[ON the twenty-eighth of March, 1834, the senate of the United
States adopted, by a vote of twenty-six to twenty, the following
resolution, which was offered by Mr. Clay, relative to the
removal of the public deposits from the bank 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.’
This resolution Mr. Benton, of Missouri, in February, 1835,
brought forward a motion to expunge from the journals of the
senate; but that body, on the third of March, by a vote of
thirty-nine to seven, refused to sustain the motion. Mr. Benton,
however, continued to agitate the subject, and, at the session
of 1836–7, the majority of the senate having been changed in
favor of president Jackson, an expunging resolution was offered
by Mr. Benton, and, after an exciting debate, carried. On this
occasion Mr. Clay addressed the senate in the following speech,
which may be numbered among his most powerful efforts in the
cause of the constitution, and the rights of the legislative
against executive power.]
CONSIDERING that I was the mover of the resolution of March, 1834, and
the consequent relation in which I stood to the majority of the senate
by whose vote it was adopted, I feel it to be my duty to say something
on this expunging resolution, and I always have intended to do so when
I should be persuaded that there existed a settled purpose of pressing
it to a final decision. But it was so taken up and put down at the last
session――taken up one day, when a speech was prepared for delivery,
and put down when it was pronounced――that I really doubted, whether
there existed any serious intention of ever putting it to the vote.
At the very close of the last session, it will be recollected that the
resolution came up, and in several quarters of the senate a disposition
was manifested to come to a definitive decision. On that occasion, I
offered to waive my right to address the senate, and silently to vote
upon the resolution; but it was again laid upon the table, and laid
there for ever, as the country supposed, and as I believed. It is,
however, now revived; and sundry changes having taken place in the
members of this body, it would seem that the present design is to bring
the resolution to an absolute conclusion.
I have not risen to repeat at full length the argument by which the
friends of the resolution of March, 1834, sustained it. That argument
is before the world, was unanswered at the time, and is unanswerable.
And I here, in my place, in the presence of my country and my God,
after the fullest consideration and deliberation of which my mind
is capable, reassert my solemn conviction of the truth of every
proposition contained in that resolution. But whilst it is not my
intention to commit such an infliction upon the senate as that would be,
of retracing the whole ground of argument formerly occupied, I desire
to lay before it at this time, a brief and true state of the case.
Before the fatal step is taken, of giving to the expunging resolution
the sanction of the American senate, I wish, by presenting a faithful
outline of the real questions involved in the resolution of 1834, to
make a last, even if it is to be an ineffectual appeal, to the sober
judgments of senators. I begin by reasserting the truth of that
resolution.
Our British ancestors understood perfectly well the immense
importance of the money power in a representative government. It is
the great lever by which the crown is touched, and made to conform
its administration to the interests of the kingdom, and the will of
the people. Deprive parliament of the power of freely granting or
withholding supplies, and surrender to the king the purse of the nation,
he instantly becomes an absolute monarch. Whatever may be the form
of government, elective or hereditary, democratic or despotic, that
person who commands the force of the nation, and at the same time has
uncontrolled possession of the purse of the nation, has absolute power,
whatever may be the official name by which he is called.
Our immediate ancestors, profiting by the lessons on civil liberty,
which had been taught in the country from which we sprung, endeavored
to encircle around the public purse, in the hands of congress, every
possible security against the intrusion of the executive. With this
view, congress alone is invested by the constitution with the power
to lay and _collect_ the taxes. When collected, not a cent is to be
drawn from the public treasury, but in virtue of an act of congress.
And among the first acts of this government, was the passage of a law
establishing the treasury department, for the safe keeping and the
legal and regular disbursement of the money so collected. By that act a
secretary of the treasury is placed at the head of the department; and
varying in respect from all the other departments, he is to report, not
to the president, but directly to congress, and is liable to be called
to give information in person before congress. It is impossible to
examine dispassionately that act, without coming to the conclusion
that he is emphatically the agent of congress in performing the duties
assigned by the constitution of congress. The act further provides that
a treasurer shall be appointed to receive and keep the public money,
and none can be drawn from his custody but under the authority of a
law, and in virtue of a warrant drawn by the secretary of the treasury,
countersigned by the comptroller, and recorded by the register. Only
when such a warrant is presented can the treasurer lawfully pay one
dollar from the public purse. Why was the concurrence of these four
officers required in disbursements of the public money? Was it not for
greater security? Was it not intended that each, exercising a separate
and independent will, should be a check upon every other? Was it not
the purpose of the law to consider each of these four officers, acting
in his proper sphere, not as a mere automaton, but as an intellectual,
intelligent, and responsible person, bound to observe the law, and to
stop the warrant, or stop the money, if the authority of the law were
wanting?
Thus stood the treasury from 1789 to 1816. During that long time no
president had ever attempted to interfere with the custody of the
public purse. It remained where the law placed it, undisturbed, and
every chief magistrate, including the father of his country, respected
the law.
In 1816 an act passed to establish the late bank of the United States
for the term of twenty years; and, by the sixteenth section of the act,
it is enacted,
‘That the deposits of the money of the United States in
places in which the said bank and the branches thereof may be
established, shall be made in said bank or branches thereof,
unless the secretary of the treasury shall at any 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.’
Thus it is perfectly manifest, from the express words of the law, that
the power to make any order or direction for the removal of the public
deposits, is confided to the secretary alone, to the absolute exclusion
of the president, and all the world besides. And the law, proceeding
upon the established principle, that the secretary of the treasury,
in all that concerns the public purse, acts as the direct agent of
congress, requires, in the event of _his_ ordering or directing a
removal of the deposits, that he shall immediately lay his reasons
therefor before whom? the president? No: before congress.
So stood the public treasury and the public deposits from the year
1816 to September, 1833. In all that period of seventeen years, running
through or into four several administrations of the government, the
law had its uninterrupted operation, no chief magistrate having assumed
upon himself the power of diverting the public purse from its lawful
custody, or of substituting his will to that of the officer to whose
care it was exclusively intrusted.
In the session of congress of 1832–3, an inquiry had been instituted
by the house of representatives into the condition of the bank of the
United States. It resulted in a conviction of its entire safety, and a
declaration by the house, made only a short time before the adjournment
of congress on the fourth of March, 1833, that the public deposits were
perfectly secure. This declaration was probably made in consequence
of suspicions then afloat of a design on the part of the executive to
remove the deposits. These suspicions were denied by the press friendly
to the administration. Nevertheless, the members had scarcely reached
their respective homes, before measures were commenced by the executive
to effect a removal of the deposits from that very place of safety
which it was among the last acts of the house to declare existed in
the bank of the United States.
In prosecution of this design, Mr. McLane, the secretary of the
treasury, who was decidedly opposed to such a measure, was promoted
to the department of state, and Mr. Duane was appointed to succeed
him. But Mr. Duane was equally convinced with his predecessor, that
he was forbidden by every consideration of duty to execute the power
with which the law had intrusted the secretary of the treasury, and
refused to remove the deposits; whereupon he was dismissed from office,
a new secretary of the treasury was appointed, and, in September, 1833,
by the command of the president, the measure was finally accomplished.
That it was the president’s act was never denied, but proclaimed,
boasted, defended. It fell upon the country like a thunderbolt,
agitating the union from one extremity to the other. The stoutest
adherents of the administration were alarmed; and all thinking men,
not blinded by party prejudice, beheld in the act a bold and dangerous
exercise of power; and no human sagacity can now foresee the tremendous
consequences which will ensue. The measure was adopted not long before
the approaching session of congress; and, as the concurrence of both
branches might be necessary to compel a restoration of the deposits,
the object was to take the chance of a possible division between them,
and thereby defeat the restoration.
And where did the president find the power for this most extraordinary
act? It has been seen that the constitution, jealous of all executive
interference with the treasury of the nation, had confined it to the
exclusive care of congress by every precautionary guard, from the first
imposition of the taxes to the final disbursement of the public money.
It has been seen that the language of the sixteenth section of the law
of 1816 is express and free from all ambiguity; and that the secretary
of the treasury is the sole, exclusive depository of the authority
which it confers.
Those who maintain the power of the president, have to support it
against the positive language of the constitution, against the explicit
words of the statute, and against the genius and theory of all our
institutions.
And how do they surmount these insuperable obstacles? By a series of
far-fetched implications, which, if every one of them were as true as
they are believed to be incorrect or perverted, would stop far short of
maintaining the power which was exercised.
The first of these implied powers is, that of dismissal, which
is claimed for the president. Of all the questioned powers ever
exercised by the government, this is the most questionable. From the
first congress down to the present administration, it had never been
examined. It was carried then, in the senate, by the casting vote of
the vice-president. And those who, at that day, argued in behalf of
the power, contended for it upon conditions which have been utterly
disregarded by the present chief magistrate. The power of dismissal is
nowhere in the constitution granted, in express terms, to the president.
It is not a necessary incident to any granted power; and the friends
of the power have never been able to agree among themselves as to the
precise part of the constitution from which it springs.
But, if the power of dismissal was as incontestable as it is justly
controvertible, we utterly deny the consequences deduced from it.
The argument is, that the president has, by implication, the power of
dismissal. From this first implication, another is drawn, and that is,
that the president has the power to control the officer, whom he may
dismiss, in the discharge of his duties, in all cases whatever; and
that this power of control is so comprehensive as to include even the
case of a specific duty expressly assigned by law to the designated
officer.
Now, we deny these results from the dismissing power. That power, if it
exists, can draw after it only a right of general superintendence. It
cannot authorize the president to substitute his will to the will of
the officer charged with the performance of official duties. Above all,
it cannot justify such a substitution in a case where the law, as in
the present instance, assigns to a designated officer exclusively the
performance of a particular duty, and commands him to report, not to
the president, but to congress, in a case regarding the public purse
of the nation, committed to the exclusive control of congress.
Such a consequence as that which I am contesting would concentrate
in the hands of one man the entire executive power of the nation,
uncontrolled and unchecked.
It would be utterly destructive of all official responsibility.
Instead of each officer being responsible, in his own separate sphere,
for his official acts, he would shelter himself behind the orders of
the president. And what tribunal, in heaven above or on earth below,
could render judgment against any officer for an act, however atrocious,
performed by the express command of the president, which, according to
the argument, he was absolutely bound to obey?
Whilst all other official responsibility would be utterly annihilated
in subordinated officers, there would be no practical or available
responsibility in the president himself.
But the case has been supposed, of a necessity for the removal of the
deposits, and a refusal of the secretary of the treasury to remove
them; and it is triumphantly asked if, in such a case, the president
may not remove him, and command the deed to be done. That is an extreme
case, which may be met by another. Suppose the president, without any
necessity, orders the removal from a place of safety to a place of
hazard. If there be danger that a president may neglect his duty, there
is equal danger that a president may abuse his authority. Infallibility
is not a human attribute. And there is more security for the public
in holding the secretary of the treasury to the strict performance of
an official duty specially assigned _to him_, under all his official
responsibility, than to allow the president to wrest the work from his
hands, annihilate his responsibility, and stand himself practically
irresponsible. It is far better that millions should be lost by the
neglect of a secretary of the treasury, than to establish the monstrous
principle that all the checks and balances of the executive government
shall be broken down, the whole power absorbed by one man, and his will
become the supreme rule. The argument which I am combating places the
whole treasury of the nation at the mercy of the executive. It is in
vain to talk of appropriations by law, and the formalities of warrants
upon the treasury. Assuming the argument to be correct, what is to
prevent the execution of an order from the president to the secretary
of the treasury to issue a warrant, without the sanction of a previous
legal appropriation, to the comptroller to countersign it, to the
register to register it, and to the treasurer to pay it? What becomes
of that quadruple security which the precaution of the law provided?
Instead of four substantive and independent wills, acting under legal
obligations, all are merged in the executive voters.
But there was in point of fact, no cause, none whatever for the
measure. Every fiscal consideration, (and no other had the secretary or
the president a right to entertain,) required the deposits to be left
undisturbed in the place of perfect safety where by law they were. We
told you so at the time. We asserted that the charges of insecurity and
insolvency of the bank were without the slightest foundation. And time,
that great arbiter of human controversies, has confirmed all that we
said. The bank, from documents submitted to congress by the secretary
of the treasury at the present session, appears to be able not only to
return every dollar of the stock held in its capital by the public, but
an addition of eleven per centum beyond it.
Those who defend the executive act, have to maintain not only that the
president may assume upon himself the discharge of a duty especially
assigned to the secretary of the treasury, but that he may remove that
officer, arbitrarily, and without any cause, because he refused to
remove the public deposits without cause.
My mind conducts me to a totally different conclusion. I think, I
solemnly believe, that the president ‘assumed upon himself authority
and power not conferred by the constitution and laws, but in derogation
of both,’ in the language of the resolution. I believed then in the
truth of the resolution; and I now in my place, and under all my
responsibility, reavow my unshaken conviction of it.
But it has been contended on this occasion, as it was in the debate
which preceded the adoption of the resolution of 1834, that the senate
has no right to express the truth on any question which by possibility,
may become a subject of impeachment. It is manifest, that if it may,
there is no more usual or appropriate form in which it may be done than
that of resolutions, joint or separate, orders, or bills. In no other
mode can the collective sense of the body be expressed. But _senators_
maintain, that no matter what may be the executive encroachment upon
the joint powers of the two houses, or the separate authority of
the senate, it is bound to stand mute, and not breathe one word of
complaint or remonstrance. According to the argument, the greater the
violation of the constitution or the law, the greater the incompetency
of the senate to express any opinion upon it! Further, that this
incompetency is not confined to the acts of the president only, but
extends to those of every officer who is liable to impeachment under
the constitution. Is this possible? Can it be true? Contrary to all
the laws of nature, is the senate the only being which has no power
of self-preservation; no right to complain or to remonstrate against
attacks upon its very existence?
The argument is, that the senate, being the constitutional tribunal
to try all impeachments, is thereby precluded from the exercise of the
right to express any opinion upon any official malfeasance, except when
acting in its judicial character.
If this disqualification exist, it applies to all impeachable officers,
and ought to have protected the late postmaster-general against the
resolution, unanimously adopted by the senate, declaring that he had
borrowed money contrary to law. And it would disable the senate from
considering that treasury order, which has formed such a prominent
subject of its deliberations during the present session.
And how do senators maintain this obligation of the senate to remain
silent, and behold itself stripped, one by one, of all constitutional
powers, without resistance, and without murmur? Is it imposed by the
language of the constitution? Has any part of that instrument been
pointed to which expressly enjoins it? No, no, not a syllable. But
attempts are made to deduce it by another far-fetched implication.
Because the senate is the body which is to try impeachments, therefore
_it is inferred_ the senate can express no opinion on any matter which
may form the subject of impeachment. The constitution does not say so.
That is undeniable; but senators think so.
The senate acts in three characters, legislative, executive, and
judicial; and their importance is in the order enumerated. By far
the most important of the three is its legislative. In that, almost
every day that it has been in session, from 1789 to the present time,
some legislative business has been transacted; whilst in its judicial
character, it has not sat more than three or four times in that whole
period.
Why should the judicial function limit and restrain the legislative
function of the senate, more than the legislative should the judicial?
If the degree of importance of the two should decide which ought to
impose the restraint, in cases of conflict between them, none can doubt
which it should be.
But if the argument is sound, how is it possible for the senate to
perform its legislative duties? An act in violation of the constitution
or laws is committed by the president or a subordinate executive
officer, and it becomes necessary to correct it by the passage of a
law. The very act of the president in question was under a law to which
the senate had given its concurrence. According to the argument, the
correcting law cannot originate in the senate, because it would have to
pass in judgment upon that act. Nay, more, it cannot originate in the
house, and be sent to the senate, for the same reason of incompetency
in the senate to pass upon it. Suppose the bill contained a preamble
reciting the unconstitutional or illegal act, to which the legislative
corrective is applied; according to the argument, the senate must not
think of passing it. Pushed to its legitimate consequence, the argument
requires the house of representatives itself cautiously to abstain from
the expression of any opinion upon an executive act, except when it is
acting as the grand inquest of the nation, and considering articles of
impeachment.
Assuming that the argument is well founded, the senate is equally
restrained from expressing any opinion, which would imply the innocence
or the guilt of an impeachable officer, unless it be maintained, that
it is lawful to express praise and approbation, but not censure or
difference of opinion. Instances have occurred in our past history,
(the case of the British minister, Jackson, was a memorable one,) and
many others may arise in our future progress, when in reference to
foreign powers, it may be important for congress to approve what has
been done by the executive, to present a firm and united front, and to
pledge the country to stand by and support him. May it not do that? If
the senate dare not entertain and express any opinion upon an executive
measure, how do those who support this expunging resolution justify the
acquittal of the president, which it proclaims?
No senator believed in 1834, that, whether the president merited
impeachment or not, he ever would be impeached. In point of fact he has
not been, and we have every reason to suppose, that he never will be
impeached. Was the majority of the senate, in a case where it believed
the constitution and laws to have been violated, and the liberties
of the people to be endangered, to remain silent, and to refrain from
proclaiming the truth, because, against all human probability, the
president might be impeached by a majority of his political friends in
the house of representatives?
If an impeachment had been actually voted by the house of
representatives, there is nothing in the constitution which enjoins
silence on the part of the senate. In such a case, it would have been a
matter of propriety for the consideration of each senator to avoid the
expression of any opinion on a matter upon which, as a sworn judge, he
would be called to act.
Hitherto I have considered the question on the supposition, that the
resolution of March, 1834, implied such guilt in the president, that he
would have been liable to conviction on a trial by impeachment before
the senate of the United States. But the resolution, in fact, imported
no such guilt. It simply affirmed, that he had ‘assumed upon himself
authority and power not conferred by the constitution and laws, but
in derogation of both.’ It imputed no criminal motives. It did not
profess to penetrate into the heart of the president. According to the
phraseology of the resolution, the exceptionable act might have been
performed with the purest and most patriotic intention. The resolution
neither affirmed his innocence, nor pronounced his guilt. It amounts,
then, say his friends on this floor, to nothing. Not so. If the
constitution be trampled upon, and the laws be violated, the injury may
be equally great, whether it has been done with good or bad intentions.
There may be a difference to the officer, none to the country. The
country, as all experience demonstrates, has most reason to apprehend
those encroachments which take place on plausible pretexts, and with
good intentions.
I put it, Mr. President, to the calm and deliberate consideration of
the majority of the senate, are you ready to pronounce, in the face
of this enlightened community, for all time to come, and whoever may
happen to be president, that the senate dare not, in language the
most inoffensive and respectful, remonstrate against any executive
usurpation, whatever may be its degree or danger?
For one, I will not, I cannot. I believe the resolution of March, 1834,
to have been true; and that it was competent to the senate to proclaim
the truth. And I solemnly believe, that the senate would have been
culpably neglectful of its duty to itself, to the constitution, and to
the country, if it had not announced the truth.
But let me suppose that in all this I am mistaken; that the act of
the president, to which exception was made, was in conformity with the
spirit of our free institutions, and the language of our constitution
and laws; and that, whether it was or not, the senate of 1834 had no
authority to pass judgment upon it; what right has the senate of 1837,
a component part of another congress, to pronounce judgment upon its
predecessor? How can you, who venture to impute to those who have gone
before you an unconstitutional proceeding, escape a similar imputation?
What part of the constitution communicates to you any authority to
assign and try your predecessors? In what article is contained your
power to expunge what they have done? And may not the precedent lead to
a perpetual code of defacement and restoration of the transactions of
the senate, as consigned to the public records?
Are you not only destitute of all authority, but positively forbidden
to do what the expunging resolution proposes? The injunction of the
constitution to keep a journal of our proceedings is clear, express,
and emphatic. It is free from ambiguity; no sophistry can pervert the
explicit language of the instrument; no artful device can elude the
force of the obligation which it imposes. If it were possible to make
more manifest the duty which it requires to be performed, that was
done by the able and eloquent speeches, at the last session, of the
senators from Virginia and Louisiana, (Messrs. Leigh and Porter,) and
at this of my colleague. I shall not repeat the argument. But I would
ask, if there were no constitutional requirement to keep a journal,
what constitutional right has the senate of this congress to pass in
judgment upon the senate of another congress, and to expunge from its
journal a deliberate act there recorded? Can an unconstitutional act of
that senate, supposing it to be so, justify you in performing another
unconstitutional act?
But, in lieu of any argument upon the point from me, I beg leave to
cite for the consideration of the senate two precedents; one drawn
from the reign of the most despotic monarch in modern Europe, under
the most despotic minister that ever bore sway over any people; and the
other from the purest fountain of democracy in this country. I quote
from the interesting life of the cardinal Richelieu, written by that
most admirable and popular author, Mr. James. The duke of Orleans,
the brother of Louis XIII, had been goaded into rebellion by the wary
Richelieu. The king issued a decree declaring all the supporters of
the duke guilty of high treason, and a copy of it was despatched to
the parliament at Paris, with an order to register it at once. The
parliament demurred, and proceeded to what was called an _arret de
partage_.
‘Richelieu, however, could bear no contradiction in the course
which he had laid down for himself;’ [how strong a resemblance
does that feature of his character bear to one of an illustrious
individual whom I will not further describe!] ‘and hurrying
back to Paris with the king, he sent, in the monarch’s
name, a command for the members of the parliament to present
themselves at the Louvre in a body, and _on foot_. He was obeyed
immediately; and the king receiving them with great haughtiness,
the keeper of the seals made them a speech, in which he declared
that they had no authority to deliberate upon affairs of state;
that the business of private individuals they might discuss, but
that the will of the monarch in other matters they were alone
called upon to register. _The king then tore with his own hands
the page of the register on which the arret de partage had been
inscribed, and punished with suspension from their functions
several of the members of the various courts composing the
parliament of Paris._’
How repeated acts of the exercise of arbitrary power are likely
to subdue the spirit of liberty, and to render callous the public
sensibility, and the fate which awaits us, if we had not been recently
unhappily taught in this country, we may learn from the same author.
‘The finances of the state were exhausted, new impositions were
devised, and a number of new offices created and sold. Against
the last-named abuse the parliament ventured to remonstrate;
but the government of the cardinal had for its first principle
despotism, and the refractory members were punished, some with
exile, some with suspension of their functions. All were forced
to comply with his will, and the parliament, unable to resist,
yielded, step by step, to his exactions.’
The other precedent is suspended by the archives of the democracy of
Pennsylvania, in 1816, when it was genuine and unmixed with any other
ingredient.
The provisions of the constitution of the United States and of
Pennsylvania, in regard to the obligation to keep a journal, are
substantially the same. That of the United States requires that
‘Each house shall keep a journal of its proceedings, and from
time to time publish the same, except such parts as may in their
judgment require secrecy; and the yeas and nays of the members
of either house on any question shall, at the desire of one
fifth of the members present, be entered on the journal.’
And that of Pennsylvania is,
‘Each house shall keep a journal of its proceedings, and publish
them weekly except such parts as require secrecy, and the yeas
and nays of the members on any question shall, at the desire of
any two of them, be entered on the journals.’
Whatever inviolability, therefore, is attached to a journal, kept in
conformity with the one constitution, must be equally stamped on that
kept under the other. On the tenth of February, 1816, in the house of
representatives of Pennsylvania, ‘the speaker informed the house that a
constitutional question being involved in a decision by him yesterday,
on a motion to expunge certain proceedings from the journal, he was
desirous of having the opinion of the house on that decision, namely,
that a majority can expunge from the journal any proceedings _in which
the yeas and nays have not been called_.’ Whereupon Mr. Holgate and Mr.
Smith appealed from said decision; and on the question, is the speaker
right in his decision? the members present voted as follows: yeas three,
nays seventy-eight. Among the latter are to be found the two senators
now representing in this body the state of Pennsylvania. On the same
day a motion was made by one of them, (Mr. Buchanan,) and Mr. Kelly,
and read as follows.
‘Resolved, that in the opinion of this house, no part of the
journals of the house can be expunged, even by unanimous consent.’
The senate observes, that the question arose in a case where the
yeas and nays had not been called. Even in such a case, there were
but four members, out of eighty-two, who thought it was competent to
the house to expunge. Had the yeas and nays been called and recorded,
as they were on the resolution of March, 1834, there would not have
been a solitary vote in the house of representatives of Pennsylvania
in support of the power of expunging. And if you can expunge the
resolution, why may you not expunge also the recorded yeas and nays
attached to it?
But if the matter of expunction be contrary to the truth of the case,
reproachful for its base subserviency, derogatory to the just and
necessary powers of the senate, and repugnant to the constitution of
the United States, the manner in which it is proposed to accomplish
this dark deed is also highly exceptionable. The expunging resolution,
which is to blot out or enshroud the four or five lines in which the
resolution of 1834 stands recorded, or rather the recitals by which it
is preceded, are spun out into a thread of enormous length. It runs,
whereas, and whereas, and whereas, and whereas, and so forth, into
a formidable array of nine several whereases. One who should have
the courage to begin to read them, unaware of what was to be their
termination, would think that at the end of such a tremendous display
he must find the very devil. It is like a kite or a comet, except that
the order of nature is inverted, and the tail, instead of being behind,
is before the body to which it is appended.
I shall not trespass on the senate by inquiring into the truth of all
the assertions of fact and of principle, contained in these recitals.
It would not be difficult to expose them all, and to show that not one
of them has more than a colorable foundation. It is asserted by one of
them, that the president was put upon his trial and condemned, unheard,
by the senate, in 1834. Was that true? Was it a trial? Can the majority
now assert, upon their oaths, and in their consciences, that there was
any trial or condemnation? During the warmth of debate, senators might
endeavor to persuade themselves and the public, that the proceeding
of 1834 was, in its effects and consequences, a trial, and would be a
condemnation of the president; but now, after the lapse of nearly three
years, when the excitement arising from an animated discussion has
passed away, it is marvellous that any one should be prepared to assert,
that an expression of the opinion of the senate upon the character
of an executive act was an arraignment, trial, and conviction of the
president of the United States.
Another fact, asserted in one of those recitals, is, that the
resolution of 1834, in either of the forms in which it was originally
presented, or subsequently modified prior to the final shape which it
assumed when adopted, would have been rejected by a majority of the
senate. What evidence is there in support of this assertion? None. It
is, I verily believe, directly contrary to the fact. In either of the
modifications of the resolution, I have not a doubt, that it would have
passed! They were all made in that spirit of accommodation by which the
mover of the resolution has ever regulated his conduct as a member of
a deliberative body. In not one single instance did he understand from
any senator at whose request he made the modification, that, without it,
he would vote against the resolution. How, then, can even the senators,
who were of the minority of 1834, undertake to make the assertion in
question? How can the new senators, who have come here since, pledge
themselves to the fact asserted, in the recital of which they could
not have had any connusance? But all the members of the majority; the
veterans and the raw recruits――the six years men and six weeks men――are
required to concur in this most unfounded assertion, as I believe it
to be. I submit it to one of the latter, (looking toward Mr. Dana,
from Maine, here by a temporary appointment from the executive,)
whether, instead of inundating the senate with a torrent of fulsome
and revolting adulation poured on the president, it would not be wiser
and more patriotic to illustrate the brief period of his senatorial
existence by some great measure, fraught with general benefit to the
whole union? Or, if he will not or cannot elevate himself to a view of
the interest of the entire country, whether he had not better dedicate
his time to an investigation into the causes of an alien jurisdiction
being still exercised over a large part of the territory of the state
which he represents? And why the American carrying trade to the British
colonies, in which his state was so deeply interested, has been lost by
a most improvident and bungling arrangement?
Mr. President, what patriotic purpose is to be accomplished by this
expunging resolution! What new honor or fresh laurels will it win for
our common country? Is the power of the senate so vast that it ought
to be circumscribed, and that of the president so restricted, that
it ought to be extended? What power has the senate? None, separately.
It can only act jointly with the other house, or jointly with the
executive. And although the theory of the constitution supposes,
when consulted by him, it may freely give an affirmative or negative
response according to the practice, as it now exists, it has lost
the faculty of pronouncing the negative monosyllable. When the
senate expresses its deliberate judgment, in the form of resolution,
that resolution has no compulsory force, but appeals only to the
dispassionate intelligence, the calm reason, and the sober judgment
of the community. The senate has no army, no navy, no patronage, no
lucrative offices, nor glittering honors to bestow. Around us there is
no swarm of greedy expectants, rendering us homage, anticipating our
wishes, and ready to execute our commands.
How is it with the president? Is he powerless? He is felt from one
extremity to the other of this vast republic. By means of principles
which he has introduced, and innovations which he has made in our
institutions, alas! but too much countenanced by congress and a
confiding people, he exercises uncontrolled the power of the state. In
one hand he holds the purse, and in the other brandishes the sword of
the country. Myriads of dependents and partisans, scattered over the
land, are ever ready to sing hosannas to him, and to laud to the skies
whatever he does. He has swept over the government, during the last
eight years, like a tropical tornado. Every department exhibits traces
of the ravages of the storm. Take, as one example, the bank of the
United States. No institution could have been more popular with the
people, with congress, and with state legislatures. None ever better
fulfilled the great purposes of its establishment. But it unfortunately
incurred the displeasure of the president; he spoke, and the bank lies
prostrate. And those who were loudest in its praise are now loudest
in its condemnation. What object of his ambition is unsatisfied?
When disabled from age any longer to hold the sceptre of power, he
designates his successor, and transmits it to his favorite. What
more does he want? Must we blot, deface, and mutilate the records of
the country to punish the presumptuousness of expressing an opinion
contrary to his own?
What patriotic purpose is to be accomplished by this expunging
resolution? Can you make that not to be which has been? Can you
eradicate from memory and from history the fact, that in March, 1834, a
majority of the senate of the United States passed the resolution which
excites your enmity? Is it your vain and wicked object to arrogate to
yourselves that power of annihilating the past which has been denied to
omnipotence itself? Do you intend to thrust your hands into our hearts,
and to pluck out the deeply-rooted convictions which are there? or is
it your design merely to stigmatize us? You cannot stigmatize us.
‘Ne’er yet did base dishonor blur our name.’
Standing securely upon our conscious rectitude, and bearing aloft
the shield of the constitution of our country, your puny efforts are
impotent, and we defy all your power. Put the majority of 1834 in one
scale, and that by which this expunging resolution is to be carried in
the other, and let truth and justice, in heaven above and on the earth
below, and liberty and patriotism decide the preponderance.
What patriotic purpose is to be accomplished by this expunging? Is
it to appease the wrath, and to heal the wounded pride, of the chief
magistrate? If he be really the hero that his friends represent him,
he must despise all mean condescension, all grovelling sycophancy, all
self-degradation, and self-abasement. He would reject with scorn and
contempt, as unworthy of his fame, your black scratches, and your baby
lines in the fair records of his country. Black lines! Black lines! Sir,
I hope the secretary of the senate will preserve the pen with which he
may inscribe them, and present it to that senator of the majority whom
he may select, as a proud trophy, to be transmitted to his descendants.
And hereafter, when we shall lose the forms of our free institutions,
all that now remain to us, some future American monarch, in gratitude
to those by whose means he has been enabled, upon the ruins of
civil liberty, to erect a throne, and to commemorate especially this
expunging resolution, may institute a new order of knighthood, and
confer on it the appropriate name of the knight of the black lines.
But why should I detain the senate or needlessly waste my breath in
fruitless exertions. The decree has gone forth. It is one of urgency,
too. The deed is to be done; that foul deed, like the blood-stained
hands of the guilty Macbeth, all ocean’s waters will never wash out.
Proceed, then, to the noble work which lies before you, and like other
skilful executioners, do it quickly. And when you have perpetrated
it, go home to the people, and tell them what glorious honors you have
achieved for our common country. Tell them that you have extinguished
one of the brightest and purest lights that ever burned at the altar
of civil liberty. Tell them that you have silenced one of the noblest
batteries that ever thundered in defence of the constitution, and
bravely spiked the cannon. Tell them that, henceforward, no matter
what daring or outrageous act any president may perform, you have for
ever hermetically sealed the mouth of the senate. Tell them that he may
fearlessly assume what power he pleases; snatch from its lawful custody
the public purse, command a military detachment to enter the halls
of the capitol, overawe congress, trample down the constitution, and
raze every bulwark of freedom; but that the senate must stand mute, in
silent submission, and not dare to raise its opposing voice. That it
must wait until a house of representatives, humbled and subdued like
itself, and a majority of it composed of the partisans of the president,
shall prefer articles of impeachment. Tell them, finally, that you have
restored the glorious doctrine of passive obedience and non-resistance,
and, if the people do not pour out their indignation and imprecations,
I have yet to learn the character of American freemen.