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APRIL 21, 1834.]
the President must fully and clearly retract, before he of the conduct of ministers of the crown? Yet they have (Mr. C.) should become satisfied with the document. His the power, and the sole power, of trying impeachments. next message must contain an acknowledgment of the The Senate has an undoubted right, in my opinion, to exright of the Senate to express its opinion, by resolutions press its opinions on the public conduct of executive ofor otherwise, as to it may seem best, defining the limits ficers. The contingency, that it may be called on to try of his power for its own government, before such a docu- an impeachment, is no bar to the exercise of this right. ment would become palatable to him (Mr. C.) and meet Poubtless there may be cases in which the propriety of with his concurrence for its reception; and as a doubt, in its exercise might be much influenced by the considerathe opinion of many, is still left as to his entire meaning in tion that the Senate held the power of judging on imthis supplemental message, his next must, without any peachment. But this is matter of discretion. În every equivocation, distinctly renounce all claim to the uncon- case, the Senate must proceed upon its own sense of pro trolled power over the public purse, before it can be priety and justice. There may be, sometimes, good re. adapted to the taste of the freemen of this country, son to refrain from expressing opinions, and sometimes
Mr. WEBSTER rose. He said he had arrived in the there may be the highest propriety in expressing such city and resumed his seat since the debate began, and he opinions in the strongest manner. The right of doing so ruse to say that he thought the transmission of this pro- is clear, and is not to be disputed. The possession of test to be one of the most important and ominous occur- judicial power does not abridge the legislative power of rences of these extraordinary times. It is, said Mr. W., the Senate. It does not take away any of its rights as a a communication of so anomalous a character, in the first representative body. place, that it perplexed the discrimination of the Senate Sir, the President of the United States has been misto know what preliminary disposition to make of it. Some led. lle is uninformed, or misinformed, as to the real are for receiving it, others are against receiving al. state of opinion in the country. I fear there are those though it has been read, and its contents commented on. who share his confidence, and who present to liis view It seems to hang, at present, in a pendulous condition, be- only one side of things. The state of the country is tween reception and rejection. It has no resting place. alarming. Members of the Senate, who have not been It is like the coffin of Mahomet, suspended between hea- out of this city for five months, are not aware of the ven and earth, as unfit to go higher, and finding no prop- depth and strength of the public feeling. I should like er abiding place below. But I am unwilling that the to know what advisers have recommended to the Presidiscussion of this great and grave topic should be embar-dent to send us this protest. Its circulation through the rassed by questions of form. I am obliged to the mem- country will add fuel to feelings already sufficiently enber from Mississippi for the strong grasp which he laid kindled. The President has around him the heads of deon the principles of this paper, at first appearance, but partments. Can any body tell us whether any of those as to the form of proceeding with it, I confess I should heads, and if any, which of them, advised to send this have preferred to have passed over the question of re- paper to the Senate? Or which of them, if any, sat by, ception, and gone at once to the substantial character neither assenting nor dissenting, afraid to speak their of the protest itself. It is too interesting, and will prove minds, or unwilling to hazard their places? so—too exciting, and will prove so-to go from the Sen- Sir, it is not without some color of reason that the ate, till it shall have received such discussion and such re- President, in this paper, speaks of the heads of departply as it is entitled to.
ments as his Secretaries. One-balf of them have never It is said that the paper is indecorous, and justly offen- been confirmed by the Senate. Three of them, usually sive to the self-respect of the Senate; but there is much called members of the cabinet, being one-half of the more in it than indecorum, or want of respect to the Sen- whole, were appointed last year, in the recess of Conate; and I think we shall best consult the character of this gress, and now, when we are near the end of the fifth body, and better fulfil the expectation of the country, by month of the session, their appointments have not been going at once to the dangerous assertions of power which sent to the Senate for confirmation. This is a thing bethe paper sets up, and fully exposing those claims of pow- fore altogether unheard of. I hesitate not to say that er to the people. The President denies that this House, this course is derogatory to the rights of the Senate, and or indeed either House of Congress, has any right to ex- inconsistent with the intent and spirit of the constitution. press any opinion upon his conduct, except by way of It is altogether without precedent. Other Presidents impeachment. This is, indeed, new and startling. That have felt it their duty, when they have made appointin a popular representative government, the repre-ments in the recess, to send them to the Senate immedisentatives of the people may not express their opinions ately upon its assembling. Usually such nominations upon measures of the executive power, is a doctrine, 1 come to us the first ten or twelve days of the session. It believe, now, for the very first time put forth. Who has has rarely happened that they have been delayed as long ever heard of it before? Though this right is denied to as a month. But near five months have now elapsed, and either House, the President's reasons are urged mainly yet these nominations are not sent to us. When they do against the right of the Senate, and the chief reason is, come, I hope we shall know who has approved the sendthat the Senale are judges in cases of impeachment, and ing of this protest. I hope we shall learn who has made that, therefore, until impeachment come, it should be si- himself partaker in it, by positive sanction or silent aclent. But this objection, it is obvious, would stop the quiescence, mouth of the Senate, with respect to every other offi- Sir, I will not now discuss the assertions, the pretencer of the Government, as well as the President, be- sions, the dangers, of this protest. Others are in poscause all officers are equally impeachable, and the Sen- session of the debate. I do not see that the case is alate must try all impeachments.
tered by this codicil. The whole measure is of an alarm. I know not, sir, who drew this protest, but whoever ing character. It attempts one great stride towards the he was, instead of looking for sound constitutional prin accumulation of all power in executive bands; a stride ciples in the history of free governments, in the prac- which I doubt not the Senate will resist with firmness eficgislatures in the United States, or elsewhere, he and constancy; and in that resistance they will be sup
contented himself with an ancient truism from the ported by the country. Mack-letter luw books, that the House of Lords cannot Mr. FORSYTHI said, it was very unimportant to him
site an impeachment, or frame articles, and then try whether the last message was considered an explanait besoselves. But do not the Lords, as well as the Com-tion or a retraction. If the honorable gentleman from on, express their opinions, by votes and resolutions, Delaware entertained such impressions as he had just
[APRIL 21, 1834.
stated, it was very easy to be accounted for. He had least a right to be heard by the people—no one would probably read the message with a desire to see that pretend to deny it—and they would decide on his conthe Presidezt had committed an error, and, in conse- duct, and either sustain or condemn him. How could the quence, might have formed an unfavorable judgment of Executive defend himself, without presenting to the Senit. Now, with regard to what had been said by the ate a statement of his case? If he had thought of comHonorable Senator from Massachusetts, he begged leave mitting a fraud, he might have interwoven that message to say a word or two. That Senator had reiterated a with some legislative proposition, which the Senate would complaint, which he had heretofore made, in regard to have been compelled to have received, and could not have the withholding by the President of certain nominations resisted; but he had done no such thing. He had preof high officers of the Government. He was mistaken in sented a fair statement of his case, and asked only that it point of fact. There was not one-half of the cabinet might be preserved, in order that his views might be whose nominations had not been sent to the Senate. seen by posterity and the world. And he had come to
[Mt. Webster said there were three-the Secretary the Senate, not as a Chief Magistrate demanding that of State, the Attorney General, and the Secretary of bis views might be preserved on the records of the counthe 'Treasury.)
try, but with a request that they might be preserved on Mr. Forseti resumed. The principle was the same, the Journal of the Senate with the resolutions condemnwhether it was a portion only or the whole of the cabi- ing him—that no inference contrary to the executive pownet. The honorable Senator had told the Senate that er hereafter might be drawn, and for the purpose of havthose officers were in the discharge of important duties, ing justice done to his opinions as an officer and a man. in violation of the principles of the constitution, and in He, Mr. F., entirely concurred with the honorable derogation of the rights of the Senate. He would ask Senator from Massachusetts, that the country expected the honorable gentleman if he had recently read the con- and would demand, at the hands of the Senate, that this stitution?
matter should be solemnly considered and decided; that (Mr. WEBSTER. Yes, sir. ]
the question which it had raised should be treated as it Mr. FORSItu continued. Then he would beg to call his deserved, neither forgetting what was due to the dignity attention to a particular part of it, which declared that of this body, nor to the high station and dignity of our persans commissioned by the President; should hold to Chief Magistrate. There were most important and grave the termination of the next session of Congress. And considerations connected with this matter. Be they true this was an answer to the charge of a violation of the or false, they must be treated with that respect, moderaconstitution having been committed. They were the of. tion, and forbearance, which became the dignity of the ficers of the United States, as much as if they bad been Senate, or that body would be lost, in the opinion of the confirmed by the Senate, and would remain so to the American people. Let the conduct of the President be termination of the session. It was true there would have fairly examined, and no incorrect inferences be drawn. been some difference in their position, at this time, if their Yes, that was the way, and the only way, in which he nominations had been presented to the Senate, and they ought to be treated. His Mr. F.'s) opinions on the whole had been condemned by it. And upon this was based matter were perfectly well understood. He considered the complaint. Honorable Senators desired that the the charge which had been made against the President as nominations might be made, in order that they might sit uncalled for, unnecessary, and improper; but he trusted in judgment on them. He had reason to believe that that that the Senate, in its future conduct, would not forget was the fact, from the suggestion which had been made what was due to itself, and to the dignity of our Chief by the honorable Senator to-day, that some plausible rea- Magistrate, so that justice might be done bim. He, Mr. son was always sought for, so that the presentation of F., was of opinion that the Senate liad travelled beyond the nominations might be postponed. The gentleman the bounds of propriety, and deserved-what he believed had expressed a wish to know which of the persons who would, in due time, be meted to them--a sentence of would have to come under the adjudication of the Senate condemnation by the people. had acquiesced in the message. Perhaps (said Mr. F.) Mr. WEBSTER replied. The gentleman from Georthere might be an occasion, before the end of the session, gia, said he, has referred to the decision of that high trito enlighten his judgment, and then he would know ex-bunal, by whose decision all public men, and all public actly how he should decide on another matter. He (Mr. bodies, must ultimately stand or fall. I cheerfully join in F.) would contend that they were oflicers, acting ac- the appeal, and have no fear of the result. It can never cording to the constitution, and that the President had be, that the people of the United States will, for no not derogated from his duty. It was his duty, and he earthly reason, submit to severe suffering and to encroachdare not do otherwise, to present the nominations in ques- ments on constitutional liberty; and, I doubt not, the tion before the adjournment of Congress.
same people will stand by the Senate in all just and conWith respect to this anomalous proceeding, it was un stitutional efforts to sustain its own rights and the rights precedented—the first instance in the history of the Gov- of Congress. I believe the Senate stands strong in the ernment, in which the Executive had been arraigned be confidence of a majority of the nation, and that nothing fore the people by the extra-judicial conduct of the Sen- would more produce dismay and despair than that this ate. Did the honorable gentleman from Massachusetts body should be found to flinch or falter in a moderate, think it a trifling matter that the President should bave but firm and decided, opposition to the present course been charged with having violated his duty, and forgotten of public measures. the solemn obligations of his oath? And to whom was The gentleman supposes I am mistaken as to the numthe Executive to address himself but to those from whom ber of members of the cabinet not yet nominated to the the charge had emanated? The Senate had arraigned Senate. But there is no mistake. The Secretary of him; and the honorable Senator particularly, and others, State, the Secretary of the Treasury, and the Attorney had said that the remedy for all this lay with the people. General, have been in office six or seven months, and He (Mr. F.) would admit that it was for them to decide have neither of them been yet sent to the Senate for conwhether or not he was correct; and, if he was found guil. firmation. What reason is to be given for this departty, to punish him for violating the constitution and the laws. ure from all former practice of the Government? low is
But, he would ask, if it was not the right of a party, it to be justified? We may conjecture a reason, indeed, after being condemned without a hearing, to be heard but it is such a reason as ought not to exist. I know well thereafter? The question now before the people was that these officers hold commissions which run to the end placed there by the Senate. The President then bad at of the session. Such is the constitutional provisioa. But
Apul 21, 1834.]
I know, too, that although that be so, all other Presidents the royal claims of prerogative gave birth to a debate in have laid such appointments before the Senate early aster Parliament, in which Mr. Spicer (a member of the kitchthe commencement of the session. This has been the uni- en cabinet of the time, I suppose) said the Crown form course; and to hold back so many of the heads of " could not be tied by any law, because it might loose departments for so many months from the beginning of itself at pleasure." And Mr. Secretary Cecil told the the session, is a thing altogether without precedent. other members—“If you stand upon law, and dispute of
As to the protest, sir, it appears to me, that the honor- the perogative, hark ye what Bracton says--Prærogatiable member from Georgia has conceded it away. He ad- vam nostram nemo audeat disputare.' Mr. Francis Bamits that there may arise emergencies in which the Sen. con, a whole-hog man, sir, said--"As to the perogatives ate has a right to express its opinion upon executive royal, he never questioned them, and he hoped they proceedings; to make a case, as he expresses it, for the would never be discussed.” When the question of the consideration of the people. If this be so, then the Sen- subsidy was before them, Mr. Sergeant Heyle said, ate itself is to be the only judge when that emergency “Mr. Speaker, I marvel much that the House should has arisen. The gentleman's admission acknowledges stand upon granting of a subsidy, or the time of payment, the right. The exercise of the right, then, on any given when all we have is the Crown's, and may be lawfully occasion, is matter of discretion; and this is precisely the taken at its pleasure from us. Yea, it hath as much right ground on which I placed the question when last speak to all our lands and goods, as to any revenue of the ing. Indeed, it cannot be otherwise. Suppose the Pres. Crown. At which, says the historian, all the House ident should commission persons to office, whom the Sen-hemmed, and laughed, and talked. Well, qnoth. Serate has rejected; might we not resolve, that such a pro- geant Heyle, all your hemming shall not put me out of ceeding was unconstitutional? Suppose he should threat- countenance.” [We have some in this day, said Mr. C., en to turn us out of our seats, by force; might we not who are as hard to put out of countenance.] “So the enter on our Journal a resolution against such menace? Sergeant proceeded, and when he had spoken a little No one, surely, can doubt this. The Senate, then, pos- wbile, the House hemmed again, and so he sat down. In sesses the right; on a recent occasion it saw fit to exer- his latter speech, he said he could prove his former posicise that right, in its discretion, and under its own sense tion by precedents, in the time of Henry III, King John, of duty; and it is a right which its members are bound King Stephen, &c., which was the occasion of their hemto maintain, in behalf of themselves, and for their suc- ming." Had Sergeant lleyle lived in our day, there is cessors in all time to come. I say nothing, at present, no telling to what a pitch of greatness hie might not have upon the claims of executive power put forth in the attained. It can hardly be too much to say that he inight protest. All I mean now, is, to assert the right of the have been a Secretary of the Treasury, or at least a PostSenate to express its opinion upon the conduct of the master General, with a promise of the Russian mission in Executive, in critical emergencies, and on momentous reversion. occasions, notwithstanding no impeachment be pending Observe, sir, that, in the debate to which I have referbefore it.
red you, the advocates of power did, as they do still, seek Mr. CLAYTON said, the Senator from Georgia had ob- to support it chiefly by precedent and usage. The Presserved, that perhaps he (Mr. C.) had been influenced by ident builds his pretended prerogative to absolute control a desire to find the President in error when perusing his over the Secretary of the Treasury, in the manner of manprotest. Those who shall read the remarks of the mem- aging the public revenue and keeping the public de. ber from Georgia himself, in reference to the same paper, posites, on “the usages and precedents of the Governand who are not acquainted with bis independent and un- ment. The precedent on which he and his advocates yielding course of opposition to all executive encroach. here rely, was established, not so far back as that of Serments, will rise from that reading with a deep conviction geant Heyle-not in the days of King Johın or King Stethat the honorable member, before he knew the contents phen-but in the day when the elder Adams gave his of the protest, was predetermined to support it, with casting vote in the Senate in favor of the removing power, every thing contained in it, right or wroog; and they will and laid the foundation for the present claim in the most probably not consider the honorable member a proper latitudinarian of all constitutional construction that was judge of the motives with which other persons have pe- ever attempted. The power of removal was based exTused the same document.
clusively on the pretence that it was necessary for the Sir, this protest, which meets the cordial approbation President to have it, as an ircident to his duty to "see of the Senator from Georgia, strikes at the costitutional that the laws are faithfully executed.” But until this day, rights, and even at the very existence, of the body of it was never dreamed, by the most visionary of the high which he is a member. While the President complains tory school, that the power to remove embraced the power of the length of the Senatorial term of service, he distinct. to control the officer in every act he was to perform. ly declares, that the conduct of the Senate, in daring to This President is entitled to the fame of discovering, that, censure his acts, if persevered in, must inevitably lead to as his oath of office binds him to see ihe laws faithfully changes in the constitution itself. Ile singles out indi. executed, he is to exercise the power of controlling the vidual Senators as the objects and victims of his displeas- Secretary of the Treasury, and every other officer, in the ure; almost denies to them the privilege of suffrage here, discharge of duties. The monstrous character of this in relation to his conduct; and denounces the Senate pretension has been thus illustrated: The President thinks for daring to debate and decide upon his princely preten- that a decree of a district court, or a circuit court, or the sions to perogative-his unlimited and illimitable claims Supreme Court of the United States, is unconstitutional. to executive power. Because we have, with a view to He fulminates a bull against the court, and demands of it regulate our own legislative and executive action, ventu- to enter liis protest on its records, “to the end that it may red to lay down a principle, by a resolution, defining and never be drawn into precedent again, as in the case of our circumscribing the limits of his power, we are not only resolution. He then orders the marshal not to execute menanced by him, but even lectured by a member of the the writ issued by virtue of the decree. The marshal body itself.' To what period of history shall we look for persists in the discharge of his duty, and says he is sworn a parallel to these things, which are daily passing before io execute the writ. The President replies, you are an our eyes?
executive officer, and I must "see that the laws are faithSir, it was in the year 1591, (was it not') that the fully executed,” and as the constitution, which has been Judges solemnly decreed that England was an absolute violated by the court, is the supreme law, I command you empire, of which the King was the head. In that age, I not to execure thc writ. The marshal still persists, and
Explanatory Message.-President's Protest.
(April 21, 1834.
the President removes him-appoints another, and re- tance. In order to ascertain wliat was the character of the moves him, and pursues the same process until he finds a original document, and of the explanation which had been tool tu obey his will, and thus abrogates the decree of the sent to them, he would read a paragraph from the former court. He is to exercise the same power over every other paper. [Mr. Bibe here read the following passage from executive officer appointed by him alone, or by the Pres. the first message of the President.] ident and Senate. This is the claim he sets up in this “The custody of the public property, under such reg. protest-this is the exact character of that ultra-despoticulations as may be prescribed by legislative authority, has rescript which he thinks this Senate is bound to register always been considered an appropriate function of the at his sovereign will and pleasure. In every State consti- executive department, in this and all other governments. tution, the same provision on which the President erects In accordance with this principle, every species of proluis pretensions to these powers, will be found. They all !perty belonging to the United States, (excepting ihat provide that “the Governor shall see that the laws be which is in the use of the several co-ordinate departments faithfully executed.” If, in one of the States, the Gov- of the Government, as means to aid them in performing ernor should order the public money to be removed by their appropriate functions,) is in charge of officers apthe State treasurer, it would be acknowledged usurpation. pointed by the President, whether it be lands, or buildings, Should he actually remove him from office for it, he would for merchandise, or provisions, or clothing, or arms and hardly escape an impeachment himself. Yet, under color munitions of war. The superintendents and keepers of of this single clause in the constitution of the United the whole are appointed by the President, and removable States, that “the President shall see that the laws are at his will. faithfully executed,” the Chief Magistrate has claimed the “Public money is but a species of public property. It power not only to remove every agent whom Congress cannot be raised by taxation or customs, nor brought into has placed in custody of the money of the nation, but also the Treasury in any other way, except by law; but whento remove the money itself, when and where he pleases. ever or howsoever obtained, its custody always has been,
Sir, such a paper as this, claiming absolute power, and and always must be, unless the constitution be changed, denying to the representatives of the people of England intrusted to the executive department. No officer can or either House of Parliament, the right to discuss and be created by Congress for the purpose of taking charge decide upon the extent of kingly power for the govern- of it, whose appointment would not, by the constitution, ment of their legislative action, would bring the head of at once devolve on the President, and who would not be a British monarch to the block. It remains to be seen responsible to him for the faithful performance of his duwhether the milder temperament of the people of our ties. The legislative power may undoubtedly bind him free country will stamp it with the authoritative sanction and the President, by any laws they may think proper to of their verdict against this Senate, at the polls. For one, enact; they may prescribe in what place particular porI will stand or fall on this issue before the people of that tions of the public money shall be kept, and for what State to whiclı-and not to Andrew Jackson-I owe alle- reason it shall be removed, as they may direct that supgiance. By their judgment, unawed as they have ever plies for the army or navy shall be kept in particular stores; been, and ever will be, by official patronage and execu- and it will be the duty of the President to see that the law tive power, will I be tried, and by no other. They shall is faithfully executed-yet will the custody remain in the say for me whether this paper, couched in the language executive department of the Government. Were the of a Roman dictator to the Senate, proposing only to Congress to assume, with or without legislative act, the “expose” it and degrade it, by compelling it to enter on power of appointing officers, independently of the Presiits own records such claims of absolute power as it con- dent, to take the charge and custody of the public proptains, is, or is not, a breach of the privileges of that bodyerty contained in the military and naval arsenals, magaon whose preservation their rights, and those of all the zines, and store-houses, it is believed that such an act other small States of this Union, eminently depend. If would be regarded by all as a palpable usurpation of exthis House were now to send to the Representatives a ecutive power, subversive of the form as well as the funbulletin such as this, lecturing them for the passage of damental principles of our Government. But where is their resolutions approbatory of the act of the Executive the difference of principle, whether public property be in continuing the pet State banks as banks of deposite, in the form of arms, munitions of war and supplies, in they would instantly vote such an interference a breach gold anel silver or bank notes? None can be perceived of their privileges. Seeing this, the people to whom -none is believed to exist. Congress cannot, therefore, alone I defer on this subject, shall try for me, in the last take out of the hands of the executive department, the resort, the co-ordinate powers and privileges of the two custody of the public property or money, without an asbranches of Congress. But until their verdict be given sumption of executive power, and a subversion of the first on this issue, no judgment will be entered or recorded principles of the constitution.” against the Senate by the votes of their representatives. Mr. CLAY said it was not at this time his purpose to
PRESIDENT'S PROTEST. discuss the supplementary message: he would avail him- The Senate proceeded to the special order of the day, self of another occasion.
being the motion of Mr. PorXDEXTER, that the President's Mr. C. then moved to lay the motion of the Senator from protest be not received, as modified by his resolutions. Mississippi upon the table, for the present, in order that Mr. EWING then addressed the Chair as follows: the general discussion upon the President's protest might Mr. President: I am much at a loss in what manner to be proceedled with.
characterize the paper which is the subject of discussion. Mr. POINDEXTER hoped the resolutions which had when read to us the other day, in the Senate, I pretty been offered would be printed, so that every Senator well appreciated its character and its purpose. I noted might lrave an opportunity of seeing them.
down, 100, some of its language; and if the Secretary Mr. CALHOUN suggested the propriety of offering the read it right, and if I heard him right, that which is sent resolutions as a modification of the first motion of the Sen- abroad, in the official, as the President's protest, and the ator from Mississippi, and the Senate would then be able forty thousand copies which are published in a pamphlet to proceed with the original debate.
form and scattered to the four winds, differ, in some mate. This was agreed to, and the resolutions were so offered. rial points, from the one which is before us, and in points
Mr. BIBB begged leave to call the attention of the Sen- which were the subject of comment here. In this paper ate, for one moment, to a point of fact. In a discussion the President speaks of the Secrtary of the Treasury as of this kind, a statement of facts was of the utmost impor-Ibis Secretary, in one instance, and, in two others, he