agree that it was done in his absence. It is upon the strength of that very resolution that we have claimed for him the honor of having been the first to set the ball of the Revolution in motion. If the resolution was expunged, the House of Burgesses threw away the palm of glory which Mr. Henry might have won, and we of Virginia must concede it to James Otis and Massachusetts. It has hitherto been a subject of honorable contention between us.

My colleague, with a view to recommend the expunging process to especial favor, took the pains to explain to us that, in every instance which has been resorted to in the English Parliament, the purpose and the effect have been to vindicate some important principle of civil liberty. The warmth of his zeal prevented him from perceiving the contrast which the story of the proceed ing we are engaged in will present to the world and to posterity. It is as striking as it is melancholy.

Thus, in the famous case of ship-money, the House of Lords vacated and cancelled the opinions of the judges, and the judgment against Mr. Hampden, in order to condemn and abrogate for ever a dangerous prerogative claimed by the Crown upon the strength of old precedents, to raise revenue for itself, without the consent or authority of Parliament; but the purpose of the propo sition to expunge our resolution of March, 1834, from our journal, is, and its effect will be, to affirm and establish the executive prerogative claimed by the President, to exercise a complete control over the custody of the public treasure, and to give the use and profit of it, in the interval between the collection and disbursement, to persons of his own selection. We have seen, too, that the House of Lords, in the course of the ship-money transaction, passed a resolution condemning, in the strongest terms, the conduct of impeachable officers as illegal and unconstitutional--though an impeachment against one of them was actually pending, and impeachments against others, on the same grounds, were anticipated, which impeachments that House was the tribunal to try and determine--without incurring the blame of prejudging the cause of him who was accused, and of all that might be accused, of participation in the act declared illegal. But it is one of the main objects intended to be accomplished by expunging our resolution, to establish the doctrine that the judicial powers vested in the Senate by the constitution, instead of being an addition to, operate as a limitation upon, its legislative powers; and that the Senate cannot express an opinion against the legality of the measures of the President, or, by consequence, of any other impeachable officer, without exposing itself to the reproach of impeaching, trying, and condemning, without hearing, the officer who may, by possibility, be impeached.

[SENATE.

end, the whig lords expunged a protest which impugned the principles of the revolution, though the protesters had an undoubted right to enter their protest. The Senate of the United States is now to be condemned for refusing to receive, and insert in its journal, a protest of the President against its proceedings, who had no color of right to make any such protest; and the justice of the President's protest is to be acknowledged, by expunging from our journal the entry of the proceedings against which he protested.

The House of Commons expunged its resolution in the case of the Middlesex election, and thereby ac knowledged the eligibility of all persons, not under some known legal incapacity, to a place in that House, and (what was infinitely more important) the right of the people to be represented by the man of their own choice. Our expungers have never thought of expunging the proceedings on the subject of the sedition law; a statute which invaded the constitutional rights of the people; which, in the almost unanimous opinion of the nation, uniformly maintained for thirty-five years, was plainly unconstitutional, and which, therefore, had its beginning in wrong. They only have recourse to the process of expunction in order to vindicate and confirm executive power.

I cannot, for my part, look at this contrast without mortification and alarm. The Parliament of England, professing monarchical principles, have exercised the power of expunging obnoxious proceedings, in order to establish principles in their nature truly republican. American Senators, professing (sincerely, I do not doubt) democratic republican principles, flushed with recent victory over their opponents, are endeavoring to apply this same process of expunction, in order to establish a power in the Executive which appears to my anxious mind monarchical prerogative. I do not impute the design to them--I do not, I cannot, suspect them of any such purpose. I am speaking only of the tendency and effect of the principles they are maintaining.

Here Mr. L. gave way for a motion to adjourn. On the following day, Mr. LEIGH resumed the debate. He said the principal purpose of the remarks he had addressed to the Senate yesterday was to show that the original manuscript journal of our proceedings was the journal which the constitution required us to keep; that the requisition to keep the journal imposed on us the duty to preserve it--to preserve it permanently and carefully, without defacement or mutilation; that no authority for expunging any entry from our journal could be found in English parliamentary precedents, or in those of any legislative body in America, whose duty to keep a journal was not imposed by a constitutional 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.

The expunging of the protest of the tory lords in 1690 was designed to vindicate the principles of the glorious revolution of 1688, which finally established and confirmed to the people of England the blessings of civil liberty--the security of a Government of laws, as distinguished from a Government of will; and, pursuing that VOLA XII.-68

punge literally, to reconcile it to reason or conscience to expunge typically.

For (said Mr. L.) granting it to be true that those who have a right to expunge and annihilate any written instrument or evidence, may do any thing short of actual expunction and destruction, which shall indicate the intent to expunge and destroy; those who have no right to

expunge and annihilate the evidence of any particular transaction, have no right to declare their will to expunge and destroy it, in any form of words or action whatever, and to substitute such manifestation of their will in place of the act to which they are incompetent. To illustrate this: A testator has a right to cancel or destroy his own will, and if he run a single stroke of his pen across it, with intent to cancel it, or write "cancelled" in the margin, without actually cancelling it; or if he tear it, with intent to destroy, without actually destroying it, no doubt such an indication of his purpose is proper enough, and may stand for the act he might rightfully perform. But no one can cancel or destroy his own deed; and, therefore, if he happen to get it into his possession, he has no right to avoid the guilt, and yet accomplish the purpose, of destroying it, by any manner of defacement his ingenuity can devise. sound morality, men may make an indication of their will stand for their act, if they have a right to do the act; but if the act be criminal or vicious, even the will to do it, without a single step towards the accomplishment of it, 's not blameless. In the present case, sir, so entirely does the right to expunge the resolution in question from the journal, in the emblematical manner proposed, depend on the right to expunge it actually and literally, that, if we shall adopt this notable device for expunging it, this may and will be regarded as a precedent, in all future times, to justify an actual obliteration, mutilation, erasure, or other destruction of the journal, as to any obnoxious proceeding.

In

There is another objection to this scheme of typical expunction, which weighs much on my mind. I hold it the duty of every man to speak the simple truth on every occasion, without mental reservation or equivocation; and especially is this the duty of men acting or speaking in public stations, under the sanction of an offi 'cial oath. Now, what is it that is proposed to us? Why, that we shall pass a resolution to expunge an entry from our original manuscript journal, by drawing black lines around it, and writing "expunged by order of the Senate" across it; and, in order to obviate a constitutional objection to any defacement of our journal, this is explained in argument to be no expunging at all, because it will leave the whole entry still perfectly legible; and more, that it will not be an expunction of the journal, for the original manuscript is not the journal. I mean no offence to any body, but I must say that, to my heart and understanding, this is exactly what is called an equivocation. I have taken it into my head, during the present session of Congress, to read Paschal's Provincial Letters, which I had not read before for thirty years; and whoever will take the trouble to look at the ninth letter, will find this doctrine of equivocations, as laid down by Filiutius and Sanchez, and the convenient uses to which it is applicable, fully explained.

But, sir, I presume it will not be affirmed by any gentleman that it is within the competency of the Senate, at this session, to exhaust the whole power of the Senate in all times to come, over this or any other subject; and yet the act which we are urged to commit will, in reality, have the effect of preventing the counteraction of any future Senate. Suppose we were literally to expunge the resolution of March, 1834, from the journalto blot it out-how shall the Senate at a future session, entertaining a different opinion of the merits of the resolution, expunge the expunction? How shall it blot out the blots? Shall it erase them, and reinstate the words of the resolution? Then another obliteration at a subsequent session would effectualy prevent the possibility of ever afterwards replacing them on the jonrnal, let the paper on which it is written be never so substantial. Suppose the typical process of expunging the entry shall be adopted and carried into execution; a succeeding Senate,

[APRIL 4, 1836.

entertaining different opinions, and following our example as to the manner of manifesting and enforcing them, must draw black lines around our black lines, and write a sentence of expunction across our sentence of expunc tion; and if the party character of the Senate shall afterwards again undergo a change, before the present party heats shall subside, the process may be reiterated. This would be farcical, to be sure; but public bodies, acting under the influence of strong party feelings, are often unmindful of their true dignity, and sometimes, sacrificing it to the indulgence of their resentments, incur the contempt and scorn they would bring upon others. I wish from my heart that the proceeding was only ludicrous. I hope and trust, most sincerely, that the example of this "avenging" process may never be followed; but I am most serious when I tell gentlemen that they are proposing to do what they have not the moral or legal power to do; they are vainly attempting to anticipate and prevent the judgment and action of their successors in all times to come, and to pass and execute final and irrevocable sentence of condemnation on the Senate of 1833-'34.

I cannot be so wanting in respect to the gentlemen who have so gravely and so earnestly recommended this typical expunging (which, they tell us, is really no expunction) of our resolution of March, 1834, from the original manuscript journal, (which, however, they say is not the journal of the Senate,) as to suppose that they have taken so much pains to accomplish an act which, in their own opinion, will be in itself absolutely vain and nugatory.

And, therefore, I take it for granted that

they intend, in the proceeding they propose—while they leave the verbal record of our resolution on the journal substantially unimpaired-to annihilate its efficacy; and this, in truth, upon the supposition that it is within our competency so to expunge the resolution, must be the legal effect of such an expunction. Now, let it be remembered that the duty enjoined upon the Senate by the constitution, to keep a journal of its proceedings, is equally applicable to all its proceedings, legislative, executive, and judicial; that if we are not bound to make and preserve a journal, fair and unimpaired, of our legislative transactions, so neither are we bound to keep the journals of our executive or judicial proceedings; that we have the same duty to perform, and have as large discretionary powers, in respect of one as of the others; that if we may expunge any one entry from the legislative journal, and thereby invalidate the act it records, we may expunge and invalidate any other; that exactly in the same manner and with the same effect that we may expunge and invalidate an entry on our legislative journal, we have a right to expunge and annihilate the legal efficacy of any entry on our executive or judicial journal. And then I ask gentlemen to give their serious and calm consideration to the consequences.

If the Senate may expunge, and by expunging (in any form or manner) invalidate the resolution in question, there is no good reason why it may not, in like manner, expunge and invalidate any entry of any other of its proceedings in its legislative capacity. Suppose, among the numerous private acts passed at the session of 1833-34, there was one granting land, money, or any other property, to an individual, which, in the opinion of the Senate at the present session, was corruptly passed by the majority of the Senate at that session, (as a reward, for example, for partisan services,) and so had its beginning in wrong; or, suppose there was any act passed at that session, which the Senate at this shall deem unconstitutional, and for that reason impugn as having commenced in wrong, as gentlemen would have us impugn the resolution of March, 1834; it is just as much within the competency of the Senate now to or

SENATE.]

Expunging Resolution.

[APRIL 4, 1836.

justly said) is the eternal price that men must pay for liberty. To do Mr. Jefferson justice, it must be remarked that there is not the least reason to believe that he approved, or even knew, of that expunging order of the Senate in April, 1806, much more counselled or wished it. Whether the present Chief Magistrate has taken any pains, or expressed any wish, for the accom

know; though I could give a shrewd guess.

day of the session was, "on motion that every thing in the journal relative to the memorials of S. G. Ogden and W. S. Smith be expunged therefrom, it passed in the affirmative, by yeas and nays, 13 to 8."* The adjoining order follows immediately. It has been said that all the republicans voted for, and the federalists against, the motion. How that is, I do not know. Now, the first 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 that, in making up the journal, those entries on the minutes should not be inserted. The next consideration is, that the reasons of the expunging nowhere appear; they are not stated in the proceeding itself, and, I understand, no notice of the transaction is to be found in the newspapers of the day. For aught that appears, the previous entries might have been expunged, because they did not truly state the fact when they represented that the memorials had been received, and leave given to withdraw them; and I have no doubt those entries did not truly state the real opinion of the Senate on the subject at the time the memorials were first presented. We all know how such things are done, especially during the hurry of a last day's session. The gentleman from Missouri thinks that the reason of expunging the entries concerning those memorials was, that they contained disrespectful imputations upon the Chief Magistrate and a judicial officer; in which his conjecture may be right, and I think it probable enough that it is. But, thirdly, the least attention to the circumstances of the transaction will suffice to convince every mind that hardly any thought was bestowed upon the expunging, as very little could have been given to the proceeding ordered to be expunged; that both probably passed sub silentio; that the constitutional question as to the right of the Senate to expunge any proceeding from its journal was not suggested, much less discussed. And is such a precedent of expunging as this an expunction from the minutes of the Secretary, not from the journal made up by the Senate to be kept -founded on what reasons, no one knows, and none ever inquired-done in haste, and amidst the confusion of the last moments of an expiring session--ordered without discussion, and probably without a question made as to the constitutional propriety of the proceeding, so passed as to attract no attention, to elicit no investigation is such a precedent to be gravely, much more triumphantly, quoted as an authority in this debate?

But suppose that vote of April, 1806, was (what it certainly was not) a deliberate expression of the opinion of the Senate on the very point, that the Senate may constitutionally exercise a discretion to expunge from its journal, at any time, the entry of any proceeding which it disapproves as irregular and unjust; it would only add another instance to the thousands with which all history abounds, of the truth of the common observation, that it is during the administration of the most popular Chief Magistrates that precedents dangerous to liberty are most to be apprehended, most to be deprecated, and most carefully to be avoided; not on account of any design on their part, or of vicious design in any quarter, but simply because confidence in them not only serves to give authority to their example, but disarms the public mind of that wholesome jealousy, that constant vigilance, which (as Mr. Jefferson has himself

*Mr. LEIGH forgot to ask what those gentlemen would think of the authority of this precedent, who maintained the opinion that the Senate had no constitutional right to refuse to receive the memorials of the abolitionists, or any other petition not disrespectful to the Senate, or some member of it, or any petition, no matter what its character is.-Note by Mr. L.

But

There was another precedent during Mr. Jefferson's administration, which I shall mention, to illustrate the wonderful power and influence of precedents in human affairs. In December, 1787, Mr. Jefferson wrote a letter to Mr. Madison on the subject of the present constitution of the United States, then recently framed, but not yet adopted; in which one of his chief objections to that instrument was the omission of a bill of rights, providing (among other things) for "jury trial" and "the eternal and unremitting force of the habeas corpus laws;" and he repeated the objection in letters to another correspondent afterwards. He was not then content with the provision of the constitution, (art. 1, sec. 9,) that "the privilege of the writ of habeas corpus shall not be suspended," (that is, even by Congress,) "unless when, in cases of rebellion or invasion, the public safety may require it"-he thought there ought to be "no suspensions of the habeas corpus;" for my part, I am content with the security provided by the constitution, if it shall be fairly observed. Now, in the winter of 1806-'7, General Wilkinson made a military arrest of three persons in New Orleans-Swartwout, Bolman, and Alexander, and sent them to Washington; and it was not until they had got here that they were discharged on a habeas corpus by the Supreme Court. They belonged not to the army; they were nowise amenable to martial law. As to the first two, there was reason to believe that they were implicated with Colonel Burr in his projects, whatever they were; for, to this day, the public is not informed what they were. against Alexander no evidence of guilt, no ground of suspicion, that I remember, ever appeared; no colorable pretext was stated to the public for his arrest. Did Mr. Jefferson censure these illegal arrests, made by an officer subject to his absolute control? did he disapprove this violation of the personal security of the citizen, by military power? did he call the general to any account? did he order any inquiry? I only know that the Presi dent of the United States gave the general his countenance, approbation, and support; and the confidence of the public in the President's prudence and justice, and their detestation of the guilty schemes imputed to Colonel Burr, had the effect of exempting General Wilkinson from blame. And in September, 1810, Mr. Jefferson wrote a letter to a Mr. Colvin, in which he deliberately justified General Wilkinson's conduct, upon the ground of the necessity of the case, which, as he states it, was the oddest case of necessity that ever was imagined: the letter has been published by his grandThe fact of his entertaining such an opinion was generally known, or at least reported at the time. The necessity of the case might (for aught that I know) have afforded an excuse for General Wilkinson's conductmight have entitled him to pardon and indemnity; but it could not have afforded him any justification; and I say, before high Heaven, that if all the great and good men of the Revolution had signed that letter with Mr. Jefferson, I would still lift up my voice to protest against the dangerous unconstitutional doctrines it inculcates. There, then, was a precedent of military arrest, set even during Mr. Jefferson's administration, without being seriously questioned, and without exciting any jealousy or alarm in the public mind. And some few years afterwards, General Jackson, charged with the defence

son.

of New Orleans against an invading army, improved upon the precedent; abrogated the privilege of the writ❘ of habeas corpus for a time, proclaimed martial law, and turned the State Legislature out of doors. His conduct, too, may have been prudent, and founded in laudable motives; he, too, might have been entitled to complete indemnity; but he violated the constitution of his country-he suspended, for the time and place, the sacred principles of civil liberty. The glory of the victory of New Orleans justified all; and great glory there was, and great good accomplished for his country, I willingly acknowledge; though (by the way) in my opinion, his fame as a general rests more on his spirited and judicious attack upon the enemy on the 23d of December, than on his crowning victory of the 8th of January. Allow him the fullest meed of praise; still, the sense of that brilliant and most important public service, the gratitude it deserved, the admiration it excited, the glory it achieved for the general and the nation, ought not to have stifled our love and care for the constitution. He was entitled to honor and gratitude for the good he did, and to indemnity for any wrong he committed through necessity, and with virtuous motives; and that was the most. He knows nothing of the principles of the constitution, and nothing of the influence of dangerous precedents, who is willing that that conduct of General Jackson should be represented as justifiable. During the second administration of Lord Chatham, a proclamation was issued, under an apprehension of scarcity, prohibiting the exportation of corn, and thus suspending the statute law of the land; and he and Lord Camden, too, insisted that the proclamation was strictly justifiable. They supposed a necessity, (of which the King was to judge,) and, founded on that necessity, attributed to the Crown a legal power to suspend the operation of a statute, not given by the statute itself; and they even opposed an indemnifying bill. They incurred the reproaches of their warmest friends and admirers, for holding such language-the only language, perhaps, that ever fell from the lips of either, which offended against the general principles of civil liberty. Junius told Lord Camden that an Englishman "should not suffer dangerous precedents to be established because the circumstances are favorable or palliating;" that, "instead of asserting that the proclamation was legal, he should have said: I know the proclamation was illegal; but I advised it because it was indispensably necessary to save the kingdom from famine; and I submit myself to the justice and mercy of my country." And, sir, that is the true doctrine.

[SENATE.

grant that I may be mistaken in my impressions of the
past, and my forebodings of the future; but I must de-
clare my opinion, that never did any republic make
such rapid strides towards pure monarchy as we have
done within these few years past.
be understood: I impute no such designs to any body,
Saying this, let me
much less do I impute any inclination for monarchy to
the great body of the people. I believe no republican
people ever knowingly, and of purpose, gave up the
blessings of free government; but in the heat of vio-
lent political contentions, the official agents of the
people, and the people themselves, have but too often
unwarily concurred in introducing and sanctioning prin-
ciples of administration which, once put into operation,
work with uncontrollable effect beside and beyond the
original purpose and design, and, in the end, endanger
the very being of the republic. And this, in my
opinion, is what we have been and are now doing. The
very confidence we have in ourselves, and in our institu-
tions, as it stifles in the public mind that jealousy, vigi-
lance, and care, so essential to security, is a principal
source of our danger.

Well was it said the other day by the gentleman from South Carolina, [Mr. CALHOUN,] that precedents apparently trivial are often of the utmost importance, because they inay be applied, stretched, or perverted, to cases never apprehended or foreseen; and that precedents affecting constitutional questions are rarely resorted to as authority for the exercise of any but doubtful powers, for the plain reason that the authority of precedents is never necessary, unless the power they are wanted to sustain is doubtful. Witness the use now made of the two precedents of expunging, found in the proceedings of the Senate! Sir, we shall find it an eternal truth, that "there is no other course to be taken in a settled state, than a steady constant resolution never to give way so far as to make the least breach in the constitution, through which a million of abuses and encroachments will certainly in time force their way." I quote the words of Swift, a monarchist and tory to be sure, yet they are the words of political prudence and wisdom; they imbody the lessons and the warnings of experience, which the republicans of this country will do well to hearken to and remember.

fraught with the most dangerous and pernicious consequences. But there was one position taken by the gentleman from Missouri, (which, indeed, I consider as the main ground of his argument,) so important in itself, that I have reserved it for a separate consideration.

And now, sir, I think myself well warranted in saying, that the expunging of the resolution of the Senate of the 28th of March, 1834, from the journal, literally or figuratively, is wholly irreconcilable with the constitution, upon any fair construction of its words; and that 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 third precedent of the same kind; and this again passed unquestioned; indeed, it was defended and justified, on the ground that the constitutional privilege of the writ of habeas corpus did not extend to the Territories of the United States. He has been since twice elected to the high office of Chief Magistrate of this great and free country; and if his admirers had been content with saying that the people have elected him because, in their estimate, his merits and services far outweigh his faults and errors, though I never have concurred, and never can concur in that opinion, 1 should not have adverted to the disagreeable topics I have now mentioned: but we are constantly told that the people have approved, justified, and sanctioned all his conduct. Since he has been in the administration of affairs, precedents favorable to the extension of executive power, to a degree that I had never imagined the possibility of, have been multipled, and are multiplying. I Hook to the consequences with terror.

God

I understand the gentleman to insist that it will not suffice to reverse, repeal, rescind, annul, or make void, the resolution of March, 1834, because "all these admit either a legal or an innocent beginning;" and that expunction is the proper remedy, because that implies an original wrongful proceeding, which infers misconduct as well as error, and requires rebuke as well as reversal." And his leading argument to prove that the resolution began in wrong, is, that the Senate had no right to entertain and act upon such a resolution; that it was an act of a judicial nature, not belonging to us in our legislative capacity at all, and incompatible with our judicial functions and duties; that the resolution is an impeachment of the President of a high crime or mis