[New York, November 11, 1795]
A very virulent attack has recently been made upon the President of the U States, the present Secretary of the Treasury, and myself as his predecessor2 in office, on the ground of extra payments to The President on account of his salary. The charges against all the three are no less heinous than those of intentional violation of the constitution, of the laws, and of their oaths of office. I annex the epithet intentional, because though not expressly used in the terms of the attack, it is implied in every line of it; since an involuntary error of construction, if that could even be made out, would not warrant the imputations “of contemning and despising every principle which the people have established for the security of their rights, of setting at defiance all law and authority, and of servile submission and compliance with the lawless will and pleasure of a President.”
Were considerations personal to myself alone to be consulted the present attempt would be treated with no greater attention than has been shewn to all the anonymous slanders by which I have been so long and so implacably persecuted. But convinced by a course of observation for more than four years that there exists in this country an unprincipled and daring combination,3 to obstruct by any means, which shall be necessary and can be commanded, not short even of force, the due and efficient administration of the present government, to make our most important national interests subservient to those of a foreign power—and as means to these ends to destroy by calumny and misrepresentation the confidence of the people in the truly virtuous men of our country and to transfer it with the power of the State to ambitious hypochrites, and intriguing demagogues perhaps corrupted partisans perceiving likewise that this infatuated combination in the belief that the well earned esteem and attachment of his fellow Citizens towards the actual chief Magistrate of the UStates is the principal remaining obstacle to the execution of their plan are making the most systematic efforts to extinguish those sentiments in the breasts of the people—I think it a duty to depart from my general rule of Conduct and to submit to the public with my name an explanation of the principles which have governed the Treasury Department on the point in question.
I shall state in the first place, that the rule with regard to expenditures and appropriations, which has uniformly regulated the practice of the Department is this (viz) to issue no money from the Treasury but for an object, for which there was a law previously passed, making an appropriation and designating the fund from which the money was to arise. But there being such a law and an adequate fund to support the expenditure, it was deemed justifiable as well before as after the service was performed or the supply obtained, for which the appropriation was designed, to make disbursements from the Treasury for the object, if it appeared safe and expedient so to do. If made before, it was an advance or anticipation for which the party was charged and held accountable till exonerated by the performance of the service or the furnishing of the supply. If afterwards, it was a payment and went to some general head of Account as such.
Thus, if a sum was appropriated for provisions for the army for a particular year it was common to make advances on account to the contractors long before the supplies were furnished.4 If the law was passed in one year for the next, there would be no hesitation to make the advance immediately after the passing of the law and before the year to which the appropriation was applicable had commenced. So also sums would be furnished to the Department of War in anticipation of the monthly pay of the officers and soldiers, and advances on account of pay in particular circumstances and for good reasons would be actually made by that Department to the officers and soldiers. And so likewise advances have been made for the use of the President and of the members [of] both houses of Congress in anticipation of their respective compensations.5
It will without difficulty be comprehended that the practice of the Treasury has in some cases been essential to the due course of the public service.
Every good judge will be sensible that from the insufficiency of individual capitals to such large advances as the supplies of an army require, it was indispensable to the obtaining of them that anticipations from the Treasury should enable the contractors to do what otherwise they would have been unable to do—and that these anticipations must also have had the effect of procuring the supplies on cheaper terms to the U States.
When it is considered too that the army has operated for several years past at [five or six]6 hundred miles distance from the seat of Government and a considerable part of the year from the rudeness of the country & obstructions of the Waters, it is impracticable to transmit monies to the scenes of payment—it will be perceived that without advances from the Treasury in anticipation of their pay, not only a compliance with the engagements of the Government would have been impossible—but the troops must have been always left most unreasonably in arrear. In June 1794 Congress passed a law declaring that the army should in future be paid in such manner as that the arrears should not exceed two months.7 Compliance with this regulation renders anticipations at certain seasons a matter of physical necessity; yet that law gave no special authority for the purpose.
A particular case, by way of example in which, distinct from general rules, advances or anticipations in the war department are necessary respects the recruiting service. The officers who are for a long time distant from their corps require the accommodation of an advance of pay to be able to discharge their duty. Towards the possibility of enlisting men, it is indispensable they should carry with them the bounty money and this upon conjecture of what may be done and with the possibility that from not being able to obtain the men the ultimate expenditure may not take place. This instance will suggest to reflection an infinite number of cases in the course of the public service in which a disbursement from the Treasury must precede the execution of the object and may exceed the sum finally requisite for it.8
These cases indicate the expediency, and even necessity of the construction which has regulated the practice of the Treasury. And it might be shewn if necessary that it is analogous to the practice under the former Government of the UStates and under other governments; and this too where the theory of expenditure equally is, as expressed in our Constitution, that no money shall be expended but in consequence of an appropriation by law.
It remains to see whether this rule of conduct so indispensable in the practice of the department be permitted by a fair interpretation of the constitution and the laws.
The general injunction of the Constitution (Article I § IX) is that “no money shall be drawn from the Treasury but in consequence of appropriations made by law.”9
That clause appears to me to be exactly equivalent to this other clause—“No money shall be drawn from the Treasury but for which there is an appropriation made by law.” In other words before money can legally issue from the Treasury for any purpose, there must be a law authorising an expenditure and designating the object and the fund. This being done the disbursement may be made consistently with the constitution either by way of advance or anticipation or by way of payment. It may precede or follow the service supply or other object of expenditure. Either will equally satisfy the words “in consequence of” which are not words of strict import, but may be taken in several senses—In one sense, that is “in consequence of” a thing, which, being bottomed upon it, follows it in order of time. A disbu[r]sement must be either an advance or anticipation or a payment. Tis not presumeable that the constitution meant to distinguish between these two modes of disbursement. It must have intended to leave this matter wholly to convenience.
The design of the constitution in this provision was as I conceive to secure these important ends—that the purpose the limit and the fund of every expenditure should be ascertained by a previous law. The public security is complete in this particular if no money can be expended but for an object, to an extent, and out of a fund, which the laws have prescribed.
Even in cases which affect only individual interests, if the terms of a law will bear several meanings that is to be preferred which will best accord with convenience. In cases that concern the public this rule is applicable with still greater latitude. Public convenience is to be promoted, public inconvenience to be avoided. The business of administration requires accommodation to so great a variety of circumstances, that a rigid construction would in countless instances arrest the wheels of Government. It has been shewn that the construction which has been adopted at the Treasury is in many cases essential in practice. This inclines the scale in favour of it—the words “in consequence of” admitting of various significations.
The practice of the legislature as to appropriation laws favours this construction.
These laws are generally distinct from those which create the cause of expenditure. Thus the act which declares that the President shall be allowed twenty five thousand dollars annum, that which declares that each senator and representative shall be intitled to so much per day, that which determines that each officer and soldier shall have so much per Month &c. neither of these acts is an act of appropriation. The Treasury has not conceived itself authorised to expend a single cent upon the basis of any such act; regarding it merely as constituting a claim upon the Government for a certain compensation, but requiring prior to an actual disbu[r]sement for such claim, that a law be passed authorising the disbursement out of a specified fund. This is what is considered as the law by which the appropriation is made; from which results to the Public a double security.
Hence every year a particular act (sometimes more than one) is passed appropriating certain sums for the various branches of the public service, and indicating the funds from which the monies are to be drawn. The object, the sum and the fund are all that are to be found in these acts. They are commonly, if not universally, silent as to any thing further.
This I regard as constructive of the clause in the constitution. The appropriation laws are in execution of that provision and fulfil all its purposes. And they are silent as to the distinction between anticipation & payment, in other words, as to the manner of disbursement.
Hence I conclude that if there exist a law appropriating a certain sum for the salary of the President, an advance upon that sum in anticipation of the service, is as constitutional as a payment after the service has been performed; in other words, that the advance of a quarters salary at the beginning of a quarter is as much warranted by the constitution as the payment of it at the end of a quarter.
It is in the sense, that the present Secretary of the Treasury has affirmed that “not one Dollar has at any time been advanced for the use of The President for which there was not an existing appropriation.”10 He did not mean to say, that no money had been advanced in anticipation of the service; for the fact is otherwise, but nothing is more true than that the sums disbursed were within the limits of the sums appropriated. If there was an excess at the end of one year, there had been a previous appropriation for a succeeding year, upon which that excess was an advance.
It is objected to this practice, that the death of the party between the advance to him and the expiration of an equivalent term of service, by superseding the object of the advance, would render it a misexpenditure of so much money and therefore a violation of the constitution.
I answer that the same casualty might have the same effect in other cases, in which it would be against common sense to suppose that an advance might not be made with legality and propriety.11
Suppose for example a law was to be passed directing a given quantity of powder to be purchased for public use, and appropriating a definite sum for the purchase, and suppose intelligence brought to the secretary of the Treasury that the quantity required could be procured for prompt payment at Boston. It cannot in such case be doubted that the sum appropriated might legally be advanced to an Agent to proceed to Boston to make the purchase. Yet that Agent might die, and the money never be applied according to its destination, or the desired quantity might be procured for a less sum, and a ballance remain in his hands. In either case, there would be money disbursed which was not actually applied to the object of the law—in the last case there is no final object for the disbursement because the ballance is a surplus. This proves that the possibility of a failure or falling short of the object for which an advance is made is not an objection to its legality. Indeed the consequence is a possible one in every case of an anticipation, whether to contractors or to other public agents, for a determinate or an indeterminate purpose.
The only consequence is that the sum unapplied must be accounted for and refunded. The distinction here again is between an advance and a payment. More cannot certainly be finally paid than is equal to the object of an appropriation, though the sum appropriated exceed the sum necessary. But more may be advanced, to the full extent of the appropriation, than may be ultimately exhausted by the object of the expenditure, on the condition which always attends an advance of accounting for the application & refunding an excess. This is a direct answer to the question whether more can be paid than is necessary to satisfy the object of an appropriation. More cannot be paid, but more may be advanced, on the accountability of the person to whom it is advanced.12
But risk of loss to the public may attend this principle? This is true, but it [is] as true in all the cases of advances to Contractors &c. as in those of advances upon salaries and compensations—nor does this point of risk affect the question of legality—it to touches merely that of a prudent exercise of discretion. When large sums are advanced it is usual to obtain security for their due application or for indemnification. This security is greater or less according to the circumstances of the parties to whom the advances are made. When small sums are advanced, especially if for purposes quickly fulfilled, and to persons who are themselves adequate sureties, no collateral security is demanded. The head of the department is responsible to the Government for observing proper measure and taking proper precautions. If he acts so as to incur justly the charge of improvidence or profusion he may be dismissed or punished according to the nature of his misconduct.
But the principle which is set up would, it is said, be productive of confusion distress and bankruptcy at the Treasury, since the appropriation for the support of Government is made payable out of the accruing duties of each year, and an established right in the officers of Government to claim their compensations, which amount to several hundred thousand dollars per annum, either on the first day of the year, or on the first day of a quarter before the services were rendered, would create a demand at a time when there might not and possibly would not be a single shilling in the Treasury arising out of that appropriation to satisfy it.*
It is not pretended, that there is an established right in the Officers to claim their salaries, by anticipation, at the beginning of a year or at the beginning of a quarter—no such right exists. The performance of the service must precede the right to demand payment. But it does not follow that because there is no right in the officer to demand payment, it may not be allowable for the Treasury to advance upon account for good reasons. A discretion of this sort in the head of the department can at least involve no embarrassment to the Treasury, of the formidable evils indicated; for the officer who makes the advance being himself the judge whether there is a competent fund and whether it can be made with convenience to the Treasury he will only make it when he perceives that no evil will ensue.
Let me recur to the example of advances to contractors for supplying the army. Suppose that in the terms of contract certain advances were stipulated and made; but it turned out nevertheless that the contractor disappointed in the funds on which he had relied could not execute his contract without further advances. Here there would be no right on his part to demand such further advances; but there would be a discretion in the Treasury to make them. This is an example of a discretion to do what there is not a right to demand. The existence of this discretion can do no harm, because the head of the Treasury will judge whether the state of it permits the required advances. But It is essential that the discretion should exist, because otherwise there might be a failure of supplies which no plan that could be substituted might be able to avert.
Yet the discretion is in neither case an arbitrary one. It is one which the head of the department is responsible to exercise with a careful eye to the public interest and safety. The abuse of it, in other words, the careless or wanton exercise of it, would be a cause of dismission for incapacity or of punishment for malconduct.
Thus advances on account of salaries or to Contractors for procuring public supplies might be carried so far and so improvidently managed as to be highly culpable and justly punishable; but this is a distinct question from the violation of constitution or law.
In all the cases, it is a complete answer to the objection of embarrassment to the Treasury, that not the will of the parties but the judgment of the head of the department is the rule and measure of the advances which he may make within the bounds of the sums appropriated by law.
I consider the law which has been cited with regard to the pay of the army as a legislative recognition of the rule of practice at the Treasury. The legislature could not have been ignorant that it was impracticable at certain seasons of the year to convey the money to the army to fulfil their injunction, without an advance from the Treasury before the pay became due. They presuppose a right to make this advance and enjoin that the Troops shall not be left more than two months in the year. The origin of this law enforces the observation. It is known that it passed in consequence of representations that the pay of the army was left too long in arrear, and it was intended to quicken the measures of payment. No person in either house of the legislature, I believe, doubted that there was power to precede the service by advances so as to render the payment even more punctual than was enjoined.
Indeed such advances when the army operated at a distance were necessary to fulfil the contract with the army. Its pay became due monthly, and in strictness of contract was to be made at the end of each month; a thing impossible unless advanced from the Treasury before it became due. No special authority was ever given for this purpose to the Treasury, but it appears to have been left to take its course on the principle, that the disbursement might take place as soon as there was an appropriation, though in anticipation of the term of service.
The foregoing observations vindicate, I trust, the construction of the Treasury as to the power of making disbursements in anticipation of services and supplies, if there has been a previous appropriation by law for the object, and if the advances never exceed the amount appropriated; and at the same time evince that this practice involves no violation of the constit[ut]ional provision with respect to appropriations.
I proceed to examine that clause which respects the pay of the President. It is in these words—“The President shall at stated times receive for his services a compensation, which shall neither be increased nor diminished, during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the UStates or any of them.”
I understand this clause as equivalent to the following—“There shall be established by law for the services of the President a periodical compensation, which shall not be increased nor dim[in]ished during the term for which he shall have been elected, and neither the U States nor any state shall allow him any emolument in addition to his periodical compensation.”
This will I think, at first sight, appear foreign to the question of a provisional advance by the Treasury on account of the compensation periodically established by Law for his services.
The manifest object of the provision is to guard the independence of the President from the legislative controul of the UStates or of any state, by the ability to withold lessen or increase his compensation.
It requires that the law shall assign him a definite compensation for a definite time. It prohibits the legislature from increasing or dim[in]ishing this compensation during any term of his election, and it prohibits every state from granting him an additional emolument. This is all that the clause imports.
It is therefore satisfied, as to the U States, when the legislature has provided that the President shall be allowed a certain sum for a certain term of time and so long as it refrains from making an alteration in the provision. All beyond this is foreign to the subject.
The Legislature having done this, an advance by the Treasury in anticipation of the service cannot be a breach of the provision. Tis in no sense an additional allowance by the UStates. Tis a mere advance or loan upon account of the established periodical compensation. Will legal ideas or common parlance warrant the giving the denomination of additional compensation to the mere anticipation of the term of an established allowance? If they will not, tis plain such an advance is no breach of this part of the constitution.
If the clause is to be understood literally it leads to an absurdity. The terms are “The President shall at stated times receive &c” and again “he shall not receive within that period &c.”
His allowance is at the rate of 25000 Dollars per annum, 6250 Dollars quarter yearly. Suppose at the end of a year, an arrear of 5000 Dollars was due to him, which he omits to receive till some time in the succeeding year, and in the succeeding year actually receives that ballance with his full salary for the last year. Tis plain that he would not have received in the whole more than he was allowed by law, and yet in the stated period of one year he would have received 30,000 Dollars, five thousand more than his salary for the year. In a literal sense then constitutional provision as to actual payment would not have been complied with; for within the first of the stated periods he would not have received the compensation allotted and within the second of them, he would have received more. In a literal sense, it would be necessary to make the payment at the precise day, to the precise amount, neither more nor less; which as a general rule the indispensable forms of the Treasury render impossible. It follows that actual receipt or payment are not the criterion but the absolute definitive allowance by law. An advance beforehand or a payment afterwards are equally consistent with the true spirit & meaning of this part of the constitution.
Let us now see, if the construction of the Treasury violates the law which establishes the Presidents compensation.
The act of the 24th Septr. 178913 allows to the President at the rate of 25000 dollars per annum, to commence from the time of his entering on the duties of his office, and to be paid quarterly out of the Treasury of the U States.”
The question is what is to be understood by these words, to be paid quarterly out of the Treasury of the UStates?
The conception of the Treasury has been that these words, as used in this and in the analogous cases, were meant to define the time, when the right of an individual to the compensation earned became absolute; not as a command to the Treasury to issue the money at the precise day and no other.
As mentioned above, the indispensable forms of the Treasury, in compliance with the law establishing the department and to secure a due accountability, make it impracticable to pay at the day; and if expressions of the kind in question are to be construed literally and as a positive injection to the Treasury to issue the money at the period defined, it will be as much a breach of the law to pay afterwards as to advance beforehand.
The position that an after payment would be a breach of the law will hardly be contended for, and if not—the alternative seems to be the construction adopted by the Treasury. Such expressions denote simply that at certain periods individuals acquire a perfect right to particular sums of money for their services which it becomes a matter of course to pay; but they are not obliged to receive it at the day, nor is the Treasury restrained from paying it afterwards or from anticipating by way of loan, if there are adequate reasons for such anticipation.
It is not true as alleged that the invariable practice of the Treasury, as to compensations for services differs in principle from what was done in the case of the President.
Instances to the contrary have been stated. As to what regards the army, there has been sufficient explanation.
But it will be useful to be more particular as to the course which has been pursued with reference to the two houses of Congress.
The law that regulates their compensation (passed the 22d of Sep. 1789)14 allows to each member a compensation of six dollars for every day he shall attend the House, to which he belongs, together with six Dollars for every 20 Miles of distance to & from his place of residence, and directs that the compensation which shall be due shall be certified by the President of the Senate or Speaker of the House of Representatives and shall be passed as public accounts and paid out of the Treasury.
By an arrangement between each house and the Treasury Department the course actually pursued has been as follows.
Certain gross sums usually of 15 at the commencement of each session & from time to time afterwards have been advanced from the Treasury, at request to the President of the Senate for the members of the Senate, to the Speaker of the House of Representatives, for the members of that house; on account and frequently in anticipation of their accruing compensations. The President of the Senate in the Senate & the Speaker of the House of Representatives in that house disbursed the monies to the individuals, & afterwards upon the close of each session settled an account at the Treasury, accompanied with the certificates required by the law and the receipts of the members which were examined adjusted & passed as other public accounts.16
Whether there were any advances actually made to the members, in anticipation of their compensations, was a point never discussed between the Treasury & the presiding officers of the two houses, with whom the money was deposited, but I understand that examples of such advances did exist in relation to the House of Representatives. The fact is however immaterial to the point in issue. That must be tested by the times of the advances from the Treasury, and it is certain that these were usually made in anticipation of compensations to grow due; and it is also certain that the course was well understood by both houses of Congress, & is exhibited by the Accounts of the Treasurer laid before them in each session.
If therefore the advances for the President were unconstitutional and illegal; those for both houses of Congress were equally so; and if the President be chargeable with a violation of the constitution of the laws and of his oath of office on account of extra-advances to his secretaries, whether with or without his privity, the members of both houses of Congress, without exception, have been guilty of the same crimes, in consequence of the extra advances with their privity to the presiding officers of their respective houses.
A distinction may possibly be attempted to be taken in the two cases from this circumstance—that the law which allots the compensation of the members of the two houses does not use the words “to be paid every day out of the Treasury” while that which establishes the Presidents compensation does use the terms “to be paid quarterly out of the Treasury.” But this distinction would be evidently a cavil. When a law fixes the term of a compensation; whether per day month per quarter or per annum, if it says nothing more, it is implied that it is payable at each epoch out of the Treasury, in the same sense as if this was expressly said. This observation applies as well to the monthly pay of the Army as to the dayly pay of Congress. The motive to the arrangement which was made for the payment of the members of Congress was two fold. It was to obviate embarrassment to them by facilitating and accelerating the receipt of their compensations and to avoid an inconvenient multiplication of adjustments entries warrants & payments. The theory of the provision admitted of as many Treasury settlements entries warrants & payments each day as there were members in both houses.
Having examined the question as it stands upon the constitution & the laws, I proceed to examine the course of the fact.
But previous to this, I shall take notice of one point, about which there has been doubt17 and which it is not within my present recollection whether definitively settled or not by the accounting officers of the Department. It respects the time of the commencement of the Presidents compensation. The law establishing it refers to the time of his entering upon the duties of his office, but without defining that time.
When in a constitutional & legal sense did the President enter upon the duties of his Office?
The constitution enjoins that before he enters upon the execution of his office, he shall take a certain oath, which is prescribed. This oath was not taken till the 30th. of April 1789. If we date the entrance upon the duties of his office at the time of taking this oath, it determines the epoch to be the 30th. of April 1789.
But there is room for another construction. The 3 of March 178918 is the day, when the term, for which the President Vice President & the members of Congress were first elected, was deemed to commence. The constitution declares that the President shall hold his office for four years; and it is presumeable that the clause respecting his compensation contemplates its being for the whole term for which he is to hold his office. Its object may otherwise be evaded.
It is also (I believe) certain that the President may execute his office and do valid acts as President without previously taking the oath prescribed; though in so doing if voluntary he would be guilty of a breach of the constitution & would be liable to punishment. The taking of the oath is not therefore necessarily the criterion of entering upon the duties of office.
It is a fact too if I remember right that at New York the place assigned for the first meeting of the Government on the 3d. of March 1789—which might be considered as an entrance upon the duties of his office; though from the delays which attended the meeting of Congress the oath was deferred till the 30th of April following.19
On the strength of these facts, it may be argued that by force of the constitution, dating the commencement of the Presidents term of service on the 3d.20 of March 1789, the law respecting his compensation ought to be considered as referring to that period for a virtual entrance upon the duties of his Office.
In stating this construction, I must not be understood to adopt it. I acknowlege that the other as most agreeable to the more familiar sense of the terms of the law has appeared to me preferable; though I had reason to believe that an important officer of the Government (I do not mean the President) once thought otherwise. The result in point of fact will vary as the one or the other is deemed the true construction.21
I return to an examination of the course of the transaction.
Authentic statements which have been published with some supplementary ones received from the Treasury upon the occasion exhibit the following results.
I Result. The sums advanced for the use of the President from the Treasury have never exceeded the sums previously appropriated by law; though they have sometimes exceeded sometimes fallen short of the sums actually due for services. This is thus explained—
|An Act of the 24th of September 178922 Appropriated for paying the compensation of the President Dollars||25000|
|The sums advanced to the 8th. of April 1790 & charged to this appropriation are|
|An Act of the 26 of March 179023 appropriates for the same purpose||25000|
|The sums advanced from May 4th. 1790 to the 28 Feby. 1791 & charged to this appropriation|
|An Act of the 11th. of Feby. 179124 appropriates for the same purpose||25000|
|The sums advanced from the 28th. February 1791 to 2725 of December in the same year & charged to this appropriation are||22150|
|Excess of appropriation beyond the Advances Dr.|
|An Act the 23 of December 179126 appropriates for the same purpose||25000|
|The sums advanced from the 3d. of Jany. 1792 to the 15 of January 1793 & charged to this appropriation are|
|An Act of the 28 of February 179327 appropriates for the same purpose||25000|
|The sums advanced from the 9th. of March 1793 to the 27 of December in the same year & charged to this appropriation are|
|An Act of the 14th of March 179428 appropriates for the same purpose Dollars||25000|
|The sums advanced from the 17 of March 1794 to the first of January 1795 & charged to the same appropriation are|
|An Act of the 2d. of January 179529 appropriates for the same purpose||25000|
|The sums advanced from the 12 of January 1795 and prior to the 1st of October in the same year and charged to this appropriation are|
|Excess of appropriation beyond advances on the first of August30 1795||12500|
|Excess of Appropriation on the Act of the 11 of February 179131||2850|
|Total Excess of appropriations beyond advances to the 1st of October 1795.32Dr.|
The residue of the proposition is illustrated by the quarterly statement of salary and advances at foot.
II Result The Treasury never has been in advance for the President beyond the sums actually accrued and due to him for services to the amount of one quarter’s salary. The largest advance at any one time is 6154 dollars. A quarter’s salary is 6250 Dollars. Deducting the sums at certain times in arrear from those at other times in advance, the average of the advances for the whole term of his service is about .33 The particulars of this result appear in the statement at foot. This statement is digested by quarters of the Calendar year which is the established course of the Treasury & a course essential to the order of its affairs; that is to say it is essential there should be certain fixed periods to which the ordinary stated disbursements are referred & in conforming with which the Accounts of the Treasury are kept.
III Result On the first of October 1795, there were actually due to the President for his compensation over and above all advances for his use the sum of 846 Dollars. This likewise appears from the statement at foot and intirely refutes the malevolent suggestion which has appeared of an accumulation of advances to twelve or fifteen [thousand]34 Dollars.
IV Result The sums advanced for the President prior to the commencement of the term of his second election the 3d. of March 179335 fall short of the sums appropriated for his compensation 2850 Dollars: thus
|The aggregate of the sums appropriated for four years from the 29 of September 1789 to the 23 of December 1791 inclusively is Ds.||100 000|
|The amount of all the sums advanced prior to the 3d.36 of March 1793 is||97 150|
|Excess of appropriations beyond advances. =||2 850|
It is nevertheless true that not only there have been frequent anticipations of the Presidents salary (as appears more particularly in the statement at foot) but counting from the 30th of April 1789 as the commencement of his compensation the sums advanced for his use prior to the 3d. of March 1793 the expiration of his first term of election exceed those actually due to that period by 1108 Dollars & 34 Cents.37
If on the contrary, the construction were adopted which dates his compensation on the 4th of March 1789 there would have been a ballance due to him on the 4 of March 179538 of 2850 Dollars.
But proceeding on the first supposition the whole question still turns upon the legality of advances. If it was legal to make him an advance in anticipation of his salary within any period of his election—within one quarter on account of a succeeding quarter, it was equally legal to do it within one year on account [of] a succeeding year and within one term of an election on account of a succeeding term. The only inquiry would be in either case—will the sum advanced be within the bounds of the sums before that time appropriated? It has been seen, that the sums appropriated for the first four years of service exceeded those advanced prior to the commencement of the second period of election by 2850 Dollars. Besides this on the 28 of February 1793 there was a further appropriation of 25000 Dollars so that at the beginning of the second term, the total appropriation exceeded the total disbursements by 27850 Dollars.
Thus has it been shewn, that the advances for the use of the President have been governed by a rule of construction, which has obtained in analogous cases, or more truly which has regulated the general course of disbursements from the Treasury—a rule which I trust has been demonstrated to be consonant with the Constitution and the laws.
It is requisite to inquire a little further whether there has been any improper use or rather abuse of the discretion which is contended for, for here there is likewise an unquestionable responsibility. It is seen that the advances have at no time equalled one quarters salary.
I ask was it39 unreasonable or unfit, if constitutional and legal, to afford the President of the U States an accommodation of this extent?
I pledge my veracity, that I have always understood and to this moment I have good reason to be satisfied, that the expences of the President, those of his household and others incident to his official situation, have fully equalled if not on some occasions exceeded the allowance made to him by the U States. Under this conviction, especially, how could the head of a department hesitate by so small an accommodation as the advance of less than a quarters salary to enable the President of the U States to meet his expences as they accrued, without being obliged to intrench upon his own private resources, or to resort to the expedient of borrowing to defray expences imposed upon him by public situation? I knew that no possible risk could attend the advance, little considerable as it was. The estate of the President was answerable in case of death or other premature vacancy, and abundant for the indemnification of the Government.
Reasons of a peculiar kind forbade hesitation. The scale of expence was unavoidably such as to render the income even of what is deemed a large landed property in this country a slender auxiliary. Without an advance from the Treasury it was not improbable borrowing might be necessary. Was it just to compel the President to resort to that expedient for a purpose in fact public, at his private expence? Was it for the dignity of the Nation that he should have been exposed to a necessity, an embarrassment of this sort?
My judgment and feelings answered both these questions in the negative. I entertained no doubt of the constitutionality or legality of the advance, and I thought the making of it due to the situation—due to propriety—due to every public consideration connected with the subject. I can never regret it.40
How far the President was privy to the course of advances, I cannot say. But it is certain they have been all made to his private secretaries upon a general arrangement and not by special directions from him. And I think it proper to add that very early in the day, and probably before any was made, on an application by Mr. Lear,41 for a sum which would constitute an advance he qualified it by this observation—“if in your opinion it can be done with legality & perfect propriety.” I answered that I had no doubt of either.
I shall not attempt to assume any greater responsibility in this transaction than belongs to me but42 I have been accustomed to think that the responsibility for the due and regular disbursement of monies from the Treasury lies exclusively with the Officers of the Department. And that except in a very palpable and glaring case, the charge of blameable participation could not fall on any other person.
As between the officers of the Treasy, I take the responsibility to stand thus. The Secretary and Comptroller in granting warrants upon the Treasurer are both answerable for their legality. In this respect the Comptroller is a check upon the Secretary. With regard to the expediency of an advance, in my opinion the right of judging is exclusively with the head of the Department. The Comptroller has no voice in this matter. So far therefore as concerns legality, in the issues of money, while I was in the Department, the Comptroller must answer with me. So far as a question of expediency, or the due exercise of discretion may be involved, I am solely answerable. And so uniformly was the matter understood between successive Comptrollers & myself—So also it is essential to the due administration of the department, that it should be understood.
I have stated my reasons for considering the advances made for the use of the President as constitutional legal and proper. But I pretend not to infallibi[li]ty. ’Tis possible I may have erred. But to convert error into guilt it must be supposed to have been wilful. To suppose it wilful it is necessary to trace it to some interested or sinister motive. If any appears let it be pointed out. It is not common for men to commit crimes of a deep die without some adequate inducement.
What criminal inducement could have probably influenced the rule of construction as to advances which has been stated to have been adopted & acted upon at the Treasury? What criminal inducement particularly could have led to the application of this rule to the Presidents compensation in so restricted a form as never once to equal one quarter’s salary? Who in his senses will believe that the President would consciously have hazarded the imputation of violating the constitution the laws and his oath of office, by imposing on the officers of the Treasury the necessity of making him so paltry an advance? falsely and ridiculously called a donation? Who will believe that those officers would have consented to expose themselves to the same imputation by a compliance, when they knew that the evidence of their guilt must regularly be communicated in each succeeding session to both houses of Congress and to the public at large? To believe either is to believe all the parties concerned foolish in the extreme, as well as profligate in the extreme, destitute equally of intellect as of principle.
To an observation made by Mr. Wolcott on the communications from the Treasury,43 it has been answered that there was no merit in the disclosure, because the number of Agents and the forms of the Treasury rendered it unavoidable.44 The fact is so. But the force of the observation turns upon the egregious folly of intentionally committing the crimes imputed, when it was certain beforehand that the means of detection must be furnished and without delay by the Treasury itself.
It is certain that there never has been the least attempt at mystery or concealment. The documents reported by the Treasury to both houses of Congress carried in their face the prominent evidence of what was done. Frequent and indiscriminate personal suggestions revealed the principle of action. It is evident, that it must have been understood and acquiesced in by all the members of the two houses of congress.
Hard would be the condition of public officers, if even a misconstruction of constitutional & legal provisions, attended with no symptom of criminal motive, carrying the proof of innocence in the openness and publicity of conduct, could justly expose them to the odious charges which on this occasion are preferred. Harder still would be their condition if in the management of the great and complicated business of a Nation the fact of misconstruction which is to constitute their guilt is to be decided by the narrow and rigid rules of a criticism—no less pedantic than malevolent! Preeiminently Hard in such circumstances, was the lot of the man who called to the head of the most arduous department in the public administration, in a new Government, without the guides of antecedent practice & precedent, had to trace out his own path and to adjust for himself the import and bearings of delicate and important provisions in the constitution & in the laws!
Reposing myself on a consciousness which in no possible situation can fail to prove an invulnerable shield to my tranquillity I leave to a candid Public to pronounce the sentence which is due to an attempt, on such a foundation, to erect against The President of the U States, my successor in Office and myself, the heinous charges of violation of the constitution, violation of the laws, exertion of arbitrary will on the one side, abject submission on the other misapplication of the public money and to complete the newspaper groupe—intentional Perjury!45
Quarterly statements of the account for compensation of the President of the United States from his taking the oath of office on the 30th April, 1789, to the 30th September, 1795.46
|Compensation from April 30, to June 30, 1789, 62 days,||4,246|
|Compensation from July 1, 1789, to Sept. 30, 1795, 6 years 3 months,||156,250|
|Total due dollars,||160,496|
|Advanced till the end of 1791, pr. printed statement,||72,150|
|Ditto in 1792,||22,500|
|Ditto in 1793,||27,500|
|Ditto in 1794,||24,000|
|Ditto in 1795, to Sept. 30,||13,500|
|Balance due the President,||846|
Register’s Office, Nov. 13, 1795.
Extract from the books of the Treasury.
Joseph Nourse, Register.
ADfS, Hamilton Papers, Library of Congress; [New York] Daily Advertiser, Supplement, November 20, 1795.
1. In the Daily Advertiser H’s article was introduced as follows: “Explanation. By Mr. Hamilton on the subject of a late attack upon the President of the United States, and the former and present Secretary of the Treasury, in relation to the compensation of the President.”
H wrote this article in reply to charges made by “A Calm Observer,” who in a letter to the [Philadelphia] Aurora. General Advertiser on October 23, 1795, had accused the President of having repeatedly overdrawn his salary. See H to George Washington, October 26, 1795; H to Oliver Wolcott, Jr., October 26, 27, 28, 1795; Wolcott to H, October 29, November 2, 1795.
Minor word variations between H’s draft and the newspaper version have been ignored; only substantive differences have been noted.
2. In MS, “precedecessor.”
3. In the newspaper version the phrase “under the influence of sinister aims” is inserted at this point.
4. For the informal advances to Army contractors, see “Report on Rules and Modes of Proceeding with Regard to the Collection, Keeping, and Disbursement of Public Moneys, and Accounting for the Same,” March 4, 1794, note 20.
5. At this point in the draft H wrote and crossed out the following paragraph: “It results that if the construction of the Treasury has been an erroneous one, the other heads of Departments and both houses of congress are, as much at least as the President, implicated in it by participation and acquiescence. If it be said that the whole responsibility was with the Treasury Department, why does not this exculpate the President equally with any other person except the officers of that Department. But in fact is not a rule of the constitution (which is also alleged to have been violated) obligatory on every part of the Government? and does not any department or person which within its sp[h]ere partakes of a violation of it by another department or person become an accomplice in that violation?”
6. Space left blank in MS. The material within brackets has been taken from the Daily Advertiser.
7. “An Act in addition to the ‘Act for making further and more effectual provision for the protection of the frontiers of the United States’” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 390 [June 7, 1794]).
8. At this point in the draft H wrote and crossed out the following paragraph: “In the case of the salaries to foreign Ministers placed as they were beyond the Atlantic, a pecuniary provision by anticipation was essential to their seasonable support.”
9. In the newspaper version the following paragraph is inserted at this point: “The question upon the clause is whether when an appropriation has been made for a particular service or supply, the actual disbursement from the treasury must follow the service or supply in the nature of payment, or may precede it in the nature of an advance? I hold the last construction which is that adopted by the treasury to be the true one.”
11. In the margin opposite this paragraph H wrote: “Note advance to Clerk sent to N Carolina.”
12. In the newspaper version the following paragraph appears at this point: “The case stated by way of example is also conclusive to the point that money may be drawn from the Treasury in anticipation of the object of expenditure.”
13. In MS, H first wrote “30th of September 1790.” Above this he wrote “(24th Septr 1789).” H is referring to “An Act for allowing a Compensation to the President and Vice President of the United States” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 72 [September 24, 1789]). The correct date appears in the newspaper version of this article.
14. In MS, H first wrote “29 Sept 1789.” Above this he wrote “(22d).” He is referring to “An Act for allowing Compensation to the Members of the Senate and House of Representatives of the United States, and to the Officers of both Houses” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 70–72 [September 22, 1789]). In the newspaper version the date is mistakenly given as September 29, 1789.
15. Space left blank in MS. In the newspaper version after the words “Certain gross sums usually” there is a footnote which reads: “The advances for the Senate have usually been about 5,000 dollars—and for the House of Representatives from 12 to 20,000 dollars.”
16. In the newspaper version the following sentence was added to this paragraph: “They also refunded to the Treasury the monies which remained in their hands respectively beyond the compensations due to the members of the Senate and house of Representatives as will appear by referring to the printed statements annually laid before Congress.”
17. In the newspaper version the remainder of this sentence reads: “and which was not definitively settled by the accounting office of the department until after the President’s first term of four years was completed.”
18. In the newspaper this date has been changed to “the 4th of March 1789.”
19. This paragraph has been omitted in the newspaper version.
20. In the newspaper the date has been changed to the “4th of March 1789.”
21. In the newspaper version of this article this paragraph reads: “In stating this construction, however equitable it may be deemed, I must not be understood to adopt it. I acknowledge that the other as most agreeable to the more familiar sense of the terms of the law has appeared to me preferable, and it was accordingly established, tho’ not till after all the advances, for the first four years had been made. The result in point of fact would however have varied as the one or the other had been deemed the true construction.”
23. “An Act making appropriations for the support of government for the year one thousand seven hundred and ninety” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 104–06).
24. “An Act making appropriations for the support of Government during the year one thousand seven hundred and ninety-one, and for other purposes” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 190).
25. In the newspaper this date is “28th of December.”
26. “An Act making Appropriations for the Support of Government for the year one thousand seven hundred and ninety-two” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 226–29).
27. “An Act making appropriations for the support of Government for the year one thousand seven hundred and ninety-three” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 325–29).
28. “An Act making Appropriations for the support of Government, for the year one thousand seven hundred and ninety-four” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 342–45).
29. “An Act making appropriations for the support of Government for the year one thousand seven hundred and ninety-five” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 405–08).
30. In the newspaper this reads “October.”
31. See note 24.
32. At this point in the newspaper the following paragraph appears: “Thus it appears not only that the disbursements have never exceeded the appropriations; but, on the contrary, that the appropriations have exceeded the disbursements. An accurate attention to dates shews particularly that there was always a pre-existing appropriation which was never exceeded by the disbursements, having regard to order of time.”
33. Space left blank in MS. The entire sentence was omitted in the newspaper.
34. The bracketed word has been taken from the newspaper.
35. In the newspaper this reads “4th of March 1793.”
36. See note 35.
37. In the margin opposite the end of this paragraph H wrote “Qr.” In the newspaper the figures read “1042 dollars and 69 cents.”
38. In the newspaper, “1793.”
39. In MS, “is.”
40. In the newspaper version there is a footnote at this point which reads: “Those who are acquainted with the great expence for several years past of living in New-York and Philadelphia will not be surprised that the expences of the President should have equalled or exceeded his salary, upon a scale which no friend to the reasonable respectability of the Chief Magistrate and to national dignity would wish to see diminished, But the removal of the seat of Government, was an occasion, in different ways, of a large extraordinary expense.”
41. Tobias Lear was Washington’s secretary from 1786 to 1793.
42. In the newspaper this sentence begins at this point.
44. In MS, “unavoivable.”
45. In the newspaper version the following postscript was added to this article: “P. S. An imperfect state of health and much occupation have delayed the explanation longer than was wished.”
46. The quarterly statements of Washington’s salary are not in the MS and have been taken from the [New York] Daily Advertiser.