Article 1, Section 9, Clause 7

Document 2

House of Representatives, Official Conduct of the Secretary of the Treasury

[28 Feb.]

Mr. Giles then moved that they should be referred to a Committee of the Whole House.

Mr. W. Smith was decidedly opposed to referring those resolutions to the consideration of the Committee of the Whole House, because he neither viewed a discussion of them as necessary on the present occasion nor warranted by the nature of the inquiry into the Secretary's conduct. It was trifling with the precious time of the House to lavish it on abstract propositions, when the object of the inquiry ought to be into the facts. He was satisfied that should the House once involve itself in an investigation of theoretic principles of Government the short residue of the session would be exhausted, and no opportunity remain for examining the charges themselves. Those charges being made, it became the House from a sense of duty to the public and justice to the accused to proceed immediately to consider them. If the mover intended to apply the principles of the two first resolutions to the facts contained in the subsequent ones, it was unquestionably proper first to substantiate the facts, and then establish the principles which were applicable to them; but it was surely a reversal of order to spend much time in establishing principles, when it might happen that the charges themselves would be totally unsupported. He did not like this mode of proceeding, because it might tend to mislead the House; it was sometimes a parliamentary practice to endeavor to lead the mind to vague and uncertain results, by first laying down theorems from which no one could dissent, and then proceeding by imperceptible shades to move unsettled positions, in order ultimately to entrap the House in a vote which in the first instance it would have rejected. This mode of conducting public business, he considered as inconsistent with fair inquiry. The question was, had the Secretary violated a law? If so, let it be shown; every member was competent to decide so plain a question. He could examine the proofs, read the law, and pronounce him guilty or innocent without the aid of these preliminary metaphysical discussions.

If it were urged that the propositions are so plain and obvious that no time would be lost in considering them, he then begged leave to observe that all antecedent discussions of constitutional questions had never failed to occupy a large portion of their time, and that however self-evident the resolutions might at the first glance appear, a more critical attention would satisfy a mind not much given to doubt that they were by no means so conclusive as to be free from objections.

Though the position contained in the first resolution, as a general rule, was not to be denied; yet it must be admitted, that there may be cases of a sufficient urgency to justify a departure from it, and to make it the duty of the Legislature to indemnify an officer; as if an adherence would in particular cases, and under particular circumstances, prove ruinous to the public credit, or prevent the taking measures essential to the public safety, against invasion or insurrection. In cases of that nature, and which cannot be foreseen by the Legislature nor guarded against, a discretionary authority must be deemed to reside in the President, or some other Executive officer, to be exercised for the public good; such exercise instead of being construed into a crime, would always meet the approbation of the National Legislature. If there be any weight in these remarks, it does not then follow as a general rule, that it is essential to the due administration of the Government, that laws making specific appropriations should in all cases whatsoever, and under every public circumstance, be strictly observed. Before the Committee could come to a vote on such a proposition, it would be proper to examine into the exceptions out of the rule, to state all the circumstances which would warrant any departure from it, to whom the exercise of the discretion should be entrusted, and to what extent. Did any member wish at this period to attempt this inquiry? He supposed not. Let every deviation from law be tested by its own merits or demerits.

The second resolution was liable to stronger objections. It might with propriety be questioned whether, as a general rule, the position was well founded. A law making appropriations may be violated in various particulars without infringing the Constitution, which only enjoins that no moneys shall be drawn from the Treasury but in consequence of the appropriations made by law. This is only to say, that every disbursement must be authorized by some appropriation. Where a sum of money is paid out of the Treasury, the payment of which is authorized by law, the Constitution is not violated, yet there may have been a violation of the law in some collateral particulars. There may even have been a shifting of funds, and however exceptionable this may be on other accounts, it would not amount to that species of offence which is created by the Constitution. The Comptroller of the Treasurer must countersign every warrant, and is responsible that it be authorized by a legal appropriation; yet it cannot be supposed that he is to investigate the source of the fund.

One of the alleged infractions stated in the subsequent resolution, namely, the drawing part of the loans into the United States without the instructions of the President, evinces that the opposite construction is not a sound one. For, suppose the fact proved, and suppose it a violation of the law, it certainly would be a very different thing from drawing money out of the Treasury without an appropriation by law, for, in this case, there would be no drawing money from the Treasury at all, the money never having been in the Treasury.

Mr. S. Then said, he should also object to referring the last resolution, which is in these words,

"Resolved, That a copy of the foregoing resolutions be transmitted to the President."

The object of this resolution went clearly to direct the President to remove the Secretary from office; the foregoing were to determine the guilt, the last to inflict the punishment, and both the one and other without the accused being heard in his defence. When the violation of the Constitution was so uppermost in our minds, it would be indeed astonishing that we should be so hoodwinked as to commit such a palpable violation of it in this instance. The principles of that Constitution, careful of the lives and liberties of the citizens, and what is dearer to every man of honor, his reputation, secure to every individual in every class of society, the precious advantage of being heard before he is condemned.

That Constitution, peculiarly careful of the reputation of great public functionaries, directs that when accused of a breach of duty, the impeachment must be voted by a majority of the House of Representatives, and tried by the Senate, who are to be on oath, and two thirds of whom must concur before a sentence can pass, by which the officer is to be deemed guilty. The officer is to be furnished with a copy of the charge, and is heard by himself or his counsel in vindication of his conduct. Such are the solemnities and guards by which they are protected, and which precede a sentence, the only effect of which is a removal from office. But if the House proceed in the manner contemplated by this resolution; if they first vote the charges, and send a copy of them to the President, as an instruction to him to remove the officer, they will violate the sacred and fundamental principles of this, and every free Government. They will condemn a man unheard, nay, without his having even been furnished with the charges against him; they will condemn to infamy a high and responsible officer convicted by the Representatives of the people, of a violation of the important trusts committed to him, without affording him one opportunity of vindicating his character and justifying his conduct.

Mr. Murray said he was opposed to the reference of the resolutions to the Committee of the Whole. He had, as far as the time permitted, examined the several reports on which the examination depended, and was then ready to vote on them, though he confessed, from the intricacy which was inherent in such a subject, as well as from the vast variety of the detail involved, he had not had sufficient time for a complete investigation. Nor did he imagine that any man who had not previously mediated on the subject for a length of time, and made choice of his ground of attack, could say he was completely master of the subject. Some vote, however, was now rendered essential to the character, not only of Government, but of the gentleman who presided over the finances of the country. But three days were left for this inquiry, and to finish a great deal of other business; and he thought that despatch which was usual in the House ought to be used in preference to the indulgence which a Committee afforded. As to the abstract propositions, if it were necessary now to go into them, he thought it would be proper to decide on them first. He thought it most logical to lay down principles of reasoning before facts were developed. Were they agreed to by the House, it would be under provisions and restrictions. They could not have the implicit force of axioms, but at most must be yielded to as wholesome maxims, the application of which must be frequently modified by a certain degree of discretion. With respect to all the other resolutions, he imagined they would, on examination, be found to be unwarranted by facts. He hoped the movers and supporters of the resolutions would not be gratified at so late a season by the House in resolving itself into a Committee of the Whole. The mode in which they were brought forward did not entitle them to much confidence. He said a more unhandsome proceeding he had never seen in Congress. It had been a practice, derived from the lights of common liberty, common right, and the first principles of justice, that whoever was charged with a violation of law on which a punishment ensued, should have some mode of answering to the charge. It had, in a recent instance, been the practice of Congress, when an officer's conduct was even in the first instance inquired into, to afford the officer an opportunity of attending upon the examination on which his offence or his freedom from blame was to appear. He alluded to the conduct of the House when an examination took place relatively to the failure of General St. Clair's expedition. Suspicions were entertained that blame lay somewhere. A committee was appointed to examine. The three officers particularly concerned were, he understood, invited, as it were, to come before the committee, to explain, to interrogate, and to give information. Though the Secretary of War was not permitted to explain on this floor, justice and delicacy, and the most common principles of jurisprudence, to which we attempted to hold some analogy, demanded that he should be heard somewhere, and the committee was renewed for this purpose. The Quartermaster General asked to be heard on this floor. Though refused, he was permitted to attend that committee, on whose examination his character as a Quartermaster depended. Were any man responsible as an officer to this House to fall under the suspicion of its members, a regard to decency and to the established rights of citizenship, would teach gentlemen to inquire formally before they hastily laid a charge on the table, to which they might move the assent of the House. But in this proceeding a Legislative charge was gone into before inquiry had been instituted. Every rule of justice, and all that delicacy which ought ever to attend her progress, had been disregarded, and in the very first instance, a number of charges are brought forward, not for inquiry, but conviction, which, if sanctioned by a majority of the House, are to be followed by the dismission of one of the highest officers in the Government. This mode was as tyrannical as it was new, and, if any thing could throw a bias against the resolutions, independent of inquiry, it was the partial and unjust form in which the proceeding had commenced. Resolutions of conviction might rise out of the report of a committee of inquiry, who would act as a Grand Jury to the House, but could never precede it. He hoped the House would not refer to a Committee of the Whole what might be decided in the House with more despatch.

[1 Mar.]

Mr. W. Smith: . . . With respect to discretion, Mr. S. observed that, though in the present inquiry it was not necessary to say much on that topic, being firmly persuaded the Secretary had strictly pursued the injunctions of law, yet, while on the subject, he took occasion to insist that in all Governments a discretionary latitude was implied in Executive officers, where that discretion resulted from the nature of the office, or was in pursuance of general authority delegated by law. This principle was so obvious that it required no illustration; were it contradicted, he would appeal to the conduct of the Secretary of State, who, though directed to report to the House on the commerical intercourse with foreign nations, had, in the exercise of a warrantable discretion, judiciously withheld his Report. He would appeal to the Report of the Committee on the failure of St. Clair's expedition, wherein that failure was in part attributed to the Commanding General's not being invested with a discretion to act according to circumstances.

. . . . .

Mr. Madison: . . . It was unnecessary to repeat the emphatic remarks on this subject, which had fallen from the member from Pennsylvania, [Mr. Findley.] It was sufficiently understood. He concluded that appropriations of money were of a high and sacred character; that they were the great bulwark which our Constitution had carefully and jealously established against Executive usurpations. He meant only to take notice of the different plans into which appropriations might be moulded, and of the particular operation which ought to be given to them.

One the the plans was that of appropriating specified funds to specified objects, in which the supposed certainty of the funds was adjusted to the supposed importance of the objects.

The other plan formed all the branches of revenue into an aggregate fund, on which the several objects should have a priority of claim according to their superiority of importance. It was evident that in both these cases, the Legislature alone possessed the competent authority. The exclusive right of that Department of the Government to make the proper regulations, was the basis of the utility and efficacy of appropriations.

There was a third question incident to the doctrine of appropriations, viz: Whether, under specific appropriations, such as had been adopted by Congress, the Executive authority could, without special permission of the law, apply the excess of one fund to the aid of a deficient one, or borrow from one fund for the object of another. On this question, there might perhaps be a difference of opinion. He would only remark, that, admitting such a discretion to be implied in the trust of executing the laws, it would still be requisite that the due sanction of the Executive should be given, that a regular account should be kept between the different funds, and that all advances from one to the other should be replaced as soon as possible. This was equally necessary to the preservation of order in the public finances, and to the proper respect for the authority of the laws.

In the present case, it did not appear that the moneys taken at different times from the Loans designated by the President, and thereby placed under the appropriation of the act of August 4, 1790, to the Foreign Debt, had ever been replaced. It did not appear that any such replacement was regularly planned or provided for. It was particularly worthy of observation, moreover, that the only use within the United States for which any loan in Europe could be assigned, was that of the Sinking Fund; that the Trustees of this Fund had never been even informed of the drafts; that if the moneys drawn had been carried to the Sinking Fund, the limited sum of $2,000,000 would have been exceeded; and that the statements and accounts had, in fact, been so wound up, as mentioned by the Secretary, that not a single dollar of the money laid out in purchasing the Public Debt had been charged on loans drawn into the United States, although such was the only purpose to which they were legally applicable, and such the principal reason assigned for making the drafts.

He did not go into a particular proof that the sum drawn into the United States, after subtracting the whole sum placed to a foreign account, exceeded the sum of $2,000,000, because the fact had been conceded on the other side, particularly by the statement of the member from Connecticut, [Mr. Hillhouse.]

Thus it appeared clearly, in confirmation of the first point, that the application of a certain portion of the principal borrowed in Europe, to payment of the interest, was not a mere transposition of moneys, to prevent the sending them backwards or forwards, nor an advance of money from an overflowing fund in favor of a deficient one; but an absolute diversion of appropriated money, and consequently a violation of the law making the appropriation.

. . . . .

Mr. Findley said: Since these resolutions were laid on the table, I have, upon reflection, been convinced of the impropriety of connecting it with the others, or of treating this part of the Secretary's conduct in this manner. It is solely in the power of this House to punish all contemptuous or indecent treatment of its authority or orders; for this purpose, it is not necessary to lay our opinions in this way before the public, report them to the President, or make them a foundation of impeachment. We might have ordered him to the bar of this House, and obliged him to make proper acknowledgments. I have known some high in office treated in this manner for infinitely less impropriety. It is true, in the case to which I allude, I thought the affair was carried too far; the offence was only a letter to the House respecting the conduct of a member, whom the officer charged with making free with his character in an insidious manner among the members. I would be sorry to see this House pursue such trifles. Though the indecorum of the Secretary to this House is of a higher nature, I think it is best to treat it with silent contempt; I will vote against this resolution, lest it should be interpreted as a relinquishment of our authority to punish contempts.

The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 7, Document 2
http://press-pubs.uchicago.edu/founders/documents/a1_9_7s2.html
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.

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