MAY 7, 1834.]

President's Protest.

[SENATE.

respective offices honestly and fairly, according to their sible. In the Government from which many of the funown best abilities; it is true, that many of them are liable damental principles of our system are derived, the head of to indictment for official misconduct, and others responsi- the Executive department originally had power to appoint ble, in suits of individuals, for damages and penalties, if and remove at will all officers, executive and judicial. It such official misconduct be proved; but notwithstanding was to take the judges out of this general power of reall this, the protest avers that all these officers are but moval, and thus make them independent of the Execu the President's agents, that they are but aiding him in the tive, that the tenure of their offices was changed to good discharge of his duties, that he is responsible for their behaviour. Nor is it conceivable why they are placed, in conduct, and that they are removable at his will and pleas our constitution, upon a tenure different from that of all ure. And it is under this view of his own authority, that other officers appointed by the Executive, unless it be for the President calls the Secretaries his Secretaries, not the same purpose." once only, but repeatedly. After half a century's administration of this Government, sir, after we have endeavored, by statute upon statute, and by provision following provision, to define and limit official authority, to assign particular duties to particular public servants, to define those duties, to create penalties for their violation, to adjust, accurately, the responsibility of each agent, with his own powers and his own duties, to establish the prevalence of equal rule, to make the law, as far as possible, every thing, and individual will, as far as possible, nothing; after all this, the astounding assertion rings in our ears, that throughout the whole range of official agency, in its smallest ramifications, as well as in its larger masses, there is but one responsibility, one discretion, one will! True indeed, is it, sir, if these sentiments be maintained, true indeed, is it, that a President of the United States may well repeat, from Napoleon, what he repeated from Louis the 14th, "I am the state!"

Mr. President, I do most solemnly protest (if I, too, may be permitted to make a protest) against this mode of reasoning. The analogy between the British constitution and ours, in this respect, is not close enough to guide us safely; it can only mislead us. It has entirely misled the writer of the protest. The President is made to argue, upon this subject, as if he had some right anterior to the constitution, which right is, by that instrument, checked, in some respects, and in other respects is left unchecked; but which, nevertheless, still derives its being from another source; just as the British King had, in the early ages of the monarchy, an uncontrolled right of appointing and removing all officers at pleasure; but which right, so far as it respects the judges, has since been checked and controlled by act of Parliament; the right being original and inherent, the check only imposed by law. Sir, I distrust altogether British precedents, authorities, and analogies, on such questions as this. We are not inquiring how far The argument by which the writer of the protest en- our constitution has imposed checks on a pre-existing deavors to establish the President's claim to this vast mass authority. We are inquiring what extent of power that of accumulated authority, is founded on the provision of constitution has granted. The grant of power, the whole the constitution, that the executive power shall be vested source of power, as well as the restrictions and limitations in the President. No doubt the executive power is vest- which are imposed on it, is made in and by the constitued in the President; but what, and how much executive tion. It has no other origin. And it is this, sir, which power, and how limited? To this question I should an- distinguishes our system so very widely and materially swer, "Look to the constitution and see; examine the par- from the systems of Europe. Our Governments are limitticulars of the grant, and learn what that executive power ed Governments; limited in their origin, in their very crea. is, which is given to the President, either by express tion; limited, because none but specific powers were ever words or by necessary implication." But so the writer granted either to any department of Government, or to of this protest does not reason. He takes these words of the whole. Theirs are limited, whenever limited at all, the constitution as being, of themselves, a general ori- by reason of restraints, imposed at different times, on ginal grant of all executive per to the President, Governments originally unlimited and despotic. Our subject only to such expressed love of cas the constitution American questions, therefore, must be discussed, reaprescribes. This is clear political instituiew of the sub-soned on, decided, and settled, on the appropriate prinject, unless, indeed, he ehind the Constitution alto- ciples of our constitutions, and not by inapplicable pregether, as some express. would intimate, to search, cedents, and loose analogies, drawn from foreign states. elsewhere, for sources of executive power. Thus the Mr. President, in one of the French commedies, as protest says, that it is not only the right of the President, you know, in which the dullness and prolixity of legal but that the constitution makes it his duty, to appoint per- argument is intended to be severely satirized, while the sons to office; as if the right existed before the constitu- advocate is tediously groping among ancient lore having tion had created the duty. It speaks, too, of the power nothing to do with his case, the judge grows impatient, * a power granted by the constitution, and at last cries out to him to come down to the Flood! I nonginal executive power, left un- really wish, sir, that the writer of this protest, since he nstitution. How original? Coming was discussing matters of the highest importance to us as iglier than the constitution? I should Americans, and which arise out of our own peculiar conLow the President gets possession of any stitution, had kept himself, not only on this side the genearlier, or more original, than the grant eral Deluge, but also on this side the Atlantic. I desire Constitution; or what is meant by an original pow-that all the broad waves of that wide sea should continue the President possesses, and which the consti- to roll between us and the influence of those foreign fas left, unchecked, in his hands. The truth is, principles and foreign precedents, which he so eagerly *r, host assuredly, that the writer of the protest, in these ages, was reasoning upon the British constitution, and upon the constitution of the United States. Indeed, he professes to found himself on authority drawn from the constitution of England. I will read, sir, the whole passage. It is this:

me.

"In strict accordance with this principle, the power of removal, which, like that of appointment, is an original Executive power, is left unchecked by the constitution in relation to all executive officers, for whose conduct the President is responsible, while it is taken from him in relation to judicial officers, for whose acts he is not respon

adopts.

In asserting power for an American President, I prefer he should attempt to maintain his assertions on American reasons. I know not, sir, who the writer was, (I wish I did,) but, whoever he was, it is manifest that he argues this part of his case, throughout, on the principles of the constitution of England. It is true, that in England the King is regarded as the original fountain of all honor and all office; and that anciently, indeed, he possessed all political power of every kind. It is true that this mass of authority, in the history of that Government, has been diminished, restrained, and controlled by charters, by

SENATE.]

President's Protest.

[MAY 7, 1834.

immunities, by grants, and by various modifications, which can people, I shall be answerable to the bar of public the friends of liberty have, at different periods, been able opinion?"

to obtain or to impose. All liberty, as we know, all pop- Connected, sir, with the idea of this airy and unreal ular privileges, as, indeed, the word itself imports, were responsibility to the public, is another sentiment, which, formerly considered as favors and concessions from the of late, we hear frequently expressed; and that is, that monarch. But whenever and wherever civil freedom the President is the direct representative of the American could get a foothold, and could maintain itself, these fa- people. This is declared, in the protest, in so many vors were turned into rights. Before and during the words: "The President," says the protest, "is the direigns of the princes of the Stuart family, they were rect representative of the American people." Now, sir, acknowledged only as favors or privileges, graciously this is not the language of the constitution. The constiallowed, although, even then, whenever opportunity tution no where calls him the representative of the Ameroffered, as in the instance to which I alluded just now, ican people, still less their direct representative. It they were contended for as rights; and by the revolution could not do so with the least propriety. He is not choof 1688, they were acknowledged as rights in England, sen directly by the people, but by a body of electors, by the prince who then ascended the throne, and as the some of whom are chosen by the people, and some of condition on which he was allowed to sit upon it. But, whom are appointed by the State Legislatures. Where, with us, there never was a time when we acknowledged then, is the authority for saying that the President is the original, unrestrained, sovereign power over us. Our direct representative of the people? The constitution constitutions are not made to limit and restrain pre-exist- calls the members of the other House representatives, ing authority. They are the instruments by which the and declares that they shall be chosen by the people; and people confer power on their own servants. If I may use there are no other direct or immediate representatives of a legal phrase, the people are grantors, not grantees. the people in this Government. The constitution denomThey give to the Government, and to each branch of it, minates the President simply the President of the United all the power it possesses, or can possess; and what is States; it points out the complex mode of electing him, not given, they retain. In England, before her revolu- defines his powers and duties, and imposes limits and retion, and in the rest of Europe since, if we would know straints on his authority. With these powers and duties, and the extent of liberty or popular right, we must go to under these restraints, he becomes, when chosen, President grants, to charters, to allowances and indulgencies. But, of the United States. That is his character, and the denomwith us, we go to grants and to constitutions to learn the ination of his office. How is it, then, that on this official extent of the powers of Government. No political pow- character, thus cautiously created, limited, and defined, er is more original than the constitution; none is possess he is to ingraft another, and a very imposing character, ed which is not there granted; and the grant, and the viz. the character of the direct representative of the limitations in the grant, are in the same instrument. American people? I hold this, sir, to be mere assumpThe powers, therefore, belonging to any branch of our tion; and dangerous assumption. If he is the representaGovernment, are to be construed and settled, not by re- tive of all the American people, he is the only representmote analogies, drawn from other Governments, but from ative which they all have. Nobody else presumes to the words of the grant itself, in their plain sense and ne- represent all the people. And if he may be allowed to cessary import, and according to an interpretation con- consider himself as the sole representative of all the sistent with our own history and the spirit of our own American people; and is to act under no other responsiinstitutions. And I will never agree that a President of bility than such as I have already described, then I say, the United States holds the whole undivided power of sir, that the Government (I will not say the people) has office in his own hands, upon the theory that he is respon- already a master. I deny the sentiment, therefore, and I sible for the entire action of the whole body of those en- protest against the age; neither the sentiment nor gaged in carrying on the Government and executing the the language is against thin the constitution of the laws. Such a responsibility is purely ideal, delusive, and country; and aintain that suck satisfied to describe the vain. There is, there can be, no substantial responsibility, powers of the President in him, Language of the constituany farther than every individual is answerable, not merely tion, may be justly suspected of being as little satisfied in his reputation, not merely in the opinion of mankind, but with the powers themselves. The President is President. to the law, for the faithful discharge of his own appropriate His office and his name of office are known, and both are duties. Again and again we hear it said that the President is fixed and described by law. Being commander of the responsible to the American people! that he is responsible army and navy, holding the power of nominating to office to the bar of public opinion! For whatever he does, he and removing from office, and being, by these powers, assumes accountability to the American people! For the fountain of all patronage and all favort does he whatever he omits, he expects to be brought to the high not become if he be allowed to superad bar of public opinion! el And this is thought enough for a character of single representative of t limited, restrained, republican Government! An unde-ple? Sir, he becomes, what America has not fined, undefinable, ideal responsibility to the public judg-customed to see, what this constitution has ne ment! Sir, if all this mean any thing, if it be not empty and what I cannot contemplate but with profoun. The sound, it means no less than that the President may do He who may call himself the single representative t any thing and every thing which he may expect to be tol-nation, may speak in the name of the nation, mas heches, erated in doing. He may go just so far as he thinks it safe take to wield the power of the nation, and who sf as to go; and Cromwell and Bonaparte went no farther. I ask gainsay him, in whatsoever he chooses to pronounce again, sir, is this legal responsibility? Is this the true the nation's will? nature of a Government with written laws and limited powers? And allow me, sir, to ask, too, if an Executive magistrate, while professing to act under the constitution, is restrained only by this responsibility to public That neither branch of the Legislature can take up, or opinion, what prevents him, on the same responsibility, consider, for the purpose of censure, any official act of the from proposing a change in that constitution? Why may President, without a view to legislation or impeachment; he not say, "I am about to introduce new forms, new That not only the passage, but the discussion of the principles, and with a new spirit; I am about to try a po- resolution of the Senate of the 28th of March, was unaulitical experiment, on a great scale; and when I get thorized by the constitution, and repugnant to its prothrough with it, I shall be responsible to the Ameri-visions;

1

this, the

rican peo

enes, of

in

of

I will now, sir, ask leave to recapitulate th genera doctrines of this protest, and to present them together. They are:

That the custody of the public treasury always must be intrusted to the Executive; that Congress cannot take it out of his hands, nor place it any where, except with such superintendents and keepers as are appointed by him, responsible to him, and removable at his will;

[SENATE.

ness and patriotism, violations of liberty and inroads upon the constitution.

When Mr. WEBSTER had concluded

Mr. BENTON rose, in reply; and, commencing with the topic with which Mr. WEBSTER had concluded his That the whole Executive power is in the President, speech, and repeating his words, exclaimed, Yes! the and that, therefore, the duty of defending the integrity Senate does stand in a breach! a breach of their own of the constitution results to him from the very nature of making! and they stand there naked and defenceless, his office; and that the founders of our republic have at- without shelter, cover, or refuge! The Senate broke tested their sense of the importance of this duty, and, by through the constitution-they made a wide breach in the expressing it in his official oath, have given to it peculiar walls of that sacred instrument-to leap upon the Presisolemnity and force; dent and pronounce a sentence of condemnation upon That as he is to take care that the laws be faithfully ex- him. They broke through all law, all constitution, all ecuted, he is thereby made responsible for the entire action forms of justice, all obligations of propriety, and all sense of the Executive department, with power of appointing, of decency, to pronounce upon the President, and to overseeing, and controlling those who execute the laws; crush him, as it was believed, with a Senatorial conviction That the power of removal from office, like that of for a high crime and a misdemeanor; and now, when appointment, is an original Executive power, and is left in they are put upon their own defence for that act-when his hands, unchecked by the constitution, except in the they are called upon by an astonished community to justicase of judges; that, being responsible for the exercise fy themselves, as judges, for giving judgment without of the whole Executive power, he has a right to employ trial-they exhibit themselves naked and defenceless beagents of his own choice, to assist him in the perform-fore the public, without excuse or justification, and vainly ance of his duties, and to discharge them when he is no endeavor to escape from the reprobation which they have longer willing to be responsible for their acts;

That the secretaries are his secretaries, and all persons appointed to offices created by law, except the judges, his agents, responsible to him, and removable at his pleasure;

And, finally, that he is the direct representative of the American people.

merited, and to elude the scrutiny which they have provoked, by setting up an affected alarm for the safety of their places, raising a concerted cry for the immunity of their privileges, and issuing the piteous appeal of the "forlorn hope," standing in the breach of the constitution.

The attack upon the President, said Mr. B., so indeThese, sir, are some of the leading propositions, con- cently and illegally commenced at the beginning of the tained in the protest; and if they be true, then the Gov-session, now draws to a close, and approaches its termiernment under which we live is an elective monarchy. It nation. The protracted discussion expires under its own is not yet absolute, there are yet some checks and limita- length: all the defenders of the Senate have been heard; tions in the constitution and laws; but in its essential and the case is ready to go before the people, and to be handprevailing character, it is an elective monarchy. ed down to posterity, and to receive from the ultimate arMr. President, I have spoken freely of his protest, and biter of human actions-an impartial public-the final of the doctrines which it advances; but I have said nothing sentence of condemnation or approval to which it is enwhich I do not believe. On these high questions of con- titled. And how does the case stand on the part of the stitutional law, respect for my own character, as well as Senate? How does the Senate appear? Naked, defencea solemn and profound sense of duty, restrains me from less, unjustified, and unjustifiable! Stripped to the shirt, giving utterance to a single sentiment which does not flow like the Roman Consuls in the Caudine Forks! and withfrom entire conviction. I feel that I am not wrong. I out denial or palliation for the most flagrant breach of the feel that an inborn and inbred love of constitutional liber- constitution, and the most scandalous disregard of decenty, and some study of our political institutions, have not, cy, which the history of faction and the annals of cabal on this occasion, misled me. But I have desired to say has ever exhibited to an outraged community, in any age, nothing that should give pain to the Chief Magistrate, or in any country. personally. I have not sought to fix arrows in his breast; What is it, said Mr. B., that the Senate has done? but I believe him mistaken, altogether mistaken, in the What act of theirs has had the novel effect to place this sentiments which he has expressed; and I must concur high body at the bar of the public-to throw it into a with others in placing on the records of the Senate my deep and deadly breach, and to make it cry out for sucdisapprobation of those sentiments. On a vote, which is cor and for safety? What act has the Senate done to proto remain song as any proceeding of the Senate shall duce this strange vicissitude in its fortunes, to work this last, and oad, seuestion which can never cease to be im- wonderful metamorphosis on its own dignity and station? portant while the constitution of the country endures, I What has it done to effect all this? Let facts, and an imO dired to make public my reasons. They will now partial country, respond to the inquiry! All America grievances and I submit them to the judgment of the knows that, when the deposites were removed last fall, his imp after times. Sir, the occasion is full of in- the whole newspaper interest connected with the United all. It cannot pass off without leaving strong impres- States Bank immediately proclaimed a violation of the uth is on the character of public men. A collision has constitution and of the laws, and demanded the impeachin en place, which I could have most anxiously wished to ment of the President. The impeachment was not only inid; but it was not to be shunned. We have not sought demanded, but foretold and asserted. The House of his controversy; it has met us, and been forced upon us. Representatives was appealed to; their duty to prefer In my judgment, the law has been disregarded, and the the impeachment was incessantly urged; their intention constitution transgressed; the fortress of liberty has been to do so was openly affirmed; and so far was the process assaulted, and circumstances have placed the Senate in carried, of preparing the public mind for the event, that the breach; and, although we may perish in it, I know the names of the members who were to move it, and of we shall not fly from it. But I am fearless of consequen- the witnesses who were to attend the trial, were exultingly ces. We shall hold on, sir, and hold out, till the people and ostentatiously paraded in the presses of the bank! All themselves come to its defence. We shall raise the alarm, this took place in the months of October and November, and maintain the post, till they whose right it is, shall and took place too recently and too notoriously to brook decide whether the Senate be a faction, wantonly resist- contradiction, or to require corroboration on this floor. ing lawful power, or whether it be opposing, with firm-And thus, for two months before Congress assembled, and

SENATE.]

President's Protest.

[MAY 7, 1834.

Our

to the full extent that bank intelligence and bank publica-diction, exercising extrajudicial power, and conducting tions could go, the public mind was warned and prepared an ex parte proceeding, but clouds of new charges, to witness an attempt to get up a formal impeachment volleys of new epithets, and torrents of new invective; against President Jackson, as soon as Congress met. The with an affected cry of danger, and standing in the dismissal of Mr. Duane, because he would not give the breach; as if public attention could be drawn off from order for the removal of the deposites; the appointment the true point in dispute-from the examination of the of Mr. Taney to give that order, and the consequent ex- Senate's conduct-by mere dint of clamor, by reckless ercise of illegal and unconstitutional power over the accumulation of fresh accusation, by distortion and perTreasury of the United States, which was held to be the version of every word in the protest, and by pursuing the Bank of the United States, were the notorious and pro- President, like a constable's posse, with one incessant upclaimed grounds for demanding the contemplated im- roar, as if engaged in the hue-and-cry pursuit of a fugipeachment. Congress meets on the third day of Decem- tive from justice. No, sir, said Mr. B., this is not the ber; day after day, and week after week, passes away, business now in hand. The present question is to examand no member is found to rise in his place to move the ine into the constitutionality of the Senate's proceeding impeachment which the bank presses had so openly de-against the President, and not to try the President over manded and so confidently foretold. No member of the again upon the old accusation, or to eke out stale charges House rises in his place to commence that proceeding with new aggravations. The Senate has judged the Preswhich, under the constitution of the country, could only ident, and the country will now judge the Senate. commence in the House of Representatives, the immedi- present occupation is the defence of the Senate; and ate organ of the people's grievances, as well as of the what is that defence, stripped of all additions and glosspeople's rights, and appropriately styled the grand in-es, and reduced to its point and essence? What is that quest of the nation. No member of that body rises in defence, now that all the defenders have been heard; his place to obey the impulsion of the bank, to avenge its when the last advocate has spoken, and the case is ready cause, to verify its proclamation, and to move the im- for submission to the judgment of the people? What is peachment of the President. In a body of two hundred this defence? Sir, it is nothing more nor less than a refand forty-eight members, many of them young, many uge under a subterfuge-a flight from every thing like warm, impetuous, daring, none could be found to minis- defence-and a palpable confession that no defence can ter to the vengeance of the bank, and to redeem the be made; for the whole excuse of the Senate rests upon a pledge for which that institution stood committed in the solitary assumption which every speaker has made, and face of the country. The im- which assumption is neither true in fact nor material in peachment could not be commenced in the House of law. It rests upon the assumption that the motives of Representatives! What next? It is actually commenced the President were not impugned! that wicked, corrupt, in the Senate! On the 26th day of December-just three and criminal intentions were not imputed to him! weeks after Congress had met-and when the whole sub- is the sum total of the defence. "The resolution is ject of the finances, the treasury, and the bank, had silent as to the motive," says one, [Mr. CLAY.] "It been referred to the Finance Committee, to originate the carefully abstains from the imputation of a criminal inlegislative measures which the case might require, a reso- tent," says another, [Mr. LEIGH.] "It imputes no crime; Jution is laid upon the table of the Senate, by a member it charges no corrupt motive; it proposes no punishment," of that body, to condemn the President for the identical says a third, [Mr. WEBSTER.] Here then, said Mr. B., is acts for which the bank presses had foretold, and demand- the whole point and power of the defence. Its concened his impeachment. trated essence lies in the allegation, that criminal intentions are not imputed to the President.

This

Upon this defence Mr. B. took two distinct and separate issues: first, that it was not true, in point of fact; and secondly, that if true, it was not material in point of law. In discussing the first of these issues, he said he should not commit the folly of confining himself to the words which were inserted in the resolution, especially as altered, and altered for the third time, in the face of the Senate, and the last hour of the debate.

The resolution is laid upon the table, without any legislative object; for the legislative inquiry had already gone to the appropriate committee. It is laid upon the table by a member of the Senate; a speech in the style and temper of the most relentless criminal prosecution, such as the civilization of the age does not admit against the greatest offenders, is prolonged for three days upon it; a debate of the same character rages for three months; the resolution is then three times altered by the mover in the face of the Senate, and a vote is He must be permitted to believe, and to maintain, that taken upon it, defined by an exact party line, finding the omission to charge a criminal intent, and especially its the President guilty of a violation of the laws and the careful and studied omission, operated nothing in favor of constitution, and actually condemning him, without trial, the Senate, but the contrary. The averme though not for the commission of an impeachable offence, and that in the resolution, in words, was nevertheless' effectually by the very body which could neither begin an impeach- there by implication; and, what is infinitely more, it was ment nor decline the trial of one when regularly brought evidently in the hearts, and notoriously in the shes, of before them. The act of the Senate being finished and all the members who supported the reso 3. The consummated, their sentence of condemnation being pro- charge was, therefore, in the bosoms of the judgesse til nounced the President, for the first time, breaks si- in their pleadings; it was promulgated in their speeches, lence, and lifts his voice in a proceeding so extraordi- even in all those delivered on the distress memorials, as nary in its nature, and so unjust in its consequences to on the formal resolution. Even now, within this hour, in himself. He sends in his protest! A calm and dign the hearing of all present, the last speaker on the side of fied remonstrance, an impressive and temperate appeal the Senate [Mr. WEBSTER] has openly said, that Presi against the injustice that has been done him. In this dent Jackson's conduct, in assuming and sanctioning Mr. protest he has taken his stand upon clear, constitutional Taney's appointment of a salaried officer to superintend law-upon the first principles of criminal justice-that the deposite banks-(which appointment Mr. Taney never the Senate, being his judges, had no right to prejudge made!)—that such conduct of a President, in the time of his case, and to pronounce him guilty without trial or Washington and Jefferson, could not have passed a week hearing. This is the ground taken by the President; before it became the foundation for an impeachment. and what is the answer, the defence, the justification After this, what merit can there be in saying that evil inof the Senate! Not a response to the accusation, not a tentions are not charged on the record? The injury to reply to the charge, not a defence for usurping juris-the President is the same, whether in the record or not;

MAY 7, 1834.]

President's Protest.

[SENATE.

The

for being a man of sound mind, he is presumed to act with tially differed from prosecutions on indictments. intentions, and to violate the law and the constitution with difference, he said, was marked and essential, and exer. bad intentions, if he violates them at all. Having sworn cised a decided influence over the whole proceeding. In to support them, the breach of the oath involves perjury. the United States, the sentence upon conviction on imTo the Senate the consequence is the same, whether the peachment, extended only to a removal from office, and a evil intention is retained in the heart, spread upon the rec-disqualification for holding future office, with an express ord, or proclaimed in the speeches of the Senators: in liability in the person thus removed and disqualified, to either case they pass upon the guilt and innocence of the a prosecution upon indictment, and judgment and punishaccused; and become disqualified, upon every principle ment upon that indictment, for the same offence, accordof honor and decency, for the office of judge, in the event ing to the law of the land, in the same manner as if no that a regular impeachment for the same offence should impeachment had taken place. Thus, the effect of conafterwards be preferred. Surely those Senators who viction upon an impeachment in the United States was have thus spoken, and thus impugned the motives of the purely preventive-purely to prevent further crime-to President, can never be impartial judges, although their prevent the same person from acting longer in a station in recorded opinion, upon the passage of the resolution, is which his actions were hurtful to the community; while limited to the fact of violated law and constitution. Rest-punishment, if any, was left to flow from the ordinary ing upon the notoriety of the speeches daily delivered on tribunals, and where the trial by jury was a safeguard to the floor of the Senate-widely diffused over the country the life and liberty and property of the innocent. In the in pamphlets and newspapers; pressed into the hands of eye of the American constitution, there is no punishment all readers, and stuck up in taverns, steamboats, and bar- following impeachment; for removal from office is not rebers' shops, to rouse the people against the President, and garded as punishment, which must follow from the indictto render him odious-relying upon the speeches, thus ment, if necessary, and be superadded to the removal and pressed into notice, replete with every violent epithet, disqualification; which could not be if the removal from crammed with every odious comparison-Cæsar, Nero, office, either in law or in fact, was punishment; for no Caligula, Cromwell, Bonaparte, and the infatuated Stu- man can be twice punished for the same offence. In Engarts; and referring to every lawyer's knowledge, that land, on the contrary, the sentence on conviction under the law presumes the bad intention for every illegal act, impeachment extends to legal and actual punishment, to he (Mr. B.) would go no further for evidence to prove punishment in person and in property; for the party may his first issue, that the Senate's defence was not true in be both fined and imprisoned. On indictments, as every point of fact. body knows, both in England and America, the direct obBut he meant to take, and to maintain, his great stand ject of the prosecution is punishment-punishment in upon the second issue, that the omission of the averment life, limb, person, or property; and preventive justice is of the criminal intent was not material in point of law; that only an incident, resulting from conviction for crimes, the resolution was the same without the averment as with which presumes too much depravity to admit of further it; and, that the infraction of the constitution, the wrong trust or confidence in the offender. Whenever, then, to the President, the subversion of all the rights of the punishment would follow conviction, whether on indictaccused, the invasion of the privileges of the House of ment or impeachment-whenever the life or limb of the Representatives, and the misconduct of the Senate, were party was to be touched-whenever his body might be cast just as complete and just as flagrant, in the adoption of into prison, or his property taken by fine or forfeiturethe resolution, as finally modified and passed, as it would in every such case, the quo animo, the state of the mind, have been if passed in the form it first wore, or if stuffed the criminal intent, was of the essence of the offence; and and distended with all the tautologous averments of wicked intentions and corrupt motives-"moved and seduced by the instigation of the devil, and not having the fear of God before his eyes"-which are to be found in the blackletter editions of common law indictments.

must be duly averred, and fully proved, or clearly inferrible from the nature of the act done; but, in the case of impeachment under the constitution of the United States, where the sentence could extend no further than merely to prevent the party from using his power to do further Briefly recapitulating what had been said by other Sen- mischief, leaving him subject to a future indictment, then ators opposed to the resolution, and especially by his old the intent of the party, whether good or bad, charitable friend from Tennessce, [Mr. GRUNDY,] whose skill as a or wicked, became wholly immaterial; not necessary to criminal lawyer he had been almost amused to see called be alleged, nor requiring to be proved, or to be inferred, in question; briefly adverting to the high and clear ground if the allegation should chance to be made. Every avertaken by these Senators; first, that the criminal intent was ment relative to the intention would be surplusage; for always presumed by the law when the illegal act was the mischief to the public was the same, whether a public proved; and, secondly, that the Senate's resolution was functionary should violate the law from weakness or wicknot an indictment, but a judgment; not the preferment, edness, from folly or from design. In either case the inthe conclusion, of an impeachment; and that judg-jury to the community was the same; the unfitness of the ievances recited intentions; grounds which Mr. B. party to remain in office was the same; the inducement to merplacalo affirm entirely upset the-defence of the remove him the same; and, in both cases, the removal such Sereaving all these solid considerations where would be effected by impeachment; the community would thpect ad placed them, he would proceed to a new point be protected from further injury by the sentence under in of case to a new reason for the immateriality of crim-impeachment; and the offending party, if deserving puninal averments in prosecutions of impeachment. And ishment, would be turned over to the ordinary tribunals, ups this new ground would strip the Senate's defence of and to all the technicalities and formalities of a jury trial, the last disguise, and leave their resolution ready for the upon indictment, to receive that punishment. punge of obliteration, and ripe for the knife of expurga- Young as the United States were, Mr. B. said, brief and tion, the moment the representation in the Senate should scanty as their history, and especially their criminal hisbe brought into harmony and concord with the feelings tory, yet was, still the history of these States already afand sentiments of the people. forded ample illustrations of the truth of the positions Entering upon the examination of this new point, Mr. which he had taken relative to impeachments under the B. first called the attention of the Senate to the nature of constitution of the Union. It afforded examples of two an impeachment under the constitution of the United impeachments tried before the Senate, in one of which States, and wherein it differed from an impeachment in there could be no corrupt or wicked intention, for the England; while impeachments in both countries essen-party was insane, and therefore incapable both in law and