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Mar 7, 1834.]
removed. And by whose power was this done? The ties of executive officers would be less than it now is? papers necessary to accomplish the removal (that is, the The reason of the thing would seem to be the other way. orders and drafts) are, it is true, signed by the Secretary. If the President may remove an incumbent when he beThe President's name does not appear to them; nor does comes satisfied of his unfaithfulness and incapacity, there the Secretary, in any of them, recite or declare that he would appear to be less necessity to give him also a does the act by direction of the President, or on the right of control, than there would be if he could not rePresident's responsibility. In form, the whole proceed- move him. ing is the proceeding of the Secretary, and, as such, had We may try this question by supposing it to arise in a the legal effect. The deposites were removed. But whose judicial proceeding. If the Secretary of the Treasury act was it in truth and reality? Whose will accom- were impeached for removing the deposites, could he plished it? On whose responsibility was it adopted? justify bimself by saying that he did it by the President's
These questions are all explicitly answered by the Presi- direction? If he could, then no executive officer could dent himself, in the paper, under his own band, read to ever be impeached who obeys the President; and the the cabinet on the 18th of September, and published by whole notion of making such officers impeachable at all his authority. In this paper the President declares, in so would be farcical. If he could not so justify himself, many words, that he begs his cabinet to consider the pro-|(and all will allow he could not,) the reason can only be, posed measure as his own; that its responsibility has been that the act of removal is his own act: the power, a pow. assumed by him; and that he names the first day of Oc-er confided to him, for the just exercise of which the tober as a period proper for its execution.
law looks to his discretion, his honesty, and his direct reNow, sir, it is precisely this which I deem an assump-sponsibility. tion of power not conferred by the constitution and laws. Now, sir, the President wishes the world to understand I think the law did not give this authority to the Presi. that he himself decided on the question of the removal of dent, nor impose on him the responsibility of its exercise. the deposites; that he took the whole responsibility of the It is evident that in this removal the Secretary was in re measure upon himself; that he wished it to be considered ality nothing but the scribe; he was the pen in the Presi- his own act; that he not only himself decided that the dent's hand, and no more. Nothing depended on his thing should be done, but that he regulated its details also, discretion, his judgment, or his responsibility. The re- and named the day for carrying it into effect. moval, indeed, has been admitted and defended in the I have always entertained a very erroneous view of the Senale, as the direct act of the President himself. This, partition of powers, and of the true nature of official resir, is what I call assumption of power. If the President sponsibility under our constitution, if this be not a plain had issued an order for the removal of the deposites in case of the assumption of power. his own naine, and under his own hand, it would have The Legislature had fixed å place, by law, for the been an illegal order, and the bank would not have been keeping of the public money. They had at the same at liberty to obey it. For the same reason, if the Secre- time, and by the same law, created and conferred a pow. tary's order bad recited that it was issued by the Presi- er of removal, to be exercised contingently. This power dent's direction, and on the President's authority, it would they had vested in the Secretary, by express words. The have shown, on its face, that it was illegal and invalid. law did not say that the deposites should be made in the No one can doubt that. The act of removal, to be law- bank unless the President should order otherwise; but it ful, must be the bona fide act of the Secretary; his judg. did say that they should be made there unless the Secrement, the result of his deliberations, the volition of his tary of the Treasury should order otherwise. I put it to mind. All are able to see the difference between the the plain sense and common candor of all men, whether power to remove the Secretary froin office, and the pow. the discretion which was thus to be exercised over the er to control him, in all or any of his duties, while in of subject was not the Secretary's own personal discretion; fice. The law charges the officer, whoever he may be, and whether, therefore, the interposition of the authority with the performance of certain duties. The President, of another, acting directly and conclusively on the subwith the consent of the Senate, appoints an an individual ject, deciding the whole question, even in its particulars to be such officer, and this individual he may remove, if and details, be not an assumption of power? lie so please; but, until removed, he is the officer, and The Senate regarded this interposition as an encroachremains charged with the duties of his station; duties ment, by the Executive, on other branches of the Govwhich nobody else can perform, and for the neglect or ernment; as an interference with the legislative disposiviolation of which he is liable to be impeached. tion of the public treasure. It was strongly and forcibly
The distinction is visible and broad between the power urged, yesterday, by the honorable member from South of removal and the power to control an officer not re- Carolina, that the true and only mode of preserving any moved. The President, it is true, may terminate his po- balance of power, in mixed governments, is to keep an litical lise; but he canuot control his powers and functions exact balance. This is very true, and to this end enand act upon him as a mere machine, while he is allowed croachment must be resisted at the first step. The questo live. This power of control and direction, nowhere tion is, therefore, whether, upon the true principles of given, certainly, by any express provision of the consti- the constitution, this exercise of power by the President wtion or laws, is derived, by those who maintain it, from can be justified. Whether the consequences be prejudithe right of removal; that is to say, it is a constructive cial or not, if there be an illegal exercise of power, it is to power. But the right of removal itself is but a con- be resisted in the proper manner.
Even if no harm or structive power: it has no express warrant in the con- inconvenience result from transgressing the boundary, stitution. A very important power, then, is raised by the intrusion is not to be suffered to pass unnoticed. Eveconstruction, in the first place; and, being thus raised, ry encroachment, great or small, is important enough to it becomes a fountain, out of which other important awaken the attention of those who are intrusted with the powers, raised also by construction, are to be supplied. preservation of a constitutional Government. We are There is no little danger that such a mode of reasoning not to wait till great public mischiefs come, till the Govmay be carried too far. It cannot be maintained that the ernment is overthrown, or liberty itself put in extreme power of direct control necessarily flows from the power jeopardy. We should not be worthy sons of our fathers, of removal. Suppose it had been decided in 1789, when were we so to regard great questions, affecting the generthe question was debated, that the President does not al freedom. Those fathers accomplished the Revolution possess the power of removal: will it be contended, that on a strict question of principle. The Parliament of in that case his right of interference with the acts and du- Great Britain asserted a right to tax the colonies in all
(MAY 7, 1834.
cases whatsoever, and it was precisely on this question a benefit, for which a bank may well afford to pay a large that they made the Revolution turn. The amount of tax- annual sum. The banks which now hold the deposites ation was trifling, but the claim itself was inconsistent pay nothing to the public; they give no bonus, they pay with liberty; and that was, in their eyes, enough. It was no annuity. But this loss of so much money is not the against the recital of an act of Parliament, rather than worst part of the case, nor that which ought most to alarm against any suffering under its enactments, that they took us. Although they pay nothing to the public, they do up arms.
They went to war against a preamble. "They pay, nevertheless, such sums, and for such uses, as may fought seven years against a declaration. They poured be agreed upon between themselves and the Executive out their treasures and their blood like water, in a con- Government. We are officially informed that an officer test, in opposition to an assertion, which those less saga- is appointed by the Secretary of the Treasury to inspect cious and not so well schooled in the principles of civil or superintend these selected banks; and this officer is liberty, would have regarded as barren phraseology, or compensated by a salary fixed by the Executive, agreed mere parade of words. They saw, in the claim of the to by the banks, and paid by them. I ask, sir, if there British Parliament, a seminal principle of mischief, the can be a more irregular, or a more illegal transaction than germ of unjust power; they detected it, dragged it forth this? Whose money is it out of which this salary is paid! from underneath its plausible disguises, struck at it, nor Is it not money justly due to the United States, and paid, did it elude either their steady eye, or their well-direct because it is so due, for the advantage of holding the de. ed blow, till they had extirpated and destroyed it, to the posites! If a dollar is received on that account, is not smallest fibre. 'On this question of principle, while ac- its only true destination into the general treasury of the tual suffering was yet afar off, they raised their fag Government? And who has authority, without law, to against a power to which, for purposes of foreign con- create an office, to fix a salary, and to pay that salary out quest and subjugation, Rome, in the height of her glory, of this money? Here is an inspector, or supervisor of the is not to be compared; a power, which has dotted over deposite banks. But what law has provided for such an the surface of the whole globe with her possessions and officer? What commission has he received? Who con, military posts; whose morning drum-beal, following the curred in his appointment? What oath does he take? sun, and keeping company with the hours, circles the How is he to be punished, or impeached, if he colludes earth daily with one continuous and unbroken strain of with any of these banks to embezzle the public money, tbe martial airs of England.
or defraud the Government? The value of the use of this The necessity of holding strictly to the principle upon public money to the deposite banks is probably two hunwhich free governments are constructed, and to the pre- dred thousand dollars a year; or, if less than that, it is cise lines which fix the partitions of power between dif- yet, certainly, a very great sum.
May the President ferent branches, is as plain, if not as cogent, as that of appoint whatever officers he pleases, with whatever duresisting, as our fathers did, the strides of the parent ties he pleases, and pay them as much as he pleases out of country upon the rights of the colonies; because, whether these moneys tbus paid by the banks, for the sake of the power which exceeds its just limits be foreign or do- having the deposites? mestic, whether it be the encroachment of all branches Mr. President, the Executive claim of power is exactly on the rights of the people, or that of one branch on the this: that the President may keep the money of the pubrights of others, in either case the balanced and well-ad- lic in whatever banks he chooses, on whatever terms he justed machinery of free government is disturbed, and, if chooses, and to apply the sums which these banks are ihe derangement go on, the whole system must fall. willing to pay for its use to whatever purposes he chooses.
But the case before us is not a case of merely theoretic These sums are not to come into the general treasury. infringement, nor is it one of trifling importance. Far They are to be appropriated before they get there; they otherwise. It respects one of the highest and most im- are never to be brought under the control of Congress; portant of all the powers of Government; that is to say, they are to be paid to officers and agents not known to ibe custody and control of the public money. The act of the law, not nominated to the Senate, and responsible to removing the deposites, which I now consider as the nobody but the Executive itself. I ask gentlemen if all President's act, and which his friends on this foor defend ibis be lawful? Are they prepared to defend it? Will they as his act, took the national purse from beneath the se- stand up and justify it? In my opinion, sir, it is a clear curity and guardianship of the law, and disposed of its and a most dangerous assumption of power. It is the contents, in parcels, in such places of deposite as he creation of office, without law; the appointment to office, chose to select. At this very moment every dollar of without consulting the Senate; the establishıment of a sal. the public treasure is subject, so far as respects its cusio- ary, without law, and the payment of that salary out of a dy and safe keeping, to his unlimited control. We know fund which itself is derived from the use of the public not where it is to-day; still less do we know where it may treasures. This, sir, my other reason for concurring be to-morrow.
in the vote of the 28th of March; and on these grounds But, Mr. President, this is not all. There is another I leave the propriety of that vote, so far as I am concernipart of the case, which has not been so much discussed, ed with it, to be judged of by the country. but which appears to me to be still more indefensible in But, sir, the President denies the power of the Senate its character. It is something which may well teach us to pass any such resulution, on any ground whatever. the tendency of power to move forward, with accelerated Suppose the declaration contained in the resolution to be pace, if it be allowed to take the first step. The Bank true; suppose the President bad, in fact, assumed powers of the United States, in addition to the services rendered not granted to him; does the Senate possess the right to to the Treasury, gave for its charter, and for the use of declare its opinion, affirming this fact, or does it not?! the public deposites, a bonus, or outright sum of one maintain the Senate does possess such a power; the Presimillion and a half of dollars. . This sum was paid by the dent denies it. bank into the treasury, soon after the commencement of Mr. President, we need not look far, nor scarch deep, its character. In the act which passed both Houses for for the foundation of this right in the Senate. It is clearrenewing the charter, in 1832, it was provided that the ly visible, and close at hand. In the first place, it is the bank, for the same consideration, should pay two hun- right of self-defence. In the second place, it is a right dred thousand dollars a year, during the period for which founded on the duty of representative bodies, in a free it was proposed to renew it. A similar provision is in the Government, to defend the public liberty against encroach. bill which I asked leave to introduce some weeks ago. ment. We must presume that the Senate honestly en. Now, sir, this shows that the custody of the doposites is tertained the opinion expressed in the resolution of the
MAY 7, 1834.]
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. This, to defend its own constitutional authority, as one branch I think, sir, is pretty high-toned pretension. According of the Government. This is its clear right, and this, too, to this doctrine, neither House can assert its own rights, is its imperative duty.
however the Executive miglit assail them; neither House 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. This. 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 for a single moment. All political bodies resist what they express no opinion upon any Executive proceeding upon - 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 discrebe true. The 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 of the Panama mission is in point. In that case, Mr. censure. They think it a direct invasion of legislative Branch, from North Carolina, introduced a resolution, power, but they must not say so. They may, indeed, which, after reciting that the President, in his annual commend, if they can. The grateful business of praise 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. made, went on to declare that “a silent acquiescence on Formerly, sir, it was a practice for the President to 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 Legisl res. 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 bad 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 might not so declare by resolution. No one ventured to of his administration, was thus freely and publicly cancontend that, whether the rights of the Senate were in- vassed. He did not complain of it; he did not doubt that vaded or not, the Senate must hold its peace.
both Houses had a perfect right to comment, with the utThe 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. Answers, or amendments to answers, were not unjudicial 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 formal trial; and, on that ground, it is hoped, the public votes ready to be recorded against the expression of those sympathy may be moved. But the Senate has acted not sentiments. To all this, President Washington took no m 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 dents, if we examine the journals of legislative bodies, merely with courtly phrases of approbation. we find, every where, instances of such proceedings. Mr. President, I know not who wrote this protest, but
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, ate. 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
[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 feet 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 fundoubtedly 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 bappen, but to what has Houses have each its own appropriate powers and auactually happened. We are informed that the Post Office thorities, which it is bound to preserve. They bave, 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
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 tomorrow, 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 balf 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 probill, 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 bearing, 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 constiiution 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 case is too plain for such an argument to be plausible, undelegated power.
But in order to lay some foundation for it, the protest, as These are the terms in which the President speaks of'an I have already said, contends that neither the Senate nor act of the two Houses of Congress; in no official paper, in the House of Representatives can express its opinions on no communication which it was necessary for him to make the conduct of the President, except in some form conto them; but in a message, adopted only as a mode nected with impeachment; so that if the power of im
Mar 7, 1834.]
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 bim 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 Ainerican 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 what. ceedings 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 rigbts; 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 res I 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, bad 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 govern, pretensions 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 Aashy 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 It looks before and after; and, building on the experience to be the judge of this truth and justice? Are the peo- of ages which are past, it labors diligently for the benefit ple to judge for themselves, or are others to judge for of ages to come. This is the nature of constitutional libthem? The protest is here speaking of political rights, erty; and this is our liberty, if we will rightly understand and not moral rights; and if restraints are imposed on po- and preserve it. Every free government is necessarily litical rights, it must follow, of course, that others are to complicated, because all such governments establish redecide, whenever the case arises, whether these restraints straints, as well on the power of government itself, as on have been violated. It is strange that the writer of the that of individuals. If we will abolish the distinction of protest did not perceive that, by using this language, he branches, and have but one branch; if we will abolish jury was pushing the President into a direct avowal of the trials, and leave all to the judge; if we will then ordain doctrines of 1798. The text of the protest, and the that the legislator shall himself be that judge; and if we test of the obnoxious act of that year, are nearly identical. will place the executive power in the same hands, we
But, sir, if the people have a right to discuss the of-I may readily simplify government. We may easily bring