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

[SENATE.

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

When Mr. WEBSTER had concluded

That as he is to take care that the laws be faithfully executed, he is thereby made responsible for the entire action of the Executive department, with power of appointing, overseeing, and controlling those who execute the 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 perform ance of his duties, and to discharge them when he is no longer willing to be responsible for their acts;

Mr. BENTON rose, in reply; and, commencing with the topic with which Mr. WEBSTER had concluded his That the whole Executive power is in the President, speech, and repeating his words, exclaimed, Yes! the and that, therefore, the duty of defending the integrity Senate does stand in a breach! a breach of their own of the constitution results to him from the very nature of making! and they stand there naked and defenceless, his office; and that the founders of our republic have at- without shelter, cover, or refuge! The Senate broke tested their sense of the importance of this duty, and, by through the constitution-they made a wide breach in the expressing it in his official oath, have given to it peculiar walls of that sacred instrument-to leap upon the Presisolemnity and force; dent and pronounce a sentence of condemnation upon him. They broke through all law, all constitution, all forms of justice, all obligations of propriety, and all sense of decency, to pronounce upon the President, and to crush him, as it was believed, with a Senatorial conviction for a high crime and a misdemeanor; and now, when they are put upon their own defence for that act-when they are called upon by an astonished community to justify themselves, as judges, for giving judgment without trial-they exhibit themselves naked and defenceless before the public, without excuse or justification, and vainly endeavor to escape from the reprobation which they have merited, and to elude the scrutiny which they have provoked, by setting up an affected alarm for the safety of their places, raising a concerted cry for the immunity of their privileges, and issuing the piteous appeal of the "forlorn hope," standing in the breach of the constitu tion.

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

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

The attack upon the President, said Mr. B., so inde. These, sir, are some of the leading propositions, con-cently and illegally commenced at the beginning of the tained in the protest; and if they be true, then the Gov-session, now draws to a close, and approaches its termiernment under which we live is an elective monarchy. It nation. The protracted discussion expires under its own is not yet absolute, there are yet some checks and limita- length: all the defenders of the Senate have been heard; tions in the constitution and laws; but in its essential and the case is ready to go before the people, and to be handprevailing character, it is an elective monarchy. ed down to posterity, and to receive from the ultimate arMr. President, I have spoken freely of his protest, and biter of human actions-an impartial public-the final of the doctrines which it advances; but I have said nothing sentence of condemnation or approval to which it is enwhich I do not believe. On these high questions of con- titled. And how does the case stand on the part of the stitutional law, respect for my own character, as well as Senate? How does the Senate appear? Naked, defencea solemn and profound sense of duty, restrains me from less, unjustified, and unjustifiable! Stripped to the shirt, giving utterance to a single sentiment which does not flow like the Roman Consuls in the Caudine Forks! and withfrom entire conviction. I feel that I am not wrong. I out denial or palliation for the most flagrant breach of the feel that an inborn and inbred love of constitutional liber-constitution, and the most scandalous disregard of decenty, and some study of our political institutions, have not, cy, which the history of faction and the annals of cabal on this occasion, misled me. But I have desired to say has ever exhibited to an outraged community, in any age, nothing that should give pain to the Chief Magistrate, or in any country, personally. I have not sought to fix arrows in his breast; What is it, said Mr. B., that the Senate has done? but I believe him mistaken, altogether mistaken, in the What act of theirs has had the novel effect to place this sentiments which he has expressed; and I must concur high body at the bar of the public-to throw it into a with others in placing on the records of the Senate my deep and deadly breach, and to make it cry out for sucdisapprobation of those sentimeats. On a vote, which is cor and for safety? What act has the Senate done to proto remain so long as any proceeding of the Senate shall duce this strange vicissitude in its fortunes, to work this last, and on a question which can never cease to be im- wonderful metamorphosis on its own dignity and station? portant while the constitution of the country endures, 1 What has it done to effect all this? Let facts, and an imhave desired to make public my reasons. They will now partial country, respond to the inquiry! All America be known, and I submit them to the judgment of the knows that, when the deposites were removed last fall, present and after times. Sir, the occasion is full of in- the whole newspaper interest connected with the United terest. It cannot pass off without leaving strong impres- States Bank immediately proclaimed a violation of the sions on the character of public men. A collision has constitution and of the laws, and demanded the impeachtaken place, which I could have most anxiously wished to ment of the President. The impeachment was not only avoid; but it was not to be shunned. We have not sought demanded, but foretold and asserted. The House of this controversy; it has met us, and been forced upon us. Representatives was appealed to; their duty to prefer In my judgment, the law has been disregarded, and the the impeachment was incessantly urged; their intention constitution transgressed; the fortress of liberty has been to do so was openly affirmed; and so far was the process assaulted, and circumstances have placed the Senate in carried, of preparing the public mind for the event, that the breach; and, although we may perish in it, I know the names of the members who were to move it, and of we shall not fly from it. But I am fearless of consequen- the witnesses who were to attend the trial, were exultingly ces We shall hold on, sir, and hold out, till the people and ostentatiously paraded in the presses of the bank! All themselves come to its defence. We shall raise the alarm, this took place in the months of October and November, and maintain the post, till they whose right it is, shall and took place too recently and too notoriously to brook decide whether the Senate be a faction, wantonly resist- contradiction, or to require corroboration on this floor. ing lawful power, or whether it be opposing, with firm- And thus, for two months before Congress assembled, and

SENATE.]

President's Protest.

[MAY 7, 1834.

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

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

MAY 7, 1834.]

President's Protest.

[SENATE.

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

to prevent the party from using his power to do further Briefly recapitulating what had been said by other Sen- mischief, leaving him subject to a future indictment, then ators opposed to the resolution, and especially by his old the intent of the party, whether good or bad, charitable friend from Tennessee, [Mr. GRUNDY,] whose skill as a or wicked, became wholly immaterial; not necessary to criminal lawyer he had been almost amused to see called be alleged, nor requiring to be proved, or to be inferred, in question; briefly adverting to the high and clear ground if the allegation should chance to be made. Every avertaken by these Senators; first, that the criminal intent was ment relative to the intention would be surplusage; for always presumed by the law when the illegal act was the mischief to the public was the same, whether a public proved; and, secondly, that the Senate's resolution was functionary should violate the law from weakness or wicknot an indictment, but a judgment; not the preferment, edness, from folly or from design. In either case the inbut the conclusion, of an impeachment; and that judg-jury to the community was the same; the unfitness of the ments never recited intentions; grounds which Mr. B. party to remain in office was the same; the inducement to undertook to affirm entirely upset the defence of the remove him the same; and, in both cases, the removal Senate. Leaving all these solid considerations where would be effected by impeachment; the community would others had placed them, he would proceed to a new point be protected from further injury by the sentence under in the case-to a new reason for the immateriality of crim-impeachment; and the offending party, if deserving puninal averments in prosecutions of impeachment. And ishment, would be turned over to the ordinary tribunals, upon this new ground would strip the Senate's defence of and to all the technicalities and formalities of a jury trial, the last disguise, and leave their resolution ready for the upon indictment, to receive that punishment. spunge of obliteration, and ripe for the knife of expurga- Young as the United States were, Mr. B. said, brief and tion, the moment the representation in the Senate should scanty as their history, and especially their criminal hisbe brought into harmony and concord with the feelings tory, yet was, still the history of these States already afand sentiments of the people. forded ample illustrations of the truth of the positions

Entering upon the examination of this new point, Mr. which he had taken relative to impeachments under the B. first called the attention of the Senate to the nature of constitution of the Union. It afforded examples of two an impeachment under the constitution of the United impeachments tried before the Senate, in one of which States, and wherein it differed from an impeachment in there could be no corrupt or wicked intention, for the England; while impeachments in both countries essen-party was insane, and therefore incapable both in law and

SENATE.]

President's Protest.

[MAY 7, 1834.

in fact, of being either corrupt or wicked; and in another, move and dispel that doubt. The first of these articles, of which a mere naked violation of law was charged, with- which is No. 1 in the impeachment, relates to the trial of out the slightest reference to the intentions, or quo animo Fries, at Philadelphia, and charged the judge with three of the party: he alluded to the cases of the Judges Pick- specific instances of misconduct in conducting that trial; ering and Chase. Mr. B. then went into a statement of and concluded them with the allegation that they were the impeachment of these two judges, to sustain the view" dangerous to our liberties," and "in violation of law he had been taking, and to apply historical facts and ju- and justice," but without the slightest reference to the dicial decisions to the legal doctrines which he had laid quo animo of the judge, or the state of mind in which down. Judge Pickering, a district judge of the United the acts were done. The article is wholly silent with States for the State of New Hampshire, was impeached respect to his intentions. The fourth article contains for acts of flagrant illegality, and which, in truth, implied four specifications of misconduct; all charged to have ocgreat wickedness. The articles of impeachment charged curred on the trial of Callender, in Richmond, and alwicked and corrupt intentions; yet it was proved that he leged them to be "subversive of justice," and "diswas incapable in law, or in fact, of wickedness or corrup- graceful to the character of a judge;" but were wholly tion; for he was utterly insane, both at the time of com- silent as to the intentions of the judge, and left the quo mitting the acts, and at the time he was tried for them; animo with which he did the acts entirely out of the record. and could not, and did not, appear before the Senate to The fifth article charged a specific and single violation of make any defence. His unfortunate condition was pro- law in ordering the arrest of Callender upon a capias, ined and admitted, and the Senate was moved, by counsel, stead of directing him to be called in upon a summons; o stop the proceedings against him, and to remit or post- but without imputing any motive or intention whatever, bone the trial; but the Senate took the clear distinction good or bad, to the judge, for preferring the capias to between a proceeding which could only go to a removal the summons. The only averment is, "that Callender rom office and a disqualification for holding office, and was arrested, and committed to close custody, contrary carosecution which might involve a criminal punishment; to law, in that case made and provided." Such were the pe they proceeded with the trial, heard the evidence, three articles, said Mr. B., which charged violations of and the illegal acts to have been committed, and pro- law upon Judge Chase, without imputing criminal inten. nounced the sentence which the good of the community tions or corrupt motives to him; and upon which the judge required, and which the unfortunate judge was a proper was as fully tried, and made as ample a defence, both subject to receive-that of removal from office. They upon the law and the facts, as he did upon the five other did not add a sentence of disqualification for holding fu- articles, which contained the ordinary averments of wicked ture offices; for he might again recover his understand- and corrupt intentions. Neither the learned judge himing, and become a useful citizen. The Senate limited self, nor any one of his counsel, numerous and eminent itself to a sentence which the good of the community de as they were, made the least distinction between the armanded-which was applicable to misfortune and not to ticles which charged, and the articles which did not criminality-which was suited to the acts of the judge, charge, corrupt intentions. They went to trial upon the and not to his intentions; a sentence which virtually ac- whole alike; put in no demurrers; made no motions to quitted him of evil intentions; for the acts were of such a quash; reserved no points; and defended the whole upon nature as to have required, if committed by a person of the law and the facts of each separate case. This, said sound mind, not only disqualification for future office, but Mr. B., should exterminate doubt, and silence cavil. It prosecution and punishment upon indictment. Mr. B. is the decision of the managers, and they were eminent relied upon this case as one of the strongest which history lawyers and profound statesmen!-it was the decision of could present, or imagination could conceive, to show the the managers who prepared the articles of impeachmentimmateriality of criminal intentions to support impeach- the decision of the House which preferred them-the dements under the constitution of the United States. It was cision of the Senate who tried them-and the admission a stronger case than it would have been if corrupt and of the learned judge who was tried upon them, and of wicked intentions had not been charged; for being char- the able counsel who conducted his defence, that the quo ged, and then disproved, it was a positive decision of the animo averment, the allegation of wicked intentions, was Senate upon the total immateriality of the allegation; it entirely immaterial in an article of impeachment under was a clear declaration that the averment was surplusage, the constitution of the United States. and that an officer should be impeached, and removed from office, for illegal acts alone, without the least reference to his intentions, and even in the face of the fact that he was incapable of legal volition, and therefore, could have no intentions in the eye of the law.

Mr. B. made an apology, or rather stated his justification to the Senate, for having gone so minutely into the cases of the Judges Pickering and Chase. He had done so from a sense of duty to the President and to the country, and to prevent the law of the land from being borne The case of Judge Chase, Mr. B. said, was a case of a down by the weight of names, and the array of authority. different kind, to prove the same point: it was a case Many Senators had taken their stand upon the legal posiwith, or without, averments of criminal intentions. Judge tion, that these proceedings against the President are not Chase was impeached upon eight articles; five of them tantamount to impeachment, because the resolution does charged corrupt and wicked intentions; three charged not contain the formal allegation of corrupt or wicked no intentions at all; being wholly silent upon the question intentions. Two, at least, of the Senators, [Messrs. WEBof motives, and merely alleging the coinmission of the STER and LEIGH,] thus staking themselves upon this legal act, and the violation of the law. The three articles, position, were eminent lawyers, and possessed high and thus silent on the question of motives, were distinct and deserved reputation as jurists. Their opinions, if left substantive articles in themselves, not variations of the uncontroverted, if not completely overthrown, could not other articles, but containing new and distinct charges; but have great weight in the country. It was necessary and, therefore, to stand or fall upon their own merits, to encounter the high authority of their opinions, with without being helped out by a reference to the same the still higher authority of adjudged cases; and this was charges in another form, in another part of the proceed-most effectually and thoroughly done in the production ings. They were the articles first, fourth, and fifth. and application of the two impeachment cases of Judge Mr. B. would state them particularly; for, if the least Pickering and Judge Chase, in which the solemn judg doubt remained on the mind of any one, after seeing the ments of two full Senates, and the acquiescence of all case of Judge Pickering, the tenor of these three articles concerned, were set in opposition to the solitary opinions in the impeachment of Judge Chase would entirely re- of individual Senators: and thus the sole ground on which

the defence of the Senate rested, was swept from under their feet, and expunged from the face of the earth.

[SENATE.

rying it on; a grossness and turbulence of invective; a readiness to draw inferences without warrant, and to imAuxiliary to this defence of the Senate, but subordi- pute charges without evidence, which was never before nate to it, and insufficient in itself, was another point, exhibited in any American assembly-which has no paralMr. B. said, which several speakers had pressed into the lel in England, since the time that Jeffries rode the Westservice of a hopeless cause, but which had been most ern circuit, nor in France, except in the days of the exfully brought out, and chiefly relied upon by the last Sen-istence of the revolutionary tribunal—which cannot be ator who had spoken, [Mr. WEBSTER,] and who was un- tolerated in any country where civilization has advanced derstood to be charged with closing the defence on the far enough to require competitors for high office, in bepart of the Senate. It was this: That the resolution was coming adversaries, to remain gentlemen; and which, on a legislative act, and came within the legislative compe- this occasion, has presented the American Senate, and tency of the Senate; and, therefore, was not a judicial, that in reference to the American President, as sitting or criminal, proceeding. Mr. B. would rapidly examine, for the picture which General Hamilton, in the Federalist, and quickly explode, this forlorn auxiliary of a ruined has drawn of a heated and factious assembly, borne away cause. That it was not a legislative act, nor intended to by envy and hatred, running down an envied political adproduce legislation, was proved by every test to which it versary upon groundless accusations! in which passion could be subjected, and by every fact with which it could furnished charges; animosity supplied proof; the cunbe connected. 1. The nature of the resolution; whichning found tools; and the decision was regulated, not by complained that the President had violated the constitu- the guilt, or innocence, of the accused person, but by tion in dismissing Mr. Duane, and appointing Mr. Taney, the strength and numbers of the accusing party. and in exercising ungranted power over the Treasury; Continuing his remarks upon the indelicacy and indewhich, if true, could not be remedied by legislation; for corum of the Senate's conduct towards the President, Mr. Duane could not be put back into the Treasury De- Mr. B. said that Senators were the constitutional judges partment, nor Mr. Taney put out of it, nor the exercise of the President, selected by that instrument to sit upon of ungranted power be punished by a law of Congress. him, and, therefore, could not be challenged or set aside 2. The resolution averred the President's acts to be dan- for ill will or prejudice towards him. They were not gerous to the liberties of the people; which is matter for like jurors, to be set aside propter affectum, propter delecpunishment, and not for legislation. 3. The President's tum; and, therefore, should be the more delicate and acts, whatever they were, were done, and must be tried scrupulous in abstaining from all pre-occupation and judgby existing laws, and not by new ones; for ex post facto ment against him. If called to sit upon the trial of a laws cannot be passed. 4. The resolution was single, person to whom they were inimical, the question was in not joint; and therefore not capable of taking the form their own breasts to sit or retire. Withdrawal was cerof a law, as it could not go to the House of Representa- tainly the commendable course; and the Senate had wittives. 5. The whole legislative consideration of the nessed one instance, at least, of that conduct, and that question had been sent to a legislative committee, before within a few years past; but the example did not seem this resolution was brought in; and, therefore, it was to threaten, at present, to become contagious. wholly unconnected with a legislative object. 6. It was The refusal, or omission, of the House of Representnever referred to a committee, as legislative resolutions atives to impeach the President, the failure of any memalways are. 7. No legislative act has ever been predica- ber of the House to move against him, was next relied ted upon it, though passed long since. 8. No legislative upon by Mr. B. as an aggravation of the Senate's conduct act can be predicated upon it, for the subject-matter of in usurping the function of the House; although, by an it is not of a nature to admit of legislation. It complains infatuated perversity of logic, that omission of the House of a breach of the constitution; and laws cannot heal was expressly relied upon by one of the Senators, [Mr. those breaches. CLAY,] as a reason for the Senate to assume their office. Mr. B. having fully encountered, and, as he trusted No member from the House of Representative, fresh from and believed, entirely overthrown the whole defence set the ranks of the people-no member of that body, conup by the Senate, would now extend his view to some stituting the grand inquest of the nation, and exclusively auxiliary considerations, and examine the propriety and charged with the origination of impeachments-no such decorum of the Senate's conduct in adopting a resolution member could be induced, or stimulated, to follow the of this character against the President. lead of the bank press, and to prefer charges against PresThe Senate is composed of individuals, said Mr. B.,ident Jackson for violations of the law and constitution in some of whom aspire to the occupation of the place which dismissing Mr. Duane, because he would not give the President Jackson now holds, others of whom have con-order for removing the public deposites; in appointing tended with him for that place, and have been left by the Mr. Taney to give the order; and in assuming the exerpeople-longo sed proximus intervallo --at a long interval cise of ungranted power over the Treasury of the United behind; and others, again, who, having real or fancied States, which was alleged to be the Bank of the United grievances to complain of, appear before the public as States. No member of the House could be found to his implacable enemies and incontinent revilers. From make such a motion; and it was left for the Senate, by all such Senators, the laws of honor, a sense of decorum, an extra-judicial and ex parte impeachment, to usurp an respect for public opinion, and a due regard to the sanc- office which the appropriate organ would not exercise; tity of public justice, would require a rigorous impar- and thus to aggravate, by contrast, a proceeding wholly tiality in the discharge of an acknowledged duty, and a unconstitutional in itself, and sufficiently odious in all its punctilious refusal to engage in any proceeding which attendant circumstances. involved the assumption of gratuitous powers, or required The variations which the resolution had undergone at the discharge of invidious offices. It was a case even in the hands of its author, since it had been first introduced, which the refusal of many Senators to sit in judgment, was the next aggravation which Mr. B. pointed out. although a regular impeachment had been brought in, When first introduced it covered the very points which might have attracted the admiration, and commanded the bank press had indicated, and was couched in the very the applause, of all honorable men. This impartiality-words which they had used in demanding the impeachthis abstinence-this refusal to sit in judgment, had not ment of the President; and, in addition to that, contained been witnessed on this occasion; on the contrary, there the precise criminal averment which is usually found in had been witnessed an eagerness and promptitude in vol- impeachments for public offences, and which was actually unteering for attack; a violence and personality in car-contained in the first article of the impeachment against

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