at all, but according to provisions made in the law
itself. There was, indeed, a provision in the
law authorizing the
Secretary to change the
custody. But suppose there had been no such provision;
suppose the contingent power had not been given to
the Secretary; would it not have been a lawful enactment?
Might not the law have provided that the public moneys
should remain in the bank, until Congress itself should
otherwise order, leaving no power of removal anywhere
else? And if such provision had been made, what
power, or custody, or control, would the President
have possessed over them? Clearly, none at all.
The act of May, 1800, directed custom-house bonds,
in places where the bank which was then in existence
was situated, or in which it had branches, to be deposited
in the bank or its branches for collection, without
the reservation to the Secretary, or anybody else,
of any power of removal. Now, Sir, this was an
unconstitutional law, if the Protest, in the part
now under consideration, be correct; because it placed
the public money in a custody beyond the control of
the President, and in the hands of keepers not appointed
by him, nor removable at his pleasure. One may
readily discern, Sir, the process of reasoning by which
the author of the Protest brought himself to the conclusion
that Congress could not place the public moneys beyond
the President’s control. It is all founded
on the power of appointment and the power of removal.
These powers, it is supposed, must give the President
complete control and authority over those who actually
hold the money, and therefore must necessarily subject
its custody, at all times, to his own individual will.
This is the argument.
It is true, that the appointment of all public officers,
with some exceptions, is, by the Constitution, given
to the President, with the consent of the Senate;
and as, in most cases, public property must be held
by some officer, its keepers will generally be persons
so appointed. But this is only the common, not
a necessary consequence, of giving the appointing
power to the President and Senate. Congress may
still, if it shall so see fit, place the public treasure
in the hand of no officer appointed by the President,
or removable by him, but in hands quite beyond his
control. Subject to one contingency only, it did
this very thing by the charter of the present bank;
and it did the same thing absolutely, and subject
to no contingency, by the law of 1800. The Protest,
in the first place, seizes on the fact that all officers
must be appointed by the President, or on his nomination;
it then assumes the next step, that all officers are,
and must be, removable at his pleasure; and
then, insisting that public money, like other public
property, must be kept by some public officer,
it thus arrives at the conclusion that it must
always be in the hands of those who are appointed
by the President, and who are removable at his pleasure.
And it is very clear that the Protest means to maintain
that the tenure of office cannot be so regulated
by law, as that public officers shall not be removable
at the pleasure of the President.