[Footnote 12: A memoir to be laid before the commission which may be
appointed to examine the law, intended to contain all the arguments and
facts by which it is to be supported.]
WASHINGTON, _February 10, 1835_.
_To the Senate of the United States_:
I have received the resolution of the Senate of the 2d instant,
requesting me to communicate copies of the charges, if any, which may
have been made to me against the official conduct of Gideon Fitz, late
surveyor-general south of the State of Tennessee, which caused his
removal from office.
The resolution is preceded by a preamble which alleges as reasons for
this request that the causes which may have produced the removal of the
officer referred to may contain information necessary to the action of
the Senate on the nomination of his successor and to the investigation
now in progress respecting the frauds in the sales of the public lands.
This is another of those calls for information made upon me by the
Senate which have, in my judgment, either related to the subjects
exclusively belonging to the executive department or otherwise
encroached on the constitutional powers of the Executive. Without
conceding the right of the Senate to make either of these requests,
I have yet, for the various reasons heretofore assigned in my several
replies, deemed it expedient to comply with several of them. It is now,
however, my solemn conviction that I ought no longer, from any motive
nor in any degree, to yield to these unconstitutional demands. Their
continued repetition imposes on me, as the representative and trustee of
the American people, the painful but imperious duty of resisting to the
utmost any further encroachment on the rights of the Executive. This
course is especially due to the present resolution. The President in
cases of this nature possesses the exclusive power of removal from
office, and, under the sanctions of his official oath and of his
liability to impeachment, he is bound to exercise it whenever the public
welfare shall require. If, on the other hand, from corrupt motives he
abuses this power, he is exposed to the same responsibilities. On no
principle known to our institutions can he be required to account
for the manner in which he discharges this portion of his public
duties, save only in the mode and under the forms prescribed by the
Constitution. The suggestion that the charges a copy of which is
requested by the Senate "may contain information necessary to their
action" on a nomination now before them can not vary the principle.
There is no necessary connection between the two subjects, and even if
there were the Senate have no right to call for that portion of these
matters which appertains to the separate and independent action of the
Executive. The intimation that these charges may also be necessary
"to the investigation now in progress respecting frauds in the sales of
public lands" is still more insufficient to authorize the present call.
Those investigations were instituted and have thus far been conducted
by the Senate in their legislative capacity, and with the view, it
is presumed, to some legislative action. If the President has in his
possession any information on the subject of such frauds, it is his duty
to communicate it to Congress, and it may undoubtedly be called for by
either House sitting in its legislative capacity, though even from such
a call all matters properly belonging to the exclusive duties of the
President must of necessity be exempted.
The resolution now before me purports to have been passed in executive
session, and I am bound to presume that if the information requested
therein should be communicated it would be applied in secret session to
"the investigation of frauds in the sales of the public lands." But,
if so applied, the distinction between the executive and legislative
functions of the Senate would not only be destroyed, but the citizen
whose conduct is impeached would lose one of his valuable securities,
that which is afforded by a public investigation in the presence of his
accusers and of the witnesses against him. Besides, a compliance with
the present resolution would in all probability subject the conduct and
motives of the President in the case of Mr. Fitz to the review of the
Senate when not sitting as judges on an impeachment, and even if this
consequence should not occur in the present case the compliance of the
Executive might hereafter be quoted as a precedent for similar and
repeated applications,
Such a result, if acquiesced in, would ultimately subject the
independent constitutional action of the Executive in a matter of great
national concernment to the domination and control of the Senate; if not
acquiesced in, it would lead to collisions between coordinate branches
of the Government, well calculated to expose the parties to indignity
and reproach and to inflict on the public interest serious and lasting
mischief.
I therefore decline a compliance with so much of the resolution of the
Senate as requests "copies of the charges, if any," in relation to Mr.
Fitz, and in doing so must be distinctly understood as neither affirming
nor denying that any such charges were made; but as the Senate may
lawfully call upon the President for information properly appertaining
to nominations submitted to them, I have the honor, in this respect, to
reply that I have none to give them in the case of the person nominated
as successor to Mr. Fitz, except that I believe him, from sources
entitled to the highest credit, to be well qualified in abilities and
character to discharge the duties of the office in question.