whole) of this section is printed, I consider the word to before the words pay the debts, as synonymous with the words in or­der to, and the clauses omitted by Mr. G. not as giving two new powers, but as pointing out the objects to which the money raised by taxes, &c. shall be applied. So that Congress takes this power of raising money, coupled with the duty of applying it to these purposes.

Let me observe also, that this section which defines the powers of Congress, gives to it a 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." I say that Congress takes all its powers, coupled with the [Page 27]duty of applying them to the purposes, for which they were given by the Constitution.

That the Constitution determines, that Congress has the exclusive "power to lay and collect taxes, duties, im­posts, and excises, and to borrow money"; and that "no money shall be drawn from the Treasury, but in conse­quence of appropriations made by law," and by a law made by Congress; I admit. But before Mr. G. can draw a conclusion, that Congress may, in every case, determine, whether it be proper or improper, to lay taxes, or to ap­propriate money, he must establish something more: he must establish, from the Constitution, that Congress has in every case, a power to refuse to lay taxes, or to appro­priate money. This he cannot establish either from his quotations or any other part of the Constitution: for it may be the duty of Congress to lay taxes, in order to pay the debts, and provide for the common defence, and gene­ral welfare of the United States.

Taking his position in his own words, "the Constitu­tion has expressly and exclusively vested in Congress, the power of raising, granting, and directing the application of money;" before he can draw his conclusion, "that Congress are judges of the propriety or impropriety of making a grant, and have a right to exercise their discre­tion therein;" he must establish something more: he must establish, that in all cases, the man who has the sole power of granting money has a power to refuse. This he can­not establish from any principles of reason; for a man may have the sole power to do a thing coupled with an abso­lute obligation to do it; as the President to appoint judges of the supreme court; and the supreme court to give judgment in a case before it affecting an ambassador; or a man to pay his debt. Mr. G. therefore draws a conclu­sion [Page 28]without the necessary premises; and his conclusion has not foundation to rest on, and must fall to the ground,

If, by laying emphasis on the word all, he means to prove that no legislative power is vested in any other de­partment of government, except Congress, the ordinary legislature; I have shown, that this is inconsistent with a fair construction of the Constitution. To found any rea­soning on one expression of any instrument, when there are, in it, other expressions, which would destroy that reasoning, is taking a contracted view, and making an unfair and imprudent use of that instrument. The whole must be taken together, and if there be any contradictory expressions, they must if possible be reconciled, by apply­ing them severally to the respective objects in the contem­plation of its author.

If Mr. G. considers discretion, as synonymous with legislative power, and asserts, that in every case, in which an act of the legislature is called for, they have a discretion to act or to refuse, according to their discretion; his rea­soning will stand thus:—The power of raising, granting, and directing the application of money, is a legislative power; but every legislative power is coupled with a dis­cretion in the legislature, to exercise or refuse its power; therefore the legislature may, in every case, refuse to raise, grant, or direct the application of money. I have said in every case, not only because the discretion, which Mr. G. contends for, is co-extensive with the power, which ex­tends to all cases; but because there are some cases, in which I admit the discretion to refuse. And I have used the words may refuse to raise, grant, &c. instead of his words, "Congress are judges of the propriety or impro­priety of the grant, and have a right to exercise their discretion therein; because I admit, and therefore we both agree, [Page 29]that Congress has a right to refuse in some cases, and un­less the dispute is stated, as I have stated it, there would be no dispute; and because a right to exercise discretion to grant, without a power to refuse, is no right: there can be no discretion, where there is no power to refuse.

Mr. G. admits, that where the Constitution, as in the case of salaries to the President, and the judges of the su­preme court, declares, that Congress shall grant; Con­gress is bound not to refuse. But he seems to hold this opinion, "that the discretionary power of the legislature, to grant money, is limited only by the Constitution, and is not transferred to any other department;" and stating that, "when the Constitution means to impose a duty, it posi­tively directs the act to be done," he says "we may safely conclude, that where it gives no such direction, where it empowers, instead of commanding, the reason is, that it meant to leave a discretion."

This conclusion he seems to support, by distinguishing between the word shall, and the word may, and he seems to consider this, as the distinction between legislative power, and executive power; considering legislative power as coupled with discretion, and executive power as coupled with obligation; and as the Constitution, in some cases, positively directs, by the word shall, there is no obligation on the legislature but in those; and that, in all other cases where the Constitution uses the word may, or the words shall have power, the legislature has discretion.

It is well established and understood, that may is often construed shall, and that shall is often construed may. No man conversant in the legal construction of language, will require proof of this.

The Constitution declares, that "the President shall no­minate, and, by and with the advice and consent of the [Page 30]Senate, shall appoint ambassadors, other public ministers, and consuls;" the President has never appointed an am­bassador; will Mr. G. recommend an impeachment for this breach of duty? Or, if the President should think proper to decline to appoint any public minister, would Mr. G. recommend an impeachment? "The President shall re­ceive ambassadors and other public ministers:" if he have reason to reject, has he not discretion?" "The President may, on extraordinary occasions, convene both houses, or either of them." Suppose an occasion requiring him to convene either or both houses, and he wilfully refuse; is he not impeachable?

It appears then, that a positive duty may, without any express command, be imposed by the nature of the case. In many cases, the word may imposes as strong an obliga­tion as the word shall, and the word shall imposes no stronger obligation than the word may. The Constitution of Penn­sylvania declares, "that the legislature shall, as soon as conveniently may be, provide by law, for the establishment of schools throughout the state." Do the words, as soon as conveniently may be, weaken the obligation; or suppose them struck out, would the obligation be strengthened? Or, is the establishment of schools better provided for, by the word shall, than if the Constitution had used the word may?

Mr. G. admitting, that where the Constitution declares, that Congress shall grant money, there is no discretion to refuse; observes, that if "declares, that the President and Judges shall have salaries, &c. Had the framers of the Constitution also intended, that Congress should be bound to make provision for ministers, they would have intro­duced a similar clause in respect to them. The Constitu­tion is explicit in one case, and declares, that salaries [Page 31]shall be given: it is silent in the other, and does not de­clare, that salaries shall be given." He concludes, there­fore, that "the objection, that Congress cannot, in every case, exercise the discretionary power to grant money, cannot reach farther than the specific case on which it is grounded."

I will observe, that the object of those clauses in the Constitution, is not so much to bind Congress to grant money, as to prevent them from altering their grant. Its object is, to make the executive and judiciary independent of the legislature, and to deprive Congress of a power of influencing those departments to succumbency to the will of the legislature, and thereby of acquiring all power, and becoming arbitrary. This is evident, from the difference of expression in the two cases. The compensation of the President "shall neither be increased nor diminished, dur­ing the period for which he shall have been elected." The compensation of the judges "shall not be diminished dur­ing their continuance in office." The judges continuing in office during life, it is evident, that from the gradual sinking of the value of money, which accompanies the in­crease of agriculture, manufactures, and commerce, there might, during his continuance in office, be a necessity to increase the salary of a Judge: therefore, it is only said, that the salary of a Judge shall not be diminished. But the duration of the President's authority being only four years, the necessity is not so great, as to induce the Constitution, to submit the President to the influence of hope from the legislature. Therefore, his salary can nei­ther be increased nor diminished, during the period of his appointment. If Congress could diminish the salary of the other departments, or, as the Pennsylvania Assembly, in the year 1796, did, in the case of Judges, when there [Page 32]was a necessity for an increase, limit the increase to a less time than their continuance in office; the Constitution would be violated, the other departments would be influ­enced to a succumbency to the legislature, and a separation of power, the guard against despotism, would be removed. The other departments would become the mere puppets of the legislature, and be reduced to that state of dependency, in which the English judges were, before continuance for life was attached to their office: for it is the same thing whether you take away the office, or take away the salary, or make it incompetent.

It would have been extending but a little farther, the same principle of reasoning, if Mr. G. had denied, that Congress is bound to grant money, even to the President or Judges; for the Constitution does not expressly say, that Congress shall grant, but only that the President and Judges shall receive: and the obligation to grant is only implied. Had it been expressed, Congress, without a sense of duty, could easily have evaded the words, by making an incompetent grant, or establishing it on incom­petent funds. The duty of granting arises out of the power to grant, and the obligation to promote the views of the Constitution. The Constitution lays down only the out lines of the government, and leaves to the depart­ments the power, with the obligation to finish the rest.—The Constitution does not descend to little matters. The Constitution does not provide, that salaries should be gi­ven to all the officers of the government. But surely, if there be an officer necessary for the regular operation of the Constitution, and that officer cannot be obtained with­out a salary, Congress are as much bound by the Consti­tution, to grant a salary, as if the Constitution expressly required it to be done.

[Page 33] Mr. G. will perhaps allow this, but contend that Con­gress is to judge of the necessity, and that the power of acting is accompanied with the power of refusing. "Con­gress is, upon all occasions, under a moral obligation to act according to justice and propriety. We do not claim the absurd privilege of acting without sufficient motives, but we wish every proper motive to have its due weight. The opinion of the Executive, and where he has a partial power, the application of that power to a certain object, will ever operate as powerful motives upon our deliberations." Whe­ther it be to embarrass the argument, or to give it a speci­ous appearance, in the more harmless names of right of discretion, and giving every motive its due weight; he avoids expressing the power to refuse; though that be the only power really to be contended for. That Congress alone has the power to grant, is clear. A power to judge, without a power to refuse, is nothing. And to contend for such power in the House of Representatives, with re­spect to transactions of the other departments, is to con­tend for an idle and useless curiosity into transactions, which they have no authority to conduct or control. To contend for that, and the power to refuse, is to give the House of Representatives a compleat control over all the other branches, and vest all power in the House of Repre­sentatives. For, as Congress only can grant money, if, where money is necessary to execute the measures of the other departments, the House of Representatives may judge of the propriety or impropriety of making a grant, and have a right to exercise their discretion therein; though they may grant, if they approve, they may refuse, if they dislike. If the acts of other departments are to be weighed as a motive, not respected as an obligation, there will ne­ver be wanting pretences for considering the motive as [Page 34]light. They will never grant the money, unless they ap­prove the measure. A right to judge of the propriety of the grant, is a right to judge of the propriety of the mea­sure. And thus every department, to whom the Consti­tution has intrusted the management of power, must exer­cise it according to the will of the House of Representatives; that is, the House of Representatives will have all power: all the barriers of separation will be removed, and the com­pleat sovereignty lodged in one house.

I say the House of Representatives, because though Mr. G. in making this claim for the House of Representatives, affects to claim nothing more for them than for the Senate; yet, in fact, this claim increases only the power of the House of Representatives, and adds nothing to the power of the Senate: for the Senate, as part of the department of foreign intercourse, has already all control over these mea­sures, which the establishment of this claim could give.

The doctrine which I would establish, is, that all powers of Congress are coupled with an obligation to exercise them; that having a power to make all laws necessary and proper for carrying into execution the powers of Congress, and all powers vested by the Constitution in the govern­ment of the United States, or in any department or officer thereof; Congress is bound to make all such laws; that in all other cases, Congress are judges of the necessity or propriety of such law, and are bound to make it, only when they judge it necessary or proper; but that, where a law is necessary or proper, to carry into execution a constitutional act of any other department, this other de­partment is the sole judge of the necessity and propriety of passing such law; and that, when this department declares the necessity or propriety of passing such law, Congress is bound to pass it, and has no discretion, but in choosing the [Page 35]best law, to give effect to the act of the other department. That, where the Constitution expressly requires a law, Congress has a discretion to refuse, Mr. G. will not assert. Every one knows, that an implied obligation imposes a duty as strong as an express obligation; and, that, to obstruct the authority derived from the Constitution, is, in effect, to obstruct the Constitution itself; for the Consti­tution was made, for the purpose that its several autho­rities should be administered by the departments, to which they were severally intrusted; and be carried into execu­tion by the several departments, to which the means were intrusted. If the House of Representatives, there­fore, refuse to pass a law, which the constitutional act of any department has rendered necessary; the Constitution is as effectually violated, as if they had refused to pass a law, which the Constitution itself declared to be neces­sary.

Surely a claim which would defeat all the views of the Constitution, in establishing a separation of power, a claim, so absurd as to counteract the Constitution, must have very express words indeed to support it. Mr. G. is sensi­ble of this, and, without proving, asserts, "that it is evident that where the Constitution has lodged the power, there exists the right of acting and the right of discretion." But, to support his assertion, he cannot appeal to any express words of the Constitution. There are none such. He must rest upon general principles of construction. But I have already observed that general principles will not support his doctrine; for there may be power coupled with obligation, or power without any discretion.

It is not necessary for me, to diminish the force of the clause respecting appropriations, by considering it as a matter of form. It is substantial, that no money shall be [Page 36]drawn from the treasury but in consequence of a law. But this does not establish, that Congress is free to refuse to pass a law for that purpose; or has, in all cases, a right to enquire into the propriety of the measures, which have oc­casioned the necessity for raising money. The limitation, to two years, of appropriations for raising armies, is not imposed as a restraint of Congress over the Executive, but as a restraint of one Congress over another. It may be observed, from this clause, that the power of appropriating money gives a control over the subject; and, if this power be coupled with discretion in all cases, gives a control in all cases. If there be no limitation to the exercise of this discretion, but the judgment of the House of Representa­tives, as there is no power to control their judgment, they only will judge of the weight of their motives, and will always think they judge right; and there will be no limi­tation to the power of the House of Representatives. Thus all separation of power will be removed, and arbitrary power will be vested in one branch of the legislature.

Who gave the House of Representatives a right to set itself up as the sole organ of sovereignty, as the sole judge of propriety; over its compeers in authority, "erecting itself into a high priest of the Constitution, assuming the keys of political salvation, and damning, without mercy, whosoever differs with it in opinion?" Is it any thing more than a fellow-servant with the other departments, like them, by the Constitution, the lord of all, limited to its own portion of authority, and, by the Constitution, bound to lend its assistance to them, whenever their con­stitutional authority calls for it; as much as each of them is bound towards it? Whenever a law is made, the ju­diciary is bound to carry into execution the view of the legislature; by lending their power to determine on it.— [Page 37]They have no discretion whether they will do so or not, for the Constitution, by giving them the sole power of determining, positively binds them to determine, and the only discretion left with them is the choosing of the best manner of determining, so as best to accomplish the views of the legislature. When the judiciary have given judg­ment, the executive has no discretion, whether it will lend its power to execute the judgment; for the Constitution, by giving it the sole power of executing judgments, has positively bound it to exert its power, for this purpose; and the only discretion left is the choice of the most con­venient and lawful means for the execution. Whenever Congress establishes an office, the Constitution, by giving the President the power of appointing, binds him to appoint a competent officer, and he has no discretion but to judge of the most proper person. Whenever an act of any of the other departments requires a grant of money, in order to give it effect, the Constitution, by giving Congress the sole power of granting money, has positively bound it to grant a sum competent for the due execution of the act of the other department; and the only discretion left to it is a choice of the best means of raising the money, or the best fund whence to draw it. Suppose a judgment against the United States in any of its courts for a sum of money; is not Congress bound by the duty arising out of their power, to provide funds for the payment of this judgment; or can it enter on the judiciary province, and enquire into the merits of the judgment? Just so, in any act of any other department creating, on the subject committed to it, a necessity for a grant of money, there arises, out of their power, a duty on Congress to make a competent grant. The competence of the grant is to be measured by the nature of the act, the execution of which is to be provided [Page 38]for; and the means of raising the money are to be direct­ed by the discretion of Congress; for the direction of the means of raising money is exclusively vested in Congress. Whenever an act of another department interferes not, Congress may grant or refuse, according to its discretion, restrained only by the Constitution: for the Constitution vests in Congress the residue of all powers of administra­tion, not distributed to other departments; subject, like every department, to the duty of exerting its powers for promoting the views of the Constitution, and giving effect to the measures of the other departments. Every depart­ment, whose power is wanted in the execution of a measure, may judge of the authority of another, but not of its discretion; of its having acted within its constitutional limits, but not of its having well acted. The discretion, the power of determing the propriety or impropriety of any constitutional measure, is exclusively committed, by the Constitution, to the proper department. When it has determined, all other departments are bound by it. It is the Constitution which binds them all.

The judiciary may judge of the constitutionality of a law; but not of its propriety: the legislature alone can determine this—The executive may judge of the consti­tutionality of a judgment, of the jurisdiction of the court over the subject, but not of the merits of the judgment. So, respecting any act or measure of the department of foreign intercourse, the Constitution gives Congress no power to judge of the propriety of the measure; if it can­not judge of the propriety of the measure, it cannot judge of the propriety of the grant, any farther than under a sense of duty, to fix the amount, and choose the means of raising it. Even Mr. G. admits that Congress has no right to divest the President of any of his constitutional [Page 39]powers. And he considers the limitation of appropriations for an army, by any one Congress, to a term equal to its own duration, as sufficiently divesting any one Congress of a power of raising an army, so as not to be under the control of another Congress. The power of withholding appropriations, for the acts of any department, is, on this principle, a power of restraining from acting, and of di­vesting this department of its constitutional power. The President has power to make treaties, and to appoint and receive ambassadors. To deprive him of the means of sending public ministers, is depriving him of the power of making treaties. On his own principles, Mr. G. must admit, that this power is coupled with a discretion of judging with what nation, or in what manner, to form a treaty, or carry on an intercourse by means of ambassadors. Yet he avows it to be the object and effect of this claim of the House of Representatives, though not to annihilate the establishment, "effectually to check its extension." The House of Representatives then say, "Though the Constitution has vested the President with a discretion, we will not permit him to execute it; but will divest him of his constitutional power. It is true, we do not now, an­nihilate the establishment, we choose only to retrench it; but when we have succeeded in this, the same arguments will enable us to annihilate. Surely, if we may now tell the President, he shall send but three plenipotentiaries, we may, next year, tell him, he shall send but one; and the year following, none: and we will manage the foreign intercourse ourselves as well as the powers of internal legislation. Who­ever has the sole and exclusive command of the purse, is the sole master; and if we can cast off the constitutional limitations of our power, we shall be sole masters. Are not we the Representatives of the People?"

[Page 40] I consider the People as the proprietor of a great estate, the different departments as his agents for the management of it; and the Constitution as the instructions given them for their conduct, and the limitations of their authority.— He gives no predominancy of one over another; nor the whole of his own power to any; but a part of it to each. To one he gives power to manage his buildings, gardens and fields; to another of managing his lawsuits, his dis­putes about his boundaries, or any claims of neighbouring proprietors of rights on his estate; and to another he gives the power of collecting his rents and debts, and paying out his money. Now, if this money agent, be­cause he has power to raise and pay money, has a right in all cases, before he grant, to enquire into the propriety or impropriety of the grant; it is clear that he has the sole management of the estate, and that nothing can be done respecting the buildings, gardens, fields, boundaries, of disputes of the proprietor, without the approbation of the money agent; and that he will have all the power of the proprietor, and be sole agent. The proprietor never meant this. He meant only, that this money agent should take care, that his building agent should not draw money, for conducting lawsuits; nor his law agent, for conducting the buildings, gardens or farms; but never meant, that when either of the other agents wanted money for the purpose of his agency, the money agent should have power to refuse; or, before he granted, enquire whether the other agent had conducted his own business right. Every agent, for the purposes of his own department, is to every other, as the proprietor; and for those purposes, has the same right as the proprietor, to call on the money agent for mo­ney; and a refusal of the money agent, to furnish any o­ther agent with the necessary money to accomplish his pur­poses, [Page 41]is a refusal to obey the instructions of the proprietor, and amounts to a refusal to furnish the proprietor himself with money: for this other agent has, for his purposes, all the authority of the proprietor. The Constitution is the will or instructions of the proprietor; the departments are the agents; Congress is the money agent. Every constitutional act of any of the departments, being a re­gular exertion of the authority of the Constitution, has the same authority over the other departments, as the Constitution itself; and if it limit the power of the others, it is not this department, but the Constitution which limits the power of the others. An authoritized act of the agent is an act of the principal. Therefore, if the constitutional act of any department require money to give it effect, Congress is as much bound to grant it, as if the Consti­tution itself required the grant. Every act concluded un­der the authority of the Constitution, is as binding as the Constitution; and if an act of the legislature, of the judi­ciary, or of the department of foreign intercourse, requires a grant of money, the House of Represcutatives are as much bound to raise and grant it, as if the Constitution required it. They can no more examine the propriety of the act, than the propriety of the Constitution. They are but fel­low agents with the department to whose discretion their common lord, the Constitution, has exclusively intrusted the judgment of the propriety or impropriety of the act, and have no power paramount over this department to judge of its discretion. If the other department has, according to its authority from the Constitution, regularly concluded an act, the House of Representatives has no discretion, whe­ther or not, to give it effect. What then is the discretion of the House of Representatives? A discretion to enquire, whether the act be within the jurisdiction of the other de­partment, [Page 42]and how best to give it effect; a discretion, under a sense of duty, to determine the sum necessary to give it effect, and to devise the best ways and means to raise that sum. Each department has discretion, within its own jurisdiction, of exercising its powers, as it pleases, agreeably to the Constitution; or, if the Constitution, or any other department, do not require it, under a sense of duty, to decline the exercise of its powers; but no depart­ment can, in the exercise of its own powers, defeat the constitutional authority of another. An act of the depart­ment of foreign intercourse may be considered as a law or a contract, and as there is no power in the House of Re­presentatives to annul, they must execute it, like any other law or contract.

To shew, that this doctrine will not stand the test of investigation, Mr. G. says, "Whenever the powers vested in any one department are sufficient to complete a certain act, it would be unconstitutional in any of the others, to control it. But whenever the powers have been so distri­buted between two departments, in relation to another certain act, that neither of the two can complete the act, by its own power; each department is controlled by the other." This reasoning seems to be founded on a misap­plication of words; by not distinguishing between a right of determining on a measure, and the power of directing the means of giving it effect; calling the first an act, and the other a complete act. The first is surely, so far as the word act can be applied to it, a complete act; and the re­fusal of the means of giving it effect, is not a refusal to complete, but a power to defeat or render useless; and the department which has completed the act, though it may not have the power itself to apply the means, may have a right to require the department, which has the means of [Page 43]giving it effect, to apply those means for that purpose, and not, by denying the means, defeat the act. A judgment of a court is a compleat act; but the court has not the means of executing it; those are intrusted to the proper officers, the sheriff, &c. but though the court itself cannot exert those means; it has a right to require the officer to exert them, and it would be unconstitutional in him to re­fuse. Suppose a bill should pass both Houses of Congress, be approved by the President, and become a law; it is a compleat act, yet it cannot be carried into execution with­out the aid of the executive and the judiciary. They only have the constitutional power of executing it: have they also a constitutional discretion to refuse? Suppose, in the adjourn­ment of the House of Representatives, the President perceives an emergency requiring a new minister to be instantly dis­patched, without waiting for appropriations. The minister is dispatched, and executes the commission. Has the House of Representatives a discretion to refuse a compensation?

The absurdity which Mr. G. sees, in the doctrine for which I contend, is an absurdity of his own making, and arises from begging the question, and supposing, that the department, which has the means of executing the com­pleat act of another department, has a right to refuse those means. I say it has no such right; and it is only he who says it has, who occasions the absurdity.

The novelty of this doctrine is no better proved than its absurdity. I have shown how consistent it is with the Constitution. If tradition has made void the law, if poli­tical Scribes and Pharisees have introduced their glosses instead of the text; no wonder if, when the true gospel shines out, it should be received by those blind guides as novelty. To compare it to the state constitutions, fur­nishes no evidence, for either there will be no resemblance, [Page 44]or the same dispute will exist. To compare it with the government of Britain, gives no evidence; since it is not principles of a Constitution, but principles of corruption, which preserve the form of that government, and support the authority of the King against the authority of the House of Commons. Aided by corruption, the King, who has the power of making treaties, may safely trust to Parlia­ment the discretion of executing them; if as Mr. G. says, "a progressive patronage and a systematic corrupting influ­ence have sunk Parliament to a nominal representation, a mere machine, the convenience used by government for the purpose of raising supplies; the medium through which the executive reach with ease the purse of the people. And now when the farce of obtaining even the nominal consent of Parliament is sufficiently understood, the ministry dis­pense with the ceremony." The use of corruption proves, that, without it, the King could not preserve his preroga­tives against the incroachments of the House of Commons. But, armed with this corruption, the King has as little to fear from the discretion of the Parliament, as Robespierre or the French Directory, armed with terror, could have to fear from the legislative Councils. But surely either the one or the other model is unfit for our imitation. We want neither an Anglo-monarchico-aristocratic faction, nor a Gallo-demo-mobocratic faction, to destroy the structure of the American Constitution. Nor ought we to derive its construction, from the errors and corruptions of other governments, but from its own principles and organiza­tion.

The great fallacy in the reasoning of Mr. G. arises by substituting the words raising and granting money, instead of the words of the Constitution; and confounding the power of raising and granting money, with a power of creat­ing [Page 45]a necessity for raising and granting, and determining the reality and extent of that necessity, and making the words raising and granting, mean creating a necessity or determining the reality and extent of a necessity for granting. These are powers essentially different from the powers of raising and granting. They are not, and consistently with the views of the Constitution, they could not be, vested in Congress. To say, that they are implied in the powers of raising and granting, is reasoning without premises, and therefore inconclusively. They are not implied; and often exist separate from each other. To say that they are given to Congress, is taking a very narrow and imperfect view of the Constitution.

They are also given in many instances to other de­partments. It cannot be inferted, from the power of lay­ing taxes, and appropriating money, that this power is always free from an obligation to exert it; or that this ob­ligation cannot be imposed, but by the discretion of Con­gress. To judge of the propriety or impropriety of a grant for any object, in any other sense, than as to judge of the proper amount of the grant, and the proper means of pro­curing and applying the money, is to judge of the propriety or impropriety of the object; and the management of this may, in many cases, be committed to another department with discretion exclusive and equal, as derived from the same source, the Constitution. A man is only free to judge of the propriety or impropriety of the grant, in the sense contended for, when he has an arbitrary power over the money. For, if he have it in trust from the owner, to apply it, as not only he, but his fellow agents may deter­mine; he may often have no discretion to refuse. Congress is but a fellow agent with the other departments, and like every other organ of power, takes all its powers couple [Page 46]with duties; its power to make, therefore, coupled with a duty to make all laws necessary and proper for carrying into execution the powers of the Constitution, and all other powers vested in the government, or in any department or officer thereof. The discretion of Congress to judge of the necessity or propriety of any law, is bounded by the discretion of every other department, in the execution of their constitutional authority. Where either the Consti­tution itself dictates the necessity or propriety of a law, or gives to any other department, or officer, the discretion to judge of the necessity or propriety of a law, Congress has no discretion left to judge of the necessity or propriety of making the law, but only of choosing the best law to ac­complish the object of the other department. Its power is abridged by the Constitution. A claim of Congress then, to a discretion to judge of the propriety of a law which the Constitution, or any department with authority derived from the Constitution, may have declared to be necessary, is a claim of all power in the government, or a power to refuse what the Constitution, or the constituted authorities, may have declared necessary. When nature may create a necessity, or the Constitution or any department may make an engagement or legal declaration; a claim in Congress, to a right to judge of the propriety or impropriety of the grant, is not, and consistently with the views of the Con­stitution, cannot be vested in Congress, for it is a claim to assume universal power, or a claim to assume a power over the principles of the Constitution, a power over the principles of nature and morals, and therefore a power over God himself.

I have now examined the reasoning of Mr. G. on the constitutional principle; and as we know, that motives as pure as his, are no security against danger, I think it [Page 47]will appear, that judgment, as clear as his, is no security against error.—The fact is, that it is not from a want of obligation on the House of Representatives to appropriate money, but from a want of power to compel compliance, if they choose to disregard this obligation. Impunity is often confounded with discretion, Suppose the judiciary refuse to decide on a law; how can they be compelled? They may be impeached and removed. But suppose the same obstinacy should exist in their successors; the go­verment would be dissolved: for no other department can exercise their authority. If an inferior court refuse the exercise of its powers, a superior court may compel it, by mandamus. No mandamus can go to the House of Representatives. We have no Parisian mob to surround their hall with pikes and cannon. They cannot be im­peached; for they have the sole power of impeaching.— And the only compulsive force on them, is the removing power of the people, the elective branch. This is the tribunal before which they are tried; but, as saving mo­ney is generally popular, and the people is often ill inform­ed, the Representatives take means to escape from judg­ment, by prejudicing the judges, by incessantly and widely spreading among them misrepresentations of all the mea­sures, which they oppose, and of all the acts of the admi­nistration. Though there be therefore a positive obliga­tion, there being no compulsive power to enforce it, impunity is construed as discretion; and the "moral obli­gation" of a sense of duty, can alone enforce the exertion of "the constitutional power." And this it seems is "a metaphysical subtlety!"

Of all public officers, we have the least hold, by means of a sense of duty, on representatives accountable to none but to the people: especially in granting money not to be [Page 48]expended by themselves. The confederation directed that all charges of war, and all other expences that shall be incurred for the common defence or general welfare, and allowed by Congress, shall be defrayed out of a common treasury, which shall be supplied by the several states; and also directed that every state shall abide by the determina­tion of Congress on all questions submitted to them; and shall inviolably observe the articles of Confederation^*.— Here was positive and moral duty united. Yet, when danger ceased, were both positive and moral duty sufficient to persuade the state legislatures to comply with the requi­sitions of Congress?

Presuming the cordial concurrence of each department, to carry into effect the constitutional acts of any other; as Solon made no law against parricide, apprehending it im­possible, that any one should be guilty of so unnatural a barbarity, the Constitution forbears to command any de­partment to abstain from a resistance to the authority of any other, which would destroy their common parent.

To the policy of extending or abridging foreign inter­course, I say nothing. Resting on the constitutional prin­ciple, it is sufficient for me, that the Constitution has excluded the House of Representatives from all manage­ment of foreign intercourse; and thought it safe, to trust the whole discretion of managing it, to the President, act­ing under the check of the Senate. The Constitution has considered the President, as a safe depositary of this authority, and the Senate as a sufficient check; and to the acts of this authority, as to the authority of the Consti­tution, it behoves the House of Representatives to bow! as it behoves the President, in his turn, to bow to the authority of Congress as expressed by law.

[Page 49] Every act done under the authority of the Constitution is, till it be annulled by the department which gave it ex­istence, as binding on every department, as the Constitu­tion itself: thus not only the Constitution, but the laws and treaties of the United States are declared the supreme law. And the question is not, whether any department may, in the exercise of its own authority, exercise discre­tion; but whether it may also exercise discretion over the authority of another department: whether the House of Representatives be free to do as it pleases, and, uncontrol­led by the constitutional acts of any other department, set itself up as paramount over all, and absorb, in itself, the authority of all the departments. It is a question of pride, of ambition in the House of Representatives, to possess a power to prevent any thing being done, by any other de­partment, without their approbation; that is, to acquire arbitrary power. And this they justify, under a pretence of preventing extravagance and abuse of authority.

It is possible to suppose cases, of a nature so extraordi­nary, as to justify one department, in assuming a power not given it, to defeat the acts of another. Personal liberty is a constitutional right; but if a man use it dangerously, it may be abridged. An emergency so critical may exist, that, to encounter it, a violation of the Constitution itself may become a duty. No argument can be drawn from this: for abuse of power is a supposition which may be made in all departments, and is surely not less presumable, in the House of Representatives, than in the President and the Senate. So far as the Constitution intends, that the House of Representatives should have this power to pre­vent extravagance, it is not disputed with them. They have the discretion, controlled only by a sense of duty, to ad­just the amount of the grant to the nature of the object, [Page 50]and to choose the means of raising and applying the mo­ney. To give them more, would be giving them all power: and if this be necessary, to preserve us from abuse in other departments; who, if they obtain this, shall preserve us from abuse in them? What security have we, that the House of Representatives may not act as extravagantly as the President and Senate? Are large popular bodies less liable to extravagance, passion, partiality, and ambi­tion, than an individual, or a small select body, responsible for their conduct? Have they not their favourites? Have they not their masters? Give them the power claimed, would the other departments have any chance of preserv­ing the shadowy fragment of remaining authority? Would not the House of Representatives soon render odious the other departments, and render it impossible for the people to know the truth? The House of Representatives would be erected into a national convention, the centre of all authority; its opinions, its agents, its influence would spread ramifications of its power, and receive nourishment, in every part of the nation; and all its power would cen­tre in a Mirabeau or a Robespierre.

How tyranny or ruin may have come on other nations, unless in so far as their circumstances resemble ours, it is not material to enquire. Our Executive has not, and cannot have, an uncontrolled command of the purse of the people. Nor is there any kind of resemblance between the power of appointing ministers, and the case of ship­money. That case was a claim of exercising, not only the power which the King had, but the power which he had not; a power of laying and collecting taxes, as well as declaring their necessity, a power to fix the sum necessary, as well as to declare the object. And whatever deductions may be made from history, it will be found, that tyranny [Page 51]has arisen from the turbulence and refractory conduct of the people, or the other departments; from an abuse of liberty or discretion; from contentions for power, crea­ting a pretence, and from the circumstances of the Execu­tive furnishing the means, of acquiring a predominancy; and from the satisfaction arising, when any government has superseded the anxiety of distractions, justifying the success, and favouring the establishment, of this predo­minancy.

"The events of the reign of Charles the first" are in­deed "a proof of the danger to be apprehended from the incroachments of the legislature. They were the result of an unsettled Constitution. The precise boundaries of power were not ascertained: Convulsions, a civil war, a revolution ensued." Very natural consequences, from a case exactly like the present! Where is the dif­ference between an unsettled constitution, and a constitu­tion, the construction of which, by those who administer it, is unsettled? If the precise boundaries of power be ascertained, what is the ground of dispute between the department of foreign intercourse, and the House of Re­presentatives? The cases are the same, let us take warning by the consequences.

In the contrast, which Mr. G. draws, between the Pre­sident's speech to Congress, and the late President's ad­dress to the people; he cites the following sentence of the President's speech. "However we may consider ourselves, the maritime and commercial powers of the world will consider the United States of America, as forming a weight in that balance of power in Europe, which never can be forgotten or neglected." Mr. G. recites the last clause of this sentence thus, "As to that balance of power in Eu­ [...] [Page 52]the word "weight," the essential word in the President's sentence, and the only word expressing the idea which, he says, was never to be forgotten or neglected. The Pre­sident's meaning plainly is that the maritime and commer­cial powers of the world will never forget or neglect the weight, which the United States of America form, in the balance of power in Europe. Mr. G. seems to cite this, as if the President thought, that the United States ought never to forget or neglect the balance of power in Europe, but "involve itself in the destinies and wars of Europe."

I should not have made this observation, had it been altogether unconnected with the principles and consequen­ces of the point in dispute. But as the members who oppose this constitutional principle, in order to justify their opposition, and render the principle odious, loudly and widely clamour, that there is a war party in the ad­ministration, and that the President is at the head of this war party; and as the quotation of Mr. G. might convey the same idea; thinking this idea false, I made this ob­servation. But not intending to digress from the CON­STITUTIONAL PRINCIPLE; "here let us stop."