_To the Senate of the United States_:
It appears by the published Journal of the Senate that on the 26th of
December last a resolution was offered by a member of the Senate, which
after a protracted debate was on the 28th day of March last modified
by the mover and passed by the votes of twenty-six Senators out of
forty-six who were present and voted, in the following words, viz:
_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.
Having had the honor, through the voluntary suffrages of the American
people, to fill the office of President of the United States during
the period which may be presumed to have been referred to in this
resolution, it is sufficiently evident that the censure it inflicts was
intended for myself. Without notice, unheard and untried, I thus find
myself charged on the records of the Senate, and in a form hitherto
unknown in our history, with the high crime of violating the laws and
Constitution of my country.
It can seldom be necessary for any department of the Government, when
assailed in conversation or debate or by the strictures of the press or
of popular assemblies, to step out of its ordinary path for the purpose
of vindicating its conduct or of pointing out any irregularity or
injustice in the manner of the attack; but when the Chief Executive
Magistrate is, by one of the most important branches of the Government
in its official capacity, in a public manner, and by its recorded
sentence, but without precedent, competent authority, or just cause,
declared guilty of a breach of the laws and Constitution, it is due to
his station, to public opinion, and to a proper self-respect that the
officer thus denounced should promptly expose the wrong which has been
done.
In the present case, moreover, there is even a stronger necessity for
such a vindication. By an express provision of the Constitution, before
the President of the United States can enter on the execution of his
office he is required to take an oath or affirmation in the following
words:
I do solemnly swear (or affirm) that I will faithfully execute the
office of President of the United States and will to the best of my
ability preserve, protect, and defend the Constitution of the United
States.
The duty of defending so far as in him lies the integrity of the
Constitution would indeed have resulted from the very nature of his
office, but by thus expressing it in the official oath or affirmation,
which in this respect differs from that of any other functionary, the
founders of our Republic have attested their sense of its importance
and have given to it a peculiar solemnity and force. Bound to the
performance of this duty by the oath I have taken, by the strongest
obligations of gratitude to the American people, and by the ties which
unite my every earthly interest with the welfare and glory of my
country, and perfectly convinced that the discussion and passage of
the above-mentioned resolution were not only unauthorized by the
Constitution, but in many respects repugnant to its provisions and
subversive of the rights secured by it to other coordinate departments,
I deem it an imperative duty to maintain the supremacy of that sacred
instrument and the immunities of the department intrusted to my care
by all means consistent with my own lawful powers, with the rights of
others, and with the genius of our civil institutions. To this end I
have caused this my _solemn protest_ against the aforesaid proceedings
to be placed on the files of the executive department and to be
transmitted to the Senate.
It is alike due to the subject, the Senate, and the people that the
views which I have taken of the proceedings referred to, and which
compel me to regard them in the light that has been mentioned, should
be exhibited at length, and with the freedom and firmness which are
required by an occasion so unprecedented and peculiar.
Under the Constitution of the United States the powers and functions
of the various departments of the Federal Government and their
responsibilities for violation or neglect of duty are clearly defined
or result by necessary inference. The legislative power is, subject to
the qualified negative of the President, vested in the Congress of the
United States, composed of the Senate and House of Representatives; the
executive power is vested exclusively in the President, except that in
the conclusion of treaties and in certain appointments to office he is
to act with the advice and consent of the Senate; the judicial power is
vested exclusively in the Supreme and other courts of the United States,
except in cases of impeachment, for which purpose the accusatory power
is vested in the House of Representatives and that of hearing and
determining in the Senate. But although for the special purposes which
have been mentioned there is an occasional intermixture of the powers of
the different departments, yet with these exceptions each of the three
great departments is independent of the others in its sphere of action,
and when it deviates from that sphere is not responsible to the others
further than it is expressly made so in the Constitution. In every other
respect each of them is the coequal of the other two, and all are the
servants of the American people, without power or right to control or
censure each other in the service of their common superior, save only
in the manner and to the degree which that superior has prescribed.
The responsibilities of the President are numerous and weighty.
He is liable to impeachment for high crimes and misdemeanors, and on
due conviction to removal from office and perpetual disqualification;
and notwithstanding such conviction, he may also be indicted and
punished according to law. He is also liable to the private action
of any party who may have been injured by his illegal mandates or
instructions in the same manner and to the same extent as the humblest
functionary. In addition to the responsibilities which may thus be
enforced by impeachment, criminal prosecution, or suit at law, he
is also accountable at the bar of public opinion for every act of his
Administration. Subject only to the restraints of truth and justice,
the free people of the United States have the undoubted right, as
individuals or collectively, orally or in writing, at such times and in
such language and form as they may think proper, to discuss his official
conduct and to express and promulgate their opinions concerning it.
Indirectly also his conduct may come under review in either branch of
the Legislature, or in the Senate when acting in its executive capacity,
and so far as the executive or legislative proceedings of these bodies
may require it, it may be exercised by them. These are believed to be
the proper and only modes in which the President of the United States
is to be held accountable for his official conduct.
Tested by these principles, the resolution of the Senate is wholly
unauthorized by the Constitution, and in derogation of its entire
spirit. It assumes that a single branch of the legislative department
may for the purposes of a public censure, and without any view to
legislation or impeachment, take up, consider, and decide upon the
official acts of the Executive. But in no part of the Constitution is
the President subjected to any such responsibility, and in no part of
that instrument is any such power conferred on either branch of the
Legislature.
The justice of these conclusions will be illustrated and confirmed by
a brief analysis of the powers of the Senate and a comparison of their
recent proceedings with those powers.
The high functions assigned by the Constitution to the Senate are in
their nature either legislative, executive, or judicial. It is only in
the exercise of its judicial powers, when sitting as a court for the
trial of impeachments, that the Senate is expressly authorized and
necessarily required to consider and decide upon the conduct of the
President or any other public officer. Indirectly, however, as has
already been suggested, it may frequently be called on to perform that
office. Cases may occur in the course of its legislative or executive
proceedings in which it may be indispensable to the proper exercise of
its powers that it should inquire into and decide upon the conduct of
the President or other public officers, and in every such case its
constitutional right to do so is cheerfully conceded. But to authorize
the Senate to enter on such a task in its legislative or executive
capacity the inquiry must actually grow out of and tend to some
legislative or executive action, and the decision, when expressed,
must take the form of some appropriate legislative or executive act.
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 cooperation 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 removal
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 offense. 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 offense 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 only room for one inference,
and that is that the intent was unlawful and corrupt. Besides, the
resolution not only contains no mitigating suggestions, 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
offense, 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 defense. 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 offense.
In vain may it be alleged in defense of this proceeding that the form of
the resolution is not that of an impeachment or of a judgment thereupon,
that the punishment prescribed in the Constitution does not follow its
adoption, or that in this case no impeachment is to be expected from the
House of Representatives. It is because it did not assume the form of an
impeachment that it is the more palpably repugnant to the Constitution,
for it is through that form only that the President is judicially
responsible to the Senate; and though neither removal from office nor
future disqualification ensues, yet it is not to be presumed that the
framers of the Constitution considered either or both of those results
as constituting the whole of the punishment they prescribed. The
judgment of _guilty_ by the highest tribunal in the Union, the stigma it
would inflict on the offender, his family, and fame, and the perpetual
record on the Journal, handing down to future generations the story of
his disgrace, were doubtless regarded by them as the bitterest portions,
if not the very essence, of that punishment. So far, therefore, as some
of its most material parts are concerned, the passage, recording, and
promulgation of the resolution are an attempt to bring them on the
President in a manner unauthorized by the Constitution. To shield him
and other officers who are liable to impeachment from consequences
so momentous, except when really merited by official delinquencies,
the Constitution has most carefully guarded the whole process of
impeachment. A majority of the House of Representatives must think the
officer guilty before he can be charged. Two-thirds of the Senate must
pronounce him guilty or he is deemed to be innocent. Forty-six Senators
appear by the Journal to have been present when the vote on the
resolution was taken. If after all the solemnities of an impeachment
thirty of those Senators had voted that the President was guilty, yet
would he have been acquitted; but by the mode of proceeding adopted in
the present case a lasting record of conviction has been entered up by
the votes of twenty-six Senators without an impeachment or trial, whilst
the Constitution expressly declares that to the entry of such a judgment
an accusation by the House of Representatives, a trial by the Senate,
and a concurrence of two-thirds in the vote of guilty shall be
indispensable prerequisites.
Whether or not an impeachment was to be expected from the House of
Representatives was a point on which the Senate had no constitutional
right to speculate, and in respect to which, even had it possessed the
spirit of prophecy, its anticipations would have furnished no just
ground for this procedure. Admitting that there was reason to believe
that a violation of the Constitution and laws had been actually
committed by the President, still it was the duty of the Senate, as his
sole constitutional judges, to wait for an impeachment until the other
House should think proper to prefer it. The members of the Senate
could have no right to infer that no impeachment was intended. On the
contrary, every legal and rational presumption on their part ought to
have been that if there was good reason to believe him guilty of an
impeachable offense the House of Representatives would perform its
constitutional duty by arraigning the offender before the justice of
his country. The contrary presumption would involve an implication
derogatory to the integrity and honor of the representatives of the
people. But suppose the suspicion thus implied were actually entertained
and for good cause, how can it justify the assumption by the Senate of
powers not conferred by the Constitution?
It is only necessary to look at the condition in which the Senate and
the President have been placed by this proceeding to perceive its utter
incompatibility with the provisions and the spirit of the Constitution
and with the plainest dictates of humanity and justice.
If the House of Representatives shall be of opinion that there is just
ground for the censure pronounced upon the President, then will it be
the solemn duty of that House to prefer the proper accusation and to
cause him to be brought to trial by the constitutional tribunal. But in
what condition would he find that tribunal? A majority of its members
have already considered the case, and have not only formed but expressed
a deliberate judgment upon its merits. It is the policy of our benign
systems of jurisprudence to secure in all criminal proceedings, and even
in the most trivial litigations, a fair, unprejudiced, and impartial
trial, and surely it can not be less important that such a trial should
be secured to the highest officer of the Government.
The Constitution makes the House of Representatives the exclusive
judges, in the first instance, of the question whether the President
has committed an impeachable offense. A majority of the Senate, whose
interference with this preliminary question has for the best of all
reasons been studiously excluded, anticipate the action of the House of
Representatives, assume not only the function which belongs exclusively
to that body, but convert themselves into accusers, witnesses, counsel,
and judges, and prejudge the whole case, thus presenting the appalling
spectacle in a free State of judges going through a labored preparation
for an impartial hearing and decision by a previous _ex parte_
investigation and sentence against the supposed offender.
There is no more settled axiom in that Government whence we derived the
model of this part of our Constitution than that "the lords can not
impeach any to themselves, nor join in the accusation, _because they
are judges_." Independently of the general reasons on which this rule
is founded, its propriety and importance are greatly increased by the
nature of the impeaching power. The power of arraigning the high
officers of government before a tribunal whose sentence may expel them
from their seats and brand them as infamous is eminently a popular
remedy--a remedy designed to be employed for the protection of private
right and public liberty against the abuses of injustice and the
encroachments of arbitrary power. But the framers of the Constitution
were also undoubtedly aware that this formidable instrument had been and
might be abused, and that from its very nature an impeachment for high
crimes and misdemeanors, whatever might be its result, would in most
cases be accompanied by so much of dishonor and reproach, solicitude and
suffering, as to make the power of preferring it one of the highest
solemnity and importance. It was due to both these considerations that
the impeaching power should be lodged in the hands of those who from
the mode of their election and the tenure of their offices would most
accurately express the popular will and at the same time be most
directly and speedily amenable to the people. The theory of these wise
and benignant intentions is in the present case effectually defeated by
the proceedings of the Senate. The members of that body represent not
the people, but the States; and though they are undoubtedly responsible
to the States, yet from their extended term of service the effect of
that responsibility during the whole period of that term must very much
depend upon their own impressions of its obligatory force. When a body
thus constituted expresses beforehand its opinion in a particular case,
and thus indirectly invites a prosecution, it not only assumes a power
intended for wise reasons to be confined to others, but it shields the
latter from that exclusive and personal responsibility under which it
was intended to be exercised, and reverses the whole scheme of this
part of the Constitution.
Such would be some of the objections to this procedure, even if it were
admitted that there is just ground for imputing to the President the
offenses charged in the resolution. But if, on the other hand, the House
of Representatives shall be of opinion that there is no reason for
charging them upon him, and shall therefore deem it improper to prefer
an impeachment, then will the violation of privilege as it respects that
House, of justice as it regards the President, and of the Constitution
as it relates to both be only the more conspicuous and impressive.
The constitutional mode of procedure on an impeachment has not only been
wholly disregarded, but some of the first principles of natural right
and enlightened jurisprudence have been violated in the very form of the
resolution. It carefully abstains from averring in _which_ of "the late
proceedings in relation to the public revenue the President has assumed
upon himself authority and power not conferred by the Constitution and
laws," It carefully abstains from specifying _what laws_ or _what parts_
of the Constitution have been violated. Why was not the certainty of the
offense--"the nature and cause of the accusation"--set out in the manner
required in the Constitution before even the humblest individual, for
the smallest crime, can be exposed to condemnation? Such a specification
was due to the accused that he might direct his defense to the real
points of attack, to the people that they might clearly understand in
what particulars their institutions had been violated, and to the truth
and certainty of our public annals. As the record now stands, whilst
the resolution plainly charges upon the President at least one act of
usurpation in "the late Executive proceedings in relation to the public
revenue," and is so framed that those Senators who believed that one
such act, and only one, had been committed could assent to it, its
language is yet broad enough to include several such acts, and so it
may have been regarded by some of those who voted for it. But though
the accusation is thus comprehensive in the censures it implies, there
is no such certainty of time, place, or circumstance as to exhibit the
particular conclusion of fact or law which induced any one Senator to
vote for it; and it may well have happened that whilst one Senator
believed that some particular act embraced in the resolution was an
arbitrary and unconstitutional assumption of power, others of the
majority may have deemed that very act both constitutional and
expedient, or, if not expedient, yet still within the pale of the
Constitution; and thus a majority of the Senators may have been enabled
to concur in a vague and undefined accusation that the President, in
the course of "the late Executive proceedings in relation to the public
revenue," had violated the Constitution and laws, whilst if a separate
vote had been taken in respect to each particular act included within
the general terms the accusers of the President might on any such vote
have been found in the minority.
Still further to exemplify this feature of the proceeding, it is
important to be remarked that the resolution as originally offered
to the Senate specified with adequate precision certain acts of the
President which it denounced as a violation of the Constitution and
laws, and that it was not until the very close of the debate, and
when perhaps it was apprehended that a majority might not sustain the
specific accusation contained in it, that the resolution was so modified
as to assume its present form. A more striking illustration of the
soundness and necessity of the rules which forbid vague and indefinite
generalities and require a reasonable certainty in all judicial
allegations, and a more glaring instance of the violation of those
rules, has seldom been exhibited.
In this view of the resolution it must certainly be regarded not as a
vindication of any particular provision of the law or the Constitution,
but simply as an official rebuke or condemnatory sentence, too general
and indefinite to be easily repelled, but yet sufficiently precise to
bring into discredit the conduct and motives of the Executive. But
whatever it may have been intended to accomplish, it is obvious that
the vague, general, and abstract form of the resolution is in perfect
keeping with those other departures from first principles and settled
improvements in jurisprudence so properly the boast of free countries
in modern times. And it is not too much to say of the whole of these
proceedings that if they shall be approved and sustained by an
intelligent people, then will that great contest with arbitrary power
which had established in statutes, in bills of rights, in sacred
charters, and in constitutions of government the right of every citizen
to a notice before trial, to a hearing before conviction, and to an
impartial tribunal for deciding on the charge have been waged in vain.
If the resolution had been left in its original form it is not to be
presumed that it could ever have received the assent of a majority
of the Senate, for the acts therein specified as violations of the
Constitution and laws were clearly within the limits of the Executive
authority. They are the "dismissing the late Secretary of the Treasury
because he would not, contrary to his sense of his own duty, remove the
money of the United States in deposit with the Bank of the United States
and its branches in conformity with the President's opinion, and
appointing his successor to effect such removal, which has been done."
But as no other specification has been substituted, and as these were
the "Executive proceedings in relation to the public revenue"
principally referred to in the course of the discussion, they will
doubtless be generally regarded as the acts intended to be denounced as
"an assumption of authority and power not conferred by the Constitution
or laws, but in derogation of both." It is therefore due to the occasion
that a condensed summary of the views of the Executive in respect to
them should be here exhibited.
By the Constitution "the executive power is vested in a President
of the United States." Among the duties imposed upon him, and which he
is sworn to perform, is that of "taking care that the laws be faithfully
executed." Being thus made responsible for the entire action of the
executive department, it was but reasonable that the power of
appointing, overseeing, and controlling those who execute the laws--a
power in its nature executive--should remain in his hands. It is
therefore not only his right, but the Constitution makes it his duty,
to "nominate and, by and with the advice and consent of the Senate,
appoint" all "officers of the United States whose appointments are not
in the Constitution otherwise provided for," with a proviso that the
appointment of inferior officers may be vested in the President alone,
in the courts of justice, or in the heads of Departments.
The executive power vested in the Senate is neither that of "nominating"
nor "appointing." It is merely a check upon the Executive power of
appointment. If individuals are proposed for appointment by the
President by them deemed incompetent or unworthy, they may withhold
their consent and the appointment can not be made. They check the
action of the Executive, but can not in relation to those very subjects
act themselves nor direct him. Selections are still made by the
President, and the negative given to the Senate, without diminishing his
responsibility, furnishes an additional guaranty to the country that the
subordinate executive as well as the judicial offices shall be filled
with worthy and competent men.
The whole executive power being vested in the President, who is
responsible for its exercise, it is a necessary consequence that he
should have a right to employ agents of his own choice to aid him in the
performance of his duties, and to discharge them when he is no longer
willing to be responsible for their acts. In strict accordance with this
principle, the power of removal, which, like that of appointment, is
an original executive power, is left unchecked by the Constitution in
relation to all executive officers, for whose conduct the President
is responsible, while it is taken from him in relation to judicial
officers, for whose acts he is not responsible. In the Government from
which many of the fundamental principles of our system are derived the
head of the executive department originally had power to appoint and
remove at will all officers, executive and judicial. It was to take
the judges out of this general power of removal, and thus make them
independent of the Executive, that the tenure of their offices was
changed to good behavior. Nor is it conceivable why they are placed in
our Constitution upon a tenure different from that of all other officers
appointed by the Executive unless it be for the same purpose.
But if there were any just ground for doubt on the face of the
Constitution whether all executive officers are removable at the will of
the President, it is obviated by the cotemporaneous construction of the
instrument and the uniform practice under it.
The power of removal was a topic of solemn debate in the Congress of
1789 while organizing the administrative departments of the Government,
and it was finally decided that the President derived from the
Constitution the power of removal so far as it regards that department
for whose acts he is responsible. Although the debate covered the whole
ground, embracing the Treasury as well as all the other Executive
Departments, it arose on a motion to strike out of the bill to establish
a Department of Foreign Affairs, since called the Department of State,
a clause declaring the Secretary "to be removable from office by the
President of the United States." After that motion had been decided in
the negative it was perceived that these words did not convey the sense
of the House of Representatives in relation to the true source of
the power of removal. With the avowed object of preventing any future
inference that this power was exercised by the President in virtue of
a grant from Congress, when in fact that body considered it as derived
from the Constitution, the words which had been the subject of debate
were struck out, and in lieu thereof a clause was inserted in a
provision concerning the chief clerk of the Department, which declared
that "whenever the said principal officer shall be removed from office
by the President of the United States, or in any other case of vacancy,"
the chief clerk should during such vacancy have charge of the papers
of the office. This change having been made for the express purpose of
declaring the sense of Congress that the President derived the power
of removal from the Constitution, the act as it passed has always been
considered as a full expression of the sense of the legislature on this
important part of the American Constitution.
Here, then, we have the concurrent authority of President Washington, of
the Senate, and the House of Representatives, numbers of whom had taken
an active part in the convention which framed the Constitution and in
the State conventions which adopted it, that the President derived an
unqualified power of removal from that instrument itself, which is
"beyond the reach of legislative authority." Upon this principle the
Government has now been steadily administered for about forty-five
years, during which there have been numerous removals made by the
President or by his direction, embracing every grade of executive
officers from the heads of Departments to the messengers of bureaus.
The Treasury Department in the discussions of 1789 was considered on
the same footing as the other Executive Departments, and in the act
establishing it were incorporated the precise words indicative of the
sense of Congress that the President derives his power to remove the
Secretary from the Constitution, which appear in the act establishing
the Department of Foreign Affairs. An Assistant Secretary of the
Treasury was created, and it was provided that he should take charge of
the books and papers of the Department "whenever the Secretary shall
be removed from office by the President of the United States." The
Secretary of the Treasury being appointed by the President, and being
considered as constitutionally removable by him, it appears never to
have occurred to anyone in the Congress of 1789, or since until very
recently, that he was other than an executive officer, the mere
instrument of the Chief Magistrate in the execution of the laws,
subject, like all other heads of Departments, to his supervision and
control. No such idea as an officer of the Congress can be found in the
Constitution or appears to have suggested itself to those who organized
the Government. There are officers of each House the appointment of
which is authorized by the Constitution, but all officers referred to in
that instrument as coming within the appointing power of the President,
whether established thereby or created by law, are "officers of the
United States." No joint power of appointment is given to the two Houses
of Congress, nor is there any accountability to them as one body; but
as soon as any office is created by law, of whatever name or character,
the appointment of the person or persons to fill it devolves by the
Constitution upon the President, with the advice and consent of the
Senate, unless it be an inferior office, and the appointment be vested
by the law itself "in the President alone, in the courts of law, or in
the heads of Departments."
But at the time of the organization of the Treasury Department an
incident occurred which distinctly evinces the unanimous concurrence
of the First Congress in the principle that the Treasury Department is
wholly executive in its character and responsibilities. A motion was
made to strike out the provision of the bill making it the duty of the
Secretary "to digest and report plans for the improvement and management
of the revenue and for the support of public credit," on the ground
that it would give the executive department of the Government too much
influence and power in Congress. The motion was not opposed on the
ground that the Secretary was the officer of Congress and responsible
to that body, which would have been conclusive if admitted, but on other
ground, which conceded his executive character throughout. The whole
discussion evinces an unanimous concurrence in the principle that the
Secretary of the Treasury is wholly an executive officer, and the
struggle of the minority was to restrict his power as such. From that
time down to the present the Secretary of the Treasury, the Treasurer,
Register, Comptrollers, Auditors, and clerks who fill the offices of
that Department have in the practice of the Government been considered
and treated as on the same footing with corresponding grades of officers
in all the other Executive Departments.
The custody of the public property, under such regulations as may be
prescribed by legislative authority, has always been considered an
appropriate function of the executive department in this and all other
Governments. In accordance with this principle, every species of
property belonging to the United States (excepting that which is in the
use of the several coordinate departments of the Government as means
to aid them in performing their appropriate functions) is in charge of
officers appointed by the President, whether it be lands, or buildings,
or merchandise, or provisions, or clothing, or arms and munitions of
war. The superintendents and keepers of the whole are appointed by the
President, responsible to him, and removable at his will.
Public money is but a species of public property. It can not be raised
by taxation or customs, nor brought into the Treasury in any other way
except by law; but whenever or howsoever obtained, its custody always
has been and always must be, unless the Constitution be changed,
intrusted to the executive department. No officer can be created by
Congress for the purpose of taking charge of it whose appointment would
not by the Constitution at once devolve on the President and who would
not be responsible to him for the faithful performance of his duties.
The legislative power may undoubtedly bind him and the President by any
laws they may think proper to enact; they may prescribe in what place
particular portions of the public property shall be kept and for what
reason it shall be removed, as they may direct that supplies for the
Army or Navy shall be kept in particular stores, and it will be the duty
of the President to see that the law is faithfully executed; yet will
the custody remain in the executive department of the Government. Were
the Congress to assume, with or without a legislative act, the power of
appointing officers, independently of the President, to take the charge
and custody of the public property contained in the military and naval
arsenals, magazines, and storehouses, it is believed that such an act
would be regarded by all as a palpable usurpation of executive power,
subversive of the form as well as the fundamental principles of our
Government. But where is the difference in principle whether the public
property be in the form of arms, munitions of war, and supplies or in
gold and silver or bank notes? None can be perceived; none is believed
to exist. Congress can not, therefore, take out of the hands of the
executive department the custody of the public property or money without
an assumption of executive power and a subversion of the first
principles of the Constitution.
The Congress of the United States have never passed an act imperatively
directing that the public moneys shall be kept in any particular place
or places. From the origin of the Government to the year 1816 the
statute book was wholly silent on the subject. In 1789 a Treasurer was
created, subordinate to the Secretary of the Treasury, and through him
to the President. He was required to give bond safely to keep and
faithfully to disburse the public moneys, without any direction as to
the manner or places in which they should be kept. By reference to the
practice of the Government it is found that from its first organization
the Secretary of the Treasury, acting under the supervision of the
President, designated the places in which the public moneys should be
kept, and especially directed all transfers from place to place. This
practice was continued, with the silent acquiescence of Congress, from
1789 down to 1816, and although many banks were selected and discharged,
and although a portion of the moneys were first placed in the State
banks, and then in the former Bank of the United States, and upon the
dissolution of that were again transferred to the State banks, no
legislation was thought necessary by Congress, and all the operations
were originated and perfected by Executive authority. The Secretary of
the Treasury, responsible to the President, and with his approbation,
made contracts and arrangements in relation to the whole subject-matter,
which was thus entirely committed to the direction of the President
under his responsibilities to the American people and to those who were
authorized to impeach and punish him for any breach of this important
trust.
The act of 1816 establishing the Bank of the United States directed the
deposits of public money to be made in that bank and its branches in
places in which the said bank and branches thereof may be established,
"unless the Secretary of the Treasury should otherwise order and
direct," in which event he was required to give his reasons to Congress.
This was but a continuation of his preexisting power as the head of an
Executive Department to direct where the deposits should be made, with
the superadded obligation of giving his reasons to Congress for making
them elsewhere than in the Bank of the United States and its branches.
It is not to be considered that this provision in any degree altered the
relation between the Secretary of the Treasury and the President as the
responsible head of the executive department, or released the latter
from his constitutional obligation to "take care that the laws be
faithfully executed." On the contrary, it increased his responsibilities
by adding another to the long list of laws which it was his duty to
carry into effect.
It would be an extraordinary result if because the person charged by
law with a public duty is one of his Secretaries it were less the duty
of the President to see that law faithfully executed than other laws
enjoining duties upon subordinate officers or private citizens. If there
be any difference, it would seem that the obligation is the stronger in
relation to the former, because the neglect is in his presence and the
remedy at hand.
It can not be doubted that it was the legal duty of the Secretary of the
Treasury to order and direct the deposits of the public money to be made
elsewhere than in the Bank of the United States _whenever sufficient
reasons existed for making the change_. If in such a case he neglected
or refused to act, he would neglect or refuse to execute the law.
What would be the sworn duty of the President? Could he say that the
Constitution did not bind him to see the law faithfully executed because
it was one of his Secretaries and not himself upon whom the service was
specially imposed? Might he not be asked whether there was any such
limitation to his obligations prescribed in the Constitution? Whether he
is not equally bound to take care that the laws be faithfully executed,
whether they impose duties on the highest officer of State or the lowest
subordinate in any of the Departments? Might he not be told that it was
for the sole purpose of causing all executive officers, from the highest
to the lowest, faithfully to perform the services required of them by
law that the people of the United States have made him their Chief
Magistrate and the Constitution has clothed him with the entire
executive power of this Government? The principles implied in these
questions appear too plain to need elucidation.
But here also we have a cotemporaneous construction of the act which
shows that it was not understood as in any way changing the relations
between the President and Secretary of the Treasury, or as placing the
latter out of Executive control even in relation to the deposits of the
public money. Nor on that point are we left to any equivocal testimony.
The documents of the Treasury Department show that the Secretary of the
Treasury did apply to the President and obtained his approbation and
sanction to the original transfer of the public deposits to the present
Bank of the United States, and did carry the measure into effect in
obedience to his decision. They also show that transfers of the public
deposits from the branches of the Bank of the United States to State
banks at Chillicothe, Cincinnati, and Louisville, in 1819, were made
with the approbation of the President and by his authority. They show
that upon all important questions appertaining to his Department,
whether they related to the public deposits or other matters, it was
the constant practice of the Secretary of the Treasury to obtain for
his acts the approval and sanction of the President. These acts and the
principles on which they were founded were known to all the departments
of the Government, to Congress and the country, and until very recently
appear never to have been called in question.
Thus was it settled by the Constitution, the laws, and the whole
practice of the Government that the entire executive power is vested
in the President of the United States; that as incident to that power
the right of appointing and removing those officers who are to aid
him in the execution of the laws, with such restrictions only as the
Constitution prescribes, is vested in the President; that the Secretary
of the Treasury is one of those officers; that the custody of the public
property and money is an Executive function which, in relation to the
money, has always been exercised through the Secretary of the Treasury
and his subordinates; that in the performance of these duties he is
subject to the supervision and control of the President, and in all
important measures having relation to them consults the Chief Magistrate
and obtains his approval and sanction; that the law establishing the
bank did not, as it could not, change the relation between the President
and the Secretary--did not release the former from his obligation to
see the law faithfully executed nor the latter from the President's
supervision and control; that afterwards and before the Secretary did
in fact consult and obtain the sanction of the President to transfers
and removals of the public deposits, and that all departments of the
Government, and the nation itself, approved or acquiesced in these acts
and principles as in strict conformity with our Constitution and laws.
During the last year the approaching termination, according to the
provisions of its charter and the solemn decision of the American
people, of the Bank of the United States made it expedient, and its
exposed abuses and corruptions made it, in my opinion, the duty of the
Secretary of the Treasury, to place the moneys of the United States in
other depositories. The Secretary did not concur in that opinion, and
declined giving the necessary order and direction. So glaring were the
abuses and corruptions of the bank, so evident its fixed purpose to
persevere in them, and so palpable its design by its money and power to
control the Government and change its character, that I deemed it the
imperative duty of the Executive authority, by the exertion of every
power confided to it by the Constitution and laws, to check its career
and lessen its ability to do mischief, even in the painful alternative
of dismissing the head of one of the Departments. At the time the
removal was made other causes sufficient to justify it existed, but
if they had not the Secretary would have been dismissed for this
cause only.
His place I supplied by one whose opinions were well known to me,
and whose frank expression of them in another situation and generous
sacrifices of interest and feeling when unexpectedly called to the
station he now occupies ought forever to have shielded his motives from
Suspicion and his character from reproach. In accordance with the views
long before expressed by him he proceeded, with my sanction, to make
arrangements for depositing the moneys of the United States in other
safe institutions.
The resolution of the Senate as originally framed and as passed, if it
refers to these acts, presupposes a right in that body to interfere with
this exercise of Executive power. If the principle be once admitted, it
is not difficult to perceive where it may end. If by a mere denunciation
like this resolution the President should ever be induced to act in a
matter of official duty contrary to the honest convictions of his own
mind in compliance with the wishes of the Senate, the constitutional
independence of the executive department would be as effectually
destroyed and its power as effectually transferred to the Senate as if
that end had been accomplished by an amendment of the Constitution. But
if the Senate have a right to interfere with the Executive powers, they
have also the right to make that interference effective, and if the
assertion of the power implied in the resolution be silently acquiesced
in we may reasonably apprehend that it will be followed at some future
day by an attempt at actual enforcement. The Senate may refuse, except
on the condition that he will surrender his opinions to theirs and obey
their will, to perform their own constitutional functions, to pass the
necessary laws, to sanction appropriations proposed by the House of
Representatives, and to confirm proper nominations made by the
President. It has already been maintained (and it is not conceivable
that the resolution of the Senate can be based on any other principle)
that the Secretary of the Treasury is the officer of Congress and
independent of the President; that the President has no right to control
him, and consequently none to remove him. With the same propriety and on
similar grounds may the Secretary of State, the Secretaries of War and
the Navy, and the Postmaster-General each in succession be declared
independent of the President, the subordinates of Congress, and
removable only with the concurrence of the Senate. Followed to its
consequences, this principle will be found effectually to destroy one
coordinate department of the Government, to concentrate in the hands
of the Senate the whole executive power, and to leave the President
as powerless as he would be useless--the shadow of authority after
the substance had departed.
The time and the occasion which have called forth the resolution of the
Senate seem to impose upon me an additional obligation not to pass it
over in silence. Nearly forty-five years had the President exercised,
without a question as to his rightful authority, those powers for the
recent assumption of which he is now denounced. The vicissitudes of
peace and war had attended our Government; violent parties, watchful to
take advantage of any seeming usurpation on the part of the Executive,
had distracted our councils; frequent removals, or forced resignations
in every sense tantamount to removals, had been made of the Secretary
and other officers of the Treasury, and yet in no one instance is it
known that any man, whether patriot or partisan, had raised his voice
against it as a violation of the Constitution. The expediency and
justice of such changes in reference to public officers of all grades
have frequently been the topic of discussion, but the constitutional
right of the President to appoint, control, and remove the head of the
Treasury as well as all other Departments seems to have been universally
conceded. And what is the occasion upon which other principles have been
first officially asserted? The Bank of the United States, a great
moneyed monopoly, had attempted to obtain a renewal of its charter
by controlling the elections of the people and the action of the
Government. The use of its corporate funds and power in that attempt
was fully disclosed, and it was made known to the President that the
corporation was putting in train the same course of measures, with the
view of making another vigorous effort, through an interference in
the elections of the people, to control public opinion and force the
Government to yield to its demands. This, with its corruption of the
press, its violation of its charter, its exclusion of the Government
directors from its proceedings, its neglect of duty and arrogant
pretensions, made it, in the opinion of the President, incompatible with
the public interest and the safety of our institutions that it should
be longer employed as the fiscal agent of the Treasury. A Secretary of
the Treasury appointed in the recess of the Senate, who had not been
confirmed by that body, and whom the President might or might not at
his pleasure nominate to them, refused to do what his superior in the
executive department considered the most imperative of his duties, and
became in fact, however innocent his motives, the protector of the bank.
And on this occasion it is discovered for the first time that those who
framed the Constitution misunderstood it; that the First Congress and
all its successors have been under a delusion; that the practice of near
forty-five years is but a continued usurpation; that the Secretary of
the Treasury is not responsible to the President, and that to remove him
is a violation of the Constitution and laws for which the President
deserves to stand forever dishonored on the journals of the Senate.
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.
The two branches of the legislature of the State of Maine on the 25th
of January, 1834, passed a preamble and series of resolutions in the
following words:
Whereas at an early period after the election of Andrew Jackson to the
Presidency, in accordance with the sentiments which he had uniformly
expressed, the attention of Congress was called to the constitutionality
and expediency of the renewal of the charter of the United States Bank;
and
Whereas the bank has transcended its chartered limits in the management
of its business transactions, and has abandoned the object of its
creation by engaging in political controversies, by wielding its power
and influence to embarrass the Administration of the General Government,
and by bringing insolvency and distress upon the commercial community;
and
Whereas the public security from such an institution consists less in
its present pecuniary capacity to discharge its liabilities than in the
fidelity with which the trusts reposed in it have been executed; and
Whereas the abuse and misapplication of the powers conferred have
destroyed the confidence of the public in the officers of the bank and
demonstrated that such powers endanger the stability of republican
institutions: Therefore,
_Resolved_, That in the removal of the public deposits from the Bank
of the United States, as well as in the manner of their removal, we
recognize in the Administration an adherence to constitutional rights
and the performance of a public duty.
_Resolved_, That this legislature entertain the same opinion as
heretofore expressed by preceding legislatures of this State, that the
Bank of the United States ought not to be rechartered.
_Resolved_, That the Senators of this State in the Congress of the
United States be instructed and the Representatives be requested to
oppose the restoration of the deposits and the renewal of the charter
of the United States Bank.
On the 11th of January, 1834, the house of assembly and council
composing the legislature of the State of New Jersey passed a preamble
and a series of resolutions in the following words:
Whereas the present crisis in our public affairs calls for a decided
expression of the voice of the people of this State; and
Whereas we consider it the undoubted right of the legislatures of the
several States to instruct those who represent their interests in the
councils of the nation in all matters which intimately concern the
public weal and may affect the happiness or well-being of the people:
Therefore,
1. _Be it resolved by the council and general assembly of this State_,
That while we acknowledge with feelings of devout gratitude our
obligations to the Great Ruler of Nations for His mercies to us as a
people that we have been preserved alike from foreign war, from the
evils of internal commotions, and the machinations of designing and
ambitious men who would prostrate the fair fabric of our Union, that
we ought nevertheless to humble ourselves in His presence and implore
His aid for the perpetuation of our republican institutions and for a
continuance of that unexampled prosperity which our country has hitherto
enjoyed.
2. _Resolved_, That we have undiminished confidence in the integrity and
firmness of the venerable patriot who now holds the distinguished post
of Chief Magistrate of this nation, and whose purity of purpose and
elevated motives have so often received the unqualified approbation of
a large majority of his fellow-citizens.
3. _Resolved_, That we view with agitation and alarm the existence of a
great moneyed incorporation which threatens to embarrass the operations
of the Government and by means of its unbounded influence upon the
currency of the country to scatter distress and ruin throughout the
community, and that we therefore solemnly believe the present Bank of
the United States ought not to be rechartered.
4. _Resolved_, That our Senators in Congress be instructed and our
members of the House of Representatives be requested to sustain, by
their votes and influence, the course adopted by the Secretary of the
Treasury, Mr. Taney, in relation to the Bank of the United States and
the deposits of the Government moneys, believing as we do the course
of the Secretary to have been constitutional, and that the public good
required its adoption.
5. _Resolved_, That the governor be requested to forward a copy of the
above resolutions to each of our Senators and Representatives from this
State to the Congress of the United States.
On the 21st day of February last the legislature of the same State
reiterated the opinions and instructions before given by joint
resolutions in the following words:
_Resolved by the council and general assembly of the State of New
Jersey_, That they do adhere to the resolutions passed by them on the
11th day of January last, relative to the President of the United
States, the Bank of the United States, and the course of Mr. Taney
in removing the Government deposits.
_Resolved_, That the legislature of New Jersey have not seen any
reason to depart from such resolutions since the passage thereof,
and it is their wish that they should receive from our Senators and
Representatives of this State in the Congress of the United States that
attention and obedience which are due to the opinion of a sovereign
State openly expressed in its legislative capacity.
On the 2d of January, 1834, the senate and house of representatives
composing the legislature of Ohio passed a preamble and resolutions in
the following words:
Whereas there is reason to believe that the Bank of the United States
will attempt to obtain a renewal of its charter at the present session
of Congress; and
Whereas it is abundantly evident that said bank has exercised powers
derogatory to the spirit of our free institutions and dangerous to the
liberties of these United States; and
Whereas there is just reason to doubt the constitutional power of
Congress to grant acts of incorporation for banking purposes out of
the District of Columbia; and
Whereas we believe the proper disposal of the public lands to be of the
utmost importance to the people of these United States, and that honor
and good faith require their equitable distribution: Therefore,
_Resolved by the general assembly of the State of Ohio_, That we
consider the removal of the public deposits from the Bank of the United
States as required by the best interests of our country, and that a
proper sense of public duty imperiously demanded that that institution
should be no longer used as a depository of the public funds.
_Resolved also_, That we view with decided disapprobation the renewed
attempts in Congress to secure the passage of the bill providing for the
disposal of the public domain upon the principles proposed by Mr. Clay,
inasmuch as we believe that such a law would be unequal in its
operations and unjust in its results.
_Resolved also_, That we heartily approve of the principles set forth
in the late veto message upon that subject; and
_Resolved_, That our Senators in Congress be instructed and our
Representatives requested to use their influence to prevent the
rechartering of the Bank of the United States, to sustain the
Administration in its removal of the public deposits, and to oppose the
passage of a land bill containing the principles adopted in the act upon
that subject passed at the last session of Congress.
_Resolved_, That the governor be requested to transmit copies of the
foregoing preamble and resolutions to each of our Senators and
Representatives.
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 offense 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-two votes out of
forty-six for censuring the President, and the unprecedented record
of his conviction could not have been placed upon the Journal of the
Senate.
In thus referring to the resolutions and instructions of the 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 dangerous tendency of the doctrine which denies to the President
the power of supervising, directing, and controlling the Secretary of
the Treasury in like manner with the other executive officers would
soon be manifest in practice were the doctrine to be established. The
President is the direct representative of the American people, but the
Secretaries are not. If the Secretary of the Treasury be independent
of the President in the execution of the laws, then is there no direct
responsibility to the people in that important branch of this Government
to which is committed the care of the national finances. And it is in
the power of the Bank of the United States, or any other corporation,
body of men, or individuals, if a Secretary shall be found to accord
with them in opinion or can be induced in practice to promote their
views, to control through him the whole action of the Government
(so far as it is exercised by his Department) in defiance of the Chief
Magistrate elected by the people and responsible to them.
But the evil tendency of the particular doctrine adverted to, though
sufficiently serious, would be as nothing in comparison with the
pernicious consequences which would inevitably flow from the approbation
and allowance by the people and the practice by the Senate of the
unconstitutional power of arraigning and censuring the official conduct
of the Executive in the manner recently pursued. Such proceedings are
eminently calculated to unsettle the foundations of the Government, to
disturb the harmonious action of its different departments, and to break
down the checks and balances by which the wisdom of its framers sought
to insure its stability and usefulness.
The honest differences of opinion which occasionally exist between the
Senate and the President in regard to matters in which both are obliged
to participate are sufficiently embarrassing; but if the course recently
adopted by the Senate shall hereafter be frequently pursued, it is not
only obvious that the harmony of the relations between the President and
the Senate will be destroyed, but that other and graver effects will
ultimately ensue. If the censures of the Senate be submitted to by the
President, the confidence of the people in his ability and virtue and
the character and usefulness of his Administration will soon be at an
end, and the real power of the Government will fall into the hands of a
body holding their offices for long terms, not elected by the people and
not to them directly responsible. If, on the other hand, the illegal
censures of the Senate should be resisted by the President, collisions
and angry controversies might ensue, discreditable in their progress and
in the end compelling the people to adopt the conclusion either that
their Chief Magistrate was unworthy of their respect or that the Senate
was chargeable with calumny and injustice. Either of these results would
impair public confidence in the perfection of the system and lead to
serious alterations of its framework or to the practical abandonment of
some of its provisions.
The influence of such proceedings on the other departments of the
Government, and more especially on the States, could not fail to be
extensively pernicious. When the judges in the last resort of official
misconduct themselves overleap the bounds of their authority as
prescribed by the Constitution, what general disregard of its provisions
might not their example be expected to produce? And who does not
perceive that such contempt of the Federal Constitution by one of its
most important departments would hold out the strongest temptations to
resistance on the part of the State sovereignties whenever they shall
suppose their just rights to have been invaded? Thus all the independent
departments of the Government, and the States which compose our
confederated Union, instead of attending to their appropriate duties and
leaving those who may offend to be reclaimed or punished in the manner
pointed out in the Constitution, would fall to mutual crimination and
recrimination and give to the people confusion and anarchy instead of
order and law, until at length some form of aristocratic power would be
established on the ruins of the Constitution or the States be broken
into separate communities.
Far be it from me to charge or to insinuate that the present Senate of
the United States intend in the most distant way to encourage such a
result. It is not of their motives or designs, but only of the tendency
of their acts, that it is my duty to speak. It is, if possible, to
make Senators themselves sensible of the danger which lurks under the
precedent set in their resolution, and at any rate to perform my duty
as the responsible head of one of the coequal departments of the
Government, that I have been compelled to point out the consequences
to which the discussion and passage of the resolution may lead if the
tendency of the measure be not checked in its inception. It is due to
the high trust with which I have been charged, to those who may be
called to succeed me in it, to the representatives of the people whose
constitutional prerogative has been unlawfully assumed, to the people
and to the States, and to the Constitution they have established that
I should not permit its provisions to be broken down by such an attack
on the executive department without at least some effort "to preserve,
protect, and defend" them. 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.
The resolution of the Senate contains an imputation upon my private as
well as upon my public character, and as it must stand forever on their
journals, I can not close this substitute for that defense 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 periled
property, fame, and life in defense 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
their 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 protection, 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 an 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 proceedings 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.