The act of Congress passed January 31, 1823, prohibiting the
advance of public money in any case whatsoever to the disbursing
officers of government except under the special direction of the
President does not require the personal and ministerial performance
of this duty, to be exercised in every instance by the President
under his own hand.
Such a practice, if it were possible, would absorb the duties of
the various departments of the government in the personal action of
the one chief executive officer and be fraught with mischief to the
public service.
The President's duty, in general, requires his superintendence
of the administration, yet he cannot be required to become the
administrative officer of every department and bureau or to perform
in person the numerous details incident to services, which,
nevertheless, he is in a correct sense by the Constitution and laws
required and expected to perform.
It is legal evidence that the President specially authorized and
directed, in writing, the Secretary of the Treasury to make such
advances, and that such paper was destroyed when the Treasury
building was burned. It is sufficient if the witness states his
belief that it was so destroyed. The case in
22 U. S. 9
Wheat. 486 examined and confirmed.
The dockets and records of a court showing that money had been
received by the marshal or his deputies under executions are good
evidence in a suit against his securities. The acts of the court
must, in the first instance, be presumed to be regular, and in
conformity with settled usage; and are conclusive until reversed by
a competent authority.
The facts were these:
On 4 February, 1831, Henry Ashton was appointed Marshal of the
District of Columbia, and on the 7th executed a bond for the
faithful performance of the duties by himself and his deputies.
There were several securities, among whom was James Williams, the
plaintiff in error. He remained in office until 28 February,
1834.
In June, 1835, the United States brought suit upon the bond, to
which there was a plea of performance. The replication assigned
five breaches: 1. that he had neglected to return executions issued
for fines and costs, 2. that he had discharged persons committed to
his custody under execution, 3. that he had not accounted for fines
paid, 4. that he had not accounted
Page 42 U. S. 291
for money advanced to him by the Secretary of the Treasury under
the special direction of the President of the United States, and 5.
that he had discharged persons from prison without authority of
law. To this replication there were a rejoinder and issues, and in
1839 the case was tried. The verdict of the jury was for the United
States. The two bills of exception taken at the trial are set forth
in the opinion of the Court, and need not be repeated.
Page 42 U. S. 293
MR. JUSTICE DANIEL delivered the opinion of the Court.
The defendants in error instituted an action of debt in the
circuit court against the plaintiff in error, as surety for Henry
Ashton, deceased, late Marshal of the District of Columbia, in a
bond executed by Ashton conditioned for the faithful performance of
the duties of his office. On oyer of the bond, the defendant
pleaded generally conditions performed by the marshal and his
deputies; after this plea, various breaches of the condition of the
bond were specially assigned charging the late marshal with failing
to account for moneys advanced to him by the Secretary of the
Treasury under special direction of the President of the United
States, with not having accounted for and paid over moneys received
by him and his deputies on executions, and with having failed to
collect under executions which came to his hands, moneys that he
ought to have collected from persons who were solvent. Issues were
taken to the country upon the several breaches thus assigned, and
the jury empanelled to try those issues returned as their verdict
in substance that the said Henry Ashton, by himself and his
deputies, did not well and faithfully perform and fulfill all the
duties of his office of marshal of the district in pursuance of the
acts of Congress in such cases made and provided, and they found
the sum of $8.279.25, with interest thereon from 24 November, 1836,
to be really and justly due to the United States on the marshal's
bond. Upon this verdict the court gave a judgment for $20,000, the
penalty of the bond, but to be discharged by the amount assessed by
the jury, together with the costs of suit.
At the trial and before the jurors withdrew from the bar, the
defendant below tendered two bills of exceptions to the ruling of
the court in the cause, which bills of exceptions are as
follow:
"Defendant's first bill of exceptions. On the trial of this
cause, the plaintiffs, to support the issues joined, on their part
offered to give in evidence the accounts settled between the United
States
Page 42 U. S. 294
and Henry Ashton, late Marshal of the District of Columbia, upon
whose official bond this action is brought against the defendant as
one of the sureties therein named. By these accounts it appears
that a balance appears due from the said Ashton to the United
States of $6,455.16. That in making up the said balance, various
sums of money were from time to time during his continuance in
office advanced and paid to him, as marshal as aforesaid, out of
the Treasury of the United States by order of the Secretary of the
Treasury, before the said Ashton, as marshal, had rendered accounts
or vouchers showing that he had himself advanced and paid the same
or any part thereof to those entitled by law to receive the same,
and while balances for moneys previously advanced to him existed on
the books of the department, and before it had been shown that the
same had been properly applied and expended, and when the said sum
of $6,455.16 was not in fact due from the United States for any
services rendered or money expended."
"And the plaintiffs offered in evidence the statements of Asbury
Dickins, formerly a clerk in the Treasury Department, and of
McClintock Young, now chief clerk of said department, which,
reserving all objections to the competency of such testimony, it
was agreed should be received as if said parties had been sworn in
the case, and had testified in accordance with said statements. To
the admissibility of all which testimony the defendant objects, but
the court overruled the objection and the defendant, by his
counsel, excepts, and the said evidence being thus admitted to go
to the jury, the counsel for the plaintiffs prayed the court to
instruct the jury that upon this evidence, the plaintiff was
entitled to recover the said sum of $6,445.16 against the
defendant, and the court, overruling the objection of the defendant
thereto, gave said instruction, to which the defendant excepts, and
the court, in pursuance of the statute, signs and seals this bill
of exceptions to all the matters so ruled as aforesaid this 11
January, 1840."
"W. CRANCH [L. S.]"
"B. THRUSTON [L. S.]"
"JAMES S. MORSELL [L. S.]"
"Second bill of exceptions. In the further trial of this cause,
the plaintiffs produced the dockets and records of this Court
showing that in a number of cases where judgment had been
entered
Page 42 U. S. 295
against defendants for common law fines, forfeitures, and costs,
adjudged against the said defendants, and the said defendants had
paid the said amounts, so respectively adjudged against them, to
the marshal, and entries were thereupon made by the said marshal or
his deputy, on the dockets of said courts, 'money made and ready,'
'money paid,' and that the amounts so received by said marshal
amounted to the sum of."
"And the plaintiffs further proved by the dockets, records
&c., as aforesaid, that certain sums of money were adjudged by
the court aforesaid against certain defendants for common law
fines, forfeitures, and costs, upon which writs of
ca. sa.
were issued, which writs were returned by the marshal 'satisfied
marshal,' and showed that the said sums so received by said Ashton,
amounted to."
"And the defendant objected to the said several amounts as being
recoverable in this action against the said defendant, and prayed
the court to instruct the jury that he was not liable therefor; but
the court refused so to instruct the jury, and instructed them that
the defendant was liable for the amounts so received by said
Ashton."
"To which refusal the defendant, by his counsel, excepts, and
prays the court to sign and seal this bill of exceptions, which is
done accordingly, this 11th day of January, 1840."
"W. CRANCH [L. S.]"
"JAMES S. MORSELL [L. S.]"
The statements of Asbury Dickins and McClintock Young, referred
to in the first bill of exceptions, are in the following words:
"Washington, January 11, 1840"
"DEAR SIR: In compliance with your request, I now state, as I
mentioned to you verbally some time ago, that it is within my
recollection that soon after the passing of the 'act [of 31
January, 1823] concerning the disbursement of public money,' the
Secretary of the Treasury was specially authorized and directed in
writing by the President of the United States to make such advances
of money from time to time to various classes of the disbursing
officers of the government and among others to the marshals of the
United States as should be found necessary to the faithful and
prompt discharge of their respective duties and
Page 42 U. S. 296
to the fulfillment of the public engagements. The papers
containing these directions of the President were, as I believe,
destroyed in the late burning of the Treasury building."
"I am, dear sir, sincerely yours,"
"ASBURY DICKINS"
"To Francis S. Key, Esq."
"DEAR SIR: In reply to your inquiry, I have to state that all
advances to marshals U.S. are made by the Secretary of the
Treasury, and not by direction of the accounting officers."
"Yours resp'y,"
"McC. YOUNG"
"11 January, 1840"
"F. S. Key, Esq."
The questions presented for consideration here upon the
aforegoing bills of exceptions and the proofs to which they refer
are these:
1. Whether the sums of money placed in the hands of the late
marshal by the Secretary of the Treasury, and forming a part of the
aggregate found by the verdict of the jury, were so advanced in
conformity with the law as to create a liability on the part of the
sureties of the marshal for their proper application by that
officer, and
2. Whether the several sums admitted to have been paid to the
marshal upon executions for fines, forfeitures, and costs adjudged
against various defendants, and as to a part of which sums the
marshal or his deputy had made upon "the dockets of the court," the
following entries, "money made and ready" and "money paid," and as
to other portions of which levied on executions for fines and
forfeitures, the marshal had made on the executions themselves this
entry, "satisfied marshal," were so proved to have been received by
the marshal in virtue of his office as to render his sureties
responsible for these latter sums.
Under the first of these inquiries, it is contended for
plaintiff in error that the Act of Congress of January 31, 1823,
expressly prohibits the advancing of public money in any case
whatsoever except under the special direction of the President to
the disbursing officers of the government for the faithful and
prompt discharge of their public duties and to the fulfillment of
the public faith, and it is insisted upon as the correct
interpretation of this statute that the power thereby vested to
make advances for the
Page 42 U. S. 297
public service is not one appertaining to the office of
President, but is an authority strictly personal and ministerial,
to be exercised in every instance only by the individual himself by
his own hand, and never in any respect to be delegated. Such an
interpretation of the law this Court can by no means admit. While
it has been doubtless the object of Congress to secure economy and
regularity in public disbursements, and for that end to limit, as
far as was proper, the discretion of subordinate agents over the
public money, it never can be reasonable to ascribe to them a
conduct which must defeat every beneficial end they could have in
view and render the government an absolutely impracticable machine.
The President's duty in general requires his superintendence of the
administration; yet this duty cannot require of him to become the
administrative officer of every department and bureau or to perform
in person the numerous details incident to services which,
nevertheless, he is, in a correct sense, by the Constitution and
laws required and expected to perform.
This cannot be, 1st, because, if it were practicable, it would
be to absorb the duties and responsibilities of the various
departments of the government in the personal action of the one
chief executive officer. It cannot be for the stronger reason that
it is impracticable -- nay, impossible. The position here assumed
may be illustrated in the single example of a marshal. This officer
has various duties to perform which, though well understood, yet
all of them, as to duration and extent, contingent, and varying, of
course, as to the quantum of expense attending their performance.
He is to summon and pay grand and petit juries and witnesses; to
provide stationery and fuel for the court; guards for the
transportation and safekeeping of prisoners; to pay the
per
diem allowed to clerks and attorneys, and other incidental
charges. If the argument for the plaintiff in error be correct, it
would be indispensable either that the President should ascertain
(and that too before their performance, or, in other words, their
existence) these indefinable services, and, when so ascertained,
that he, under his own hand and none other, should give special
written instructions for the payment of each one of them, or that
the marshal should, upon credit or from his own private resources,
obtain the performance of these services and await his
reimbursement upon accounts to be subsequently allowed and
certified
Page 42 U. S. 298
by the court. Such consequences, so fraught with mischief to the
public service, utterly forbid the construction of the law
contended for by the plaintiff in error.
If it be asked how then shall the provisions and the purposes of
the statute be fulfilled, the answer is obvious, and satisfies at
once the meaning of the law and the public exigencies. Average
estimates may be formed of the expenses incident to the courts, and
instructions may be given by the President to the Secretary of the
Treasury to make advances from time to time, either upon the basis
of those estimates or upon statements or requisitions made by the
marshals themselves showing the necessity of advances to meet the
public service. And this plain and only feasible mode of complying
with the law appears to have been adopted and to have become the
settled usage of the government, as is shown by the testimony of
Asbury Dickins, admitted by the parties to be received as if taken
upon oath.
It is insisted, however, that if this interpretation of the
statute be the true one, still a compliance with its requirements
has not been shown; that neither is an order from the President to
the Secretary of the Treasury nor the copy of such an order
produced, nor is the absence of both or either of these so
accounted for as to authorize the admission of inferior evidence to
supply their place.
How stands this objection? Dickins, formerly a clerk in the
Treasury Department, states it to be a fact
"within his recollection that soon after the passing of the Act
of January 31, 1823, concerning the disbursement of the public
money, the Secretary of the Treasury was specially authorized and
directed in writing by the President of the United States to make
such advances of money from time to time to various classes of
disbursing officers of the government, and among others to the
marshals, as should be found necessary to the faithful and prompt
discharge of their respective duties, and to the fulfillment of the
public engagements. The papers containing these directions of the
President were, as he believes, destroyed in the late burning of
the Treasury building."
The general principle as to the admissibility of secondary
evidence is familiar to all, and will receive no comment from the
Court, but we will simply inquire whether the facts here shown do
not present a case falling within the operation of that principle.
What does Dickins prove? 1st, the existence of the special written
instruction
Page 42 U. S. 299
from the President, made expressly to carry into effect the law
of 1823 and forming the established rule and usage of the
department; 2d, the conflagration of the Treasury Department, the
legal and proper depository for this instruction; and 3d, the
belief of the witness, then a clerk in the department and, by
consequence to a great extent cognizant of its arrangement and
condition, that the document was destroyed in that conflagration.
Authorities need not be multiplied to show that the case before us
is completely within the rule respecting secondary evidence; a
single decision of this Court will be cited as placing that matter
wholly beyond controversy.
In
Riggs v.
Tayloe, 9 Wheat. 486, the Court, after laying down
the general rule, proceeds thus:
"It is contended that the affidavit is defective, not being
sufficiently certain and positive as to the loss of the particular
writing. The affiant only states his impression that he tore it up,
and if he did not tear it up, it has become lost or mislaid; that
this is in the alternative, and not certain and positive. We do not
concur in this reasoning. An impression is an image fixed in the
mind; it is belief, and believing the paper in question was
destroyed has been deemed sufficient to let in the secondary
evidence."
The testimony of Dickins appears to this Court much more direct
upon the point than that admitted in the case of
Riggs v.
Tayloe; we consider it as fully justifying oral proof of the
contents of the instrument to which it related, and as establishing
the character and import of that instrument, as well as the usage
founded thereupon, and upon this fact of the usage, Dickins is
corroborated by the testimony of Young, the Chief Clerk in the
Treasury Department at the time of the trial.
In considering the second exception made by the defendant, it
may be remarked that the grounds of the exception are not stated
with that distinctness and precision necessary to clear it entirely
of obscurity; still the statement is thought to contain enough to
guide the Court to a correct solution of the question involved. The
second bill of exceptions sets forth that the plaintiffs produced
the dockets and records of the court showing that in a number of
cases where judgments had been entered against defendants for
common law fines, forfeitures, and costs, and the said defendants
had paid the amounts so respectively adjudged against them to the
marshal, and entries were made by the said
Page 42 U. S. 300
marshal or his deputy on the said dockets, "money made and
ready," "money paid," and that the amounts so received amounted
&c. And again. the plaintiffs further proved by the dockets,
records, &c., that certain sums of money were adjudged by the
court against certain defendants for fines, forfeitures, &c.,
upon which judgments writs of
ca. sa. were issued, which
writs were returned by the marshal, "satisfied marshal," and showed
that the said sums amounted, &c. In the evidence set forth upon
the face of these exceptions, nothing particular is disclosed
relative to the modes of proceeding on executions or of the means
in practice by the court for recording and preserving the evidence
of such proceedings, or of the acts and returns of the officers who
may be charged with the management of final process; of course
nothing is adduced to impeach the regularity of the reception by
the court of the returns and entries made by the marshal or of the
manner of placing them permanently upon the archives of the court.
But it is admitted in the exception that all these things are
apparent on the records,
viz., the judgments and
executions, the receipt of the money by the marshal, and his
admissions of the receipt thereof, both by himself and his
deputies. These facts are conceded to be parts of the records of
the court to which the officer properly belonged, and before which
his conduct was regularly cognizable: a tribunal in all respects
competent to pass upon his acts, competent to fashion its records,
and to preserve the evidences of its won proceedings and of the
acts of its officers. The acts of this Court, then, must in the
first instance be presumed to be regular and in conformity with
settled usage, and they are conclusive until they shall be reversed
by a competent power and upon a case properly made. Upon both the
instructions given and excepted to in this cause, we approve the
opinion of the circuit court, and therefore
Affirm the same.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Washington, and was
argued by counsel. On consideration whereof it is now here ordered
and adjudged by this Court that the judgment of the said circuit
court in this cause be and the same is hereby affirmed.