appropriation." 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. Suppose, for example, a law was to be passed, directing a given quantity of powder to be purchased for publie 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 purchases. 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 balance remain in his hands. In either case, this would be money dis bursed, which was not applied to the object of the law. In the last case, there is no final object for the disbursement, because the balance 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 conse quence 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 sums 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, and 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.

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 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 the 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 measures, 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. These ideas with regard to the administration of the fund, are very crude and incorrect, but it would complicate the subject to go into the development.

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 embarrassments to the Treasury, nor 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 the 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 different 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 arrear. The origin of this law enforces the observation. It is known that it passed in consequence of a representation 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. It 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 of 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 constitutional provisions 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 United States or any of them."

I understand this clause as equivalent to the following: "There shall be established by law for the services of the Presi dent a periodical compensation, which shall not be increased nor diminished during the term for which he shall have been elected, and neither the United 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 ques tion of a provisional advance 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 control of the United States or of any State, by the ability to withhold, 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 diminishing 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 United 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 United States. '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.