MAY, 1834.] President's Protest. [SENATE. not the right-if we are not accountable to him | implied or constructive powers would have ex-then all that he has done has been wrong- isted, and to the full extent that they now do, fully done, and his whole course, from begin- without this provision; but had it been omitted, ning to end, in relation to this matter, would a most important question would have been left be an open and palpable violation' of the consti- open to controversy. Where would they retutional rights and privileges of the Senate. side? In each department? Would each have Fortunately, this very important question, had the right to interpret its own powers, and which has so direct a bearing on the very ex- to assume, on its own will and responsibility, all istence of the Senate, as a deliberate body, is the powers necessary to carry into effect those susceptible of the most certain and unquestion- granted to it by the constitution? What would able solution. Under our system, all who ex- have been the consequence? Who can doubt ercise power are bound to show, when ques- that a state of perpetual and dangerous conflict tioned, by what authority it is exercised. I between the departments would be the necessadeny the right of the President to question the ry, the inevitable result, and that the strongest proceedings of the Senate-utterly deny it; would ultimately absorb all the powers of the and I call upon his advocates and supporters on other departments? Need I designate which this floor to exhibit his authority; to point out is that strongest? Need I prove that the the article, the section, and the clause of the Executive, as the armed interpreter, as I said on constitution which contains it; to show, in a another occasion, vested with the patronage of word, the express grant of the power. None the Government, would ultimately become the other can fulfil the requirements of the consti- sole expounder of the constitution? It was to tution. I proclaim it as a truth, as an unques- avoid this dangerous conflict between the detionable truth, of the highest import, and here- partments, and to provide most effectually tofore not sufficiently understood, that the Presi- against the abuses of discretionary or implied dent has no right to exercise any implied or powers, that this provision has vested all the constructive power. I speak upon the author- implied powers in Congress. ity of the constitution itself, which, by an ex- But, it may be asked, are they not liable to press grant, has vested all the implied and con- abuse in the hands of Congress? Will not the structive powers in Congress, and in Congress same principle of our nature which impels one alone. Hear what the constitution says: Con- department to encroach upon the other, equally gress shall have power "to make all laws which impel Congress to encroach upon the Executive shall be necessary and proper for carrying into department? Those who framed the constituexecution the foregoing powers, (those granted tion clearly foresaw this danger, and have taken to Congress,) and all other powers vested by this measures effectually to guard against it. With constitution in the Government of the United this view, the constitution has raised the PresiStates, or in any department or officer thereof." dent from being a mere executive officer, to a Comment is unnecessary-the result is in- participation in the legislative functions of the evitable. The Executive, and I may add no Government, and has, among other legislative department, can exercise any power without powers, clothed him with that of the veto, express grant by the constitution or by author- mainly with a view to protect his rights against ity of law-a most noble and wise provision, the encroachments of Congress. In virtue of fall of the most important consequences. By this important power, no bill can become a law it, ours is made, emphatically, a constitutional till submitted for his consideration. If he apand legal Government, instead of a Govern- prove, it becomes a law; but if he disapprove, ment controlled by the discretion or caprice of it is returned to the House in which it origithose who are appointed to administer and ex-nated, and cannot become a law unless passed ecute its powers. By it, our Government, in- by two-thirds of both Houses; and, in order to stead of consisting of three independent, sepa- guard his powers against the encroachments of rate, conflicting, and hostile departments, has Congress, through all the avenues by which it all its powers blended harmoniously into one, can possibly be approached, the constitution without the danger of conflict, and without expressly provides that every order, resoludestroying the separate and independent exist- tion, or vote, to which the concurrence of the ence of the parts. Let us pause for a moment Senate and House of Representatives may be to contemplate this admirable provision, and necessary," (none other can pass the limits of the simple but efficient contrivance by which their respective halls,) "except on a question these happy results are secured. of adjournment, shall be presented to the President of the United States, and, before the same shall take effect, shall be approved by him; or, being disapproved by him, shall be re-passed by two-thirds of the Senate and the House of Representatives, according to the rules and limitations prescribed in the case of a bill.” These provisions, with the patronage of the Executive, give ample protection to the powers of the President, against the encroachment of Congress, as experience has abundantly shown. It has been often said that this provision of the constitution was unnecessary; that it grew out of abundant caution to remove the possibility of a doubt as to the existence of implied or constructive powers; and that they would have existed without it, and to the full extent that they now do. They who consider this provision in this light, as mere surplusage, do great injustice to the wisdom of those who formed the constitution. I shall not deny that 66 SENATE.] President's Protest. [MAY, 1834. Having now established, beyond controversy, that the President has no implied or constructive power; that he has no authority to exercise any right not expressly granted to him by the constitution, or vested in him by law; and that the constitution has secured to the Senate the sole right of regulating its own proceedings, free from all interference; the fabric reared by this paper, and which rests upon the opposite basis, presupposing the right to the fullest and boldest assumption of discretionary powers, on the part of the President, falls prostrate in the dust. But here a very important question presents | rights which belong to us, as a separate constititself, which, when properly considered, throws uent member of the Government, from the ena flood of light on the question under consider-croachments of the Executive power; and it is ation. Why has the constitution limited the thus that the power which is placed in his veto power to bills, and to the orders, votes, hands, as a shield to protect him against the and resolutions, requiring the concurrence of implied or constructive powers of Congress, is both Houses? Why not also extend it to their prevented from being converted into a sword separate votes, orders, or resolutions? But one to attack the rights which are exclusively vestanswer can be given. The object is to protected in the two Houses. the independence of the two Houses-to prevent the Executive from interfering with their proceedings, or to have any control over them, as is attempted in this protest; on the great principle which lies at the foundation of liberty, and without which it cannot be preserved, that deliberative bodies should be left without extraneous control or influence, free to express their opinions and to conduct their proceedings according to their own sense of propriety. And we find, accordingly, that the constitution has not only limited the veto to the cases requiring the concurring votes of the two Houses, but has expressly vested each House with the power With these views, it will not be expected of establishing its own rules of proceeding, ac- that I should waste the time of the Senate in excording to its will and pleasure, without limita-amining its contents; but if additional proof tion or check. Within these walls, then, the Senate is the sole and absolute judge of its own powers; and, in the mode of conducting our business, and in determining how, and when, our opinions ought to be expressed, there is no other standard of right or wrong, to which an appeal can be made, but the constitution, and the rules of proceedings established under the authority of the Senate itself. And so solicitous is the constitution to secure to each House a full control over its own proceedings, and the freest and fullest expression of opinion, on all subjects, that even the majesty of the laws is relaxed to ensure a perfect freedom of debate. It is worthy of remark, that the provision of the constitution which I have cited, in vesting in Congress the implied or constructive powers, is so worded as not to comprehend the discretionary powers of the two Houses, in determining the rules of their proceedings, which, of course, places them beyond the interference of Congress itself. Let us now cast our eyes back, in order that we may comprehend, at a single glance, the admirable arrangements by which the harmony of the Government is secured, without impairing the separate existence and independence of the parts. In order to prevent the conflicts which would have resulted, necessarily, if each department had been left to construe its own powers, all the implied or constructive powers are vested in Congress; that Congress should not, through its implied powers, encroach upon the Executive department, (I omit the Judiciary as not belonging to the question,) the President is clothed with the veto power; and that his veto should not interfere with the rights of the two Houses to control their respective proceedings, it is limited to bills, or votes that require the concurrence of the two Houses. It is thus that our walls are interposed to protect the were necessary to confirm the truth of my remarks, and to show how strong would have been the tendency to conflict, and how dangerous it would have been to have let the several departments in possession of the right to exercise implied powers at their pleasure, this paper would afford the strongest. In illustration of the correctness of this assertion, I will select two or three of its leading positions, which will show what feeble barriers reason or regard to consistency would be to prevent conflict be tween the departments, or to protect the Legislative from the Executive branch of the Government, and how regardless the President is of consistency or reason, where the object is the advancement of the powers of his department. The advocates of the President could not but feel the glaring inconsistency and absurdity of his course; and, in order to reconcile his conduct with the principles that he laid down, asserted, in the discussion, that he sent his protest, not as President of the United States, but in his individual character, as Andrew Jackson. We may assert any thing-that black is white, or that white is black. Every page, every line of this paper, contradicts the assertion. He, throughout, speaks in his official character, as President of the United States, and regards the supposed injury that has been done him, as an injury to him, not in his private, but in his official character. But the explanation only removes the difficulty one step further back. I would ask, what right has the President of the United States to divest himself of his official character, in a question between him and this body, touching his official conduct? Where is his authority to descend from his high station, in order to defend himself, as a mere private individual, in what relates to him in his public character? But, the part of this paper which is the most MAY, 1834.] President's Protest. [SENATE. characteristic that which lets us into the real | upon the opinions and conduct of the Senators renature and character of this movement-is the spectively." source from which the President derives the Resolved, That the President of the United States has no right to send a protest to the Senate against any of its proceedings. 66 Resolved, That the Senate do not receive the protest of the President." A few words passed between Mr. FORSYTH, Mr. POINDEXTER, Mr. KING, and Mr. CALHOUN, on the question of order, as Mr. FORSYTH's proposition was pending. Mr. CALHOUN stated that the obvious meaning of a rule of the Senate, that before any motion to strike out the words of a resolution should be received, was, that the resolution might be made as perfect as possible. Mr. FORSYTH finally withdrew his amendment for the present, to allow the question to be taken on the resolutions of Mr. CALHOUN The yeas and nays were then ordered on the amendment proposed by Mr. CALHOUN. Mr. POINDEXTER asked for the yeas and nays right to interfere with our proceedings. He on this amendment, and they were ordered. does not even pretend to derive it from any Mr. CALHOUN moved to amend the original power vested in him by the constitution, ex-resolutions, by adding the two following resolupress or implied. He knew that such an at- tions: tempt would be utterly hopeless; and accordingly, instead of a question of right, he makes it a question of duty; and thus inverts the order of things; referring his rights to his duties, instead of his duties to his rights, and forgetting that rights always precede duties, and are in fact but the obligations which they impose, and of course that they do not confer power, but impose obedience obedience, in his case, to the constitution and the laws, in the discharge of his official duties. The opposite view-that on which he acts, and which would give to the President a right to assume whatever duty he might choose, and to convert such duties into powers-would, if admitted, render him as absolute as the Autocrat of all the Russias. Taking this erroneous view of his powers, he could be at little loss to justify his conduct. To justify, did I say? He takes higher, far higher ground; he makes his interference a Mr. FORSYTH said he concurred with the Senmatter of obligation; of solemn obligation; im- ator from South Carolina, (Mr. CALHOUN,) that perious necessity-the tyrant's plea. He tells the paper was an official message from the Presius that it was due to his station, to public opin-dent of the United States-in some sort perion, to proper self-respect, to the obligation im-sonal, too, as every paper must be that was posed by his constitutional oath, his duty to see presented by an officer, to defend himself on a the laws faithfully executed, his responsibility as the head of the Executive department, and to his obligation to the American people, as their immediate representative, to interpose his authority against the usurpations of the Senate. Infatuated man! blinded by ambition -intoxicated by flattery and vanity! Who, that is the least acquainted with the human heart-who, that is conversant with the page of history, does not see, under all this, the workings of a dark, lawless, and insatiable ambition; which, if not arrested, will finally impel him to his own, or his country's ruin? When Mr. CALHOUN had concluded, Mr. BIBB withdrew his amendment "that the protest be not received." charge of disregarding his duty, his personal character being in such charge necessarily involved. Considered as an official communication from a co-ordinate department of the Government, it was with unfeigned surprise that Mr. F. saw the pertinacity of members in thus gravely discussing the question whether the message or protest should be received or not. Senators treat it as an ordinary petition or memorial. Now a petition was never in the hands of the Senate until it was formally received. A member under the rule presents a memorial in his place, states its contents, and if no objection is made, it is received. If objection is made, the sense of the Senate is taken the memoriaĺ remaining, until the Senate agrees to receive it, in the hands of the Senator who offered it. How is it with an official message from the President to either House of Congress, or from one branch of the Legislature to the other? The Secretary of the Executive or of the House presents himself at our bar: "I am directed to lay before the Senate a message in writing," &c. It is laid "Resolved, That, leaving to the States, to whom on our table-it is beyond the control of the the Senate is alone responsible, to judge whether Executive or of the House-without our permisthe resolution complained of is, or is not, within sion it cannot be withdrawn; it lies on the table the constitutional competency of this body, and of the Senate, in our possession, before and afcalled for by the present condition of public affairs, ter it is read. Whatever may be its contents, an authenticated copy of the original resolution, with a list of the yeas and nays, of the President's we cannot refuse to receive it, without acting message, and of these resolutions, be prepared by absurdly. Admit our right to examine the pathe Secretary, and transmitted by the Vice Presi- per, and decide upon its character before it is dent to the Governor of each State of the Union, to received, and then, when passion, or reason, or be by him laid before the Legislature at their next prejudice, prevails, to refuse to receive a message fession, as the only authority authorized to judge disagreeable to us, what becomes of the rights Mr. FORSYTH moved to amend the resolutions, by striking out all after the word "Resolved," in the first resolution, and inserting— "That the message of the President, protesting against the resolution of the Senate of the 25th of March, be entered on the Journal, according to his request. of the President and the two Houses, in their intercourse with the Executive and with each other? A bill is sent to the President. He returns it with his veto-examining freely the powers of Congress, and placing his refusal to pass the bill on the ground of want of constitutional power in the Federal Government to legislate on the subject of it-speaks freely or harshly of usurpations of powers-and can we or the House of Representatives refuse to receive it? What becomes of the bill? It is a law, if not returned to the House where it orig; inates, in ten days. The message and returned bill are not on file or on the Journals of either House; no record of the veto, where alone it can or ought to be looked for, is on the Journals of the House where the bill originated. TUESDAY, May 6. Vote on the Question of Receiving the President's The question was taken on the first resolution, and decided in the affirmative, as follows: YEAS.-Messrs. Bell, Bibb, Black, Calhoun, Clay, Clayton, Ewing, Frelinghuysen, Kent, Knight, Leigh, Naudain, Poindexter, Porter, Prentiss, Preston, Robbins, Silsbee, Smith, Sprague, Swift, Tomlinson, Tyler, Waggaman, Webster-25. NAYS.-Messrs. Benton, Brown, Forsyth, Grundy, Hendricks, Hill, Kane, King of Alabama, King of Georgia, Linn, McKean, Shepley, Tallmadge, Tipton, White, Wilkins, Wright-17. The question was then taken on the second resolution of Mr. CALHOUN, and decided in the negative, as follows: YEAS.-Messrs. Calhoun, Clayton, Ewing, Leigh, Naudain, Poindexter, Robbins-7. NAYS.-Messrs. Bell, Benton, Black, Brown, Clay, Forsyth, Frelinghuysen, Hendricks, Hill, Kane, Kent, King of Alabama, King of Georgia, Linn, Moore, Porter, Prentiss, Preston, Shepley, Silsbee, Smith, Swift, Sprague, Tallmadge, Tipton, Tomlinson, Tyler, Webster, White, Wilkins, Wright-34. WEDNESDAY, May 7. President's Protest. [MAY, 1834. [Mr. Webster delivered an extended argument in favor of adopting the four resolutions, which argument necessarily covered ground previously trod by himself and others, and concluded with a recapit. ulation of the heads and substance of his speech which presented the whole in a condensed, pointed, and impressive manner. The following was his recapitulation:] I will now, sir, ask leave to recapitulate the general doctrines of this protest, and to present them together. They are: That neither branch of the Legislature can take up, or consider, for the purpose of censure, any official act of the President, without a view to legislation or impeachment; That not only the passage, but the discussion of the resolution of the Senate of the 28th of March, was unauthorized by the constitution, and repugnant to its provisions; 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 anywhere, except with such superintendents and keepers as are appointed by him, responsible to him, and removable at his will; That the whole Executive power is in the President, and that, therefore, the duty of de fending the integrity of the constitution results to him from the very nature of his office; and that the founders of our republic have attested their sense of the importance of this duty, and, by expressing it in his official oath, have given to it peculiar solemnity and force; That as he is to take care that the laws be faithfully executed, he is thereby made respon sible for the entire action of the Executive deMr. FORSYTH then moved his amendment, and partment, with power of appointing, overseeasked for the yeas and nays on the question-ing, and controlling those who execute the which were ordered. Mr. F. said that, considering this document was entirely defensive in its character, he thought it proper to send it to the Legislatures of the States, and his object was to give the opportunity. The question was taken on the amendment of Mr. FORSYTH, and decided in the negative, as follows: YEAS.-Messrs. Benton, Brown, Forsyth, Grundy, Georgia, Linn, McKean, Shepley, Tallmadge, Tipton, NAYS.-Messrs. Bell, Bibb, Black, Calhoun, Clay, laws; That the power of removal from office, like that of appointment, is an original Executive power, and is left in his hands, unchecked by the constitution, except in the case of judges; that, being responsible for the exercise of the whole Executive power, he has a right to employ agents of his own choice, to assist him in the performance of his duties, and to discharge sible for their acts; them when he is no longer willing to be respon all persons appointed to offices created by law, That the secretaries are his secretaries, and 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. These, sir, are some of the leading proposi tions contained in the protest; and if they be true, then the Government under which we live is an elective monarchy. It is not yet absolute, there are yet some checks and limitations in the constitution and laws; but in its essential and prevailing character, it is an elective monarchy. Mr. President, I have spoken freely of his protest, and of the doctrines which it advances; but I have said nothing which I do not believe. On these high questions of constitutional law, respect for my own character, as well as a solemn and profound sense of duty, restrains me from giving utterance to a single sentiment which does not flow from entire conviction. I feel that I am not wrong. I feel that an inborn and inbred love of constitutional liberty, and some study of our political institutions, have not, on this occasion, inisled me. But I have desired to say nothing that should give pain to the Chief Magistrate, personally. I have not sought to fix arrows in his breast; but I believe him mistaken, altogether mistaken, in the sentiments which he has expressed; and I must concur with others in placing on the records of the Senate my disapprobation of those sentiments. On a vote which is to remain so long as any proceeding of the Senate shall last, and on a question which can never cease to be important while the constitution of the country endures, I have desired to make public my reasons. They will now be known, and I submit them to the judgment of the present and after times. Sir, the occasion is full of interest. It cannot pass off without leaving strong impressions on the character of public men. A collision has taken place, which I could have most anxiously wished to avoid; but it was not to be shunned. We have not sought this controversy; it has met us, and been forced upon us. In my judgment, the law has been disregarded, and the constitution transgressed; the fortress of liberty has been assaulted, and circumstances have placed the Senate in the breach; and, although we may perish in it, I know we shall not fly from it. But I am fearless of consequences. We shall hold on, sir, and hold out, till the people themselves come to its defence. We shall raise the alarm, and maintain the post, till they whose right it is, shall decide whether the Senate be a faction, wantonly resisting lawful power, or whether it be opposing, with firmness and patriotism, violations of liberty, and inroads upon the constitution. Mr. BENTON Said: The attack upon the President, so indecently and illegally commenced at the beginning of the session, now draws to a close, and approaches its termination. The protracted discussion expires under its own length: all the defenders of the Senate have been heard; the case is ready to go before the people, and to be handed down to posterity, and to receive from the ultimate arbiter of human actions-an impartial public-the final sentence of condemnation or approval to which [SENATE. it is entitled. And how does the case stand on the part of the Senate? How does the Senate appear? Naked, defenceless, unjustified, and unjustifiable! Stripped to the shirt, like the Roman Consuls in the Caudine Forks! and without denial or palliation for the most flagrant breach of the constitution, and the most scandalous disregard of decency, which the history of faction and the annals of cabal has ever exhibited to an outraged community, in any age, or in any country. The What is it, said Mr. B., that the Senate has done? What act of theirs has had the novel effect to place this high body at the bar of the public to throw it into a deep and deadly breach, and to make it cry out for succor and for safety? What act has the Senate done to produce this strange vicissitude in its fortunes, to work this wonderful metamorphosis on its own dignity and station? What has it done to effect all this? Let facts, and an impartial country, respond to the inquiry! All America knows that, when the deposits were removed last fall, the whole newspaper interest connected with the United States Bank immediately proclaimed a violation of the constitution and of the laws, and demanded the impeachment of the President. The impeachment was not only demanded, but foretold and asserted. House of Representatives was appealed to; their duty to prefer the impeachment was incessantly urged; their intention to do so was openly affirmed; and so far was the process carried, of preparing the public mind for the event, that the names of the members who were to move it, and of the witnesses who were to attend the trial, were exultingly and ostentatiously paraded in the presses of the bank! All this took place in the months of October and November, and took place too recently and too notoriously to brook contradiction, or to require corroboration on this floor. And thus, for two months before Congress assembled, and to the full extent that bank intelligence and bank publications could go, the public mind was warned and prepared to witness an attempt to get up a formal impeachment against President Jackson, as soon as Congress met. The dismissal of Mr. Duane, because he would not give the order for the removal of the deposits; the appointment of Mr. Taney to give that order, and the consequent exercise of illegal and unconstitutional power over the Treasury of the United States, which was held to be the Bank of the United States, were the notorious and proclaimed grounds for demanding the contemplated impeachment. Congress meets on the third day of December; day after day, and week after week, passes away, and no member is found to rise in his place to move the impeachment which the bank presses had so openly demanded and so confidently foretold. No member of the House rises in his place to commence that proceeding, which under the constitution of the country, could only commence in the House of Representatives, the im |