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 legisla ture, 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 President 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 pe. riodical 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 25,000 dollars per annum, 6,250 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 balance 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 stated period 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 or 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 and meaning of this part of the Constitution.

Let us now see if the construction of the Treasury violates the law which establishes the President's compensation.

The act of the 29th of September, 1789, allows to the President at the rate of 25,000 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 United States.

The question is, what is to be understood from these words, "to be paid quarterly out of the Treasury of the United States?"

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 a 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 injunction 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 Treasurer 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 compensations (passed the 29th of September, 1789) 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 twenty miles of distance to and 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 paid as public accounts are 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 at the commencement of each session, and from time to time afterwards, have been advanced from the Treasury at request, to the President of the Senate for