CHAPTER XII.
1835–1837.
REMOVAL OF EXECUTIVE OFFICERS—BENTON’S “EXPUNGING” RESOLUTION.
Among the exciting topics of this period, there was no ground on which the Whigs attacked the administration of General Jackson with greater severity than that which related to his removal of executive officers. In the remarkable protest, which he sent to the Senate in 1834, against the censure which that body had passed upon his executive acts, and especially his removal of one Secretary of the Treasury who would not, and the appointment of another who would, remove the public deposits from the Bank of the United States, he had claimed a general executive power of supervision and control over all executive officers. He had made many other removals from office, which were complained of as dictated by purely political motives; and in the session of 1834–5, a bill was introduced into the Senate, one of the objects of which was to require the President, when making a nomination to fill a vacancy occasioned by the removal of any officer, to state the fact of such removal, and to render reasons for it. On this bill, Mr. Buchanan, on the 17th of February, 1835, made the following speech, which is of value now, because it relates to a topic that has not yet ceased to be a matter of controversy:
Mr. President: It is with extreme diffidence and reluctance that I rise to address you on the present occasion. It was my intention to suffer this bill to pass, contenting myself with a simple vote in the negative. This course I should have pursued, had the constitutional question been fully discussed by any gentleman on our side of the Senate. As this has not been done, I feel it to be a duty which I owe to those who sent me here, as well as to myself, to express my opinion on the subject, and the reasons on which that opinion is founded.
The present bill presents a most important question concerning our fundamental institutions. It attacks a construction of the Constitution of the United States which has been considered settled for almost half a century. Has the President, under the Constitution, the power of removing executive officers? If any question can ever be put at rest in this country, this, emphatically, ought to be considered that one. It was solemnly settled in 1789 by the first Congress of the United States. Of whom was that Congress composed? Of the men who had sustained the toils and dangers of the revolutionary war—of the men who sat in the convention which framed the Constitution, and who passed from that convention into the first Congress. These men, who laid the foundations of our Republic broad and deep, most solemnly and deliberately decided, that to the President, and to him alone, belonged the power of removal. This was not at a moment when the country was convulsed by party spirit. Very far from it. The Fathers of the Republic were then occupied in putting the Government in motion, and in establishing such principles as might preserve the liberties and promote the best interests of the American people for ages. In what condition are we, at the present moment, to rejudge the judgment of those men and reverse their solemn decision? Is not party spirit raging throughout the land? Are there not high party feelings in this body? Are we in a condition calmly and deliberately, without prejudice and without passion, to review and to condemn their judgment?
Why, sir, even if there were no authority in the Constitution for the power of removal, the decision of this body, at this time, would have but little influence among the people. They would compare the calmness—the self-possession—the freedom from political excitement of the sages who established the precedent, with the party violence and the high political feeling of the Senate at the present day; and the weight of authority would be all against us.
The debate in the first Congress was very long and very able. Every argument which patriotism and ingenuity could suggest was exhausted. The question was at length decided in the House of Representatives on the 22d June, 1789. On the yeas and nays, thirty voted in affirmance of the President’s power of removal, and eighteen against it;—a large majority, considering the comparatively small number of which the House was then composed.
The question arose on the bill to establish the Department of Foreign Affairs. It contained a clause declaring the Secretary of State “to be removable from office by the President of the United States.” From this clause it might have been inferred that the power of removal was intended to be conferred upon the President by Congress, and not acknowledged to exist in him under the Constitution. To remove every difficulty,—to place doubt at defiance in all future time, the words “to be removable from office by the President of the United States” were stricken from the bill, and this right was expressly acknowledged to exist independently of all legislation. By the second section of the bill, which became a law on the 27th July, 1789, it is declared that “the Chief Clerk in the Department of Foreign Affairs,Affairs, whenever the principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, shall, during such vacancy, have the charge and custody of all records, books, and papers, appertaining to the said Department.” Here then is a clear, strong, distinct recognition by the House of Representatives of the President’s power of removal, not by virtue of law, but under the Constitution. This phraseology was carefully adopted for the purpose of putting this very question at rest forever, so far as Congress could effect this purpose.
The bill, having passed the House of Representatives, was sent to the Senate for their concurrence. The power of removal was there solemnly considered. This was the very body which, according to the doctrine of gentlemen, has a right to control this power; and yet they affirmed the principle that it was vested in the President, and in him alone. It is true that the question was determined by the casting vote of Mr. Adams,—then the Vice-President: but the act was approved by General Washington, and the power has ever since been exercised without dispute by him and his successors in office, until after the election of the present President. Washington, the elder Adams, Jefferson, Madison, Monroe, and the younger Adams removed whom they pleased from office; but after the accession of Jackson, the existence of this power is denied. We are now required to believe that all which former Presidents have done was wrong;—that the first Congress were entirely mistaken in their construction of the Constitution:—and that the President does not possess the power of removal except with the concurrence of the Senate.
If ever a question has occurred in the history of any country which ought to be considered settled, this is that one. A solemn decision at first, adopted in practice afterwards by all branches of the Government, for five and forty years, makes the precedent one of almost irresistible force.
What then have we a right to expect on our side of the House from the opposition? Not merely that they shall prove it to be a doubtful question, but they shall present a case so clear as to render it manifest that all which has been done has been without authority, and all the removals which have ever been made, have been in violation of the Constitution. The burden rests entirely upon the gentlemen, and a ponderous load they have to sustain.
But, sir, if the question were entirely new, if it never had been decided either by precedent or by practice, I think it may be made abundantly clear, that the strength of the argument is greatly on the side of those who maintain the power.
What is the nature of the Constitution of the United States? The powers which it devolves upon the Government, are divided into three distinct classes, the Legislative, the Executive, and the Judicial. To preserve the liberties of any country, it is necessary that these three branches of the government should be kept distinct and separate as far as possible. When they are all united in the same person—this is the very definition of despotism. As you approximate to this state of things, in the same proportion you advance towards arbitrary power. These are axioms which cannot—which will not be denied.
Doubtless for wise purposes, the framers of our Constitution have in a very few excepted cases, blended these powers together. The executive, by his veto, has a control over our legislation. The Senate, although a branch of the legislature, exercises judicial power in cases of impeachment. The President nominates, “and by and with the advice and consent of the Senate,” appoints all officers, except those of an inferior nature, the appointment of which may be vested by Congress “in the President alone, in the courts of law, or in the heads of departments.”
Now, sir, my position is, that when the Constitution of the United States, in a special case, has conferred upon the Senate, which is essentially a branch of the legislature, a participation in executive power, you cannot by construction extend this power beyond the plain terms of the grant. It is an exception from the general rule pervading the whole instrument. Appointment to office is in the strictest sense an executive power. But it is expressly declared that the assent of the Senate shall be necessary to the exercise of this power on the part of the President. The grant to the Senate is special. In this particular case, it is an abstraction from the general executive powers granted under the Constitution to the PresidentPresident. According to the maxim of the common law, expressio unius est exclusio alterius—it follows conclusively that what has not been given is withheld, and remains in that branch of the Government which is the appropriate depository of executive power. The exception proves the rule. And the grant of executive power to the Senate is confined to appointments to office, and to them alone. This necessarily excludes other executive powers. It cannot, therefore, be contended with any force, as the gentleman from Massachusetts (Mr. Webster) has contended, that because the consent of the Senate is made necessary by the Constitution to appointments of officers,—that, therefore, by implication, it is necessary for their removal. Besides, these two things are very distinct in their nature, as I shall hereafter have occasion to demonstrate.
But to proceed with the argument. I shall contend that the sole power of removing executive officers is vested in the President by the Constitution. First, from a correct construction of the instrument itself; and second, even if that were doubtful, from the great danger resulting to the public interest from any other construction.
The Constitution declares in express language that “the executive power shall be vested in a President of the United States.” Under these general terms, I shall, once for all, disclaim the idea of attempting to derive any portion of the power of the Chief Magistrate from any other fountain than the Constitution itself. I therefore entirely repel the imputation, so far as I am concerned, which would invest him with executive powers derived from the prerogatives of the kings or emperors of the old world. Such arguments are entirely out of the question.
The Constitution also declares that “he shall take care that the laws be faithfully executed.” These two clauses of the Constitution confer the executive power on the President, and define his duties. Is, then, the removal from office an executive power? If it be so, there is an end of the question; because the Constitution nowhere declares that the Senate, or any other human tribunal, shall participate in the exercise of this power. It will not be contended but that the power of removal exists, and must exist, somewhere. Where else can it exist but in the executive, on whom the Constitution imposes the obligation of taking care that the laws shall be faithfully executed? It will not be pretended that the power of removal is either of a legislative or judicial character. From its very nature, it belongs to the executive. In case he discovers that an officer is violating his trust—that instead of executing the laws, his conduct is in direct opposition to their requisition, is it not, strictly speaking, an executive power to arrest him in his career, by removing him from office? How could the President execute the trust confided to him, if he were destitute of this authority? If he possessed it not, he would be compelled to witness the executive officers violating the laws of Congress without the power of preventing it.
On this subject, it is impossible for me to advance anything new. It was exhausted by Mr. Madison, in the debate of 1789, in the House of Representatives. I am confident the Senate will indulge me whilst I read two extracts from his speeches on that occasion, delivered on the 16th and 17th June, 1789. The first was delivered on the 16th June, 1789, and is as follows:
“By a strict examination of the Constitution, on what appears to be its true principles, and considering the great departments of the Government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill. In the first section of the first article, it is said that all legislative powers herein granted shall be vested in a Congress of the United States. In the second article, it is affirmed that the executive power shall be vested in a President of the United States of America. In the third article, it is declared that the judicial power of the United States shall be vested in one Supreme Court; and in such inferior courts as Congress may, from time to time, ordain and establish.
“I suppose it will be readily admitted, that so far as the Constitution has separated the powers of these great departments, it would be improper to combine them together; and so far as it has left any particular department in the entire possession of the powers incident to that department, I conceive we ought not to qualify them further than they are qualified by the Constitution. The legislative powers are vested in Congress, and are to be exercised by them uncontrolled by any other department, except the Constitution has qualified it otherwise. The Constitution has qualified the legislative power, by authorizing the President to object to any act it may pass, requiring, in this case, two-thirds of both Houses to concur in making a law; but still the absolute legislative power is vested in the Congress with this qualification alone.
“The Constitution affirms, that the executive power shall be vested in the President. Are there exceptions to this proposition? Yes, there are. The Constitution says, that in appointing to office, the Senate shall be associated with the President, unless in case of inferior officers, when the law shall otherwise direct. Have we a right to extend this exception? I believe not. If the Constitution had invested all executive power in the President, I venture to assert that the Legislature has no right to diminish or modify his executive authority.”
Again:
“The doctrine, however, which seems to stand most in opposition to the principles I contend for, is, that the power to annul an appointment is, in the nature of things, incidental to the power which makes the appointment. I agree that if nothing more was said in the Constitution than that the President, by and with the advice and consent of the Senate, should appoint to office, there would be great force in saying that the power of removal resulted by a natural implication from the power of appointing. But there is another part of the Constitution, no less explicit than the one on which the gentleman’s doctrine is founded; it is that part which declares that the executive power shall be vested in a President of the United States.
“The association of the Senate with the President in exercising that particular function, is an exception to this general rule, and exceptions to general rules, I conceive, are ever to be taken strictly. But there is another part of the Constitution which inclines, in my judgment, to favor the construction I put upon it; the President is required to take care that the laws be faithfully executed. If the duty to see the laws faithfully executed be required at the hands of the Executive Magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end. Now, if the officer, when once appointed, is not to depend upon the President for his official existence, but upon a distinct body, (for where there are two negatives required, either can prevent the removal,) I confess I do not see how the President can take care that the laws be faithfully executed. It is true, by a circuitous operation, he may obtain an impeachment, and even without this it is possible he may obtain the concurrence of the Senate for the purpose of displacing an officer; but would this give that species of control to the Executive Magistrate which seems to be required by the Constitution? I own, if my opinion was not contrary to that entertained by what I suppose to be the minority on this question, I should be doubtful of being mistaken, when I discovered how inconsistent that construction would make the Constitution with itself. I can hardly bring myself to imagine the wisdom of the convention who framed the Constitution contemplated such incongruity.”
But, sir, if doubts could arise on the language of the Constitution itself, then it would become proper, for the purpose of ascertaining the true meaning of the instrument, to resort to arguments ab inconvenienti. The framers of the Constitution never intended it to mean what would defeat the very purposes which it was intended to accomplish. I think I can prove that to deprive the President of the power of removal would be fatal to the best interests of the country.
And first, the Senate cannot always be in session. I thank Heaven for that. We must separate and attend to our ordinary business. It is necessary for a healthy political constitution that we should breathe the fresh and pure air of the country. The political excitement would rise too high if it were not cooled off in this manner. The American people never will consent, and never ought to consent, that our sessions shall become perpetual. The framers of the Constitution never intended that this should be the case. But once establish the principle that the Senate must consent to removals, as well as to appointments, and this consequence is inevitable.
A foreign minister in a remote part of the world is pursuing a course, dangerous to the best interests, and ruinous to the character of the country. He is disgracing us abroad, and endangering the public peace. He has been intrusted with an important negotiation, and is betraying his trust. He has become corrupt, or is entirely incompetent. This information arrives at Washington, three or four days after the adjournment of Congress on the 3d of March. What is to be done? Is the President to be entirely powerless until the succeeding December, when the Senate may meet again? Shall he be obliged to wait until the mischief is entirely consummated—until the country is ruined—before he can recall the corrupt or wicked minister? Or will any gentleman contend that upon every occasion, when a removal from office becomes necessary, he shall call the Senators from their homes throughout this widely extended republic? And yet, this is the inevitable consequence of the position contended for by gentlemen. Could the framers of the Constitution ever have intended such an absurdity? This argument was also adverted to by Mr. Madison.
But again, there are great numbers of disbursing officers scattered over the Union. Information is received during the recess of the Senate, that one of them in Arkansas or at the Rocky Mountains, has been guilty of peculation, and is wasting the public money. Must the President fold his arms, and suffer him to proceed in his fraudulent course, until the next meeting of the Senate? The truth is, that the President cannot execute the laws of the Union, without this power of removal.
But cases still stronger may be presented. The heads of departments are the confidential advisers of the President. It is chiefly through their agency that he must conduct the great operations of Government. Without a direct control over them, it would be impossible for him to take care that the laws shall be faithfully executed. Suppose that one of them, during the recess of the Senate, violates his instructions, refuses to hold any intercourse with the President, and pursues a career which he believes to be in opposition to the Constitution, the laws and the best interests of the country. Shall the executive arm be paralyzed; and in such a case, must he patiently submit to all these evils until the Senate can be convened? In time of war, the country might be ruined by a corrupt Secretary of War, before the Senate could be assembled.
It is not my intention, on this occasion, to discuss the question of the removal of the deposits from the Bank of the United States. I merely wish to present it as a forcible illustration of my argument. Suppose the late Secretary of the Treasury had determined to remove the deposits, and the President had believed this measure would be as ruinous to the country as the friends of the bank apprehended. If the Secretary, notwithstanding the remonstrances of the President, had proceeded to issue the order for their removal, what should we have heard from those who were the loudest in their denunciations against the Executive, if he had said, my arms are tied, I have no power to arrest the act—the deposits must be removed, because I cannot remove my Secretary? Here the evil would have been done before the Senate could possibly have been assembled. I am indebted to the speech of the Senator from South Carolina (Mr. Calhoun), at the last session, for this illustration. The truth is, view the subject in any light you may, the power of removal is in its nature inseparable from the executive power.
I have been presenting the inconveniences which would arise, during the recess of the Senate, from the want of this power in the executive. But suppose the Senate to be always in session, would this remove every difficulty? By no means. Confer upon the Senate the power of rejecting removals, and you make the executive, in the language of the debate of 1789, a double-headed monster. That power on whom is devolved the execution of your laws, must be able to remove a corrupt or an incompetent agent from office, or he cannot perform his duties. The Senate may, without inconvenience, and with very great advantage to the country, participate in appointments; but when the man is once in office, the President must necessarily possess the power of turning him out in case he does not perform his duties. This power ought not to depend upon the will of the Senate; for that body have nothing to do with the execution of the laws.
If the power contended for were vested in the Senate, what would be the consequences? Still more dangerous, if possible, than any which I have yet depicted. The cases in which removals are necessary, must rapidly increase with the number of our officers and our rapidly extending population. If the President must assign reasons to the Senate for his removals, according to the provisions of this bill, or if the Senate must participate in these removals, as well as in appointments, it necessarily follows, that these reasons must be investigated. Witnesses must be examined to ascertain the truth or falsehood of the charges made against the officer sought to be removed. The case must be tried judicially. Time must be consumed to the prejudice of our other duties. The legislative functions of the Senate must thus become impaired, and feelings excited between co-ordinate branches of the Government calculated to produce a most injurious effect upon the country. In this state of things, the case might readily occur which was anticipated by Mr. Madison in 1789. A majority of the Senate might even keep one of the heads of department in office against the will of the President. Whether they would have done so or not last winter, in the case of the Secretary of the Treasury, I shall not pretend to determine.
If this power were conferred upon the Senate, it would interfere with our judicial functions to a dangerous and alarming extent. The removal of a high officer of the Government is recommended by the President to the Senate, because of official misconduct. The charges are tried before the Senate. From the very nature of the question it must become in fact a judicial investigation. The Senate determine either that he shall remain in his office or that he shall be removed. In either case, the House of Representatives, possessing the sole power of impeachment under the Constitution, determine to exercise it against this officer. But the Senate have, by their previous proceedings, utterly disqualified themselves from giving to the accused an impartial trial. They have already decided upon his guilt or his innocence. Instead of proceeding to the trial, unbiased by favor or by prejudice, their minds are inflamed, their judgments are biased, and they come to the investigation with the feelings of partisans, rather than those of judges. The House of Representatives would have a just right to complain loudly against the exercise of this power by the Senate. We should thus disqualify ourselves from judging impartially in cases between the people of the United States and the high officers of the Government.
I think I have successfully established the position that no two things can in their nature be more distinct than the power of appointment and that of removal. If this be the case, then what becomes of the argument of the gentleman from Massachusetts (Mr. Webster)? It rested entirely upon the principle, that these two powers were so identical in their nature, that because the Senate, under the Constitution, have the express power of advising and consenting to appointments, that, therefore, by implication, they must possess the power of advising and consenting to removals. The inference is without foundation.
The truth is, that the more we discuss this question, we shall have the greater reason to admire the wisdom of the Constitution, and of those enlightened and patriotic men who placed that construction upon it in the beginning, which I shall venture to predict never will be disturbed by the American people. The Senate, from the nature of the body, are fully competent to assist the President in appointments. It would change their character altogether, and paralyze the executive arm of the Government, if they were to usurp the power of interfering in removals from office. Let the Constitution and the construction of it by its founders, in this particular, be perpetual!
It has been objected that the President, by this construction, is too far removed from responsibility in the exercise of this power. But he is responsibleresponsible to the American people, whose servant he is, in this as in all other cases. Unless you palsy the executive arm, and render it powerless to do good, lest it may do evil, you cannot support the doctrine which has been urged. You must vest some discretion; you must repose some confidence in the executive, or the wheels of Government must stand still. Should he abuse his power, he is liable to the censure of public opinion; and, in flagrant cases, he may be impeached.
It was contended in the first Congress, and the same argument has been urged upon the present occasion, that the power of removal was not recognized by the Constitution—that it was a case omitted, and that, therefore, by implication, it belongs to Congress. This argument was fully met and successfully refuted in 1789. If this principle were established, the executive power would have no necessary control over executive officers. Congress might confer the power of removal upon the Senate alone, or upon the House of Representatives alone, or upon both conjointly, without any participation of the President. This Government—the admiration of the world, would present the solecism of an executive without any control over executive agents, except what might be granted to him by the legislature. We are not placed in this unfortunate predicament. The President, under the Constitution, has the power of removal. It is a constitutional power, not to be controlled by the legislature. It is a power equally sovereign in its nature with that of legislation itself. He is a co-ordinate branch of the Government, and has the same right to exercise his discretion in removals from office, that Congress possess in regard to the enactment of laws.
This brings me to consider the constitutionality of the third section of the bill now depending before us. It provides “that in all nominations made by the President to the Senate, to fill vacancies occasioned by removal from office, the fact of the removal shall be stated to the Senate at the time that the nomination is made, with a statement of the reasons for such removal.”
Whence do we derive our authority to demand his reasons? If the Constitution has conferred upon him the power of removal, as I think I have clearly shown, is it not absolute in its nature and entirely free from the control of Congress? Is he not as independent in the exercise of this power as Congress in the exercise of any power conferred upon them by the Constitution? Would he not have the same authority to demand from us our reasons for rejecting a nomination, as we possess to call upon him for his reasons for making a removal? Might he not say, I am answerable to the American people, and to them alone, for the exercise of this power, in the same manner that the Senate is for the exercise of any power conferred upon them by the Constitution?
With all the deference which I feel for the opinions of the Senator from Tennessee (Mr. White), I think he has arrived at the conclusion that the third section of this bill is constitutional, by blending things together which are in their nature entirely distinct. He asks, is it not in the power of Congress to create the office, to define its duties, and to change and vary these duties at pleasure? Granted. May they not, if they believe the office unnecessary, repeal the law, and must not the officer fall with it? Granted. These are legislative powers, clearly conferred upon Congress by the Constitution. It is then asked, may Congress not prescribe it as the duty of these officers to give reasons for their conduct? Certainly they may. And why? Because they are the creatures of Congress—they are called into existence by Congress—and they will cease to exist at the pleasure of Congress. Is this the condition of the executive, who is a co-ordinate branch of the Government, and who is answerable for his conduct, not to Congress, but to the people of the United States. What right have we to demand reasons from the servant of another as to how he performs his duties? To his own master, which, in this particular, is the American people, and to them alone, he is responsible. If Congress can command him to give reasons to the Senate for his removals, the Senate may judge of the validity of these reasons, and condemn them if they think proper. The executive of the country is thus rendered subordinate to the Senate;—a position in which the Constitution of the country never intended to place him. In my opinion, this bill as strongly negatives the constitutional power of the President to remove from office, without the concurrence of the Senate, as if it were so declared in express language. For this reason I shall vote against it.
In the next session, which commenced in December, 1836, Mr. Buchanan delivered a speech which may perhaps be regarded as the ablest of his efforts in the Senate. It related to a topic that had long been attended with intense political excitement. President Jackson’s removal of the public deposits from the Bank of the United States furnished to the Whig opponents of his administration a means of attack, of which they were not slow to avail themselves. The powerful opposition, which at the time of that occurrence controlled the proceedings of the Senate, was led by Mr. Clay, who was the defeated Whig candidate for the Presidency at the election of 1832. Swaying his party in the Senate with an imperious will, and enforcing his determinations by a fascinating eloquence, Mr. Clay, on the 28th of March, 1834, carried a resolution, which was inscribed on the journal of the Senate in the following words: “That the President, in the late executive proceedings, in relation to the public revenue, has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.” On the 3d of March, 1835, a resolution introduced by Col. Benton, of Missouri, ordering Mr. Clay’s resolution to be “expunged” from the journal, came up for consideration. The word “expunged” was stricken out by a vote in which the mover and other friends of the administration concurred, so that some other less objectionable phrase might be substituted. But as soon as this word was stricken out, Mr. Webster moved to lay the resolution on the table, giving notice that he would not withdraw his motion “for friend or foe.” The motion was not debatable, and as the Whigs still had a majority, it was carried by a party vote. The Democratic Senators then determined that the word “expunged” should never be again surrendered. At the next session they had a majority; and Col. Benton’s resolution then came up, in a form which directed that Mr. Clay’s resolution of 1834 be expunged from the journal of the Senate, by drawing black lines around it, and writing across its face the words, “Expunged by order of the Senate, this —— day of —— in the year of our Lord 1837.” It was upon this proposal, in reply to an impassioned speech by Mr. Clay, that Mr. Buchanan, on the 16th of January, 1837, addressed the Senate.
There is one praise to be accorded to this speech, which, considering the party character of the struggle, is not a small one. Mr. Buchanan separated what was personal and partisan in this controversy from the serious questions involved; and covering the whole field of argument upon the really important topics in a temperate and courteous but firm discussion, he placed his side of the debate upon its true merits. He began by contending that the censure, which the Senate had in 1834 passed upon the President, was unjust, because he had violated no law in ordering the Secretary of the Treasury to remove the public deposits from the Bank. He then argued that the Senate had committed an infraction of the Constitution, by recording upon its journal an accusation that the President had been guilty of an offence for which he might be impeached, and for which it would be the duty of the Senate to try him on articles of impeachment, if the House of Representatives should ever proceed against him in that manner. In thus prejudging the case, by a resolution of mere naked censure, adopted in its legislative capacity, the Senate had rendered itself incompetent to perform its high judicial function. He concluded his argument by a very ingenious and elaborate criticism of the word “expunge,” arguing that there was a real and solid distinction between a physical obliteration of a record, making it impossible thereafter to be read, and such an annulment of its legal existence as was now proposed, and which, by leaving it in a condition to be read, would nevertheless deprive it of all force. It must be confessed that this was a very finely drawn distinction; but it was supported by no inconsiderable acuteness and force, and with great fairness of reasoning. Col. Benton’s resolution was adopted by a party vote, and was immediately carried out.[53]
The following is a full report of Mr. Buchanan’s speech in support of the Expunging Resolution:
Mr. President:—After the able and eloquent display of the Senator from Kentucky, (Mr. Clay) who has just resumed his seat, after having so long enchained the attention of his audience, it might be the dictate of prudence for me to remain silent. But I feel too deeply my responsibility as an American Senator, not to make the attempt to place before the Senate and the country the reasons which, in my opinion, will justify the vote which I intend to give this day.
A more grave and solemn question has rarely, if ever, been submitted to the Senate of the United States, than the one now under discussion. This Senate is now called upon to review its own decision, to rejudge its own justice, and to annihilate its own sentence, pronounced against the co-ordinate executive branch of this Government. On the 28th of March, 1834, the American Senate, in the face of the American people, in the face of the whole world, by a solemn resolution, pronounced the President of the United States to be a violator of the Constitution of his country—of that Constitution which he had solemnly sworn “to preserve, protect, and defend.” Whether we consider the exalted character of the tribunal which pronounced this condemnation, or the illustrious object against which it was directed, we ought to feel deeply impressed with the high and lasting importance of the present proceeding. It is in fact, if not in form, the trial of the Senate, for having unjustly and unconstitutionally tried and condemned the President; and their accusers are the American people. In this cause I am one of the judges. In some respects, it is a painful position for me to occupy. It is vain, however, to express unavailing regrets. I must, and shall, firmly and sternly, do my duty; although in the performance of it I may wound the feelings of gentlemen whom I respect and esteem. I shall proceed no farther than the occasion demands, and will, therefore, justify.
Who was the President of the United States, against whom this sentence has been pronounced? Andrew Jackson—a name which every American mother, after the party strife which agitates us for the present moment shall have passed away, will, during all the generations which this Republic is destined to endure, teach her infant to lisp with that of the venerated name of Washington. The one was the founder, the other the preserver, of the liberties of his country.
If President Jackson has been guilty of violating the Constitution of the United States, let impartial justice take its course. I admit that it is no justification for such a crime, that his long life has been more distinguished by acts of disinterested patriotism than that of any American citizen now living. It is no justification that the honesty of his heart and the purity of his intentions have become proverbial, even amongst his political enemies. It is no justification that in the hour of danger, and in the day of battle, he has been his country’s shield. If he has been guilty, let his name be “damned to everlasting fame,” with those of Cæsar and of Napoleon.
If, on the other hand, he is pure and immaculate from the charge, let us be swift to do him justice, and to blot out the foul stigma which the Senate has placed upon his character. If we are not, he may go down to the grave in doubt as to what may be the final judgment of his country. In any event, he must soon retire to the shades of private life. Shall we, then, suffer his official term to expire, without first doing him justice? It may be said of me, as it has already been said of other Senators, that I am one of the gross adulators of the President. But, sir, I have never said thus much of him whilst he was in the meridian of his power. Now that his political sun is nearly set, I feel myself at liberty to pour forth my grateful feelings, as an American citizen, to a man who has done so much for his country. I have never, for myself, either directly or indirectly, solicited office at his hands; and my character must greatly change, if I should ever do so from any of his successors. If I should bestow upon him the meed of my poor praise, it springs from an impulse far different from that which has been attributed to the majority on this floor. I speak as an independent freeman and American Senator; and I feel proud now to have the opportunity of raising my voice in his defence.
On the 28th day of March, 1834, the Senate of the United States resolved, “that the President, in the late executive proceedings, in relation to the public revenue, has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.”
In discussing this subject, I shall undertake to prove, first, that this resolution is unjust; secondly, that it is unconstitutional; and in the last place, that it ought to be expunged from our journals, in the manner proposed by the Senator from Missouri (Mr. Benton).
First, then, it is unjust. On this branch of the subject I had intended to confine myself to a bare expression of my own decided opinion. This point has been so often and so ably discussed, that it is impossible for me to cast any new light upon it. But as it is my intention to follow the footsteps of the Senator from Kentucky (Mr. Clay) wherever they may lead, I must again tread the ground which has been so often trodden. As the Senator, however, has confined himself to a mere passing reference to the topics which this head presents, I shall, in this particular, follow his example.
Although the resolution condemning the President is vague and general in its terms, yet we all know that it was founded upon his removal of the public deposits from the Bank of the United States. The Senator from Kentucky has contended that this act was a violation of law. And why? Because, says he, it is well known that the public money was secure in that institution; and by its charter the public deposits could not be removed from it, unless under a just apprehension that they were in danger. Now, sir, I admit that if the President had no right to remove these deposits, except for the sole reason that their safety was in danger, the Senator has established his position. But what is the fact? Was the Government thus restricted by the terms of the bank charter? I answer, no. Such a limitation is nowhere to be found in it. Let me read the sixteenth section, which is the only one relating to the subject. It enacts, “that the deposits of the money of the United States, in places in which the said bank and branches thereof may be established, shall be made in said bank or branches thereof, unless the Secretary of the Treasury shall at any other time otherwise order and direct; in which case the Secretary of the Treasury shall immediately lay before Congress, if in session, and, if not, immediately after the commencement of the next session, the reasons of such order or direction.”
Is not the authority thus conferred upon the Secretary of the Treasury as broad and as ample as the English language will admit? Where is the limitation, where the restriction? One might have supposed from the argument of the Senator from Kentucky, that the charter restricted the Secretary of the Treasury from removing the deposits, unless he believed them to be insecure in the Bank of the United States; but the language of the law itself completely refutes his argument. They were to remain in the Bank of the United States, “unless the Secretary of the Treasury shall at any time otherwise order and direct.”
The sole limitation upon the discretion of that officer was his immediate and direct responsibility to Congress. To us he was bound to render his reasons for removing the deposits. We, and we alone, are constituted the judges as to the sufficiency of these reasons.
It would be an easy task to prove that the authors of the bank charter acted wisely in not limiting the discretion of the Secretary of the Treasury over the deposits to the single case of their apprehended insecurity. We may imagine many other reasons which would have rendered their removal both wise and expedient. But I forbear; especially as the case now before the Senate presents as striking an illustration of this proposition as I could possibly imagine. Upon what principle, then, do I justify the removal of the deposits?
The Bank of the United States had determined to apply for a recharter at the session of Congress immediately preceding the last Presidential election. Preparatory to this application, and whilst it was pending, in the short space of sixteen months, it had increased its loans more than twenty-eight million dollars. They rose from forty-two millions to seventy millions between the last of December, 1830, and the first of May, 1832. Whilst this boasted regulator of the currency was thus expanding its discounts, all the local banks followed the example. The impulse of self-interest urged them to pursue this course. A delusive prosperity was thus spread over the land. Money everywhere became plenty. The bank was regarded as the beneficent parent, who was pouring her money out into the laps of her children. She thought herself wise and provident in thus rendering herself popular. The recharter passed both Houses of Congress by triumphant majorities. But then came “the frost, the killing frost.” It was not so easy to propitiate “the Old Roman.” Although he well knew the power and influence which the bank could exert against him at the then approaching Presidential election, he cast such considerations to the winds. He vetoed the bill, and in the most solemn manner placed himself for trial upon this question before the American people.
From that moment the faith of many of his former friends began to grow cold. The bank openly took the field against his re-election. It expended large sums in subsidizing editors, and in circulating pamphlets, and papers, and speeches, throughout the Union, calculated to inflame the public mind against the President. I merely glance at these things.
Let us pause for a single moment to consider the consequences of such conduct. What right had the bank, as a corporation, to enter the arena of politics for the purpose of defending itself, and attacking the President? Whilst I freely admit that each individual stockholder possessed the same rights, in this respect, as every other American citizen, I pray you to consider what a dangerous precedent the bank has thus established. Our banks now number nearly a thousand, and our other chartered institutions are almost innumerable. If all these corporations are to be justified in using their corporate funds for the purpose of influencing elections; of elevating their political friends, and crushing their political foes, our condition is truly deplorable. We shall thus introduce into the State a new, a dangerous, and an alarming power, the effects of which no man can anticipate. Watchful jealousy is the price which a free people must ever pay for their liberties; and this jealousy should be Argus-eyed in watching the political movements of corporations.
After the bank had been defeated in the Presidential election, it adopted a new course of policy. What it had been unable to accomplish by making money plenty, it determined it would wrest from the sufferings of the people by making money scarce. Pressure and panic then became its weapons; and with these it was determined, if possible, to extort a recharter from the American people. It commenced this warfare upon the interests of the country about the first of August, 1833. In two short months it decreased its loans more than four millions of dollars, whilst the deposits of the Government with it had increased, during the same period, two millions and a quarter. I speak in round numbers. It was then in the act of reducing its discounts at the rate of two millions of dollars per month.
The State banks had expanded their loans with the former expansion of the Bank of the United States. It now became necessary to contract them. The severest pressure began to be felt everywhere. Had the Bank of the United States been permitted a short time longer to proceed in this course, fortified as it was with the millions of the Government which it held on deposit, a scene of almost universal bankruptcy and insolvency must have been presented in our commercial cities. It thus became absolutely necessary for the President either to deprive the bank of the public deposits, as the only means of protecting the State banks, and through them the people, from these impending evils, or calmly to look on and see it spreading ruin throughout the land. It was necessary for him to adopt this policy for the purpose of preventing a universal derangement of the currency, a general sacrifice of property, and, as an inevitable consequence, the recharter of this institution.
By the removal of the deposits, he struck a blow against the bank from which it has never since recovered. This was the club of Hercules with which he slew the hydra. This was the master-stroke by which he prostrated what a large majority of the American people believe to have been a corrupt and a corrupting institution. For this he is not only justified, but deserves the eternal gratitude of his country. For this the Senate have condemned him; but the people of the United States have hailed him as a deliverer.
It has been said by the Senator from Kentucky, that the President, by removing the deposits from the Bank of the United States, united in his own hands the power of the purse of the nation with that of the sword. I think it is not difficult to answer this argument. What was to become of the public money, in case it had been removed from the Bank of the United States, under its charter, for the cause which the Senator himself deems justifiable? Why, sir, it would then have been immediately remitted to the guardianship of those laws under which it had been protected before the Bank of the United States was called into existence. Such was the present case. In regard to this point, no matter whether the cause of removal were sufficient or not, the moment the deposits were actually removed they became subject to the pre-existing laws, and not to the arbitrary will of the President.
The Senator from Kentucky has contended that the President violated the Constitution and the laws, by dismissing Mr. Duane from office because he would not remove the deposits, and by appointing Mr. Taney to accomplish this purpose. I shall not discuss at any length the power of removal. It is now too late in the day to question it. That the executive possesses this power was decided by the first Congress. It has often since been discussed and decided in the same manner, and it has been exercised by every President of the United States. The President is bound by the Constitution to “take care that the laws be faithfully executed.” If he cannot remove his executive officers, it is impossible that he can perform this duty. Every inferior officer might set up for himself; might violate the laws of the country, and put him at defiance, whilst he would remain perfectly powerless. He could not arrest their career. A foreign minister might be betraying and disgracing the nation abroad, without any power to recall him until the next meeting of the Senate. This construction of the Constitution involves so many dangers and so many absurdities, that it could not be maintained for a moment, even if there had not been a constant practice against it of almost half a century.
But it is contended by the Senator that the Secretary of the Treasury is a sort of independent power in the State, and is released from the control of the executive. And why? Simply because he is directed by law to make his annual report to Congress and not to the President. If this position be correct, then it necessarily follows that the executive is released from the obligation of taking care that the numerous and important acts of Congress regulating the fiscal concerns of the country shall be faithfully executed. The Secretary of the Treasury is thus made independent of his control. What would be the position of this officer under such a construction of the Constitution and laws, it would be very difficult to decide. And this wonderful transformation of his character has arisen from the mere circumstance that Congress have by law directed him to make an annual report to them! No, sir; the executive is responsible to Congress for the faithful execution of all the laws; and if the present or any other President should prove faithless to his high trust, the present Senate, notwithstanding all which has been said, would be as ready as their predecessors to inflict condign punishment upon him, in the mode pointed out by the Constitution.
I have now arrived at the great question of the constitutional power of the Senate to adopt the resolution of March, 1834. It is my firm conviction that the Senate possesses no such power; and it is now my purpose to establish this position. The decision on this point must depend upon a true answer to the question: Does this resolution contain any impeachable charge against the President? If it does, I trust I shall demonstrate that the Senate violated its constitutional duty in proceeding to condemn him in this manner. I shall again read the resolution:
“Resolved, That the President, in the late executive proceedings in relation to the public revenue, has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.”
This language is brief and comprehensive. It comes at once to the point. It bears a striking impress of the character of the Senator from Kentucky. Does it charge an impeachable offence against the President?
The fourth section of the second article of the Constitution declares that the “President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
It has been contended that this condemnatory resolution contains no impeachable offence, because it charges no criminal intention against the President; and I admit that it does not attribute to him any corrupt motive in express words. Is this sufficient to convince the judgment of any impartial man that none was intended? Let us, for a few moments, examine this proposition. If it be well founded, the Senate may for ever hereafter usurp the power of trying, condemning, and destroying any officer of the Government, without affording him the slightest opportunity of being heard in his defence. They may abuse their power, and prostrate any object of their vengeance. It seems we have now made the discovery, that the Senate are authorized to exert this tremendous power—that they may thus assume to themselves the office both of accuser and of judge, provided the indictment contains no express allegation of a criminal intention. The President, or any officer of the Government, may be denounced by the Senate as a violator of the Constitution of his country,—as derelict in the performance of his public duties, provided there is no express imputation of an improper motive. The characters of men whose reputation is dearer to them than their lives may thus be destroyed. They may be held up to public execration by the omission of a few formal words. The condemnation of the Senate carries with it such a moral power, that perhaps there is no man in the United States, except Andrew Jackson, who could have resisted its force. No, sir; such an argument can never command conviction. That which we have no power to do directly, we can never accomplish by indirect means. We cannot by resolution convict a man of an impeachable offence, merely because we may omit the formal words of an impeachment. We must regard the substance of things, and not the mere form.
But again. Although a criminal intention be not charged, in so many words, by this resolution, yet its language, even without the attendant circumstances, clearly conveys this meaning. The President is charged with having “assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.” “Assumed upon himself.” What is the plain palpable meaning of this phrase connected with what precedes and follows? Is it not “to arrogate,” “to claim or seize unjustly.” These are two of the first meanings of the word assume, according to the lexicographers. To assume upon one’s self is a mode of expression which is rarely taken in a good sense. As it is used here, I ask if any man of plain common understanding, after reading this resolution, would ever arrive at the conclusion that any Senator voted for it under the impression that the President was innocent of any improper intention, and that he violated the Constitution from mere mistake and from pure motives? The common sense of mankind revolts at the idea. How can it be contended, for a single moment, that you can denounce the President as a man who had “assumed upon himself” the power of violating the laws and the Constitution of his country, and in the same breath declare that you had not the least intention to criminate him, and that your language was altogether inoffensive. The two propositions are manifestly inconsistent.
But I go one step further. If we were sitting as a court of impeachment, and the bare proposition were established to our satisfaction that the President had, in violation of the Constitution and the laws, withdrawn the public revenue of the country from the depository to whose charge Congress had committed it, and assumed the control over it himself, we would be bound to convict him of a high official misdemeanor. Under such circumstances, we should be bound to infer a criminal intention from this illegal and unconstitutional act. Criminal justice could never be administered,—society could not exist, if the tribunals of the country should not attribute evil motives to illegal and unconstitutional conduct. Omniscience alone can examine the heart. When poor frail man is placed in the judgment-seat, he must infer the intentions of the accused from his actions. That “the tree is known by its fruits” is an axiom which we have derived from the fountain of all truth. Does a poor, naked, hungry wretch, at this inclement season of the year, take from my pocket a single dollar; the law infers a criminal intent, and he must be convicted and punished as a thief, though he may have been actuated by no other motive than that of saving his wife and his children from starvation. And shall a different rule be applied to the President of the United States? Shall it be said of a man elevated to the highest station on earth, for his wisdom, his integrity, and his virtues, with all his constitutional advisers around him, when he violates the Constitution of his country and usurps the control over its entire revenue, that he may successfully defend himself by declaring he had done this deed without any criminal intention? No, sir; in such a case, above all others, the criminal intention must be inferred from the unconstitutional exercise of high and dangerous powers. The safety of the Republic demands that the President of the United States should never shield himself behind such flimsy pretexts. This resolution, therefore, although it may not have assumed the form of an article of impeachment, possesses all the substance.
It was my fate some years ago to have assisted as a manager, in behalf of the House of Representatives, in the trial of an impeachment before this body. It then became my duty to examine all the precedents in such cases which had occurred under our Government, since the adoption of the Federal Constitution. On that occasion, I found one which has a strong bearing upon this question. I refer to the case of Judge Pickering. He was tried and condemned by the Senate upon all the four articles exhibited against him; although the first three contained no other charge than that of making decisions contrary to law, in a cause involving a mere question of property, and then refusing to grant the party injured an appeal from his decision, to which he was entitled. From the clear violation of law in this case, the Senate must have inferred an impure and improper motive.
If any thing further were wanting to prove that the resolution of the Senate contained a criminal and impeachable charge against the President, it might be demonstrated from all the circumstances attending the transaction. Whilst this resolution was in progress through the Senate, the Bank of the United States was employed in producing panic and pressure throughout the land. Much actual suffering was experienced by the people; and where that did not exist, they dreaded unknown and awful calamities. Confidence between man and man was at an end. There was a fearful pause in the business of the country. We were then engaged in the most violent party conflict recorded in our annals. To use the language of the Senator from Kentucky, we were in the midst of a revolution. On the one side it was contended that the power over the purse of the nation had been usurped by the President; that in his own person he had united this power with that of the sword, and that the liberties of the people were gone, unless he could be arrested in his mad career. On the other hand, the friends of the President maintained that the removal of the deposits from the Bank of the United States was an act of stern justice to the people; that it was strictly legal and constitutional; that he was impelled to it by the highest and purest principles of patriotism; and that it was the only means of prostrating an institution which threatened the destruction of our dearest rights and liberties. During this terrific conflict public indignation was aroused to such a degree, that the President received a great number of anonymous letters, threatening him with assassination unless he should restore the deposits.
It was during the pendency of this conflict throughout the country, that the Senator from Kentucky thought proper, on the 26th December, 1833, to present his condemnatory resolution to the Senate. And here, sir, permit me to say that I do not believe there was any corrupt connection between any Senator upon this floor and the Bank of the United States. But it was at this inauspicious moment that the resolution was introduced. How was it supported by the Senator from Kentucky? He told us that a revolution had already commenced. He told us that by the 3d of March, 1837, if the progress of innovation should continue, there would be scarcely a vestige remaining of the Government and policy as they had existed prior to the 3d March, 1829. That in a term of years a little more than that which was required to establish our liberties, the Government would be transformed into an elective monarchy—the worst of all forms of government. He compared the measure adopted by General Jackson with the conduct of the usurping Cæsar, who, after he had overrun Italy in sixty days, and conquered the liberties of his native country, terrified the Tribune Metellus, who guarded the treasury of the Roman people, and seized it by open force. He declared that the President had proclaimed an open, palpable, and daring usurpation. He concluded by asserting that the premonitory symptoms of despotism were upon us; and if Congress did not apply an instantaneous and effective remedy, the fatal collapse would soon come on, and we should die—ignobly die! base, mean, and abject slaves, the scorn and contempt of mankind, unpitied, unwept, and unmourned. What a spectacle was then presented in this Chamber! We are told, in the reports of the day, that, when he took his seat, there was repeated and loud applause in the galleries. This, it will be remembered, was the introductory speech of the Senator. In my opinion, it was one of the ablest and most eloquent of all his able and eloquent speeches. He was then riding upon the whirlwind and directing the storm. At the time I read it, for I was not then in the Senate, it reminded me of the able, the vindictive, and the eloquent appeal of Mr. Burke before the House of Lords, on the impeachment of Warren Hastings, in which he denounced that governor-general as the ravager and oppressor of India, and the scourge of the millions who had been placed under his authority.
And yet, we are now told that this resolution did not intend to impute any criminal motive to the President. That he was a good old man, though not a good constitutional lawyer: and that he knew better how to wield the sword than to construe the Constitution.
[Mr. Clay here rose to explain. He said, “I never have said and never will say, that personally I acquitted the President of any improper intention. I lament that I cannot say it. But what I did say, was that the act of the Senate of 1834 is free from the imputation of any criminal motives.”motives.”]
Sir, said Mr. B., this avowal is in character with the frank and manly nature of the Senator from Kentucky. It is no more than what I expected from him. The imputation of any improper motive to the President has been again and again disclaimed by other Senators upon this floor. The Senator from Kentucky has now boldly come out in his true colors, and avows the principles which he held at the time. He acknowledges that he did not acquit the President from improper intentions, when charging him with a violation of the Constitution of his country.
This trial of the President before the Senate, continued for three months. During this whole period, instead of the evidence which a judicial tribunal ought to receive, exciting memorials, signed by vast numbers of the people, and well calculated to inflame the passions of his judges, were daily pouring in upon the Senate. He was denounced upon this floor by every odious epithet which belongs to tyrants. Finally, the obnoxious resolution was adopted by the vote of the Senate, on the 28th day of March, 1834. After the exposition which I have made, can any impartial mind doubt but that this resolution intended to charge against the President a wilful and daring violation of the Constitution and the laws? I think not.
The Senator from Kentucky has argued, with his usual power, that the functions of the Senate, acting in a legislative capacity, are not to be restricted, because it is possible that the same question, in another form, may come before us judicially. I concur in the truth and justice of this position. We must perform our legislative duties; and if, in the investigation of facts, having legislation distinctly in view, we should incidentally be led to the investigation of criminal charges, it is a necessity imposed upon us by our condition, from which we cannot escape. It results from the varying nature of our duties, and not from our own will. I admit that it would be difficult to mark the precise line which separates our legislative from our judicial functions. I shall not attempt it. In many cases, from necessity, they are in some degree intermingled. The present resolution, however, stands far in advance of this line. It is placed in bold relief, and is clear of all such difficulties. It is a mere naked resolution of censure. It refers solely to the past conduct of the President, and condemns it in the strongest terms, without even proposing any act of legislation by which the evil may be remedied hereafter. It was judgment upon the past alone; not prevention for the future. Nay, more: the resolution is so vague and general in its terms that it is impossible to ascertain from its face the cause of the President’s condemnation. The Senate have resolved that the executive “has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.” What is the specification under this charge? Why, that he has acted thus, “in the late executive proceedings in relation to the public revenue?” What executive proceedings? The resolution leaves us entirely in the dark upon this subject. How could any legislation spring from such a resolution? It is impossible. None such was ever attempted.
If the resolution had preserved its original phraseology—if it had condemned the President for dismissing one Secretary of the Treasury because he would not remove the deposits, and for appointing his successor to effect this purpose, the Senator might then have contended that the evil was distinctly pointed out; and, although no legislation was proposed, the remedy might be applied hereafter. But he has deprived himself even of this feeble argument. He has left us upon an ocean of uncertainty, without chart or compass. “The late executive proceedings in relation to the revenue,” is a phrase of the most general and indefinite character. Every Senator who voted in favor of this resolution may have acted upon different principles. To procure its passage, nothing more was necessary than that a majority should unite in the conclusion that the President had violated the Constitution and the laws in some one or other of his numerous acts in relation to the public revenue. The views of Senators constituting the majority may have varied from each other to any conceivable extent; and yet they may have united in the final vote. That this was the fact to a considerable extent, I have always understood. It is utterly impossible, either that such a proceeding could ever have been intended to become the basis of legislation, or that legislative action could have ever sprung from such a source.
I flatter myself, then, I have succeeded in proving that this resolution charged the President with a high official misdemeanor, wholly disconnected from legislation, which, if true, ought to have subjected him to impeachment.
This brings me directly to the question, had the Senate any power, under the Constitution, to adopt such a resolution? In other words, can the Senate condemn a public officer by a simple resolution, for an offence which would subject him to an impeachment? To state the proposition, is to answer this question in the negative. Dreadful would be the consequences if we possesspossess and should exercise such a power.
This body is invested with high and responsible powers of a legislative, an executive, and a judicial character. No person can enter it until he has attained a mature age. Our term of service is longer than that of any other elective functionary. If Senators will have it so, it is the most aristocratic branch of our Government. For what purpose did the framers of the Constitution confer upon it these varied and important powers, and this long tenure of office? The answer is plain. It was placed in this secure and elevated position that it might be above the storms of faction which so often inflame the passions of men. It never was intended to be an arena for political gladiators. Until the second session of the third Congress, the Senate always sat with closed doors, except in the single instance when the eligibility of Mr. Gallatin to a seat in the body was the subject of discussion. Of this particular practice, however, I cannot approve. I merely state it, to show the intention of those who formed the Constitution. I was informed by one of the most eminent statesmen and Senators which this country has ever produced, now no more (the late Mr. King), that for some years after the Federal Government commenced its operation, the debates of the Senate resembled conversations rather than speeches, and that it originated but few legislative measures. Senators were then critics rather than authors in legislation. Whether its gain in eloquence, since it has become a popular assembly, and since the sound of thundering applause has been heard in our galleries at the denunciation of the President, has been an equivalent for its loss in true dignity, may well be doubted. To give this body its just influence with the people, it ought to preserve itself as free as possible from angry political discussions. In the performance of our executive duties, in the ratification of treaties, and in the confirmation of nominations, the Constitution has connected us with the executive. The efficient and successful administration of the Government therefore requires that we should move on together in as much harmony as may be consistent with the independent exercise of our respective functions.
But above all, we should be the most cautious in guarding our judicial character from suspicion. We constitute the high court of impeachment of this nation, before which every officer of the Government may be arraigned. To this tribunal is committed the character of men whose character is far dearer to them than their lives. We should be the rock standing in the midst of the ocean, for the purpose of affording a shelter to the faithful officer from unjust persecution, against which the billows might dash themselves in vain. Whilst we are a terror to evil doers, we should be a praise to those who do well. We should never voluntarily perform any act which might prejudice our judgment, or render us suspected as a judicial tribunal. More especially, when the President of the United States is arraigned at the bar of public opinion for offences which might subject him to an impeachment, we should remain not only chaste but unsuspected. Better, infinitely better, would it be for us not to manifest our feeling, even in a case in which we were morally certain the House of Representatives would not prefer before us articles of impeachment, than to reach the object of our disapprobation by a usurpation of their rights. It is true that when the Senate passed the resolution condemning the President, a majority in the House were of a different opinion. But the next elections might have changed that majority into a minority. The House might then have voted articles of impeachment against the President. Under such circumstances, I pray you to consider in what a condition the Senate would have been placed. They had already prejudged the case. They had already convicted the President, and denounced him to the world as a violator of the Constitution. In criminal prosecutions, even against the greatest malefactor, if a juror has prejudged the cause, he cannot enter the jury box. The Senate had rendered itself wholly incompetent in this case to perform its highest judicial functions. The trial of the President, had articles of impeachment been preferred against him, would have been but a solemn mockery of justice.