SENATORIAL CONDEMNATION OF PRESIDENT JACKSON: HIS PROTEST: NOTICE OF
THE EXPUNGING RESOLUTION.
Mr. Clay and Mr. Calhoun were the two leading spirits in the
condemnation of President Jackson. Mr. Webster did not speak in
favor of their resolution, but aided it incidentally in the delivery
of his distress speeches. The resolution was theirs, modified from
time to time by themselves, without any vote of the Senate, and by
virtue of the privilege which belongs to the mover of any motion
to change it as he pleases, until the Senate, by some action upon
it, makes it its own. It was altered repeatedly, and up to the last
moment; and after undergoing its final mutation, at the moment
when the yeas and nays were about to be called, it was passed by
the same majority that would have voted for it on the first day of
its introduction. The yeas were: Messrs. Bibb of Kentucky; Black
of Mississippi; Calhoun; Clay; Clayton of Delaware; Ewing of Ohio;
Frelinghuysen of New Jersey; Kent of Maryland; Knight of Rhode
Island; Leigh of Virginia; Mangum of North Carolina; Naudain of
Delaware; Poindexter of Mississippi; Porter of Louisiana; Prentiss
of Vermont; Preston of South Carolina; Robbins of Rhode Island;
Silsbee of Massachusetts; Nathan Smith of Connecticut; Southard
of New Jersey; Sprague of Maine; Swift of Vermont; Tomlinson of
Connecticut; Tyler of Virginia; Waggaman of Louisiana; Webster.--26.
The nays were: Messrs. Benton; Brown of North Carolina; Forsyth of
Georgia; Grundy of Tennessee; Hendricks of Indiana; Hill of New
Hampshire; Kane of Illinois; King of Alabama; King of Georgia;
Linn of Missouri; McKean of Pennsylvania; Moore of Alabama; Morris
of Ohio; Robinson of Illinois; Shepley of Maine; Tallmadge of New
York; Tipton of Indiana; Hugh L. White of Tennessee; Wilkins of
Pennsylvania; Silas Wright of New York.--20. And thus the resolution
was passed, and was nothing but an empty fulmination--a mere
personal censure--having no relation to any business or proceeding
in the Senate; and evidently intended for effect on the people. To
increase this effect, Mr. Clay proposed a resolve that the Secretary
should count the names of the signers to the memorials for and
against the act of the removal, and strike the balance between them,
which he computed at an hundred thousand: evidently intending to add
the effect of this popular voice to the weight of the senatorial
condemnation. The number turned out to be unexpectedly small,
considering the means by which they were collected.
When passed, the total irrelevance of the resolution to any right
or duty of the Senate was made manifest by the insignificance
that attended its decision. There was nothing to be done with
it, or upon it, or under it, or in relation to it. It went to no
committee, laid the foundation for no action, was not communicable
to the other House, or to the President; and remained an intrusive
fulmination on the Senate Journal: put there not for any legislative
purpose, but purely and simply for popular effect. Great reliance
was placed upon that effect. It was fully believed--notwithstanding
the experience of the Senate, in Mr. Van Buren's case--that a
senatorial condemnation would destroy whomsoever it struck--even
General Jackson. Vain calculation! and equally condemned by the
lessons of history, and by the impulsions of the human heart. Fair
play is the first feeling of the masses; a fair and impartial trial
is the law of the heart, as well as of the land; and no condemnation
is tolerated of any man by his enemies. All such are required to
retire from the box and the bench, on a real trial: much more to
refrain from a simulated one; and above all from instigating one.
Mr. Calhoun and Mr. Clay were both known to have their private
griefs against General Jackson and also to have been in vehement
opposition to each other, and that they had "compromised" their
own bone of contention to be able to act in conjunction against
him. The instinctive sagacity of the people saw all this; and their
innate sense of justice and decorum revolted at it; and at the end
of these proceedings, the results were in exact contradiction to
the calculation of their effect. General Jackson was more popular
than ever; the leaders in the movement against him were nationally
crippled; their friends, in many instances, were politically
destroyed in their States. It was a second edition of "Fox's
martyrs."
During all the progress of this proceeding--while a phalanx of
orators and speakers were daily fulminating against him--while many
hundred newspapers incessantly assailed him--while public meetings
were held in all parts, and men of all sorts, even beardless youths,
harangued against him as if he had been a Nero--while a stream of
committees was pouring upon him (as they were called), and whom
he soon refused to receive in that character; during the hundred
days that all this was going on, and to judge from the imposing
appearance which the crowds made that came to Washington to bring up
the "distress," and to give countenance to the Senate, and emphasis
to its proceedings, and to fill the daily gallery, applauding the
speakers against the President--saluting with noise and confusion
those who spoke on his side: during all this time, and when a
nation seemed to be in arms, and the earth in commotion against
him, he was tranquil and quiet, confident of eventual victory, and
firmly relying upon God and the people to set all right. I was
accustomed to see him often during that time, always in the night
(for I had no time to quit my seat during the day); and never saw
him appear more truly heroic and grand than at this time. He was
perfectly mild in his language, cheerful in his temper, firm in his
conviction; and confident in his reliance on the power in which
he put his trust. I have seen him in a great many situations of
peril, and even of desperation, both civil and military, and always
saw him firmly relying upon the success of the right through God
and the people; and never saw that confidence more firm and steady
than now. After giving him an account of the day's proceedings,
talking over the state of the contest, and ready to return to sleep
a little, and prepare much, for the combats of the next day, he
would usually say: "We shall whip them yet. The people will take
it up after a while." But he also had good defenders present, and
in both Houses, and men who did not confine themselves to the
defensive--did not limit themselves to returning blow for blow--but
assailed the assailants--boldly charging upon them their own illegal
conduct--exposing the rottenness of their ally, the bank--showing
its corruption in conciliating politicians, and its criminality in
distressing the people--and the unholiness of the combination which,
to attain political power and secure a bank charter, were seducing
the venal, terrifying the timid, disturbing the country, destroying
business and property, and falsely accusing the President of great
crimes and misdemeanors; because, faithful and fearless, he stood
sole obstacle to the success of the combined powers. Our labors were
great and incessant, for we had superior numbers, and great ability
to contend against. I spoke myself above thirty times; others as
often; all many times; and all strained to the utmost; for we felt,
that the cause of Jackson was that of the country--his defeat that
of the people--and the success of the combination, the delivering
up of the government to the domination of a moneyed power which
knew no mode of government but that of corruption and oppression.
We contended strenuously in both Houses; and as courageously in
the Senate against a fixed majority as if we had some chance for
success; but our exertions were not for the Senate, but for the
people--not to change senatorial votes, but to rouse the masses
throughout the land; and while borne down by a majority of ten in
the Senate, we looked with pride to the other end of the building;
and derived confidence from the contemplation of a majority of
fifty, fresh from the elections of the people, and strong in their
good cause. It was a scene for Mons. De Tocqueville to have looked
on to have learnt which way the difference lay between the men of
the direct vote of the people, and those of the indirect vote of the
General Assembly, "filtrated" through the "refining" process of an
intermediate body.
But although fictitious and forged, yet the distress was real,
and did an immensity of mischief. Vast numbers of individuals
were ruined, or crippled in their affairs; a great many banks
were broken--a run being made upon all that would not come
into the system of the national bank. The deposit banks above
all were selected for pressure. Several of them were driven
to suspension--some to give up the deposits--and the bank in
Washington, in which the treasury did its business, was only saved
from closing its doors by running wagons with specie through mud
and mire from the mint in Philadelphia to the bank in Washington, to
supply the place of what was hauled from the bank in Washington to
the national bank in Philadelphia--the two sets of wagons, one going
and one coming, often passing each other on the road. But, while
ruin was going on upon others, the great corporation in Philadelphia
was doing well. The distress of the country was its harvest; and its
monthly returns showed constant increases of specie.
When all was over, and the Senate's sentence had been sent out to
do its office among the people, General Jackson felt that the time
had come for him to speak; and did so in a "Protest," addressed to
the Senate, and remarkable for the temperance and moderation of
its language. He had considered the proceeding against him, from
the beginning, as illegal and void--as having no legislative aim
or object--as being intended merely for censure; and, therefore,
not coming within any power or duty of the Senate. He deemed it
extra-judicial and unparliamentary, legally no more than the act of
a town meeting, while invested with the forms of a legal proceeding;
and intended to act upon the public mind with the force of a
sentence of conviction on an impeachment, while in reality but a
personal act against him in his personal, and not in his official
character. This idea he prominently put forth in his "Protest;" from
which some passages are here given:
"The resolution in question was introduced, discussed, and
passed, not as a joint, but as a separate resolution. It
asserts no legislative power, proposes no legislative action;
and neither possesses the form nor any of the attributes of a
legislative measure. It does not appear to have been entertained
or passed, with any view or expectation of its issuing in a
law or joint resolution, or in the repeal of any law or joint
resolution, or in any other legislative action.
"Whilst wanting both the form and substance of a legislative
measure, it is equally manifest, that the resolution was not
justified by any of the executive powers conferred on the
Senate. These powers relate exclusively to the consideration of
treaties and nominations to office; and they are exercised in
secret session, and with closed doors. This resolution does not
apply to any treaty or nomination, and was passed in a public
session.
"Nor does this proceeding in any way belong to that class
of incidental resolutions which relate to the officers of
the Senate, to their chamber, and other appurtenances, or to
subjects of order, and other matters of the like nature--in all
which either House may lawfully proceed without any co-operation
with the other, or with the President.
"On the contrary the whole phraseology and sense of the
resolution seem to be judicial. Its essence, true character,
and only practical effect, are to be found in the conduct which
it charges upon the President, and in the judgment which it
pronounces on that conduct. The resolution, therefore, though
discussed and adopted by the Senate in its legislative capacity,
is, in its office, and in all its characteristics, essentially
judicial.
"That the Senate possesses a high judicial power, and that
instances may occur in which the President of the United States
will be amenable to it, is undeniable. But under the provisions
of the constitution, it would seem to be equally plain that
neither the President nor any other officer can be rightfully
subjected to the operation of the judicial power of the Senate
except in the cases and under the forms prescribed by the
constitution.
"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'--that the
House of Representatives 'shall have the sole power of
impeachment'--that the Senate 'shall have the sole power to
try all impeachments'--that 'when sitting for that purpose,
they shall be on oath or affirmation'--that 'when the
President of the United States is tried, the Chief Justice
shall preside'--that no person shall be convicted without the
concurrence of two-thirds of the members present'--and that
'judgment shall not extend further than to remove from office,
and disqualification to hold and enjoy any office of honor,
trust or profit, under the United States.'
"The resolution above quoted, charges in substance that in
certain proceedings relating to the public revenue, the
President has usurped authority and power not conferred upon him
by the constitution and laws, and that in doing so he violated
both. Any such act constitutes a high crime--one of the highest,
indeed, which the President can commit--a crime which justly
exposes him to impeachment by the House of Representatives, and
upon due conviction, to removal from office, and to the complete
and immutable disfranchisement prescribed by the constitution.
"The resolution, then, was in substance an impeachment of the
President; and in its passage amounts to a declaration by a
majority of the Senate, that he is guilty of an impeachable
offence. As such it is spread upon the journals of the
Senate--published to the nation and to the world--made part
of our enduring archives--and incorporated in the history of
the age. The punishment of removal from office and future
disqualification, does not, it is true, follow this decision;
nor would it have followed the like decision, if the regular
forms of proceeding had been pursued, because the requisite
number did not concur in the result. But the moral influence
of a solemn declaration, by a majority of the Senate, that the
accused is guilty of the offence charged upon him, has been
as effectually secured, as if the like declaration had been
made upon an impeachment expressed in the same terms. Indeed,
a greater practical effect has been gained, because the votes
given for the resolution, though not sufficient to authorize a
judgment of guilty on an impeachment, were numerous enough to
carry that resolution.
"That the resolution does not expressly allege that the
assumption of power and authority, which it condemns, was
intentional and corrupt, is no answer to the preceding view of
its character and effect. The act thus condemned, necessarily
implies volition and design in the individual to whom it
is imputed, and being unlawful in its character, the legal
conclusion is, that it was prompted by improper motives,
and committed with an unlawful intent. The charge is not of
a mistake in the exercise of supposed powers, but of the
assumption of powers not conferred by the constitution and laws,
but in derogation of both, and nothing is suggested to excuse or
palliate the turpitude of the act. In the absence of any such
excuse, or palliation, there is room only for one inference;
and that is, that the intent was unlawful and corrupt. Besides,
the resolution not only contains no mitigating suggestion, but
on the contrary, it holds up the act complained of as justly
obnoxious to censure and reprobation; and thus as distinctly
stamps it with impurity of motive, as if the strongest epithets
had been used.
"The President of the United States, therefore, has been by a
majority of his constitutional triers, accused and found guilty
of an impeachable offence; but in no part of this proceeding
have the directions of the constitution been observed.
"The impeachment, instead of being preferred and prosecuted by
the House of Representatives, originated in the Senate, and was
prosecuted without the aid or concurrence of the other House.
The oath or affirmation prescribed by the constitution, was
not taken by the senators; the Chief Justice did not preside;
no notice of the charge was given to the accused; and no
opportunity afforded him to respond to the accusation, to meet
his accusers face to face, to cross-examine the witnesses, to
procure counteracting testimony, or to be heard in his defence.
The safeguards and formalities which the constitution has
connected with the power of impeachment, were doubtless supposed
by the framers of that instrument, to be essential to the
protection of the public servant, to the attainment of justice,
and to the order, impartiality, and dignity of the procedure.
These safeguards and formalities were not only practically
disregarded, in the commencement and conduct of these
proceedings, but in their result, I find myself convicted by
less than two-thirds of the members present, of an impeachable
offence."
Having thus shown the proceedings of the Senate to have been
extra-judicial and the mere fulmination of a censure, such as might
come from a "mass meeting," and finding no warrant in any right or
duty of the body, and intended for nothing but to operate upon him
personally, he then showed that senators from three States had voted
contrary to the sense of their respective State legislatures. On
this point he said:
"There are also some other circumstances connected with the
discussion and passage of the resolution, to which I feel it
to be, not only my right, but my duty to refer. It appears by
the journal of the Senate, that among the twenty-six senators
who voted for the resolution on its final passage, and who had
supported it in debate, in its original form, were one of the
senators from the State of Maine, the two senators from New
Jersey, and one of the senators from Ohio. It also appears by
the same journal, and by the files of the Senate, that the
legislatures of these States had severally expressed their
opinions in respect to the Executive proceedings drawn in
question before the Senate.
"It is thus seen that four senators have declared by their
votes that the President, in the late Executive proceedings in
relation to the revenue, had been guilty of the impeachable
offence of 'assuming upon himself authority and power not
conferred by the constitution and laws, but in derogation of
both,' whilst the legislatures of their respective States had
deliberately approved those very proceedings, as consistent with
the constitution, and demanded by the public good. If these
four votes had been given in accordance with the sentiments of
the legislatures, as above expressed, there would have been but
twenty-four votes out of forty-six for censuring the President,
and the unprecedented record of his conviction could not have
been placed upon the journals of the Senate.
"In thus referring to the resolutions and instructions of State
legislatures, I disclaim and repudiate all authority or design
to interfere with the responsibility due from members of the
Senate to their own consciences, their constituents and their
country. The facts now stated belong to the history of these
proceedings, and are important to the just development of the
principles and interests involved in them, as well as to the
proper vindication of the Executive department, and with that
view, and that view only, are they here made the topic of
remark."
The President then entered his solemn protest against the Senate's
proceedings in these words:
"With this view, and for the reasons which have been stated,
I do hereby solemnly protest against the aforementioned
proceedings of the Senate, as unauthorized by the constitution;
contrary to its spirit and to several of its express provisions;
subversive of that distribution of the powers of government
which it has ordained and established; destructive of the checks
and safeguards by which those powers were intended, on the one
hand, to be controlled, and, on the other, to be protected;
and calculated, by their immediate and collateral effects, by
their character and tendency, to concentrate in the hands of a
body not directly amenable to the people, a degree of influence
and power dangerous to their liberties, and fatal to the
constitution of their choice."
And it concluded with an affecting appeal to his private history
for the patriotism and integrity of his life, and the illustration
of his conduct in relation to the bank, and showed his reliance on
God and the People to sustain him; and looked with confidence to the
place which justice would assign him on the page of history. This
moving peroration was in these words:
"The resolution of the Senate contains an imputation upon my
private as well as upon my public character; and as it must
stand for ever on their journals, I cannot close this substitute
for that defence which I have not been allowed to present in
the ordinary form, without remarking, that I have lived in
vain, if it be necessary to enter into a formal vindication
of my character and purposes from such an imputation. In vain
do I bear upon my person, enduring memorials of that contest
in which American liberty was purchased; in vain have I since
perilled property, fame, and life, in defence of the rights
and privileges so dearly bought: in vain am I now, without
a personal aspiration, or the hope of individual advantage,
encountering responsibilities and dangers, from which, by mere
inactivity in relation to a single point, I might have been
exempt--if any serious doubts can be entertained as to the
purity of my purposes and motives. If I had been ambitious, I
should have sought an alliance with that powerful institution,
which even now aspires to no divided empire. If I had been
venal, I should have sold myself to its designs. Had I preferred
personal comfort and official ease to the performance of my
arduous duty, I should have ceased to molest it. In the history
of conquerors and usurpers, never, in the fire of youth, nor
in the vigor of manhood, could I find an attraction to lure
me from the path of duty; and now, I shall scarcely find an
inducement to commence the career of ambition, when gray hairs
and a decaying frame, instead of inviting to toil and battle,
call me to the contemplation of other worlds, where conquerors
cease to be honored, and usurpers expiate their crimes. The
only ambition I can feel, is to acquit myself to Him to whom
I must soon render an account of my stewardship, to serve my
fellow-men, and live respected and honored in the history of
my country. No; the ambition which leads me on, is an anxious
desire and a fixed determination, to return to the people,
unimpaired, the sacred trust they have confided to my charge--to
heal the wounds of the constitution and preserve it from
further violation; to persuade my countrymen, so far as I may,
that it is not in a splendid government, supported by powerful
monopolies and aristocratical establishments, that they will
find happiness, or their liberties protected, but in a plain
system, void of pomp--protecting all, and granting favors to
none--dispensing its blessings like the dews of heaven, unseen
and unfelt, save in the freshness and beauty they contribute
to produce. It is such a government that the genius of our
people requires--such a one only under which our States may
remain for ages to come, united, prosperous, and free. If the
Almighty Being who has hitherto sustained and protected me,
will but vouchsafe to make my feeble powers instrumental to
such a result, I shall anticipate with pleasure the place to be
assigned me in the history of my country, and die contented with
the belief, that I have contributed in some small degree, to
increase the value and prolong the duration of American liberty.
"To the end that the resolution of the Senate may not be
hereafter drawn into precedent, with the authority of silent
acquiescence on the part of the Executive department; and to the
end, also, that my motives and views in the Executive proceeding
denounced in that resolution may be known to my fellow-citizens,
to the world, and to all posterity, I respectfully request
that this message and protest may be entered at length on the
journals of the Senate."
No sooner was this Protest read in the Senate than it gave rise to
a scene of the greatest excitement. Mr. Poindexter, of Mississippi,
immediately assailed it as a breach of the privileges of the
Senate, and unfit to be received by the body. He said: "I will not
dignify this paper by considering it in the light of an Executive
message: it is no such thing. I regard it simply as a paper, with
the signature of Andrew Jackson; and, should the Senate refuse to
receive it, it will not be the first paper with the same signature
which has been refused a hearing in this body, on the ground of the
abusive and vituperative language which it contained. This effort to
denounce and overawe the deliberations of the Senate may properly
be regarded as capping the climax of that systematic plan of
operations which had for several years been in progress, designed
to bring this body into disrepute among the people, and thereby
remove the only existing barrier to the arbitrary encroachments
and usurpations of Executive power:"--and he moved that the paper,
as he called it, should not be received. Mr. Benton deemed this a
proper occasion to give notice of his intention to move a strong
measure which he contemplated--an expunging resolution against the
sentence of the Senate:--a determination to which he had come from
his own convictions of right, and which he now announced without
consultation with any of his friends. He deemed this movement too
bold to be submitted to a council of friends--too daring to expect
their concurrence;--and believed it was better to proceed without
their knowledge, than against their decision. He, therefore,
delivered his notice _ex abruptu_, accompanied by an earnest
invective against the conduct of the Senate; and committed himself
irrevocably to the prosecution of the "expunging resolution" until
he should succeed in the effort, or terminate his political life: He
said:
"The public mind was now to be occupied with a question of the
very first moment and importance, and identical in all its
features with the great question growing out of the famous
resolutions of the English House of Commons in the case of the
Middlesex election in the year 1768; and which engrossed the
attention of the British empire for fourteen years before it was
settled. That question was one in which the House of Commons was
judged, and condemned, for adopting a resolution which was held
by the subjects of the British crown to be a violation of their
constitution, and a subversion of the rights of Englishmen: the
question now before the Senate, and which will go before the
American people, grows out of a resolution in which he (Mr. B.)
believed that the constitution had been violated--the privileges
of the House of Representatives invaded--and the rights of an
American citizen, in the person of the President, subverted.
The resolution of the House of Commons, after fourteen years of
annual motions, was expunged from the Journal of the House; and
he pledged himself to the American people to commence a similar
series of motions with respect to this resolution of the Senate.
He had made up his mind to do so without consultation with any
human being, and without deigning to calculate the chances or
the time of success. He rested under the firm conviction that
the resolution of the Senate, which had drawn from the President
the calm, temperate, and dignified protest, which had been read
at the table, was a resolution which ought to be expunged from
the Journal of the Senate; and if any thing was necessary to
stimulate his sense of duty in making a motion to that effect,
and in encouraging others after he was gone, in following up
that motion to success, it would be found in the history and
termination of the similar motion which was made in the English
House of Commons to which he had referred. That motion was
renewed for fourteen years--from 1768 to 1782--before it was
successful. For the first seven years, the lofty and indignant
majority did not condescend to reply to the motion. They sunk it
under a dead vote as often as presented. The second seven years
they replied; and at the end of the term, and on the assembling
of a new Parliament, the veteran motion was carried by more than
two to one; and the gratifying spectacle was beheld of a public
expurgation, in the face of the assembled Commons of England,
of the obnoxious resolution from the Journal of the House. The
elections in England were septennial, and it took two terms of
seven years, or two general elections, to bring the sense of the
kingdom to bear upon their representatives. The elections of the
Senate were sexennial, with intercalary exits and entrances,
and it might take a less, or a longer period, he would not
presume to say which, to bring the sense of the American people
to bear upon an act of the American Senate. Of that, he would
make no calculation; but the final success of the motion in the
English House of Commons, after fourteen years' perseverance,
was a sufficient encouragement for him to begin, and doubtless
would encourage others to continue, until the good work should
be crowned with success; and the only atonement made which it
was in the Senate's power to make, to the violated majesty
of the constitution, the invaded privileges of the House of
Representatives and the subverted rights of an American citizen.
"In bringing this great question before the American people, Mr.
B. should consider himself as addressing the calm intelligence
of an enlightened community. He believed the body of the
American people to be the most enlightened community upon earth;
and, without the least disparagement to the present Senate, he
must be permitted to believe that many such Senates might be
drawn from the ranks of the people, and still leave no dearth
of intelligence behind. To such a community--in an appeal, on
a great question of constitutional law, to the understandings
of such a people--declamation, passion, epithets, opprobrious
language, would stand for nothing. They would float, harmless
and unheeded, through the empty air, and strike in vain upon
the ear of a sober and dispassionate tribunal. Indignation,
real or affected; wrath, however hot; fury, however enraged;
asseverations, however violent; denunciation, however furious;
will avail nothing. Facts--inexorable facts--are all that will
be attended to; reason, calm and self-possessed, is all that
will be listened to. An intelligent tribunal will exact the
respect of an address to their understandings; and he that
wishes to be heard in this great question, or being heard,
would wish to be heeded, will have occasion to be clear and
correct in his facts; close and perspicuous in his application
of law; fair and candid in his conclusions and inferences;
temperate and decorous in his language; and scrupulously free
from every taint of vengeance and malice. Solemnly impressed
with the truth of all these convictions, it was the intention of
himself (Mr. B.), whatever the example or the provocation might
be--never to forget his place, his subject, his audience, and
his object--never to forget that he was speaking in the American
Senate, on a question of violated constitution and outraged
individual right, to an audience comprehending the whole body
of the American people, and for the purpose of obtaining a
righteous decision from the calm and sober judgment of a
high-minded, intelligent, and patriotic community.
"The question immediately before the Senate was one of minor
consequence; it might be called a question of small import,
except for the effect which the decision might have upon the
Senate itself. In that point of view, it might be a question
of some moment; for, without reference to individuals, it
was essential to the cause of free governments, that every
department of the government, the Senate inclusive, should so
act as to preserve to itself the respect and the confidence of
the country. The immediate question was, upon the rejection of
the President's message. It was moved to reject it--to reject
it, not after it was considered, but before it was considered!
and thus to tell the American people that their President shall
not be heard--should not be allowed to plead his defence--in
the presence of the body that condemned him--neither before the
condemnation, nor after it! This is the motion: and certainly no
enemy to the Senate could wish it to miscarry. The President,
in the conclusion of his message, has respectfully requested
that his defence might be entered upon the Journal of the
Senate--upon that same Journal which contains the record of
his conviction. This is the request of the President. Will the
Senate deny it? Will they refuse this act of sheer justice
and common decency? Will they go further, and not only refuse
to place it on the Journal, but refuse even to suffer it to
remain in the Senate? Will they refuse to permit it to remain
on file, but send it back, or throw it out of doors, without
condescending to reply to it? For that is the exact import of
the motion now made! Will senators exhaust their minds, and
their bodies also, in loading this very communication with
epithets, and then say that it shall not be received? Will they
receive memorials, resolutions, essays, from all that choose
to abuse the President, and not receive a word of defence from
him? Will they continue the spectacle which had been presented
here for three months--a daily presentation of attacks upon the
President from all that choose to attack him, young and old,
boys and men--attacks echoing the very sound of this resolution,
and which are not only received and filed here, but printed,
which, possibly, the twenty-six could not unite here, nor go
to trial upon any where! He remarked, in the third place, upon
the effect produced in the character of the resolution, and
affirmed that it was nothing. He said that the same charge ran
through all three. They all three imputed to the President a
violation of the constitution and laws of the country--of that
constitution which he was sworn to support, and of those laws
which he was not only bound to observe himself, but to cause to
be faithfully observed by all others.
"A violation of the constitution and of the laws, Mr. B. said,
were not abstractions and metaphysical subtleties. They must
relate to persons or things. The violations cannot rest in
the air; they must affix themselves to men or to property;
they must connect themselves with the transactions of real
life. They cannot be ideal and contemplative. In omitting the
specifications relative to the dismission of one Secretary
of the Treasury, and the appointment of another, what other
specifications were adopted or substituted? Certainly none! What
others were mentally intended? Surely none! What others were
suggested? Certainly none! The general charge then rests upon
the same specification; and so completely is this the fact,
that no supporter of the resolutions has thought it necessary
to make the least alteration in his speeches which supported
the original resolution, or to say a single additional word in
favor of the altered resolution as finally passed. The omission
of the specification is then an omission of form and not of
substance; it is a change of words and not of things; and the
substitution of a derogation of the laws and constitution,
for dangerous to the liberties of the people, is a still more
flagrant instance of change of words without change of things.
It is tautologous and nonsensical. It adds nothing to the
general charge, and takes nothing from it. It neither explains
it nor qualifies it. In the technical sense it is absurd; for
it is not the case of a statute in derogation of the common
law, to wit, repealing a part of it; in the common parlance
understanding, it is ridiculous, for the President is not even
charged with defaming the constitution and the laws; and, if he
was so charged, it would present a curious trial of _scandalum
magnatum_ for the American Senate to engage in. No! said Mr. B.,
this derogation clause is an expletion! It is put in to fill up!
The regular impeaching clause of dangerous to the liberties of
the people, had to be taken out. There was danger, not in the
people certainly, but to the character of the resolution, if it
staid in. It identified that resolution as an impeachment, and,
therefore, constituted a piece of internal evidence which it was
necessary to withdraw; but in withdrawing which, the character
of the resolution was not altered. The charge for violating
the laws and the constitution still stood; and the substituted
clause was nothing but a stopper to a vacuum--additional sound
without additional sense, to fill up a blank and round off a
sentence.
"After showing the impeaching character of the Senate's
resolution, from its own internal evidence, Mr. B. had recourse
to another description of evidence, scarcely inferior to the
resolutions themselves, in the authentic interpretations of
their meaning. He alluded to the speeches made in support
of them, and which had resounded in this chamber for three
months, and were now circulating all over the country in every
variety of newspaper and pamphlet form. These speeches were
made by the friends of the resolution to procure its adoption
here, and to justify its adoption before the country. Let the
country then read, let the people read, what has been sent to
them for the purpose of justifying these resolutions which they
are now to try! They will find them to be in the character of
prosecution pleadings against an accused man, on his trial
for the commission of great crimes! Let them look over these
speeches, and mark the passages; they will find language
ransacked, history rummaged, to find words sufficiently strong,
and examples sufficiently odious, to paint and exemplify the
enormity of the crime of which the President was alleged to be
guilty. After reading these passages, let any one doubt, if he
can, as to the character of the resolution which was adopted.
Let him doubt, if he can, of the impeachable nature of the
offence which was charged upon the President. Let him doubt,
if he can, that every Senator who voted for that resolution,
voted the President to be guilty of an impeachable offence--an
offence, for the trial of which this Senate is the appointed
tribunal--an offence which it will be the immediate duty of the
House of Representatives to bring before the Senate, in a formal
impeachment, unless they disbelieve in the truth and justice of
the resolution which has been adopted.
"Mr. B. said there were three characters in which the Senate
could act; and every time it acted it necessarily did so in
one or the other of these characters. It possessed executive,
legislative, and judicial characters. As a part of the
executive, it acted on treaties and nominations to office;
as a part of the legislative, it assisted in making laws; as
a judicial tribunal, it decided impeachments. Now, in which
of these characters did the Senate act when it adopted the
resolution in question? Not in its executive character, it
will be admitted; not in its legislative character, it will be
proved: for the resolution was, in its nature, wholly foreign to
legislation. It was directed, not to the formation of a law, but
to the condemnation of the President. It was to condemn him for
dismissing one Secretary, because he would not do a thing, and
appointing another that he might do it; and certainly this was
not matter for legislation; for Mr. Duane could not be restored
by law, nor Mr. Taney be put out by law. It was to convict the
President of violating the constitution and the laws; and surely
these infractions are not to be amended by laws, but avenged by
trial and punishment. The very nature of the resolution proves
it to be foreign to all legislation; its form proves the same
thing; for it is not joint, to require the action of the House
of Representatives, and thus ripen into law; nor is it followed
by an instruction to a committee to report a bill in conformity
to it. No such instruction could even now be added without
committing an absurdity of the most ridiculous character. There
was another resolution, with which this must not be confounded,
and upon which an instruction to a committee might have been
bottomed; it was the resolution which declared the Secretary's
reasons for removing the deposits to be insufficient and
unsatisfactory; but no such instruction has been bottomed even
upon that resolution; so that it is evident that no legislation
of any kind was intended to follow either resolution, even that
to which legislation might have been appropriate, much less
that to which it would have been an absurdity. Four months have
elapsed since the resolutions were brought in. In all that
time, there has been no attempt to found a legislative act
upon either of them; and it is too late now to assume that the
one which, in its nature and in its form, is wholly foreign to
legislation, is a legislative act, and adopted by the Senate
in its legislative character. No! This resolution is judicial;
it is a judgment pronounced upon an imputed offence; it is the
declared sense of a majority of the Senate, of the guilt of the
President of a high crime and misdemeanor. It is, in substance,
an impeachment--an impeachment in violation of all the forms
prescribed by the constitution--in violation of the privileges
of the House of Representatives--in subversion of the rights of
the accused, and the record of which ought to be expunged from
the Journal of the Senate.
"Mr. B. said the selection of a tribunal for the trial of
impeachments was felt, by the convention which framed the
constitution, as one of the most delicate and difficult tasks
which they had to perform. Those great men were well read in
history, both ancient and modern, and knew that the impeaching
power--the usual mode for trying political men for political
offences--was often an engine for the gratification of factious
and ambitious feelings. An impeachment was well known to
be the beaten road for running down a hated or successful
political rival. After great deliberation--after weighing all
the tribunals, even that of the Supreme Court--the Senate
of the United States was fixed upon as the body which, from
its constitution, would be the most impartial, neutral, and
equitable, that could be selected, and, with the check of a
previous inquisition, and presentment of charges by the House of
Representatives, would be the safest tribunal to which could
be confided a power so great in itself, and so susceptible of
being abused. The Senate was selected; and to show that he had
not overstated the difficulties of the convention in making the
selection, he would take leave to read a passage from a work
which was canonical on this subject, and from an article in that
work which was written by the gentleman whose authority would
have most weight on this occasion. He spoke of the Federalist,
and of the article written by General Hamilton on the impeaching
power:
"'A well-constituted court for the trial of impeachments is an
object not more to be desired than difficult to be obtained, in
a government wholly elective. The subjects of its jurisdiction
are those offences which proceed from the misconduct of public
men; or, in other words, from the abuse or violation of some
public trust. They are of a nature which may, with peculiar
propriety, be denominated political, as they relate chiefly to
injuries done immediately to society itself. The prosecution of
them, for this reason, will seldom fail to agitate the passions
of the whole community, and to divide it into parties more or
less friendly or inimical to the accused. In many cases, it will
connect itself with the pre-existing factions, and will enlist
all their animosities, partialities, influence, and interest, on
one side or on the other; and, in such cases, there will always
be the greatest danger that the decision will be regulated
more by the comparative strength of parties, than by the real
demonstrations of innocence or guilt. The delicacy and magnitude
of a trust which so deeply concerns the political reputation
and existence of every man engaged in the administration of
public affairs, speak for themselves. The difficulty of placing
it rightly in a government resting entirely on the basis of
periodical elections, will as readily be perceived, when it is
considered that the most conspicuous characters in it will, from
that circumstance, be too often the leaders or the tools of the
most cunning or the most numerous faction; and, on this account,
can hardly be expected to possess the requisite neutrality
towards those whose conduct may be the subject of scrutiny.
"'The division of the powers of impeachment between the two
branches of the legislature, assigning to one the right
of accusing, to the other the right of trying, avoids the
inconvenience of making the same persons both accusers and
judges; and guards against the danger of persecution from the
prevalency of a factious spirit in either of those branches.'
"Mr. B. said there was much matter for elucidation of the
present object of discussion in the extract which he had read.
Its definition of an impeachable offence covered the identical
charge which was contained in the resolution adopted by the
Senate against the President. The offence charged upon him
possessed every feature of the impeachment defined by General
Hamilton. It imputes misconduct to a public man, for the abuse
and violation of a public trust. The discussion of the charge
has agitated the passions of the whole community; it has
divided the people into parties, some friendly, some inimical,
to the accused; it has connected itself with the pre-existing
parties, enlisting the whole of the opposition parties under
one banner, and calling forth all their animosities--all their
partialities--all their influence--all their interest; and,
what was not foreseen by General Hamilton, it has called forth
the tremendous moneyed power, and the pervading organization
of a great moneyed power, wielding a mass of forty millions of
money, and sixty millions of debt; wielding the whole in aid
and support of this charge upon the President, and working the
double battery of seduction, on one hand, and oppression on the
other, to put down the man against whom it is directed! This is
what General Hamilton did not foresee; but the next feature in
the picture he did foresee, and most accurately describe, as
it is now seen by us all. He said that the decision of these
impeachments would often be regulated more by the comparative
strength of parties than by the guilt or innocence of the
accused. How prophetic! Look to the memorials, resolutions, and
petitions, sent in here to criminate the President, so clearly
marked by a party line, that when an exception occurs, it is
made the special subject of public remark. Look at the vote in
the Senate, upon the adoption of the resolution, also as clearly
defined by a party line as any party question can ever be
expected to be.
"To guard the most conspicuous characters from being
persecuted--Mr. B. said he was using the language of General
Hamilton--to guard the most conspicuous characters from being
persecuted by the leaders or the tools of the most cunning or
the most numerous faction--the convention had placed the power
of trying impeachments, not in the Supreme Court, not even in
a body of select judges chosen for the occasion, but in the
Senate of the United States, and not even in them without an
intervening check to the abuse of that power, by associating
the House of Representatives, and forbidding the Senate to
proceed against any officer until that grand inquest of the
nation should demand his trial. How far fortunate, or otherwise,
the convention may have been in the selection of its tribunal
for the trial of impeachments, it was not for him, Mr. B., to
say. It was not for him to say how far the requisite neutrality
towards those whose conduct may be under scrutiny, may be found,
or has been found, in this body. But he must take leave to
say, that if a public man may be virtually impeached--actually
condemned by the Senate of an impeachable offence, without the
intervention of the House of Representatives, then has the
constitution failed at one of its most vital points and a ready
means found for doing a thing which had filled other countries
with persecution, faction, and violence, and which it was
intended should never be done here.
"Mr. B. called upon the Senate to recollect what was the feature
in the famous court of the Star Chamber, which rendered that
court the most odious that ever sat in England. It was not the
mass of its enormities--great as they were--for the regular
tribunals which yet existed, exceeded that court, both in the
mass and in the atrocity of their crimes and oppressions. The
regular courts in the compass of a single reign--that of James
the Second; a single judge, in a single riding--Jeffries,
on the Western Circuit--surpassed all the enormities of the
Star Chamber, in the whole course of its existence. What then
rendered that court so intolerably odious to the English
people? Sir, said Mr. B., it was because that court had no
grand jury--because it proceeded without presentment, without
indictment--upon information alone--and thus got at its victims
without the intervention, without the restraint, of an accusing
body. This is the feature which sunk the Star Chamber in
England. It is the feature which no criminal tribunal in this
America is allowed to possess. The most inconsiderable offender,
in any State of the Union, must be charged by a grand jury
before he can be tried by the court. In this Senate, sitting as
a high court of impeachment, a charge must first be presented
by the House of Representatives, sitting as the grand inquest
of the nation. But if the Senate can proceed, without the
intervention of this grand inquest, wherein is it to differ from
the Star Chamber, except in the mere execution of its decrees?
And what other execution is now required for delinquent public
men, than the force of public opinion? No! said Mr. B., we live
in an age when public opinion over public men, is omnipotent and
irreversible!--when public sentiment annihilates a public man
more effectually than the scaffold. To this new and omnipotent
tribunal, all the public men of Europe and America are now
happily subject. The fiat of public opinion has superseded
the axe of the executioner. Struck by that opinion, kings
and emperors in Europe, and the highest functionaries among
ourselves, fall powerless from the political stage, and wander,
while their bodies live, as shadows and phantoms over the land.
Should he give examples? It might be invidious; yet all would
recollect an eminent example of a citizen, once sitting at
the head of this Senate, afterwards falling under a judicial
prosecution, from which he escaped untouched by the sword of the
law, yet that eminent citizen was more utterly annihilated by
public opinion, than any execution of a capital sentence could
ever have accomplished upon his name.
"What occasion then has the Senate, sitting as a court of
impeachment, for the power of execution? The only effect of
a regular impeachment now, is to remove from office, and
disqualification for office. An irregular impeachment will be
tantamount to removal and disqualification, if the justice of
the sentence is confided in by the people. If this condemnation
of the President had been pronounced in the first term of his
administration, and the people had believed in the truth and
justice of the sentence, certainly President Jackson would
not have been elected a second time; and every object that a
political rival, or a political party, could have wished from
his removal from office, and disqualification for office, would
have been accomplished. Disqualification for office--loss of
public favor--political death--is now the object of political
rivalship; and all this can be accomplished by an informal,
as well as by a formal impeachment, if the sentence is only
confided in by the people. If the people believed that the
President has violated the constitution and the laws, he ceases
to be the object of their respect and their confidence; he
loses their favor; he dies a political death; and that this
might be the object of the resolution, Mr. B. would leave to
the determination of those who should read the speeches which
were delivered in support of the measure, and which would
constitute a public and lasting monument of the temper in which
the resolution was presented, and the object intended to be
accomplished by it.
"It was in vain to say there could be no object, at this
time, in annihilating the political influence of President
Jackson, and killing him off as a public man, with a senatorial
conviction for violating the laws and constitution of the
country. Such an assertion, if ventured upon by any one, would
stand contradicted by facts, of which Europe and America are
witnesses. Does he not stand between the country and the bank?
Is he not proclaimed the sole obstacle to the recharter of
the bank; and in its recharter is there not wrapped up the
destinies of a political party, now panting for power? Remove
this sole obstacle--annihilate its influence--kill off President
Jackson with a sentence of condemnation for a high crime and
misdemeanor, and the charter of the bank will be renewed, and in
its renewal, a political party, now thundering at the gates of
the capitol, will leap into power. Here then is an object for
desiring the extinction of the political influence of President
Jackson! An object large enough to be seen by all America! and
attractive enough to enlist the combined interest of a great
moneyed power, and of a great political party."
Thus spoke Mr. Benton; but the debate on the protest went on;
and the motion of Mr. Poindexter, digested into four different
propositions, after undergoing repeated modifications upon
consultations among its friends, and after much acrimony on both
sides, was adopted by the fixed majority of twenty-seven. In voting
that the protest was a breach of the privileges of the Senate,
that body virtually affirmed the impeachment character of the
condemnatory resolutions, and involved itself in the predicament of
voting an impeachable matter without observing a single rule for
the conduct of impeachments. The protest placed it in a dilemma.
It averred the Senate's judgment to be without authority--without
any warrant in the constitution--any right in the body to pronounce
it. To receive that protest, and enter it on the journal, was to
record a strong evidence against themselves; to reject it as a
breach of privilege was to claim for their proceeding the immunity
of a regular and constitutional act; and as the proceeding was on
criminal matter, amounting to a high crime and misdemeanor, on
which matter the Senate could only act in its judicial capacity;
therefore it had to claim the immunity that would belong to it in
that capacity; and assume a violation of privilege. Certainly if the
Senate had tried an impeachment in due form, the protest, impeaching
its justice, might have been a breach of privilege; but the Senate
had no privilege to vote an impeachable matter without a regular
impeachment; and therefore it was no breach of privilege to impugn
the act which they had no privilege to commit.