« ZurückWeiter »
agree that it was done in his absence. It is upon the end, the whig lords expunged a protest which impugned strength of that very resolution that we have claimed the principles of the revolution, though the protesters for him the honor of having been the first to set the ball had an undoubted right to enter their protest. The of the Revolution in motion. If the resolution was ex Senate of the United States is now to be condemned for punged, the House of Burgesses threw away the palm, refusing to receive, and insert in its journal, a protest of glory which Mr. Henry might have won, and we ofl of the President against its proceedings, who had no Virginia must concede it to James Otis and Massachu. color of right to make any such protest; and the justice setts. It has hitherto been a subject of honorable con of the President's protest is to be acknowledged, by extention between us.
punging from our journal the entry of the proceedings My colleague, with a view to recommend the expung. | against which he protested. ing process to especial favor, took the pains to explain the House of Commons expunged its resolution in to us that, in every instance which has been resorted to the case of the Middlesex election, and thereby ac. in the English Parliament, the purpose and the effect knowledged the eligibility of all persons, not under have been to vindicate some important principle of civil some known legal incapacity, to a place in that House, liberty. The warmth of his zeal prevented him from and (what was infinitely more important) the right of perceiving the contrast which the story of the proceed the people to be represented by the man of their own ing we are engaged in will present to the world and to choice. Our expungers have never thought of expungposterity. It is as striking as it is melancholy.
ing the proceedings on the subject of the sedition law; Thus, in the famous case of ship-money, the House of a statute which invaded the constitutional rights of the Loris vacated and cancelled the opinions of the judges, people; which, in the almost unanimous opinion of the and the judgment against Mr. Hampden, in order to nation, uniformly maintained for thirty-five years, was condemn and abrogate for ever a dangerous prerogative plainly inconstitutional, and which, therefore, had its claimed by the Crown upon the strength of old prece. beginning in wrong. They only have recourse to the dents, to raise revenue for itself, without the consent or process of expunction in order to vindicate and confirm authority of Parliament; but the purpose of the propo. executive power. sition to expunge our resolution of March, 1834, from I cannot, for my part, look at this contrast without our journal, is, and its effect will be, to affirm and estab mortification and alarm. The Parliament of England, lish the executive prerogative claimed by the President, professing monarchical principles, have exercised the to exercise a complete control over the custody of the power of expunging obnoxious proceedings, in order to public treasure, and to give the use and profit of ii, in establish principles in their nature truly republican. the interval between the collection and disbursement, American Senators, professing (sincerely, I do not to persons of his own selection. We have seen, too, doub:) democratic republican principles, Aushed with that the House of Lords, in the course of the ship-money recent victory over their opponents, are endeavoring to transaction, passed a resolution condemning, in the apply this same process of expunction, in order to esstrongest terms, the conduct of impeachable officers as tablish a power in the Executive which appears to my illegal and unconstitutional--though an impeachment anxious mind monarchical prerogative. I do not impuie against one of them was actually pending, and impeach- | the design to them--I do not, I cannot, suspect them of ments against others, on the same grounds, were antici. / any such purpose. I am speaking only of the tendency pated, which impeachments that House was the tribunal and effect of the principles they are maintaining. to try and determine-without incurring the blame of Here Mr. L. gave way for a motion to adjourn. prejudging the cause of him who was accused, and of On the following day, Mr. Leigh resumed the debate. all that might be accused, of participation in the act de. He said the principal purpose of the remarks he had clared illegal. But it is one of the main objects intended addressed to the Senate yesterday was to show that the to be accomplished by expunging our resolution, to original manuscript journal of our proceedings was the establish the doctrine that the judicial powers vested in journal which the constitution required us to keep; that the Senate by the constitution, instead of being an addi. The requisition to keep the journal imposed on us the tion to, operate as a limitation upon, its legislative duty to preserve it--to preserve it permanently and powers; and that the Senate cannot express an opinion | carefully, without defacement or mutilation; that no against the legality of the measures of the President, authority for expunging any entry from our journal or, by consequence, of any other impeachable officer, I could be found in English parliamentary precedents, or without exposing itself to the reproach of impeaching, | in those of any legislative body in America, whose duty trying, and condemning, without hearing, the officer to keep a journal was not imposed by a constitutional who may, by possibility, be impeached.
provision; and that, consequently, the Senate could not The expunging of the proceedings and judgment of expunge the resolution of March, 1834, from the jourthe House of Lords, in the case of Skinner against the nal, in the literal sense of expunging, without a violation East India Company, my colleague says, and says justly, of the constitution. He had taken the more pains to was intended, (and, in fact, accomplished the object to establish this conclusion on grounds of irrefragable reavindicate the common right of the subject to trial by son, because, in his opinion, it involved the whole jury in due course of law. And he counsels us to ex. question. It seemed to him, indeed, that the gentleman punge our resolution, for the purpose of acknowledging from Missouri and his colleague, both, thought so too; and confirming the power of the President, without for they had exerted their faculties to the utmost to judge or jury, to take away the public deposites from prove the right of the Senate to expunge, literally and the Bank of the United States, which the bank claimed absolutely, as an essential ground of the argument for by virtue of a contract, upon a charge alleged by himself expunging in the typical manner proposed. And he of criminal conduct in the bank, which the President supposed it would be very hard for any man, who sinhimself declared afforded just ground for a judicial pro. cerely thought that the constitution forbade us to exceeding against it, to revoke its charter.
I punge literally, to reconcile it to reason or conscience The expunging of the protest of the tory lords in 1690 to expunge typically. was designed to vindicate the principles of the glorious For (said Mr. L.) granting it to be true that those revolution of 1688, which finally established and con- / who have a right to expunge and annihilate any written firmed to the people of England the blessings of civil instrument or evidence, may do any thing short of actual liberty--the security of a Government of laws, as distin. / expunction and destruction, which shall indicate the intent guished from a Government of will; and, pursuing that I to expunge and destroy; those who bave no right to
(April 4, 1836.
expunge and annihilate the evidence of any particular entertaining different opinions, and following our exam. transaction, have no right todeclare their will to expunge ple as to the manner of manifesting and enforcing them, and destroy it, in any form of words or action whatever, must draw black lines around our black lines, and write and to substitute such manifestation of their will in place a sentence of expunction across our sentence of expuncof the act to which they are incompetent. To illus- tion; and if the party character of the Senate shall after. trate this: A lestator has a right to cancel or destroy | wards again undergo a change, before the present party his own will, and if he run a single stroke of his pen heats shall subside, the process may be reiterated. This across it, with intent to cancel ii, or write “cancelled” would be farcical, to be sure; but public bodies, acting in the margin, without actually cancelling it; or if he under the influence of strong party feelings, are often tear it, with intent to destroy, without actually destroy- unmindful of their true dignity, and sometimes, sacrifi. ing it, no doubt such an indication of his purpose is cing it to the indulgence of their resentments, incur the proper enough, and may stand for the act he might contempt and scorn they would bring upon others. I rightfully perform. But no one can cancel or destroy wish from my heart that the proceeding was only ludihis own deed; and, therefore, if be happen to get it in crous. I hope and trust, most sincerely, that the exam. to bis possession, lie has no right to avoid the guilt, and ple of this "avenging" process may never be followed; yet accomplish the purpose, of destroying it, by any but I am most serious when I tell gentlemen that they manner of defacement his ingenuity can devise. In are proposing to do what they have not the moral or sound morality, men may make an indication of their legal power to do; they are vainly attempting to antiwill stand for their act, if they have a right to do the cipate and prevent the judgment and action of their sucact; but if the act be criminal or vicious, even the will to cessors in all times to come, and to pass and execute final do it, without a single step towards the accomplishment and irrevocable sentence of condemnation on the Senate of it, 's not blameless. In the present case, sir, so en: of 1833-'34. tirely does the right to expunge the resolution in ques I cannot be so wanting in respect to the gentlemen tion from the journal, in the emblematical manner pro. who have so gravely and so earnestly recommended this posed, depend on the right to expunge it actually and typical expunging (which, they tell us, is really no es. literally, that, if we shall adopt this notable device for punction) of our resolution of March, 1834, from the expunging it, this may and will be regarded as a prece. original manuscript journal, (which, however, they say dent, in alí future times, to justify an actual obliteration, is not the journal of the Senate,) as to suppose that they mutilation, erasure, or other destruction of the journal, have taken so much pains to accomplish an act which, as to any obnoxious proceeding.
in their own opinion, will be in itself absolutely vain and There is another objection to this scheme of typical | nugatory. And, therefore, I take it for granted that expunction, which weighs much on my mind. I hold they intend, in the proceeding they propose-while they it the duty of every man to speak the simple truth on leave the verbal record of our resolution on the journal every occasion, without mental reservation or equivoca- substantially unimpaired-to annihilate its efficacy; and tion; and especially is this the duty of men aciing or this, in truth, upon the supposition that it is within our speaking in public stations, under the sanction of an off. competency so to expunge the resolution, must be the cial oath. Now, what is it that is proposed to us? | legal effect of such an expunction. Now, let it be re. Why, that we shall pass a resolution to expunge an entry membered that the duty enjoined upon the Senate by from our original manuscript journal, by drawing black the constitution, to keep a journal of its proceedings, is lines around it, and writing "expunged by order of the equally applicable to all its proceedings, legislative, exSenate” across it; and, in order to obviate a constitu ecutive, and judicial; that if we are not bound to make tional objection to any defacement of our journal, this and preserve a journal, fair and unimpaired, of our le. is explained in argument to be no expunging at all, be gislative transactions, so neither are we bound to keep cause it will leave the whole entry still perfectly legible; | the journals of our executive or judicial proceedings; and more, that it will not be an expunction of the jour. that we have the same duty to perform, and bave as nal, for the original manuscript is not the journal. I large discretionary powers, in respect of one as of the mean no offence to any body, but I must say that, to my | others; that if we may expunge any one entry from the heart and understanding, this is exactly wbat is called | legislative journal, and thereby invalidate the act it rean equivocation. I have taken it into my head, during cords, we inay expunge and invalidate any other; that the present session of Congress, to read Paschal's Pro- | exactly in the same manner and with the same effect vincial Letters, which I had not read before for thirty that we may expunge and invalidate an entry on our years; and whoever will take the trouble to look at the legislative journal, we have a right to expunge and ninth letter, will find this doctrine of equivocations, as annihilate the legal efficacy of any entry on our execu. laid down by Filiutius and Sanchez, and the convenient tive or judicial journal. And then I ask gentlemen to uses to which it is applicable, fully explained.
give their serious and calm consideration to the conseBut, sir, I presume it will not be affirmed by any quences. gentleman that it is within the competency of the Senate, if the Senate may expunge, and by expunging in at this session, to exhaust the whole power of the Senate any form or manner) invalidate the resolution in ques. in all times to come, over this or any other subject; ! tion, there is no good reason why it may not, in like and yet the act which we are urged to commit will, in manner, expunge and invalidate any entry of any other reality, have the effect of preventing the counteraction of its proceedings in its legislative capacity. Suppose, of any future Senate. Suppose we were literally to ex among the numerous private acts passed at the session punge the resolution of March, 1834, from the journal of 1833-'34, there was one granting land, money, or to blot it out how shall the Senate at a future session, any other property, to an individual, which, in the opinentertaining a different opinion of the merits of the reso- ion of the Senate at the present session, was corruptly Jution, expunge the expunction? How shall it blot out passed by the majority of the Senate at that session, (as the blots? Shall it erase them, and reinstate the words a reward, for example, for partisan services,) and so bad of the resolution? Then another obliteration at a sub. | its beginning in wrong; or, suppose there was any act sequent session would effectualy prevent the possibility / passed at that session, which the Senate at this shall of ever afterwards replacing them on the jonrnal, let the deem unconstitutional, and for that reason impugn as paper on which it is written be never so substantial. Sup- having commenced in wrong, as gentlemen would have pose the typic process of expunging the entry shall be us impugn the resolution of March, 1834; it is just as adopted and carried into execution; a succeeding Senate, 'much within the competency of the Senate now to or
APRIL 4, 1836.]
der all its proceedings manifesting its assent to such abuses of a power, against the existence of the power. acts to be expunged from the journal, as it is to ex. Did he not perceive that that remark, as he applied it, punge this resolution. He that shall hold that such acts would equally serve as an answer to all objections to an would cease to be valid as laws, in consequence of the assumption of any power whatever, which should be expunging from the journal of the evidence of their | dangerous in itself, as well as unconstitutional? Or having been passed by the Senate, must admit the com. does he think that an unconstitutional power is less petency of the Senale alone, by the application of this liable to abuse than a constitutional one? Sir, the arguexpunging process, to invalidate, in effect, an act of the ment! am urging against the proposition he has mainwhole Legislature; and he that shall hold the laws valid, tained is, that it involves other principles plainly unconnotwithstanding the expunging of the proceedings of stitutional; and I show the application of which it is the Senate upon them, must admit that the act of ex. | susceptible to other uses of the same kind, in order to punging is a mere nullity; in other words, that the Sen- expose the inberent vice of the proposition itself. I ate has no right to expunge. Then, with respect to have not been arguing from the abuses of this expungour executive journal, (which it is not our course to ing process, but from the uses which the principle, if publish so promptly as our legislative journal, what constitutional and just, would as well justify as the use would be the condition of a person nominated by the to which it is now proposed to apply it. And no one, I President to an office, and the nomination confirmed by should think, ought to be more sensible than my honorthe Senate, but the act of confirmation afterwards ex. able colleague of the extent to which the authority of punged by order of the Senate? Would he be an offi- | precedents may be strained; for he has given us a notacer or not? If not, no man can feel perfectly safe in ble example of it himself, in the application he has exercising the functions of any office depending on the made to his present purpose of the two instances of ex. appointment of the President, by and with the consent punging that have been found in the proceedings of the and advice of the Senate; or, the Senate may, without | Senate. the concurrence of the President, remove the officer- As to one of them, I have only to state it. Mr. Ranexpunge him from office. If, on the contrary, in spite dolph, having received information of the death of Mr. of our expunging the confirmation of his appointment Pinkney, announced it as a fact to the Senate; and the from our journal, he would still be entitled to his office, Senaie, to testify its respect for the memory of a man then our act of expunging the entry of confirmation is who had once been so distinguished a member of its unauthorized and void. But the consequences are yet own body, immediately adjourned---expressing of more glaring and enormous when we come to consider course, the reason of the adjournment, which was en. the possible application of this expunging process to tered by the Secretary on his minutes. It turned out, the journal of our judicial proceedings. A man is im. however, that Mr. Pinkney was not yet dead; and, the peached before the Senate of high crimes and misde. next morning, when the journal was read, according to meanors, tried and convicted, and sentence of incapaci. | the role, “to the end that any mistake might be cortation for public office solemnly pronounced upon him; rected that had been made in the entries," the Senate the court is dissolved: the Senate, afterwards, becoming I ordered the entry stating the fact of Mr. Pinkney's convinced of the injustice of the judgment and sen death to be expunged from the journal. This was not, tence, order the entry of them to be expunged from indeed, as my colleague says, a correction of a mistake the journal. If the Senate is really competent to inval of the Secretary in making the entry; but it was a cor. idate the judgment by expunging it, his sentence is in rection of a mistake, in point of fact, into which Mr. effect reversed, and his incapacity removed; and, at any Randolph had fallen, and had misled the Senate. rate, if he shall be elected a member of the Senate Whether the correction was strictly within the rule of while the expunging Senate is in power, he will be per. the Senate as to correcting mistaken entries in its jourmitted to take his seat there. But suppose the accused nal, no one thought of inquiring at the time, and I shall acquitted, and the Senate, at a future day, honestly im- | not now stop to inquire: the correction was intended to puting the acquittal to partiality or corruption in the be made in conformity with that rule of the Senate, for Senate that tried his cause, should order the judgment making up the journal, which the constitution requires of acquittal to be expunged from the journal, and then the Senate to keep a new prosecution should be commenced against him on The other instance of expunging by the Senate is the same charges; how could he have the benefit of that hardly more important in itself, but it calls for a more inestimable principle of justice so dear to the people of particular consideration. On the 21st of April, 1806, this land, that no man shall be twice brought in being the very last day of the session, it appears, by the jeopardy for the same offence? how could he plead his rough minutes, taken at the table, that Mr. Adams pre. former acquiltal, and show the record of the fact? If sented two petitions of $. G. Ogden and W. Smith, and the judgment should have been literally expunged from the first entry on the minutes in respect to them is, the journal, it would be impossible for him to make “read, and to lie;" then, “ motions be rejected;" then, good his defence. And if it should have been typically the words be rejecied struck out with a pen, and, inexpunged, and the record should be produced, with stead of them, “leave to withdraw” inserted. After black lines drawn round it, ("black," as the gentleman this, there is an entry more in detail-that "Mr. Adams from Missouri says, “black as the injustice,”) and with communicated two memorials from S. G. Ogden and w. the “avenging' sentence of expunction written across S. Smith, stating that they are under a criminal proseit, his doom, I apprehend, would be equally certain if it cution for certain proceedings, into which they were led should be his hard fate to be arraigned before the same by the circumstance that their purpose was fully known Senate that had thus expunged the former judgment of to and approved by the executive Government of the acquittal. Agiin I implore gentlemen to forbear. I United States,” (the prosecution, we know, was for pray God to put it in their hearts to pause, to reflect upon the part the memorialists had taken in Miranda's expethe consequences involved in the principle they are dition,) complaining of such maltreatment by the dismaintaining, and to spare our country the establishment trict judge of the United States at New York, that the of a precedent that may be alleged hereafter as an ex. grand jury had made a presentment against the judge ample and authority for wrongs like these.
for it, and praying relief from Congress; and then the But, to all appeals and all arguments of this kind, my entry is, "on motion, ordered, that the memorialists colleague has one general, compendious, all-sufficing have leave to withdraw their memorials, respectively." answer: that it is not fair to argue, from the possible Finally, the last minute of the proceedings of this last
(Arril 4, 1836.
day of the session was, “ op motion that every thing injustly said) is the eternal price that men must pay for the journal relative to the memorials of S. G. Ogden liberty. To do Mr. Jefferson justice, it must be reand W. S. Smith be expunged therefrom, it passed in marked that there is not the least reason to believe that ihe affirmative, by yeas and nays, 13 to 8.”* The ad. he approved, or even knew, of that expunging order of joining order follows immediately. It has been said that the Senate in April, 1806, much more counselled or all the republicans voted for, and the federalists against, wished it. Whether the present Chief Magistrate has the motion. How that is, I do not know. Now, the first taken any pains, or expressed any wish, for the accom. remark that occurs is, that this is manifestly an expunc. plishment of the expunction now proposed, I do not tion from the minutes, not from the journal; an order know; though I could give a shrewd guess. that, in making up the journal, those entries on the There was another precedent during Mr. Jefferson's minutes should not be inserted. The next consideration administration, which I shall mention, to illustrate the is, that the reasons of the expunging nowhere appear; wonderful power and influence of precedents in human they are not stated in the proceeding itself, and, I un. affairs. In December, 1787, Mr. Jefferson wrote a letderstand, no notice of the transaction is to be found in ter to Mr. Madison on the subject of the present con. the newspapers of the day. For aught that appears, stitution of the United States, then recently framed, but the previous entries might have been expunged, be- not yet adopted; in which one of his chief objections to cause they did not truly state the fact when they repre. that instrument was the omission of a bill of rights, prosented that the memorials bad been received, and leave | viding (among other things) for “jury trial” and “the given to withdraw ther; and I have no doubt those en eternal and unremitting force of the habeas corpus tries did not truly state the real opinion of the Senate laws;" and he repeated the objection in letters to on the subject at the time the memorials were first pre- another correspondent afterwards. He was not then sented. We all know how such things are done, es. content with the provision of the constitution, (art. 1, pecially during the hurry of a last day's session. The sec. 9,) that “the privilege of the writ of habeas corpus gentleman from Missouri thinks that the reason of ex. shall not be suspended,” (that is, even by Congress,) punging the entries concerning those memorials was, “unless when, in cases of rebellion or invasion, the that they contained disrespectful imputations upon the public safety may require il”-ie thought there ought Chief Magistrate and a judicial officer; in which his con to be “no suspensions of the habeas corpus;" for my jecture may be right, and I think it probable enough pari, I am content with the security provided by the that it is. But, thirdly, the least attention to the cir. constitution, if it shall be fairly observed. Now, in the cumstances of the transaction will suffice to convince winter of 1806-'7, General Wilkinson made a military every mind that hardly any thought was bestowed upon | arrest of three persons in New Orleans-Swartwout, the expunging, as very little could have been given to Bolman, and Alexander, and sent them to Washington; the proceeding ordered to be expunged; that both prob. and it was not until they bad got here that they were ably passed sub silentio; that ihe constitutional ques. discharged on a habeas corpus by the Supreme Court. tion as to the right of the Senate to expunge any pro. They belonged not to the army; they were nowisc ceeding from its journal was not suggested, much less amenable to martial law. As to the first two, there was discussed. And is such a precedent of expunging as reason to believe that they were implicated with Colonel this-an expunction from the minutes of the Secretary, Burr in his projects, whatever they were; for, to this not from the journal made up by the Senate to be kept day, the public is not informed what they were. But -founded on what reasons, no one know's, and none against Alexander no evidence of guilt, no ground of ever inquired-done in haste, and amidst the confusion suspicion, that I remember, ever appeared; no colora. of the last moments of an expiring session--ordered ble pretext was stated to the public for his arrest. Did without discussion, and probably without a question Mr. Jefferson censure these illegal arrests, made by an made as to the constitutional propriety of the proceed. officer subject to his absolute control? did he disapprove ing, so passed as to attract no attention, to elicit no in- ibis violation of the personal security of the citizen, by vestigation-is such a precedent to be gravely, much military power? did he call the general to any account? more triumphantly, quoted as an authority in this did he order any inquiry? I only know that the Presi. debate?
dent of the United States gave the general his counten. But suppose that vote of April, 1806, was (what it ance, approbation, and support; and the confidence of certainly was not a deliberate expression of the opinion the public in the Presideni's prudence and justice, and of the Senate on the very point, that the Senate may their detestation of the guilty schemes imputed to Colconstitutionally exercise a discretion to expunge from onel Burr, had the effect of exempting General Wilits journal, at any time, the entry of any proceeding kinson from blame. And in September, 1810, Mr. which it disapproves as irregular and unjust; it would Jefferson wrote a letter to a Mr. Colvin, in which he only add another instance to the thousands with which deliberately justified General Wilkinson's conduct, upon all history abounds, of the truth of the common observa the ground of the necessity of the case, which, as he tion, that it is during the administration of the most pop states it, was the oddest case of necessity that ever was ular Chief Magistrates that precedents dangerous to imagined: the letter has been published by his grandliberty are most to be apprehended, most to be depre son. The fact of his entertaining such an opinion was cated, and most carefully to be avoided; not on account generally known, or at least reported at the time. The of any design on their part, or of vicious design in any necessity of the case might (for aught that I know) bare quarter, but simply because confidence in them not afforded an excuse for General Wilkinson's conductonly serves to give authority to liveir example, but dis- might have entitled him to pardon and indemnity; but arms the public mind of that wholesome jealousy, that it could not have afforded him any justification; and I constant vigilance, which (as Mr. Jefferson has himself say, before high Heaven, that if all the great and grod
men of the Revolution bad signed that letter with Mr. * Mr. Leigh forgot to ask what those gentlemen Jeffi irson, I would still lift up my voice to protest against would think of the authority of this precedent, who the dangerous unconstitutional doctrincs it inculcates. maintained the opinion that the Senate had no constitu. There, then, was a precedent of military arrest, set tional right to refuse to receive the memorials of the even during Mr. Jefferson's administration, without be. abolitionists, or any other petition not disrespectful to ing seriously questioned, and without exciting any jeal. the Senate, or some member of it, or any petition, no ousy or alarm in ile public mind. And some few years matter what its character is. - Note by Mr. L.
1 afterwards, General Jackson, charged with the defence
APRIL 4, 1836.]
of New Orleans against an invading army, improved grant that I may be mistaken in my impressions of the upon the precedent; abrogated the privilege of the writ past, and my forebodings of the future; but I must de. of habeas corpus for a time, proclaimed martial law, and clare my opinion, that never did any republic make turned the State Legislature out of doors. His conduct, such rapid strides towards pure monarchy as we have too, may have been prudent, and founded in laudable done within these few years past. Saying this, let me motives; he, too, might have been entitled to complete be understood: I impute no such designs to any body, indemnily; but he violated the constitution of his coun much less do I impuie any inclination for monarchy to try-he suspended, for the time and place, the sacred the great body of the people. I believe no republican principles of civil liberty. The glory of the victory of people ever knowingly, and of purpose, gave up the New Orleans justified all; and great glory there was, blessings of free government; but in the heat of vioand great good accomplished for his country, I willingly lent political contentions, the official agents of the acknowledge; though (by the way) in my opinion, his people, and the people themselves, have but too often fame as a general rests more on his spirited and judi- | unwarily concurred in introducing and sanctioning prille cious attack upon the enemy on the 23d of December, ciples of administration which, once put into operation, than on his crowning victory of the 8th of January. work with uncontrollable effect beside and beyond the Allow him the fullest meed of praise; still, the sense of original purpose and design, and, in the end, endanger that brilliant and most important public service, the the very being of the republic. And this, in my gratitude it deserved, the admiration it excited, the opinion, is what we have been and are now doing. The glory it achieved for the general and the nation, ought very confidence we have in ourselves, and in our institunot to bave stifled our love and care for the constitution. tions, as it stifles in the public mind that jealousy, vigiHe was entitled to honor and gratitude for the good he
titled to honor and gratitude for the pood he / lance, and care, so essential to security, is a principal did, and to indemnity for any wrong he committed / source of our danger. through necessity, and with virtuous motives; and that! Well was it said the other day by the gentleman from was the most. He knows nothing of the principles of South Carolina, (Mr. CALHOUx,] that precedents appathe constitution, and nothing of the influence of danger- rently trivial are often of the utmost importance, because ous precedents, who is willing that that conduct of Gen. | they inay be applied, stretched, or perverted, to cases eral Jackson should be represented as justifiable. Du
never apprehended or foreseen; and that precedents afring the second administration of Lord Chatham, a pro
fecting constitutional questions are rarely resorted to as clamation was issued, under an apprehension of scarcity,
authority for the exercise of any but doubtful powers, probibiting the exportation of corn, and thus suspending
for the plain reason that the authority of precedents is the statute law of the land; and he and Lord Camden, l
never necessary, unless the power they are wanted to too, insisted that the proclamation was strictly justifia. |
sustain is doubtful. Witness the use now made of the ble. They supposed a necessity, (of which the King
two precedents of expunging, found in the proceedings was to judge,) and, founded on that necessity, attributed
of the Senate! Sir, we shall find it an eternal truth, to the Crown a legal power to suspend the operation of that “there is 110 other course to be taken in a settled a statute, not given by the statute itself; and they even
state, than a steady constant resolution never to give opposed an indemnifying bill. They incurred the re
| way so far as to make the least breach in the constitu. proaches of their warmest friends and admirers, for
tion, through which a million of abuses and encroachholding such language-the only language, perhaps,
ments will certainly in time force their way." I quote that ever fell from the lips of either, which offended
the words of Swift, a monarchist and tory to be sure, against the general principles of civil liberty. Junius
yet they are the words of political prudence and wisdom; told Lord Camden that an Englishman "should not
they imbody the lessons and the warnings of experience, suffer dangerous precedents to be established because which the republicans of this country will do well to the circumstances are favorable or palliating;” that,
hearken to and remember. . “instead of asserting that the proclamation was legal,
And now, sir, I think myself well warranted in saying, he shoula bave said: I know the proclamation was ille.
that the expunging of the resolution of the Senate of gal; but I advised it because it was indispensably neces.
the 28th of March, 1834, from the journal, literally or sary to save the kingdom from famine; and I submit
figuratively, is wholly irreconcilable with the constitumyself to the justice ard mercy of my country." And, tion, upon any fair construction of its words; and that sir, that is the true doctrine,
no authority for such expunction can be found in any But General Jackson succeeded in establishing a precedent whatever, at all applicable to the purpose or second precedent in our history, of an unquestioned vio. | entitled to the least weight. I think myself warranted in lation of the privilege of the writ of habeas corpus. And
saying, too, that if the Senate shall adopt this propoafterwards, again, in time of profound peace, at Pensa.
sition, and carry it into execution, it will set a precedent cola, he established a thired precedent of the same kind;
fraught with the most dangerous and pernicious conse. and this again passed unquestioned; indeed, it was de.
quences. But there was one position taken by the gen. fended and justified, on the ground that the constitue
teman from Missouri, (which, indeed, I consider as the tional privilege of the writ of habeas corpus did not ex.
main ground of his argument,) so important in itself, tend to the Territories of the United States. Jle has been that I have reserved it for a separate consideration. since twice elected to the high office of Chief Magistrate understand the gentleman to insist that it will not of this great and free country: and if his adinirers had suffice to reverse, repeal, rescind, annul, or make void, been content with saying thai the people have elected the resolution of March, 1834, because “all these admit hiin because, in their estimate, his merits and services either a legal or an innocent teginning;" and that exfar outweigh bis faults and errors, thougb I never have punction is the proper remedy, because “ that implies concurred, and never can concur in that opinion, Ian original wrongful proceeding, which infers miscon. should not have adverted to the disagreeable Topics I duct as well as error, and requires rebuke as well as have now mentioned: but we are constantly told that the
reversal.” And his leading argument to prove that the people have approved, justified, and sanctioned all his resolution began in wrong, is, that the Sen conduct. Since he has been in the administration of right to entertain and act upon such a resolution; that it affairs, precedents favorable to the extension of ex was an act of a judicial nature, not belonging to us in ecutive power, to a degree that I had never imagined our legislative capacity at all, and incompatible with our the possibility of, have been multiplied, and are multi- judicial functions and duties; that the resolution is an plying. I look to the consequences with terror. God l impeachment of the President of a high crime or mis.