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B[enjamin] F[ranklin] Butler to MVB, 7 November 1837

My dear Sir,

I have not been able until today to bring the matters referred to in your note of the 29th to a conclusion.

Herewith I send the inaugural, with some comment by Mr.Bogart in it. 

I called at Riker's but could not get a copy of Jefferson's works of law, under $18. This morning I proposed to the party who had offered me a set at $16.50 to give him $15 cash for the set, and after some demur he finally agreed to my proposal. I will keep Vol 1, if you have no objection, and you may send me the balance of $13.34. ^They will go by express on Monday to Kinderhook Post Office.^ 

If you cannot find 12th. & 14th. Peters at Kinderhook, I will send you my copies.

The distinction to which I alluded, grows out of the consideration of the different capacities in which, under the Constitution, the President is required to act. The Constitution vests him with a qualified negative, in all bills passed by the two houses of Congress. In the exercise of this power, he acts as a branch, but as a seperate and independent branch, of the Legislative Department. If he conscientiously believes, acting upon his best judgment and with the aid of all the lights he can obtain, that a bill sent to him by the two Houses is unconstitutional, he must refuse his assent or prove false to the oath he has taken, "to preserve, protect & defend" it, to the best of his ability, "the Constitution of the U States." In the exercise of this right power & the discharge of this duty, the President vetoes a bill rechartering the U. S. Bk. on the express, and if you please, the sole ground, that the Const. gave Congress no power to create any such corporation. But a bill incorporating the Bk. had passed through all the forms of legislation and recd. the Presidents sanction 20 years before, and under it the Bk had been in operation and in certain judicial cases ensuing under this law, the Courts, including the Court of last resort, had decided that the act incorporating the Bk. was a valid constitutional law, and on this ground had rendered many judgments in its favor for the recovery of moneys <lost> to the dealers with it. An execution issues, upon one of the Judgments to the Marshal of the U.S. He is resisted in the execution of the process, and the resistance reaches the height of an insurrection. The same President, who in the exercise of his legislative functions, withheld his assent from a bill rechartering that Bk., and who would, had he been in office when the first bill was sent to the Executive, have vetoed that also, on the ground of its absolute unconstitutionality would yet, ^in his purely executive capacity,^ be obliged, to look on the case of resistance above supposed, to take measures for executing the laws touching the enforcement of the process in the Marshal's hand. So too, if the dependent's property ^land^ be sold under the judgment and bought by the Banks, and duly conveyed to it, but the defendant refuses to yield possession. The Bk then brings ejectment to recover the land. If Judge Roane provides the defence that the act of Congress incorporating the Bk is a nullity, may perhaps he sustained, and under his direction, there will be judgment for the defendant. But Marshall, or Kent or Story holds the Court and the plaintiff gets judgment; and this, if you please, is confirmed by the judgment of the Supreme Court: A writ of possession then issues; but forcible resistance is made—the President at the day, whatever may be his opinion on the question of Constitutional power in the Legislature, and whatever he might do in his Legislative capacity, on a bill sent to him by Congress, must take care that the laws be faithfully executed, and to this end must protect & uphold the marshal in the execution of the writ of possession. In all these cases, the matter submitted to the Court, was, under the Constitution, a forensic or judicial question, properly cognizable by the Court, and its judgment, when derendered in due form, being conclusive, as to the particular thing in contestation, as between the parties to the suit, is inconclusive, also ^as to that thing^ on all others, the President included. In all executive matters necessary to the complete execution of the Judgment, he acts in aid of the judiciary, just as he also does, through his officer the Marshal, in the service of the capias or other process by which the suit was begun. It is because people do not understand or remember this distinction, that so much confusion prevails, and sometimes even among lawyers, in respect to the functions & prerogatives of the President & Judiciary and the lines by which they are respectively bounded. 

Take another case. The U.S. wish to purchase land for the site of an arsenal or Court House. The Atty. Gen. of the U.S. who has yesterday given, it may be, to the President, his official advice agt. signing a Bill rechartering the Bk. on the ground of the utter want of power in Congress, to create such a law, finds, on examining the abstract of title referred to here, that the land in question, about to be purchased by the Govertnmnt , was once owned by the Bk. of the U.S., but he also finds that in a suit respecting that very land, judgment was rendered by the Supreme Court of the U.S. in favor of the title of the Bk. Seeing this, he wd. probably say ^"as to^ this particular parcel of land, there has been a conclusive judgment that there was such an Institution; that it had a legal corporate existence; and that it had capacity to take, hold & convey these premises; and therefore from whatever may be my own private opinion on the abstract question of constitutional power, there is no flaw in this title, because of its being derived from an artificial body which I think Congress had no power to create, &c &c"

I could give other illustrations, but my head begins to give way, & I have said enough, doubtless either to shew the ^soundness of the^ distinction & have in my mind, or else to enable you to see its fallacy. 

The election, you see, has not very much disappointed me in its results. I think the Legislature will be well constituted for some useful reforms in our currency laws, and in other respects also.

With my best regards to your whole household, believe m[e] as ever, most

 

faithfully yrs

B.F. Butler

PS. I send the <rf> which, by acciden[t,] was omitted in my last. 

Source: DLC Library of Congress
Collection: MVB Papers (DLC)
Series: Series 14 (1 January 1849-24 July 1862; undated)