1669 MAY 7, 1834.] be true. OF DEBATES IN CONGRESS. President's Protest. [SENATE. This This, 28th of March; and, entertaining that opinion, its right ficial acts of the Executive, for the purpose of censure, to express it is but the necessary consequence of its right and without a view to legislation or impeachment. to defend its own constitutional authority, as one branch I think, sir, is pretty high-toned pretension. According This is its clear right, and this, too, to this doctrine, neither House can assert its own rights, of the Government. however the Executive might assail them; neither House is its imperative duty. If one, or both, the other branches of the Government could point out the danger to the people, however fast happen to do that which appears to us inconsistent with Executive encroachment might be extending itself, or the constitutional rights of the Senate, will any one say whatever danger it might threaten to the public liberties. that the Senate is yet bound to be passive, and to be silent; If the two Houses of Congress may not express an opinto do nothing, and to say nothing? Or if one branch ap-ion of Executive conduct by resolution, there is the same pears to encroach on the rights of the other two, have reason why they should not express it in any other form, these two no power of remonstrance, complaint, or re-or by any other mode of proceeding. Indeed, the prosistance? Sir, the question may be put in a still more test limits both Houses, expressly, to the case of imstriking form. Has the Senate a right to have an opinion peachment. If the House of Representatives are not in a case of this kind? If it may have an opinion, how is about to impeach the President, they have nothing to say that opinion to be ascertained but by resolution and vote? of his measures or of his conduct; and unless the Senate The objection must go the whole length; it must main-are engaged in trying an impeachment, their mouths, too, tain that the Senate has not only no right to express opin are stopped. It is the practice of the Executive to send ions, but no right to form opinions, on the conduct of the us an annual message, in which he rehearses the general Executive Government, though in matters intimately af-proceedings of the Executive for the past year. fecting the powers and duties of the Senate itself. It is message we refer to our committees for consideration. not possible, sir, that such a doctrine can be maintained But, according to the doctrine of the protest, they can All political bodies resist what they express no opinion upon any Executive proceeding upon for a single moment. deem encroachments, by resolutions expressive of their which it gives information. Suppose the President had sentiments and their purpose to resist such encroach- told us, in his last annual message, what he had previousments. When such a resolution is presented for its con- ly told us in his cabinet paper, that the removal of the desideration, the question is, whether it be true, not whe- posites was his act, done on his responsibility; and that ther the body has authority to pass it, admitting it to the Secretary of the Treasury had exercised no discreThe Senate, like other public bodies, is per- tion, formed no judgment, presumed to have no opinion fectly justifiable in defending, in this mode, either its le- whatever, on the subject. This part of the message gislative or executive authority. The usages of Parlia- would have been referred to the Committee on Finance; ment, the practice in our State Legislatures and Assem- but what could they say? They think it shows a plain blies, both before and since the Revolution, and precedents violation of the constitution and the laws: but the Presiin the Senate itself, fully maintain this right. The case dent is not impeached; therefore, they can express no They may, indeed, of the Panama mission is in point. In that case, Mr. censure. They think it a direct invasion of legislative The grateful business of praise Branch, from North Carolina, introduced a resolution, power, but they must not say so. which, after reciting that the President, in his annual commend, if they can. message, and in his communication to the Senate, had as-is lawful to them; but if, instead of commendation and serted that he possessed an authority to make certain ap-applause, they find cause for disapprobation, censure, or pointments, although the appointments had not been alarm, the protest enjoins upon them absolute silence. Formerly, sir, it was a practice for the President to made, went on to declare that "a silent acquiescence on the part of this body, may, at some future time, be drawn meet both Houses at the opening of the session, and deinto dangerous precedent;" and to resolve, therefore, liver a speech, as is still the usage of some of the State that the President does not possess the right or power Legislatures. To this speech there was an answer from said to be claimed by him. This resolution was discussed, each House, and those answers expressed, freely, the senand finally laid on the table. But the question discussed timents of the House upon all the merits and faults of the was, whether the resolution was correct, in fact and prin- administration. The discussion of the topics contained in ciple; not whether the Senate had any right to pass such the speech, and the debate on the answers, usually drew resolution. So far as I remember, no one pretended that, out the whole force of parties, and lasted sometimes a if the President had exceeded his authority, the Senate week. President Washington's conduct, in every year No one ventured to of his administration, was thus freely and publicly canmight not so declare by resolution. contend that, whether the rights of the Senate were in-vassed. He did not complain of it; he did not doubt that both Houses had a perfect right to comment, with the utvaded or not, the Senate must hold its peace. Answers, or amendments to answers, were not unThe protest labors strenuously to show that the Senate most latitude, consistent with decorum, upon all his measadopted the resolution of the 28th of March, under its ures. judicial authority. The reason of this attempt is obvious frequently proposed, very hostile to his course of public enough. If the Senate, in its judicial character, has been policy, if not sometimes bordering on disrespect. And trying the President, then he has not had a regular and when they did express respect and regard, there were To all this, President Washington took no formal trial; and, on that ground, it is hoped, the public votes ready to be recorded against the expression of those But the Senate has acted not sentiments. sympathy may be moved. in its judicial, but in its legislative capacity. As a legis- exception; for he well knew that these and similar prolative body, it has defended its own just authority, and ceedings belonged to the power of popular bodies. But the authority of the other branch of the Legislature. if the President were now to meet us with a speech, and Whatever attacks our own rights and privileges, or what-inform us of measures adopted by himself in the recess, ever encroaches on the power of both Houses, we may which should appear to us the most plain, palpable, and oppose and resist, by declaration, resolution, or other dangerous violations of the constitution, we must, neversimilar proceeding. If we look to the books of prece-theless, either keep respectful silence, or fill our answer Mr. President, I know not who wrote this protest, but dents, if we examine the journals of legislative bodies, merely with courtly phrases of approbation. we find, every where, instances of such proceedings. It is to be observed, sir, that the protest imposes silence I confess I am astonished, truly astonished, as well at the on the House of Representatives as well as on the Sen- want of knowledge which it displays of constitutional law, It declares that no power is conferred on either as at the high and dangerous pretensions which it puts branch of the Legislature, to consider or decide upon of- forth. Neither branch of the Legislature can express ate. SENATE.] President's Protest. [MAY 7, 1834. censure upon the President's conduct! Suppose, sir, that through which to make public these opinions. After we should see him enlisting, troops, and raising an army; this, it would seem too late to enjoin on the Houses of can we say nothing, and do nothing? Suppose he were Congress a total forbearance from all comment on the to declare war against a foreign power, and put the army measures of the Executive. and the fleet in action; are we still to be silent? Suppose Not only is it the right of both Houses, or of either, to we should see him borrowing money on the credit of the resist, by vote, declaration, or resolution, whatever it may United States; are we yet to wait for impeachment? In-deem an encroachment of Executive power, but it is also deed, sir, in regard to this borrowing money on the credit undoubtedly the right of either House to oppose, in like of the United States, I wish to call the attention of the manner, any encroachment by the other. The two Senate not only to what might happen, but to what has Houses have each its own appropriate powers and au actually happened. We are informed that the Post Office thorities, which it is bound to preserve. They have, too, Department, a department over which the President different constituents. The members of the Senate are claims the same control as over the rest, has actually bor-representatives of States; and it is in the Senate alone rowed near half a million of money on the credit of the that the four-and-twenty States, as political bodies, have United States. a direct influence in the Legislative and Executive powers Mr. President, the first power granted to Congress by of this Government. He is a strange advocate of State the constitution, is the power to lay taxes; the second, rights, who maintains that this body, thus representing the power to borrow money on the credit of the United the States, and thus being the strictly Federal branch of States. Now, sir, where does the Executive find its au- the Legislature, may not assert and maintain all and sinthority, in or through any department, to borrow money gular its own powers and privileges, against either or both without authority of Congress? This proceeding appears of the other branches. to me wholly illegal, and reprehensible in a very high de If any thing be done or threatened derogatory to the gree. It may be said that it is not true that this money rights of the States, as secured by the organization of the is borrowed on the credit of the United States, but that it Senate, may we not lift up our voices against it? Suppose is borrowed on the credit of the Post Office Department. the House of Representatives should vote that the Senate But that would be mere evasion. The department is but ought not to propose amendments to revenue bills; would a name. It is an office, and nothing more. The banks it be the duty of the Senate to take no notice of such have not lent this money to any officer. If Congress proceeding? Or, if we were to see the President isshould abolish the whole department to-morrow, would suing commissions of office to persons who had never the banks not expect the United States to replace this been nominated to the Senate, are we not to remonborrowed money? The money, then, is borrowed on the strate? credit of the United States; an act which Congress alone Sir, there is no need of cases, no end of illustration. is competent to authorize. If the Post Office Depart- The doctrines of the protest, in this respect, cannot stand ment may borrow money, so may the War Department the slightest scrutiny; they are blown away by the first and the Navy Department. If half a million may be breath of discussion. borrowed, ten millions may be borrowed. What, then, And yet, sir, it is easy to perceive why this right of deif this transaction shall be justified, is to hinder the Ex-claring its sentiments respecting the conduct of the Executive from borrowing money, to maintain fleets and ar- ecutive, is denied to either House, in its legislative camies, or for any other purpose, at his pleasure, without pacity. It is merely that the Senate might be presented any authority of law? Yet, even this, according to the in the odious light of trying the President, judicially, doctrine of the protest, we have no right to complain of. without regular accusation or hearing. The protest deWe have no right to declare that an executive depart- clares that the President is charged with a crime, and, ment has violated the constitution and broken the law, by without hearing or trial, found guilty and condemned. borrowing money on the credit of the United States. Nor This is evidently an attempt to appeal to popular feeling, could we make a similar declaration, if we were to see and to represent the President as unjustly treated and unthe Executive, by means of this borrowed capital, enlist- fairly tried. Sir, it is a false appeal. The President has ing armies and equipping fleets. And yet, sir, the Pres-not been tried at all; he has not been accused; he has not ident has found no difficulty, heretofore, in expressing been charged with crime; he has not been condemned. his opinions, in a paper, not called for by the exercise of Accusation, trial, and sentence, are terms belonging to any official duty, upon the conduct and proceedings of the judicial proceedings. But the Senate has been engaged two Houses of Congress. At the commencement of this in no such proceeding. The resolution of the 28th of session he sent us a message commenting on the land bill March was not an exercise of judicial power, either in which the two Houses passed at the end of the last ses-form, in substance, or in intent. Every body knows that sion. That bill he had not approved, nor had he return- the Senate can exercise no judicial power, until articles ed it with objections. Congress was dissolved; and the of impeachment are brought before it. It is then to pro bill, therefore, was completely dead, and could not be re-ceed, by accusation and answer, hearing, trial, and judgvived. No communication from him could have the least ment. But there has been no impeachment, no answer, possible effect as an official act. Yet, he saw fit to send a no hearing, no judgment. All that the Senate did was to message on the subject, and in that message he very free-pass a resolution, in legislative form, declaring its opinion ly declares his opinion, that the bill which had passed of certain acts of the Executive. This resolution imboth Houses began with an entire subversion of every one puted no crime; it charged no corrupt motive; it proof the compacts by which the United States became pos- posed no punishment. It was directed, not against the sessed of their Western domain; that one of its provisions President, personally, but against the act; and that act it was in direct and undisguised violation of the pledge giv-declared to be, in its judgment, an assumption of authoren by Congress to the States; that the constitution pro-ity not warranted by the constitution. vides that these compacts shall be untouched by the Legis- It is in vain that the protest attempts to shift the resolative power, which can only make needful rules and lution on to the judicial character of the Senate. The regulatious; and that all beyond that is an assumption of undelegated power. These are the terms in which the President speaks of an act of the two Houses of Congress; in no official paper, in no communication which it was necessary for him to make to them; but in a message, adopted only as a mode case is too plain for such an argument to be plausible. But in order to lay some foundation for it, the protest, as I have already said, contends that neither the Senate nor the House of Representatives can express its opinions on the conduct of the President, except in some form connected with impeachment; so that if the power of im MAY 7, 1834.] President's Protest. [SENATE. peachment did not exist, these two Houses, though they ficial conduct of the Executive, so have their representabe representative bodies, though one of them be filled tives. We have been taught to regard a representative by the immediate representatives of the people, though of the people as a sentinal on the watch-tower of liberty. they be constituted like other popular and representative Is he to be blind, though visible danger approaches? Is bodies, could not utter a syllable, although they saw the he to be deaf, though sounds of peril fill the air? Is he to Executive either trampling on their own rights and privi-be dumb, while a thousand duties impel him to raise the leges, or grasping at absolute authority and dominion cry of alarm? Is he not, rather, to catch the lowest over the liberties of the country! Sir, I hardly know how whisper which breathes intention or purpose of encroachto speak of such claims of impunity for Executive en-ment on the public liberties, and to give his voice breath croachment. I am amazed that any American citizen and utterance at the first appearance of danger? Is not should draw up a paper containing such lofty pretensions; his eye to traverse the whole horizon, with the keen and pretensions which would have been met with scorn, in eager vision of an unhooded hawk, detecting, through all England, at any time since the revolution of 1688. A disguises, every enemy advancing, in any form, towards man who should stand up, in either House of the British the citadel which he guards? Sir, this watchfulness for Parliament, to maintain that the House could not, by vote public liberty, this duty of foreseeing danger and proor resolution, maintain its own rights and privileges, claiming it, this promptitude and boldness in resisting atwould make even the tory benches hang their heads for tacks on the constitution from any quarter, this defence very shame. There was, indeed, a time when such pro- of established landmarks, this fearless resistance of whatceedings were not allowed. Some of the kings of the ever would transcend or remove them, all belong to the Stuart race would not tolerate them. A signal instance representative character, are interwoven with its very naof royal displeasure with the proceedings of Parliament ture, and of which it cannot be deprived, without conoccurred in the latter part of the reign of James the First. verting an active, intelligent, faithful agent of the people The House of Commons had spoken, on some occasion, into an unresisting and passive instrument of power. A "of its own undoubted rights and privileges.' "The King representative body which gives up these rights and duthereupon sent them a letter, declaring that he would not ties, gives itself up. It is a representative body no longer. allow that they had any undoubted rights; but that what It has broken the tie between itself and its constituents, they enjoyed they might still hold by his own royal grace and henceforth is fit only to be regarded as an inert, selfand permission. Sir Edward Coke and Mr. Granville sacrificed mass, from which all appropriate principle of were not satisfied with this title to their privileges; and, vitality has departed forever. under their lead, the House entered on its Journals a resI have thus endeavored to vindicate the right of the olution asserting its privileges, as its own undoubted Senate to pass the resolution of the 28th of March, notright, and manifesting a determination to maintain them withstanding the denial of that right in the protest. as such. This, says the historian, so enraged his majesty, But there are other sentiments and opinions expressed that he sent for the Journal, had it brought into the coun-in the protest, of the very highest importance, and which cil, and there, in the presence of his lords and great of demand nothing less than our utmost attention. ficers of state, tore out the offensive resolution with his The first object of a free people is the preservation of own royal hand. He then dissolved Parliament, and sent their liberty; and liberty is only to be preserved by mainits most refractory members to the tower. I have no taining constitutional restraints and just divisions of politi fear, certainly, sir, that this English example will be fol- cal power. Nothing is more deceptive or more dangerlowed, on this occasion, to its full extent; nor would I in-ous than the pretence of a desire to simplify government. sinuate that any thing outrageous has been thought of, The simplest governments are despotisms; the next simor intended, except outrageous pretensions; but such plest, limited monarchies; but all republics, all governpretensions I must impute to the author of this protest,ments of law, must impose numerous limitations and whoever that author be. qualifications of authority, and give many positive and When this and the other House shall lose the freedom many qualified rights. In other words, they must be subof speech and debate; when they shall surrender the ject to rule and regulation. This is the very essence of rights of publicly and freely canvassing all important free political institutions. The spirit of liberty is, indeed, measures of the Executive; when they shall not be al- a bold and fearless spirit; but it is also a sharp-sighted lowed to maintain their own authority and their own priv-spirit; it is a cautious, sagacious, discriminating, far-seeing ileges, by vote, declaration, or resolution, they will then intelligence; it is jealous of encroachment, jealous of be no longer free representatives of a free people, but slaves power, jealous of man. It demands checks, it seeks for themselves, and fit instruments to make slaves of others. guards, it insists on securities; it intrenches itself behind The protest, Mr. President, concedes what it doubtless strong defences, and fortifies, with all possible care, regards as a liberal right of discussion to the people them- against the assaults of ambition and passion. It does not selves. But its language, even in acknowledging this trust the amiable weaknesses of human nature, and thereright of the people to discuss the conduct of their ser-fore it will not permit power to overstep its prescribed vants, is qualified and peculiar. The free people of the limits, though benevolence, good intent, and patriotic United States, it declares, have an undoubted right to dis-purpose come along with it. Neither does it satisfy itself cuss the official conduct of the President, in such lan- with flashy and temporary resistance to illegal authority. guage and form as they may think proper, "subject only Far otherwise. It seeks for duration and permanence. to the restraints of truth and justice." But then who is to be the judge of this truth and justice? Are the people to judge for themselves, or are others to judge for them? The protest is here speaking of political rights, and not moral rights; and if restraints are imposed on political rights, it must follow, of course, that others are to decide, whenever the case arises, whether these restraints have been violated. It is strange that the writer of the protest did not perceive that, by using this language, he was pushing the President into a direct avowal of the doctrines of 1798. The text of the protest, and the text of the obnoxious act of that year, are nearly identical. But, sir, if the people have a right to discuss the of It looks before and after; and, building on the experience of ages which are past, it labors diligently for the benefit of ages to come. This is the nature of constitutional liberty; and this is our liberty, if we will rightly understand and preserve it. Every free government is necessarily complicated, because all such governments establish restraints, as well on the power of government itself, as on that of individuals. If we will abolish the distinction of branches, and have but one branch; if we will abolish jury trials, and leave all to the judge; if we will then ordain that the legislator shall himself be that judge; and if we will place the executive power in the same hands, we may readily simplify government. We may easily bring SENATE.] President's Protest. [MAY 7, 1834. it to the simplest of all possible forms, a pure despotism. are employed in prescribing the organization, and enuBut a separation of departments, so far as practicable, merating the powers, of the three departments. The first and the preservation of clear lines of division between article treats of the Legislature, and its first section is: them, is the fundamental idea in the creation of all our "All legislative power, herein granted, shall be vested in constitutions; and, doubtless, the continuance of regulated a Congress of the United States, which shall consist of a liberty depends on maintaining these boundaries. Senate and House of Representatives." In the progress, sir, of the Government of the United The second article treats of the Executive power, and its States, we seem exposed to two classes of dangers or dis- first section declares that "the executive power shall be turbances; one external, the other internal. It may hap-vested in a President of the United States of America." pen that collisions arise between this Government and the The third article treats of the Judicial power, and its Governments of the States. That case belongs to the first section declares that "the judicial power of the first class. A memorable instance of this kind existed United States shall be vested in one Supreme Court, and last year. It was my conscientious opinion, on that oc- in such inferior courts as the Congress may, from time to casion, that the authority claimed by an individual State time, ordain and establish." was subversive of the just powers of this Government, It is too plain to be doubted, I think, sir, that these and, indeed, incompatible with its existence. I gave a descriptions of the persons or officers in whom the exechearty co-operation, therefore, to measures which the utive and the judicial powers are to be vested, no more crisis seemed to require. We have now before us what define the extent of the grant of those powers, than the appears, to my judgment, to be an instance of the latter words quoted from the first article describe the extent of kind. A contest has arisen between different branches of the legislative grant to Congress. All these several titles, the same Government, interrupting their harmony, and heads of articles, or introductory clauses, with the generthreatening to disturb their balance. It is of the highest al declarations which they contain, serve to designate the importance, therefore, to examine the question carefully, departments, and to mark the general distribution of and to decide it justly. powers; but in all the departments, in the executive and judicial as well as in the legislative, it would be unsafe to contend for any specific power under such clauses. The separation of the powers of government into three departments, though all our constitutions profess to be founded on it, has, nevertheless, never been perfectly es- If we look into the State constitutions, we shall find tablished in any government of the world, and, perhaps, the line of distinction between the departments still less never can be. The general principle is of inestimable perfectly drawn, although the general principle of the value, and the leading lines of distinction sufficiently plain; distinction is laid down in most of them, and, in some of yet there are powers of so undecided a character, that them, in very positive and emphatic terms. In some of they do not seem necessarily to range themselves under these States, notwithstanding the principle of distribution either head. And most of our constitutions, too, having is adopted and sanctioned, the Legislature appoints the laid down the general principle, immediately create ex- judges; and in others it appoints both the governor and ceptions. There do not exist in the general science of the judges; and in others again, it appoints not only the government, or the received maxims of political law, such judges, but all other officers. precise definitions as enable us always to say of a given The inferences which, I think, follow from these views power whether it be legislative, executive, or judicial. of the subject are two: first, that the denomination of a And this is one reason, doubtless, why the constitution, in department does not fix the limits of the powers conferconferring power on all the departments, proceeds not red on it, nor even their exact nature; and, second, by general definition, but by specific enumeration. And (which, indeed, follows from the first,) that, in our Ameragain, its grants a power in general terms, but yet, in the ican Governments, the chief Executive magistrate does same, or some other article or section, imposes a limita- not necessarily, and by force of his general character of tion or qualification on the grant; and the grant and the supreme Executive, possess the appointing power. He limitation must, of course, be construed together. Thus may have it, or he may not, according to the particular the constitution says that all legislative power, therein provisions applicable to each case, in the respective congranted, shall be vested in Congress, which Congress shall stitutions. consist of a Senate and House of Representatives; and yet, The President appears to have taken a different view in another article, it gives to the President a qualified of this subject. He seems to regard the appointing negative over all acts of Congress. So the constitution power as originally and inherently in the Executive, and declares that the judicial power shall be vested in one Su- as remaining absolute in his hands, except so far as the preme Court, and such inferior courts as Congress may constitution restrains it. This I do not agree to, and establish. It gives, nevertheless, in another provision, shall have occasion hereafter to examine the question judicial power to the Senate; and, in like manner, though further. I have intended, thus far, only to insist on the it declares that the executive power shall be vested in the high and indispensable duty of maintaining the division President, using, in the immediate context, no words of of power, as the constitution has marked that division out; limitation, yet it elsewhere subjects the treaty-making and to oppose claims of authority not founded on express power, and the appointing power, to the concurrence of grants or necessary implication, but sustained merely by the Senate. The irresistible inference, from these con- argument, or inference, from names or denominations siderations is, that the mere denomination of a department given to departments. as one of the three great and commonly acknowledged Mr. President, the resolutions now before us declare, departments of government, does not confer on that de- that the protest asserts powers as belonging to the Prespartment any power at all. Notwithstanding the depart-ident, inconsistent with the authority of the two Houses ments are called the legislative, the executive, and the of Congress, and inconsistent with the constitution; and judicial, we must yet look into the provisions of the con- that the protest itself is a breach of privilege. I believe stitution itself, in order to learn, first, what powers the all this to be true. constitution regards as legislative, executive, and judicial; The doctrines of the protest are inconsistent with the and, in the next place, what portions or quantities of authority of the two Houses, because, in my judgment, these powers are conferred on the respective departments; they deny the just extent of the law-making power. because no one will contend that all legislativepower be- take the protest as it was sent to us, without inquiring longs to Congress, all executive power to the President, how far the subsequent message has modified or explained or all judicial power to the courts of the United States. it. It is singular, indeed, that a paper, so long in prepThe first three articles of the constitution, as all know, aration, so elaborate in composition, and which is put I MAY 7, 1834.] President's Protest. [SENATE. forth for so high a purpose as the protest avows, should Senate to their constituents, after such interference had not be able to stand an hour's discussion before it became evident that it was indispensably necessary to alter or explain its contents. Explained, or unexplained, however, the paper contains sentiments which justify us, as I think, in adopting these resolutions. already been made, in the same paper, in the most objectionable and offensive form. If it were not for the purpose of telling these Senators that they disobeyed the will of the Legislatures of the States they represent, for what purpose was it that the protest has pointed out the In the first place, I think the protest a clear breach of four Senators, and paraded against them the sentiments privilege. It is a reproof, or rebuke, of the Senate, in of their Legislatures? There can be no other purpose. language hardly respectful, for the exercise of a power The protest says, indeed, that "these facts belong to the clearly belonging to it as a legislative body. It entirely history of these proceedings!" To the history of what misrepresents the proceedings of the Senate. I find this proceedings? To any proceeding to which the President paragraph in it, among others of a similar tone and char-was party? To any proceeding to which the Senate was acter: "A majority of the Senate, whose interference party? Have they any thing to do with the resolution of with the preliminary question has, for the best of all rea- the 28th of March? But it adds, that these facts are imsons, been studiously excluded, anticipate the action of portant to the just development of the principles and inthe House of Representatives, assume not only the func-terests involved in the proceedings. All this might be tion which belongs exclusively to that body, but convert said of any other facts. It is mere words. To what themselves into accusers, witnesses, counsel, and judges, principles, to what interests, are these facts important? and prejudge the whole case. Thus presenting the ap-They cannot be important but in one point of view; and palling spectacle, in a free state, of judges going through that is, as proof, or evidence, that the Senators have disa labored preparation for an impartial hearing and decis- obeyed instructions, or acted against the known will of ion, by a previous ex parte investigation and sentence their constituents, in disapproving the President's conagainst the supposed offender." duct. They have not the slightest bearing in any other Now, sir, this paragraph, I am bound to say, is a total way. They do not make the resolution of the Senate misrepresentation of the proceedings of the Senate. A more or less true, nor its right to pass it more or less majority of the Senate have not anticipated the House of clear. Sir, these proceedings of the Legislatures were Representatives; they have not assumed the functions of introduced into this protest for the very purpose, and no that body; they have not converted themselves into accusers, witnesses, counsel, or judges. They have made no ex parte investigation; they have given no sentence. This paragraph is an elaborate perversion of the whole design and the whole proceedings of the Senate. A protest, sent to us by the President, against votes which the Senate has an unquestionable right to pass, and containing, too, such a misrepresentation of these votes as this paragraph manifests, is a breach of privilege. other, of showing that the members of the Senate have acted contrary to the will of their constituents. Every man sees and knows this to have been the sole design; and any other pretence is a mockery to our understandings. And this purpose is, in my opinion, an unlawful purpose; it is an unjustifiable intervention between us and our constituents; and is, therefore, a manifest and flagrant breach of privilege. In the next place, the assertions of the protest are inconsistent with the just authority of Congress, because they claim for the President a power, independent of Congress, to possess the custody and control of the public treasures. Let this point be accurately examined; and, in order to avoid mistake, I will read the precise words of the protest: But there is another breach of privilege. The President interferes between the members of the Senate and their constituents, and charges them with acting contrary to the will of those constituents. He says it is his right and duty to look to the Journals of the Senate, to ascertain who voted for the resolution of the 28th of March, and then to show that individual Senators have, by their votes “The custody of the public property, under such regon that resolution, disobeyed the instructions, or violated ulations as may be prescribed by legislative authority, the known will of the Legislatures who appointed them, has always been considered an appropriate function of the All this he claims, as his right and his duty. And where Executive department in this and all other Governments. does he find any such right, or any such duty? What In accordance with this principle, every species of propright has he to send a message to either House of Con-erty belonging to the United States, (excepting that gress, telling its members that they disobey the will of which is in the use of the several co-ordinate departments their constituents? Has any English sovereign, since of the Government, as means to aid them in performing Cromwell's time, dared to send such a message to Par- their appropriate functions,) is in charge of officers apliament? Sir, if he can tell us that some of us disobey pointed by the President, whether it be lands, or buildour constituents, he can tell us that all do so; and if we ings, or merchandise, or provisions, or clothing, or arms consent to receive this language from him, there is but and munitions of war. The superintendents and keepone remaining step; and that is, that since we thus dis-ers of the whole are appointed by the President, and reobey the will of our constituents, he should disperse us, movable at his will. and send us home. In my opinion, the first step in this "Public money is but a species of public property. It process is as distinct a breach of privilege as the last. If cannot be raised by taxation or customs, nor brought into Cromwell's examples shall be followed out, it will not be the treasury in any other way except by law; but whenever more clear then than it is now, that the privileges of the or howsoever obtained, its custody always has been, and Senate have been violated. There is yet something, sir, always must be, unless the constitution be changed, intrustwhich surpasses all this; and that is, that after this directed to the Executive department. No officer can be created interference, after pointing out those Senators whom he by Congress, for the purpose of taking charge of it, whose would represent as having disobeyed the known will of appointment would not, by the constitution, at once detheir constituents, he disclaims all design of interfering at volve on the President, and who would not be responsiall! Sir, who could be the writer of a message, which, ble to him for the faithful performance of his duties." in the first place, makes the President assert such mon- And, in another place, it declares that "Congress canstrous pretensions, and, in the next line, affront the un-not, therefore, take out of the hands of the Executive derstanding of the Senate by disavowing all right to do department the custody of the public property or money, that very thing which he is doing? If there be any thing, without an assumption of executive power, and a subsir, in this message, more likely than the rest of it to move version of the first principles of the constitution." These, one from his equanimity, it is this disclaimer of all design sir, are propositions which cannot receive too much atto interfere with the responsibility of members of the tention. They affirm, that the custody of the public |