A SPEECH DELIVERED IN THE SENATE OF THE UNITED STATES, ON THE 7th OF
MAY, 1834, ON THE SUBJECT OF THE PRESIDENT'S PROTEST AGAINST THE
RESOLUTION OF THE SENATE OF THE 28TH OF MARCH.
Mr. President,--I feel the magnitude of this question. We are coming to
a vote which cannot fail to produce important effects on the character
of the Senate, and the character of the government.
Unhappily, Sir, the Senate finds itself involved in a controversy with
the President of the United States; a man who has rendered most
distinguished services to his country, who has hitherto possessed a
degree of popular favor perhaps never exceeded, and whose honesty of
motive and integrity of purpose are still admitted by those who maintain
that his administration has fallen into lamentable errors.
On some of the interesting questions in regard to which the President
and Senate hold opposite opinions, the more popular branch of the
legislature concurs with the executive. It is not to be concealed that
the Senate is engaged against imposing odds. It can sustain itself only
by its own prudence and the justice of its cause. It has no patronage by
which to secure friends; it can raise up no advocates through the
dispensation of favors, for it has no favors to dispense. Its very
constitution, as a body whose members are elected for a long term, is
capable of being rendered obnoxious, and is daily made the subject of
opprobrious remark. It is already denounced as independent of the
people, and aristocratic. Nor is it, like the other house, powerful in
its numbers; not being, like that, so large as that its members come
constantly in direct and extensive contact with the whole people. Under
these disadvantages, Sir, which, we may be assured, will be pressed and
urged to the utmost length, there is but one course for us. The Senate
must stand on its rendered reasons. It must put forth the grounds of its
proceedings, and it must then rely on the intelligence and patriotism of
the people to carry it through the contest.
As an individual member of the Senate, it gives me great pain to be
engaged in such a conflict with the executive government. The
occurrences of the last session are fresh in the recollection of all of
us; and having felt it to be my duty, at that time, to give my cordial
support to highly important measures of the administration, I ardently
hoped that nothing might occur to place me afterwards in an attitude of
opposition. In all respects, and in every way, it would have been far
more agreeable to me to find nothing in the measures of the executive
government which I could not cheerfully support. The present occasion of
difference has not been sought or made by me. It is thrust upon me, in
opposition to strong opinions and wishes, on my part not concealed. The
interference with the public deposits dispelled all hope of continued
concurrence with the administration, and was a measure so uncalled for,
so unnecessary, and, in my judgment, so illegal and indefensible, that,
with whatever reluctance it might be opposed by me, opposition was
unavoidable.
The paper before us has grown out of this interference. It is a paper
which cannot be treated with indifference. The doctrines which it
advances, the circumstances which have attended its transmission to the
Senate, and the manner in which the Senate may now dispose of it, will
form a memorable era in the history of the government. We are either to
enter it on our journals, concur in its sentiments, and submit to its
rebuke, or we must answer it, with the respect due to the chief
magistrate, but with such animadversion on its doctrines as they
deserve, and with the firmness imposed upon us by our public duties.
I shall proceed, then, Sir, to consider the circumstances which gave
rise to this Protest; to examine the principles which it attempts to
establish; and to compare those principles with the Constitution and the
laws.
On the 28th day of March, the Senate adopted a resolution declaring
that, "in the late executive proceedings in relation to the public
revenue, the President had assumed a power not conferred by the
Constitution and laws, but in derogation of both." In that resolution I
concurred.
It is not a direct question, now again before us, whether the President
really had assumed such illegal power; that point is decided, so far as
the Senate ever can decide it. But the Protest denies that, supposing
the President to have assumed such illegal power, the Senate could
properly pass the resolution; or, what is the same thing, it denies that
the Senate could, in this way, express any opinion about it. It denies
that the Senate has any right, by resolution, in this or any other case,
to express disapprobation of the President's conduct, let that conduct
be what it may; and this, one of the leading doctrines of the Protest, I
propose to consider. But as I concurred in the resolution of the 28th of
March, and did not trouble the Senate, at that time, with any statement
of my own reasons, I will avail myself of this opportunity to explain,
shortly, what those reasons were.
In the first place, then, I have to say, that I did not vote for the
resolution on the mere ground of the removal of Mr. Duane from the
office of Secretary of the Treasury. Although I disapprove of the
removal altogether, yet the power of removal does exist in the
President, according to the established construction of the
Constitution; and therefore, although in a particular case it may be
abused, and, in my opinion, was abused in this case, yet its exercise
cannot be justly said to be an assumption or usurpation. We must all
agree that Mr. Duane is out of office. He has, therefore, been removed
by a power constitutionally competent to remove him, whatever may be
thought of the exercise of that power under the circumstances of the
case.
If, then, the act of removing the Secretary be not the assumption of
power which the resolution declares, in what is that assumption found?
Before giving a precise answer to this inquiry, allow me to recur to
some of the principal previous events.
At the end of the last session of Congress, the public moneys of the
United States were still in their proper place. That place was fixed by
the law of the land, and no power of change was conferred on any other
human being than the Secretary of the Treasury. On him the power of
change was conferred, to be exercised by himself, if emergency should
arise, and to be exercised for reasons which he was bound to lay before
Congress. No other officer of the government had the slightest pretence
of authority to lay his hand on these moneys for the purpose of changing
the place of their custody. All the other heads of departments together
could not touch them. The President could not touch them. The power of
change was a trust confided to the discretion of the Secretary, and to
his discretion alone. The President had no more authority to take upon
himself this duty, thus assigned expressly by law to the Secretary, than
he had to make the annual report to Congress, or the annual commercial
statements, or to perform any other service which the law specially
requires of the Secretary. He might just as well sign the warrants for
moneys, in the ordinary daily disbursements of government, instead of
the Secretary. The statute had assigned the especial duty of removing
the deposits, if removed at all, to the Secretary of the Treasury, and
to him alone. The consideration of the propriety or necessity of removal
must be the consideration of the Secretary; the decision to remove, his
decision; and the act of removal, his act.
Now, Sir, on the 18th day of September last, a resolution was taken to
remove these deposits from their legislative, that is to say, their
legal custody. _Whose resolution was this?_ On the 1st of October, they
were removed. _By whose power was this done?_ The papers necessary to
accomplish the removal (that is, the orders and drafts) are, it is true,
signed by the Secretary. The President's name is not subscribed to them;
nor does the Secretary, in any of them, recite or declare that he does
the act by direction of the President, or on the President's
responsibility. In form, the whole proceeding is the proceeding of the
Secretary, and, as such, had the legal effect. The deposits were
removed. But whose act was it, in truth and reality? Whose will
accomplished it? On whose responsibility was it adopted?
These questions are all explicitly answered by the President himself, in
the paper, under his own hand, read to the Cabinet on the 18th of
September, and published by his authority. In this paper the President
declares, in so many words, that he begs his Cabinet to consider the
proposed measure as his own; that its responsibility has been assumed by
him; and that he names the first day of October as a period proper for
its execution.
Now, Sir, it is precisely this which I deem an assumption of power not
conferred by the Constitution and laws. I think the law did not give
this authority to the President, nor impose on him the responsibility of
its exercise. It is evident that, in this removal, the Secretary was in
reality nothing but the scribe; he was the pen in the President's hand,
and no more. Nothing depended on his discretion, his judgment, or his
responsibility. The removal, indeed, has been admitted and defended in
the Senate, as the direct act of the President himself. This, Sir, is
what I call assumption of power. If the President had issued an order
for the removal of the deposits in his own name, and under his own hand,
it would have been an illegal order, and the bank would not have been at
liberty to obey it. For the same reason, if the Secretary's order had
recited that it was issued by the President's direction, and on the
President's authority, it would have shown on its face that it was
illegal and invalid. No one can doubt that. The act of removal, to be
lawful, must be the _bonâ fide_ act of the Secretary; _his_ judgment,
the result of _his_ deliberations, the volition of _his_ mind. All are
able to see the difference between the power to remove the Secretary
from office, and the power to control him, in all or any of his duties,
while in office. The law charges the officer, whoever he may be, with
the performance of certain duties. The President, with the consent of
the Senate, appoints an individual to be such officer; and this
individual he may remove, if he so please; but, until removed, he is the
officer, and remains charged with the duties of his station, duties
which nobody else can perform, and for the neglect or violation of which
he is liable to be impeached.
The distinction is visible and broad between the power of removal and
the power to control an officer not removed. The President, it is true,
may terminate his political life; but he cannot control his powers and
functions, and act upon him as a mere machine, while he is allowed to
live. The power of control and direction, nowhere given, certainly, by
any express provision of the Constitution or laws, is derived, by those
who maintain it, from the right of removal; that is to say, it is a
constructive power; it has no express warrant in the Constitution. A
very important power, then, is raised by construction in the first
place; and being thus raised, it becomes a fountain out of which other
important powers, raised also by construction, are to be supplied. There
is no little danger that such a mode of reasoning may be carried too
far. It cannot be maintained that the power of direct control
necessarily flows from the power of removal. Suppose it had been decided
in 1789, when the question was debated, that the President does not
possess the power of removal; will it be contended, that, in that case,
his right of interference with the acts and duties of executive officers
would be less than it now is? The reason of the thing would seem to be
the other way. If the President may remove an incumbent when he becomes
satisfied of his unfaithfulness and incapacity, there would appear to be
less necessity to give him also a right of control, than there would be
if he could not remove him.
We may try this question by supposing it to arise in a judicial
proceeding. If the Secretary of the Treasury were impeached for removing
the deposits, could he justify himself by saying that he did it by the
President's direction? If he could, then no executive officer could ever
be impeached who obeys the President; and the whole notion of making
such officers impeachable at all would be farcical. If he could not so
justify himself, (and all will allow he could not,) the reason can only
be that the act of removal is his own act; the power, a power confided
to him, for the just exercise of which the law looks to his discretion,
his honesty, and his direct responsibility.
Now, Sir, the President wishes the world to understand that he himself
decided on the question of the removal of the deposits; that he took the
whole responsibility of the measure upon himself; that he wished it to
be considered _his own act_; that he not only himself decided that the
thing should be done, but regulated its details also, and named the day
for carrying it into effect.
I have always entertained a very erroneous view of the partition of
powers, and of the true nature of official responsibility under our
Constitution, if this be not a plain case of the assumption of power.
The legislature had fixed a place, by law, for the keeping of the public
money. They had, at the same time and by the same law, created and
conferred a power of removal, to be exercised contingently. This power
they had vested in the Secretary, by express words. The law did not say
that the deposits should be made in the bank, unless the President
should order otherwise; but it did say that they should be made there,
unless the Secretary of the Treasury should order otherwise. I put it to
the plain sense and common candor of all men, whether the discretion
thus to be exercised over the subject was not the Secretary's own
personal discretion; and whether, therefore, the interposition of the
authority of another, acting directly and conclusively on the subject,
deciding the whole question, even in its particulars and details, be not
an assumption of power?
The Senate regarded this interposition as an encroachment by the
executive on other branches of the government; as an interference with
the legislative disposition of the public treasure. It was strongly and
forcibly urged, yesterday, by the honorable member from South Carolina,
that the true and only mode of preserving any balance of power, in mixed
governments, is to keep an exact balance. This is very true, and to this
end encroachment must be resisted at the first step. The question is,
therefore, whether, upon the true principles of the Constitution, this
exercise of power by the President can be justified. Whether the
consequences be prejudicial or not, if there be an illegal exercise of
power, it is to be resisted in the proper manner. Even if no harm or
inconvenience result from transgressing the boundary, the intrusion is
not to be suffered to pass unnoticed. Every encroachment, great or
small, is important enough to awaken the attention of those who are
intrusted with the preservation of a constitutional government. We are
not to wait till great public mischiefs come, till the government is
overthrown, or liberty itself put into extreme jeopardy. We should not
be worthy sons of our fathers were we so to regard great questions
affecting the general freedom. Those fathers accomplished the Revolution
on a strict question of principle. The Parliament of Great Britain
asserted a right to tax the Colonies in all cases whatsoever; and it was
precisely on this question that they made the Revolution turn. The
amount of taxation was trifling, but the claim itself was inconsistent
with liberty; and that was, in their eyes, enough. It was against the
recital of an act of Parliament, rather than against any suffering under
its enactments, that they took up arms. They went to war against a
preamble. They fought seven years against a declaration. They poured out
their treasures and their blood like water, in a contest against an
assertion which those less sagacious and not so well schooled in the
principles of civil liberty would have regarded as barren phraseology,
or mere parade of words. They saw in the claim of the British Parliament
a seminal principle of mischief, the germ of unjust power; they detected
it, dragged it forth from underneath its plausible disguises, struck at
it; nor did it elude either their steady eye or their well-directed blow
till they had extirpated and destroyed it, to the smallest fibre. On
this question of principle, while actual suffering was yet afar off,
they raised their flag against a power, to which, for purposes of
foreign conquest and subjugation, Rome, in the height of her glory, is
not to be compared; a power which has dotted over the surface of the
whole globe with her possessions and military posts, whose morning
drum-beat, following the sun, and keeping company with the hours,
circles the earth with one continuous and unbroken strain of the martial
airs of England.
The necessity of holding strictly to the principle upon which free
governments are constructed, and to those precise lines which fix the
partitions of power between different branches, is as plain, if not as
cogent, as that of resisting, as our fathers did, the strides of the
parent country against the rights of the Colonies; because, whether the
power which exceeds its just limits be foreign or domestic, whether it
be the encroachment of all branches on the rights of the people, or that
of one branch on the rights of others, in either case the balanced and
well-adjusted machinery of free government is disturbed, and, if the
derangement go on, the whole system must fall.
But the case before us is not a case of merely theoretic infringement;
nor is it one of trifling importance. Far otherwise. It respects one of
the highest and most important of all the powers of government; that is
to say, the custody and control of the public money. The act of removing
the deposits, which I now consider as the President's act, and which his
friends on this floor defend as his act, took the national purse from
beneath the security and guardianship of the law, and disposed of its
contents, in parcels, in such places of deposit as he chose to select.
At this very moment, every dollar of the public treasure is subject, so
far as respects its custody and safe-keeping, to his unlimited control.
We know not where it is to-day; still less do we know where it may be
to-morrow.
But, Mr. President, this is not all. There is another part of the case,
which has not been so much discussed, but which appears to me to be
still more indefensible in its character. It is something which may well
teach us the tendency of power to move forward with accelerated pace, if
it be allowed to take the first step. The Bank of the United States, in
addition to the services rendered to the treasury, gave for its charter,
and for the use of the public deposits, a _bonus_ or outright sum of one
million and a half of dollars. This sum was paid by the bank into the
treasury soon after the commencement of its charter. In the act which
passed both houses for renewing the charter, in 1832, it was provided
that the bank, for the same consideration, should pay two hundred
thousand dollars a year during the period for which it was proposed to
renew it. A similar provision is in the bill which I asked leave to
introduce some weeks ago. Now, Sir, this shows that the custody of the
deposits is a benefit for which a bank may well afford to pay a large
annual sum. The banks which now hold the deposits pay nothing to the
public; they give no _bonus_, they pay no annuity. But this loss of so
much money is not the worst part of the case, nor that which ought most
to alarm us. Although they pay nothing to the public, they do pay,
nevertheless, such sums, and for such uses, as may be agreed upon
between themselves and the executive government. We are officially
informed that an officer is appointed by the Secretary of the Treasury
to inspect or superintend these selected banks; and this officer is
compensated by a salary fixed by the executive, agreed to by the banks,
and paid by them. I ask, Sir, if there can be a more irregular or a more
illegal transaction than this? Whose money is it out of which this
salary is paid? Is it not money justly due to the United States, and
paid, because it is so due, for the advantage of holding the deposits?
If a dollar is received on that account, is not its only true
destination into the general treasury of the government? And who has
authority, without law, to create an office, to fix a salary, and to pay
that salary out of this money? Here is an inspector or supervisor of the
deposit banks. But what law has provided for such an officer? What
commission has he received? Who concurred in his appointment? What oath
does he take? How is he to be punished or impeached if he colludes with
any of these banks to embezzle the public money or defraud the
government? The value of the use of this public money to the deposit
banks is probably two hundred thousand dollars a year; or, if less than
that, it is yet, certainly, a very great sum. May the President appoint
whatever officers he pleases, with whatever duties he pleases, and pay
them as much as he pleases, out of the moneys thus paid by the banks,
for the sake of having the deposits?
Mr. President, the executive claim of power is exactly this, that the
President may keep the money of the public in whatever banks he chooses,
on whatever terms he chooses, and apply the sums which these banks are
willing to pay for its use to whatever purposes he chooses. These sums
are not to come into the general treasury. They are to be appropriated
before they get there; they are never to be brought under the control of
Congress; they are to be paid to officers and agents not known to the
law, not nominated to the Senate, and responsible to nobody but the
executive itself. I ask gentlemen if all this be lawful. Are they
prepared to defend it? Will they stand up and justify it? In my opinion,
Sir, it is a clear and most dangerous assumption of power. It is the
creation of office without law; the appointment to office without
consulting the Senate; the establishment of a salary without law; and
the payment of that salary out of a fund which itself is derived from
the use of the public treasures. This, Sir, is my other reason for
concurring in the vote of the 28th of March; and on these grounds I
leave the propriety of that vote, so far as I am concerned with it, to
be judged of by the country.
But, Sir, the President denies the power of the Senate to pass any such
resolution, on any ground whatever. Suppose the declaration contained in
the resolution to be true; suppose the President had, in fact, assumed
powers not granted to him; does the Senate possess the right to declare
its opinion, affirming this fact, or does it not? I maintain that the
Senate does possess such a power; the President denies it.
Mr. President, we need not look far, nor search deep, for the foundation
of this right in the Senate. It is close at hand, and clearly visible.
In the first place, it is the right of self-defence. In the second
place, it is a right founded on the duty of representative bodies, in a
free government, to defend the public liberty against encroachment. We
must presume that the Senate honestly entertained the opinion expressed
in the resolution of the 28th of March; and, entertaining that opinion,
its right to express it is but the necessary consequence of its right to
defend its own constitutional authority, as one branch of the
government. This is its clear right, and this, too, is its imperative
duty.
If one or both the other branches of the government happen to do that
which appears to us inconsistent with the constitutional rights of the
Senate, will any one say that the Senate is yet bound to be passive, and
to be silent? to do nothing, and to say nothing? Or, if one branch
appears to encroach on the rights of the other two, have these two no
power of remonstrance, complaint, or resistance? Sir, the question may
be put in a still more striking form. Has the Senate a right _to have an
opinion_ in a case of this kind? If it may have an opinion, how is that
opinion to be ascertained but by resolution and vote? The objection must
go the whole length; it must maintain that the Senate has not only no
right to express opinions, but no right to form opinions, on the conduct
of the executive government, though in matters intimately affecting the
powers and duties of the Senate itself. It is not possible, Sir, that
such a doctrine can be maintained for a single moment. All political
bodies resist what they deem encroachments by resolutions expressive of
their sentiments, and their purpose to resist such encroachments. When
such a resolution is presented for its consideration, the question is,
whether it be true; not whether the body has authority to pass it,
admitting it to be true. The Senate, like other public bodies, is
perfectly justifiable in defending, in this mode, either its legislative
or executive authority. The usages of Parliament, the practice in our
State legislatures and assemblies, both before and since the Revolution,
and precedents in the Senate itself, fully maintain this right. The case
of the Panama mission is in point. In that case, Mr. Branch, from North
Carolina, introduced a resolution, which, after reciting that the
President, in his annual message and in his communication to the Senate,
had asserted that he possessed an authority to make certain
appointments, _although the appointments had not been made_, went on to
declare that "_a silent acquiescence on the part of this body may, at
some future time, be drawn into dangerous precedent_"; and to resolve,
therefore, that the President does not possess the right or power said
to be claimed by him. This resolution was discussed, and finally laid on
the table. But the question discussed was, whether the resolution was
correct, in fact and principle; not whether the Senate had any right to
pass such resolution. So far as I remember, no one pretended that, if
the President had exceeded his authority, the Senate might not so
declare by resolution. No one ventured to contend that, whether the
rights of the Senate were invaded or not, the Senate must hold its
peace.
The Protest labors strenuously to show that the Senate adopted the
resolution of the 28th of March, under its _judicial_ authority. The
reason of this attempt is obvious enough. If the Senate, in its judicial
character, has been trying the President, then he has not had a regular
and formal trial; and, on that ground, it is hoped the public sympathy
may be moved. But the Senate has acted not in its judicial, but in its
legislative capacity. As a legislative body, it has defended its own
just authority, and the authority of the other branch of the
legislature. Whatever attacks our own rights and privileges, or whatever
encroaches on the power of both houses, we may oppose and resist, by
declaration, resolution, or other similar proceedings. If we look to the
books of precedents, if we examine the journals of legislative bodies,
we find everywhere instances of such proceedings.
It is to be observed, Sir, that the Protest imposes silence on the House
of Representatives as well as on the Senate. It declares that no power
is conferred on either branch of the legislature, to consider or decide
upon official acts of the executive, for the purpose of censure, and
without a view to legislation or impeachment. This, I think, Sir, is
pretty high-toned pretension. According to this doctrine, neither house
could assert its own rights, however the executive might assail them;
neither house could point out the danger to the people, however fast
executive encroachment might be extending itself, or whatever danger it
might threaten to the public liberties. If the two houses of Congress
may not express an opinion of executive conduct by resolution, there is
the same reason why they should not express it in any other form, or by
any other mode of proceeding. Indeed, the Protest limits both houses,
expressly, to the case of impeachment. If the House of Representatives
are not about to impeach the President, they have nothing to say of his
measures or of his conduct; and unless the Senate are engaged in trying
an impeachment, their mouths, too, are stopped. It is the practice of
the President to send us an annual message, in which he rehearses the
general proceedings of the executive for the past year. This message we
refer to our committees for consideration. But, according to the
doctrine of the Protest, they can express no opinion upon any executive
proceeding upon which it gives information. Suppose the President had
told us, in his last annual message, what he had previously told us in
his cabinet paper, that the removal of the deposits was _his_ act, done
on _his_ responsibility; and that the Secretary of the Treasury had
exercised no discretion, formed no judgment, presumed to have no opinion
whatever, on the subject. This part of the message would have been
referred to the committee on finance; but what could they say? They
think it shows a plain violation of the Constitution and the laws; but
the President is not impeached; therefore they can express no censure.
They think it a direct invasion of legislative power, but they must not
say so. They may, indeed, commend, if they can. The grateful business of
praise is lawful to them; but if, instead of commendation and applause,
they find cause for disapprobation, censure, or alarm, the Protest
enjoins upon them absolute silence.
Formerly, Sir, it was a practice for the President to meet both houses,
at the opening of the session, and deliver a speech, as is still the
usage of some of the State legislatures. To this speech there was an
answer from each house$ and those answers expressed, freely, the
sentiments of the house upon all the merits and faults of the
administration. The discussion of the topics contained in the speech,
and the debate on the answers, usually drew out the whole force of
parties, and lasted sometimes a week. President Washington's conduct, in
every year of his administration, was thus freely and publicly
canvassed. He did not complain of it; he did not doubt that both houses
had a perfect right to comment, with the utmost latitude, consistent
with decorum, upon all his measures. Answers, or amendments to answers,
were not unfrequently proposed, very hostile to his own course of public
policy, if not sometimes bordering on disrespect. And when they did
express respect and regard, there were votes ready to be recorded
against the expression of those sentiments. To all this President
Washington took no exception; for he well knew that these, and similar
proceedings, belonged to the power of popular bodies. But if the
President were now to meet us with a speech, and should inform us of
measures, adopted by himself in the recess, which should appear to us
the most plain, palpable, and dangerous violations of the Constitution,
we must, nevertheless, either keep respectful silence, or fill our
answer merely with courtly phrases of approbation.
Mr. President, I know not who wrote this Protest, but I confess I am
astonished, truly astonished, as well at the want of knowledge which it
displays of constitutional law, as at the high and dangerous pretensions
which it puts forth. Neither branch of the legislature can express
censure upon the President's conduct! Suppose, Sir, that we should see
him enlisting troops and raising an army, can we say nothing, and do
nothing? Suppose he were to declare war against a foreign power, and put
the army and the fleet in action; are we still to be silent? Suppose we
should see him borrowing money on the credit of the United States; are
we yet to wait for impeachment? Indeed, Sir, in regard to this borrowing
money on the credit of the United States, I wish to call the attention
of the Senate, not only to what might happen, but to what has actually
happened. We are informed that the Post-Office Department, a department
over which the President claims the same control as over the rest, _has
actually borrowed near half a million of money on the credit of the
United States_.
Mr. President, the first power granted to Congress by the Constitution
is the power to lay taxes; the second, the power to borrow money on the
credit of the United States. Now, Sir, where does the executive find its
authority, in or through any department, to borrow money without
authority of Congress? This proceeding appears to me wholly illegal, and
reprehensible in a very high degree. It may be said that it is not true
that this money is borrowed on the credit of the United States, but that
it is borrowed on the credit of the Post-Office Department. But that
would be mere evasion. The department is but a name. It is an office,
and nothing more. The banks have not lent this money to any officer. If
Congress should abolish the whole department to-morrow, would the banks
not expect the United States to replace this borrowed money? The money,
then, is borrowed on the credit of the United States, an act which
Congress alone is competent to authorize. If the Post-Office Department
may borrow money, so may the War Department and the Navy Department. If
half a million may be borrowed, ten millions may be borrowed. What,
then, if this transaction shall be justified, is to hinder the executive
from borrowing money to maintain fleets and armies, or for any other
purpose, at his pleasure, without any authority of law? Yet even this,
according to the doctrine of the Protest, we have no right to complain
of. We have no right to declare that an executive department has
violated the Constitution and broken the law, by borrowing money on the
credit of the United States. Nor could we make a similar declaration, if
we were to see the executive, by means of this borrowed money, enlisting
armies and equipping fleets. And yet, Sir, the President has found no
difficulty, heretofore, in expressing his opinions, _in a paper not
called for by the exercise of any official duty_, upon the conduct and
proceedings of the two houses of Congress. At the commencement of this
session, he sent us a message, commenting on the land bill which the two
houses passed at the end of the last session. That bill he had not
approved, nor had he returned it with objections. Congress was
dissolved; and the bill, therefore, was completely dead, and could not
be revived. No communication from him could have the least possible
effect as an official act. Yet he saw fit to send a message on the
subject, and in that message he very freely declares his opinion that
the bill which had passed both houses _began with an entire subversion
of every one of the compacts by which the United States became possessed
of their Western domain_; that one of its provisions _was in direct and
undisguised violation of the pledge given by Congress to the States_;
that the Constitution provides that these compacts shall be untouched by
the legislative power, which can only make needful rules and
regulations; and that all beyond that is _an assumption of undelegated
power_.
These are the terms in which the President speaks of an act of the two
houses; not in an official paper, not in a communication which it was
necessary for him to make to them; but in a message, adopted only as a
mode through which to make public these opinions. After this, it would
seem too late to enjoin on the houses of Congress a total forbearance
from all comment on the measures of the executive.
Not only is it the right of both houses, or of either, to resist, by
vote, declaration, or resolution, whatever it may deem an encroachment
of executive power, but it is also undoubtedly the right of either house
to oppose, in like manner, any encroachment by the other. The two houses
have each its own appropriate powers and authorities, which it is bound
to preserve. They have, too, different constituents. The members of the
Senate are representatives of States; and it is in the Senate alone that
the four-and-twenty States, as political bodies, have a direct influence
in the legislative and executive powers of this government. He is a
strange advocate of State rights, who maintains that this body, thus
representing the States, and thus being the strictly federal branch of
the legislature, may not assert and maintain all and singular its own
powers and privileges, against either or both of the other branches.
If any thing be done or threatened derogatory to the rights of the
States, as secured by the organization of the Senate, may we not lift up
our voices against it? Suppose the House of Representatives should vote
that the Senate ought not to propose amendments to revenue bills; would
it be the duty of the Senate to take no notice of such proceeding? Or,
if we were to see the President issuing commissions to office to persons
who had never been nominated to the Senate, are we not to remonstrate?
Sir, there is no end of cases, no end of illustrations. The doctrines of
the Protest, in this respect, cannot stand the slightest scrutiny; they
are blown away by the first breath of discussion.
And yet, Sir, it is easy to perceive why this right of declaring its
sentiments respecting the conduct of the executive is denied to either
house, in its legislative capacity. It is merely that the Senate might
be presented in the odious light of _trying_ the President, judicially,
without regular accusation or hearing. The Protest declares that the
President is _charged with a crime, and, without hearing or trial, found
guilty and condemned_. This is evidently an attempt to appeal to popular
feeling, and to represent the President as unjustly treated and unfairly
tried. Sir, it is a false appeal. The President has not been tried at
all; he has not been accused; he has not been charged with crime; he has
not been condemned. Accusation, trial, and sentence are terms belonging
to judicial proceedings. But the Senate has been engaged in no such
proceeding. The resolution of the 28th of March was not an exercise of
judicial power, either in form, in substance, or in intent. Everybody
knows that the Senate can exercise no judicial power until articles of
impeachment are brought before it. It is then to proceed, by accusation
and answer, hearing, trial, and judgment. But there has been no
impeachment, no answer, no hearing, no judgment. All that the Senate did
was to pass a resolution, in legislative form, declaring its opinion of
certain acts of the executive. This resolution imputed no crime; it
charged no corrupt motive; it proposed no punishment. It was directed,
not against the President personally, but against the act; and that act
it declared to be, in its judgment, an assumption of authority not
warranted by the Constitution.
It is in vain that the Protest attempts to shift the resolution to the
judicial character of the Senate. The case is too plain for such an
argument to be plausible. But, in order to lay some foundation for it,
the Protest, as I have already said, contends that neither the Senate
nor the House of Representatives can express its opinions on the conduct
of the President, except in some form connected with impeachment; so
that if the power of impeachment did not exist, these two houses, though
they be representative bodies, though one of them be filled by the
immediate representatives of the people, though they be constituted like
other popular and representative bodies, could not utter a syllable,
although they saw the executive either trampling on their own rights and
privileges, or grasping at absolute authority and dominion over the
liberties of the country! Sir, I hardly know how to speak of such claims
of impunity for executive encroachment. I am amazed that any American
citizen should draw up a paper containing such lofty pretensions;
pretensions which would have been met with scorn in England, at any time
since the Revolution of 1688. A man who should stand up, in either house
of the British Parliament, to maintain that the house could not, by vote
or resolution, maintain its own rights and privileges, would make even
the Tory benches hang their heads for very shame.
There was, indeed, a time when such proceedings were not allowed. Some
of the kings of the Stuart race would not tolerate them. A signal
instance of royal displeasure with the proceedings of Parliament
occurred in the latter part of the reign of James the First. The House
of Commons had spoken, on some occasion, "of its own undoubted rights
and privileges." The king thereupon sent them a letter, declaring that
_he would not allow that they had any undoubted rights; but that what
they enjoyed they might still hold by his own royal grace and
permission_. Sir Edward Coke and Mr. Granville were not satisfied with
this title to their privileges; and, under their lead, the house entered
on its journals a resolution asserting its privileges, _as its own
undoubted right_, and manifesting a determination to maintain them as
such. This, says the historian, so enraged his Majesty, that he sent for
the journal, had it brought into the Council, and there, in the presence
of his lords and great officers of state, tore out the offensive
resolution with his own royal hand. He then dissolved Parliament, and
sent its most refractory members to the Tower. I have no fear,
certainly, Sir, that this English example will be followed, on this
occasion, to its full extent; nor would I insinuate that any thing
outrageous has been thought of, or intended, except outrageous
pretensions; but such pretensions I must impute to the author of this
Protest, whoever that author may be.
When this and the other house shall lose the freedom of speech and
debate; when they shall surrender the rights of publicly and freely
canvassing all important measures of the executive; when they shall not
be allowed to maintain their own authority and their own privileges by
vote, declaration, or resolution,--they will then be no longer free
representatives of a free people, but slaves themselves, and fit
instruments to make slaves of others.
The Protest, Mr. President, concedes what it doubtless regards as a
liberal right of discussion to the people themselves. But its language,
even in acknowledging this right of the _people_ to discuss the conduct
of their servants, is qualified and peculiar. The free people of the
United States, it declares, have an undoubted right to discuss the
official conduct of the President in such language and form as they may
think proper, "subject only to the restraints of truth and justice."
But, then, who is to be judge of this truth and justice? Are the people
to judge for themselves, or are others to judge for them? The Protest is
here speaking of _political_ rights, and not moral rights; and if
restraints are imposed on _political_ rights, it must follow, of course,
that others are to decide whenever the case arises whether these
restraints have been violated. It is strange that the writer of the
Protest did not perceive that, by using this language, he was pushing
the President into a direct avowal of the doctrines of 1798. The text of
the Protest and the text of the obnoxious act[1] of that year are nearly
identical.
But, Sir, if the people have a right to discuss the official conduct of
the executive, so have their representatives. We have been taught to
regard a representative of the people as a sentinel on the watch-tower
of liberty. Is he to be blind, though visible danger approaches? Is he
to be deaf, though sounds of peril fill the air? Is he to be dumb, while
a thousand duties impel him to raise the cry of alarm? Is he not,
rather, to catch the lowest whisper which breathes intention or purpose
of encroachment on the public liberties, and to give his voice breath
and utterance at the first appearance of danger? Is not his eye to
traverse the whole horizon with the keen and eager vision of an
unhooded hawk, detecting, through all disguises, every enemy advancing,
in any form, towards the citadel which he guards? Sir, this watchfulness
for public liberty; this duty of foreseeing danger and proclaiming it;
this promptitude and boldness in resisting attacks on the Constitution
from any quarter; this defence of established landmarks; this fearless
resistance of whatever would transcend or remove them,--all belong to
the representative character, are interwoven with its very nature. If
deprived of them, an active, intelligent, faithful agent of the people
will be converted into an unresisting and passive instrument of power. A
representative body, which gives up these rights and duties, gives
itself up. It is a representative body no longer. It has broken the tie
between itself and its constituents, and henceforth is fit only to be
regarded as an inert, self-sacrificed mass, from which all appropriate
principle of vitality has departed for ever.
I have thus endeavored to vindicate the right of the Senate to pass the
resolution of the 28th of March, notwithstanding the denial of that
right in the Protest.
But there are other sentiments and opinions expressed in the Protest, of
the very highest importance, and which demand nothing less than our
utmost attention.
The first object of a free people is the preservation of their liberty;
and liberty is only to be preserved by maintaining constitutional
restraints and just divisions of political power. Nothing is more
deceptive or more dangerous than the pretence of a desire to simplify
government. The simplest governments are despotisms; the next simplest,
limited monarchies; but all republics, all governments of law, must
impose numerous limitations and qualifications of authority, and give
many positive and many qualified rights. In other words, they must be
subject to rule and regulation. This is the very essence of free
political institutions. The spirit of liberty is, indeed, a bold and
fearless spirit; but it is also a sharp-sighted spirit, it is a
cautious, sagacious, discriminating, far-seeing intelligence; it is
jealous of encroachment, jealous of power, jealous of man. It demands
checks; it seeks for guards; it insists on securities; it intrenches
itself behind strong defences, and fortifies itself with all possible
care against the assaults of ambition and passion. It does not trust the
amiable weaknesses of human nature, and therefore it will not permit
power to overstep its prescribed limits, though benevolence, good
intent, and patriotic purpose come along with it. Neither does it
satisfy itself with flashy and temporary resistance to illegal
authority. Far otherwise. It seeks for duration and permanence. It looks
before and after; and, building on the experience of ages which are
past, it labors diligently for the benefit of ages to come. This is the
nature of constitutional liberty; and this is _our_ liberty, if we will
rightly understand and preserve it. Every free government is necessarily
complicated, because all such governments establish restraints, as well
on the power of government itself as on that of individuals. If we will
abolish the distinction of branches, and have but one branch; if we will
abolish jury trials, and leave all to the judge; if we will then ordain
that the legislator shall himself be that judge; and if we will place
the executive power in the same hands, we may readily simplify
government. We may easily bring it to the simplest of all possible
forms, a pure despotism. But a separation of departments, so far as
practicable, and the preservation of clear lines of division between
them, is the fundamental idea in the creation of all our constitutions;
and, doubtless, the continuance of regulated liberty depends on
maintaining these boundaries.
In the progress, Sir, of the governments of the United States, we seem
exposed to two classes of dangers or disturbances; one external, the
other internal. It may happen that collisions arise between this
government and the governments of the States. That case belongs to the
first class. A memorable instance of this kind occurred last year. It
was my conscientious opinion, on that occasion, that the authority
claimed by an individual State[2] was subversive of the just powers of
this government, and, indeed, incompatible with its existence. I gave a
hearty co-operation, therefore, to measures which the crisis seemed to
require. We have now before us what appears, to my judgment, to be an
instance of the latter kind. A contest has arisen between different
branches of the same government, interrupting their harmony, and
threatening to disturb their balance. It is of the highest importance,
therefore, to examine the question carefully, and to decide it justly.
The separation of the powers of government into three departments,
though all our constitutions profess to be founded on it, has,
nevertheless, never been perfectly established in any government of the
world, and perhaps never can be. The general principle is of inestimable
value, and the leading lines of distinction sufficiently plain; yet
there are powers of so undecided a character, that they do not seem
necessarily to range themselves under either head. And most of our
constitutions, too, having laid down the general principle, immediately
create exceptions. There do not exist, in the general science of
government, or the received maxims of political law, such precise
definitions as enable us always to say of a given power whether it be
legislative, executive, or judicial. And this is one reason, doubtless,
why the Constitution, in conferring power on all the departments,
proceeds not by general definition, but by specific enumeration. And,
again, it grants a power in general terms, but yet, in the same or some
other article or section, imposes a limitation or qualification on the
grant; and the grant and the limitation must, of course, be construed
together. Thus the Constitution says that all legislative power, therein
granted, shall be vested in Congress, which Congress shall consist of a
Senate and a House of Representatives; and yet, in another article, it
gives to the President a qualified negative over all acts of Congress.
So the Constitution declares that the judicial power shall be vested in
one Supreme Court, and such inferior courts as Congress may establish.
It gives, nevertheless, in another provision, judicial power to the
Senate; and, in like manner, though it declares that the executive power
shall be vested in the President, using, in the immediate context, no
words of limitation, yet it elsewhere subjects the treaty-making power,
and the appointing power, to the concurrence of the Senate. The
irresistible inference from these considerations is, that the mere
nomination of a department, as one of the three great and commonly
acknowledged departments of government, does not confer on that
department any power at all. Notwithstanding the departments are called
the legislative, the executive, and the judicial, we must yet look into
the provisions of the Constitution itself, in order to learn, first,
what powers the Constitution regards as legislative, executive, and
judicial; and, in the next place, what portions or quantities of these
powers are conferred on the respective departments; because no one will
contend that _all_ legislative power belongs to Congress, _all_
executive power to the President, or _all_ judicial power to the courts
of the United States.
The first three articles of the Constitution, as all know, are taken up
in prescribing the organization, and enumerating the powers, of the
three departments. The first article treats of the legislature, and its
first section is, "All legislative power, _herein granted_, shall be
vested in a Congress of the United States, which shall consist of a
Senate and House of Representatives." The second article treats of the
executive power, and its first section declares that "the executive
power shall be vested in a President of the United States of America."
The third article treats of the judicial power, and its first section
declares that "the judicial power of the United States shall be vested
in one Supreme Court, and in such inferior courts as the Congress may,
from time to time, ordain and establish."
It is too plain to be doubted, I think, Sir, that these descriptions of
the persons or officers in whom the executive and the judicial powers
are to be vested no more define the extent of the grant of those powers,
than the words quoted from the first article describe the extent of the
legislative grant to Congress. All these several titles, heads of
articles, or introductory clauses, with the general declarations which
they contain, serve to designate the departments, and to mark the
general distribution of powers; but in all the departments, in the
executive and judicial as well as in the legislative, it would be unsafe
to contend for any specific power under such clauses.
If we look into the State constitutions, we shall find the line of
distinction between the departments still less perfectly drawn, although
the general principle of the distinction is laid down in most of them,
and in some of them in very positive and emphatic terms. In some of
these States, notwithstanding the principle of distribution is adopted
and sanctioned, the legislature appoints the judges; and in others it
appoints both the governor and the judges; and in others, again, it
appoints not only the judges, but all other officers.
The inferences which, I think, follow from these views of the subject,
are two: first, that the denomination of a department does not fix the
limits of the powers conferred on it, nor even their exact nature; and,
second (which, indeed, follows from the first), that in our American
governments, the chief executive magistrate does not necessarily, and by
force of his general character of supreme executive, possess the
appointing power. He may have it, or he may not, according to the
particular provisions applicable to each case in the respective
constitutions.
The President appears to have taken a different view of this subject. He
seems to regard the appointing power as originally and inherently in the
executive, and as remaining absolute in his hands, except so far as the
Constitution restrains it. This I do not agree to, and I shall have
occasion hereafter to examine the question further. I have intended thus
far only to insist on the high and indispensable duty of maintaining the
division of power _as the Constitution has marked out that division_,
and to oppose claims of authority not founded on express grants or
necessary implication, but sustained merely by argument or inference
from names or denominations given to departments.
Mr. President, the resolutions now before us declare, that the Protest
asserts powers as belonging to the President inconsistent with the
authority of the two houses of Congress, and inconsistent with the
Constitution; and that the Protest itself is a breach of privilege. I
believe all this to be true.
The doctrines of the Protest are inconsistent with the authority of the
two houses, because, in my judgment, they deny the just extent of the
law-making power. I take the Protest as it was sent to us, without
inquiring how far the subsequent message has modified or explained it.
It is singular, indeed, that a paper, so long in preparation, so
elaborate in composition, and which is put forth for so high a purpose
as the Protest avows, should not be able to stand an hour's discussion
before it became evident that it was indispensably necessary to alter or
explain its contents. Explained or unexplained, however, the paper
contains sentiments which justify us, as I think, in adopting these
resolutions.
In the first place, I think the Protest a clear breach of privilege. It
is a reproof or rebuke of the Senate, in language hardly respectful, for
the exercise of a power clearly belonging to it as a legislative body.
It entirely misrepresents the proceedings of the Senate. I find this
paragraph in it, among others of a similar tone and character: "A
majority of the Senate, whose interference with the 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."
Now, Sir, this paragraph, I am bound to say, is a total
misrepresentation of the proceedings of the Senate. A majority of the
Senate have not anticipated the House of Representatives; they have not
assumed the functions of that body; they have not converted themselves
into accusers, witnesses, counsel, or judges; they have made no _ex
parte_ investigation; they have given no sentence. This paragraph is an
elaborate perversion of the whole design and the whole proceedings of
the Senate. A Protest, sent to us by the President, against votes which
the Senate has an unquestionable right to pass, and containing, too,
such a misrepresentation of these votes as this paragraph manifests, is
a breach of privilege.
But there is another breach of privilege. The President interferes
between the members of the Senate and their constituents, and charges
them with acting contrary to the will of those constituents. He says it
is his right and duty to look to the journals of the Senate to ascertain
who voted for the resolution of the 28th of March, and then to show that
individual Senators have, by their votes on that resolution, disobeyed
the instructions or violated the known will of the legislatures who
appointed them. All this he claims as his right and his duty. And where
does he find any such right or any such duty? What right has he to send
a message to either house of Congress telling its members that they
disobey the will of their constituents? Has any English sovereign since
Cromwell's time dared to send such a message to Parliament? Sir, if he
can tell us that some of us disobey our constituents, he can tell us
that all do so; and if we consent to receive this language from him,
there is but one remaining step, and that is, that since we thus disobey
the will of our constituents, he should disperse us and send us home. In
my opinion, the first step in this process is as distinct a breach of
privilege as the last. If Cromwell's example shall be followed out, it
will not be more clear then than it is now that the privileges of the
Senate have been violated. There is yet something, Sir, which surpasses
all this; and that is, that, after this direct interference, after
pointing out those Senators whom he would represent as having disobeyed
the known will of their constituents, _he disclaims all design of
interfering at all_! Sir, who could be the writer of a message, which,
in the first place, makes the President assert such monstrous
pretensions, and, in the next line, affront the understanding of the
Senate by disavowing all right to do that very thing which he is doing?
If there be any thing, Sir, in this message, more likely than the rest
of it to move one from his equanimity, it is this disclaimer of all
design to interfere with the responsibility of members of the Senate to
their constituents, after such interference had already been made, in
the same paper, in the most objectionable and offensive form. If it were
not for the purpose of telling these Senators that they disobeyed the
will of the legislatures of the States they represent, _for what purpose
was it_ that the Protest has pointed out the four Senators, and paraded
against them the sentiments of their legislatures? There can be no other
purpose. The Protest says, indeed, that "these facts belong to the
history of these proceedings"! To the history of what proceedings? To
any proceeding to which the President was party? To any proceeding to
which the Senate was party? Have they any thing to do with the
resolution of the 28th of March? But it adds, that these facts _are
important to the just development of the principles and interests
involved in the proceedings_. All this might be said of any other facts.
It is mere words. To what principles, to what interests, are these facts
important? They can be important but in one point of view; and that is
as proof, or evidence, that the Senators have disobeyed instructions, or
acted against the known will of their constituents in disapproving the
President's conduct. They have not the slightest bearing in any other
way. They do not make the resolution of the Senate more or less true,
nor its right to pass it more or less clear. Sir, these proceedings of
the legislatures were introduced into this Protest for the very purpose,
and no other, of showing that members of the Senate have acted contrary
to the will of their constituents. Every man sees and knows this to have
been the sole design; and any other pretence is a mockery to our
understandings. And this purpose is, in my opinion, an unlawful purpose;
it is an unjustifiable intervention between us and our constituents; and
is, therefore, a manifest and flagrant breach of privilege.
In the next place, the assertions of the Protest are inconsistent with
the just authority of Congress, because they claim for the President a
power, independent of Congress, to possess the custody and control of
the public treasures. Let this point be accurately examined; and, in
order to avoid mistake, I will read the precise words of the Protest.
"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 co-ordinate 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, and removable
at his will.
"Public money is but a species of public property. It cannot 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."
And, in another place, it declares that "Congress cannot, 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." These, Sir,
are propositions which cannot receive too much attention. They affirm,
that the custody of the public money constitutionally and necessarily
belongs to the executive; and that, until the Constitution is changed,
Congress cannot take it out of his hands, nor make any provision for its
custody, except by such superintendents and keepers as are appointed by
the President and removable at his will. If these assertions be correct,
we have, indeed, a singular constitution for a republican government;
for we give the executive the control, the custody, and the possession
of the public treasury, by original constitutional provision; and when
Congress appropriates, it appropriates only what is already in the
President's hands.
Sir, I hold these propositions to be sound in neither branch. I maintain
that the custody of the public money does not necessarily belong to the
executive, under this government; and I hold that Congress may so
dispose of it, that it shall be under the superintendence of keepers not
appointed by the President, nor removable at his will. I think it
competent for Congress to declare, as Congress did declare in the bank
charter, that the public deposits should be made in the bank. When in
the bank, they were not kept by persons appointed by the President, or
removable at his will. He could not change that custody; nor could it be
changed at all, but according to provisions made in the law itself.
There was, indeed, a provision in the law authorizing the _Secretary_
to change the custody. But suppose there had been no such provision;
suppose the contingent power had not been given to the Secretary; would
it not have been a lawful enactment? Might not the law have provided
that the public moneys should remain in the bank, until Congress itself
should otherwise order, leaving no power of removal anywhere else? And
if such provision had been made, what power, or custody, or control,
would the President have possessed over them? Clearly, none at all. The
act of May, 1800, directed custom-house bonds, in places where the bank
which was then in existence was situated, or in which it had branches,
to be deposited in the bank or its branches for collection, without the
reservation to the Secretary, or anybody else, of any power of removal.
Now, Sir, this was an unconstitutional law, if the Protest, in the part
now under consideration, be correct; because it placed the public money
in a custody beyond the control of the President, and in the hands of
keepers not appointed by him, nor removable at his pleasure. One may
readily discern, Sir, the process of reasoning by which the author of
the Protest brought himself to the conclusion that Congress could not
place the public moneys beyond the President's control. It is all
founded on the power of appointment and the power of removal. These
powers, it is supposed, must give the President complete control and
authority over those who actually hold the money, and therefore must
necessarily subject its custody, at all times, to his own individual
will. This is the argument.
It is true, that the appointment of all public officers, with some
exceptions, is, by the Constitution, given to the President, with the
consent of the Senate; and as, in most cases, public property must be
held by some officer, its keepers will generally be persons so
appointed. But this is only the common, not a necessary consequence, of
giving the appointing power to the President and Senate. Congress may
still, if it shall so see fit, place the public treasure in the hand of
no officer appointed by the President, or removable by him, but in hands
quite beyond his control. Subject to one contingency only, it did this
very thing by the charter of the present bank; and it did the same thing
absolutely, and subject to no contingency, by the law of 1800. The
Protest, in the first place, seizes on the fact that all officers must
be appointed by the President, or on his nomination; it then assumes the
next step, that all officers are, and _must be_, removable at his
pleasure; and then, insisting that public money, like other public
property, must be kept by _some public officer_, it thus arrives at the
conclusion that it _must_ always be in the hands of those who are
appointed by the President, and who are removable at his pleasure. And
it is very clear that the Protest means to maintain that the _tenure of
office cannot be so regulated by law, as that public officers shall not
be removable at the pleasure of the President_.
The President considers the right of removal as a fixed, vested,
constitutional right, which Congress cannot limit, control, or qualify,
until the Constitution shall be altered. This, Sir, is doctrine which I
am not prepared to admit. I shall not now discuss the question, whether
the law may not place the tenure of office beyond the reach of executive
pleasure; but I wish merely to draw the attention of the Senate to the
fact, that any such power in Congress is denied by the principles and by
the words of the Protest. According to that paper, we live under a
constitution by the provisions of which the public treasures are,
necessarily and unavoidably, always under executive control; and as the
executive may remove all officers, and appoint others, at least
temporarily, without the concurrence of the Senate, he may hold those
treasures, in the hands of persons appointed by himself alone, in
defiance of any law which Congress has passed or can pass. It is to be
seen, Sir, how far such claims of power will receive the approbation of
the country. It is to be seen whether a construction will be readily
adopted which thus places the public purse out of the guardianship of
the immediate representatives of the people.
But, Sir, there is, in this paper, something even yet more strange than
these extraordinary claims of power. There is a strong disposition,
running through the whole Protest, to represent the executive department
of this government as the peculiar protector of the public liberty, the
chief security on which the people are to rely against the encroachment
of other branches of the government. Nothing can be more manifest than
this purpose. To this end, the Protest spreads out the President's
official oath, reciting all its words in a formal quotation; and yet the
oath of members of Congress is exactly equivalent. The President is to
swear that he will "preserve, protect, and defend the Constitution"; and
members of Congress are to swear that they will "support the
Constitution." There are more words in one oath than the other, but the
sense is precisely the same. Why, then, this reference to his official
oath, and this ostentatious quotation of it? Would the writer of the
Protest argue that the oath itself is any grant of power; or that,
because the President is to "preserve, protect, and defend the
Constitution," he is therefore to use what means he pleases for such
preservation, protection, and defence, or any means except those which
the Constitution and laws have specifically given him? Such an argument
would be absurd; but if the oath be not cited for this preposterous
purpose, with what design is it thus displayed on the face of the
Protest, unless it be to support the general idea that the maintenance
of the Constitution and the preservation of the public liberties are
especially confided to the safe discretion, the sure moderation, the
paternal guardianship, of executive power? The oath of the President
contains three words, all of equal import; that is, that he will
_preserve_, _protect_, and _defend_ the Constitution. The oath of
members of Congress is expressed in shorter phrase; it is, that they
will _support_ the Constitution. If there be any difference in the
meaning of the two oaths, I cannot discern it; and yet the Protest
solemnly and formally argues thus: "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 every other functionary, the founders of our republic have
attested their sense of its importance, and have given to it a peculiar
solemnity and force."
Sir, I deny the proposition, and I dispute the proof. I deny that the
duty of defending the integrity of the Constitution is, in any peculiar
sense, confided to the President; and I deny that the words of his oath
furnish any argument to make good that proposition. Be pleased, Sir, to
remember _against whom it is_ that the President holds it _his_ peculiar
duty to defend the integrity of the Constitution. It is not against
external force; it is not against a foreign foe; no such thing; _but it
is against the representatives of the people and the representatives of
the States_! It is against these that the founders of our republic have
imposed on him the duty of defending the integrity of the Constitution;
a duty, he says, of the importance of which they have attested their
sense, and to which they have given peculiar solemnity and force, by
expressing it in his official oath!
Let us pause, Sir, and consider this most strange proposition. The
President is the chief executive magistrate. He is commander-in-chief of
the army and navy; nominates all persons to office; claims a right to
remove all at will, and to control all, while yet in office; dispenses
all favors; and wields the whole patronage of the government. And the
proposition is, that the duty of defending the integrity of the
Constitution against the representatives of the States and against the
representatives of the people, _results to him from the very nature of
his office_; and that the founders of our republic have given to this
duty, thus confided to him, peculiar solemnity and force!
Mr. President, the contest, for ages, has been to rescue Liberty from
the grasp of executive power. Whoever has engaged in her sacred cause,
from the days of the downfall of those great aristocracies which had
stood between the king and the people to the time of our own
independence, has struggled for the accomplishment of that single
object. On the long list of the champions of human freedom, there is not
one name dimmed by the reproach of advocating the extension of executive
authority; on the contrary, the uniform and steady purpose of all such
champions has been to limit and restrain it. To this end the spirit of
liberty, growing more and more enlightened and more and more vigorous
from age to age, has been battering, for centuries, against the solid
butments of the feudal system. To this end, all that could be gained
from the imprudence, snatched from the weakness, or wrung from the
necessities of crowned heads, has been carefully gathered up, secured,
and hoarded, as the rich treasures, the very jewels of liberty. To this
end, popular and representative right has kept up its warfare against
prerogative, with various success; sometimes writing the history of a
whole age in blood, sometimes witnessing the martyrdom of Sidneys and
Russells, often baffled and repulsed, but still gaining, on the whole,
and holding what it gained with a grasp which nothing but the complete
extinction of its own being could compel it to relinquish. At length,
the great conquest over executive power, in the leading western states
of Europe, has been accomplished. The feudal system, like other
stupendous fabrics of past ages, is known only by the rubbish which it
has left behind it. Crowned heads have been compelled to submit to the
restraints of law, and the PEOPLE, with that intelligence and that
spirit which make their voice resistless, have been able to say to
prerogative, "Thus far shalt thou come, and no farther." I need hardly
say, Sir, that into the full enjoyment of all which Europe has reached
only through such slow and painful steps we sprang at once, by the
Declaration of Independence, and by the establishment of free
representative governments; governments borrowing more or less from the
models of other free states, but strengthened, secured, improved in
their symmetry, and deepened in their foundation, by those great men of
our own country whose names will be as familiar to future times as if
they were written on the arch of the sky.
Through all this history of the contest for liberty, executive power has
been regarded as a lion which must be caged. So far from being the
object of enlightened popular trust, so far from being considered the
natural protector of popular right, it has been dreaded, uniformly,
always dreaded, as the great source of its danger.
And now, Sir, who is he, so ignorant of the history of liberty, at home
and abroad; who is he, yet dwelling in his contemplations among the
principles and dogmas of the Middle Ages; who is he, from whose bosom
all original infusion of American spirit has become so entirely
evaporated and exhaled, that he shall put into the mouth of the
President of the United States the doctrine that the defence of liberty
_naturally results to_ executive power, and is its peculiar duty? Who is
he, that, generous and confiding towards power where it is most
dangerous, and jealous only of those who can restrain it,--who is he,
that, reversing the order of the state, and upheaving the base, would
poise the pyramid of the political system upon its apex? Who is he,
that, overlooking with contempt the guardianship of the representatives
of the people, and with equal contempt the higher guardianship of the
people themselves,--who is he that declares to us, through the
President's lips, that the security for freedom rests in executive
authority? Who is he that belies the blood and libels the fame of his
own ancestors, by declaring that _they_, with solemnity of form, and
force of manner, have invoked the executive power to come to the
protection of liberty? Who is he that thus charges them with the
insanity, or the recklessness, of putting the lamb beneath the lion's
paw? No, Sir. No, Sir. Our security is in our watchfulness of executive
power. It was the constitution of this department which was infinitely
the most difficult part in the great work of creating our present
government. To give to the executive department such power as should
make it useful, and yet not such as should render it dangerous; to make
it efficient, independent, and strong, and yet to prevent it from
sweeping away every thing by its union of military and civil authority,
by the influence of patronage, and office, and favor,--this, indeed, was
difficult. They who had the work to do saw the difficulty, and we see
it; and if we would maintain our system, we shall act wisely to that
end, by preserving every restraint and every guard which the
Constitution has provided. And when we, and those who come after us,
have done all that we can do, and all that they can do, it will be well
for us and for them, if some popular executive, by the power of
patronage and party, and the power, too, of that very popularity, shall
not hereafter prove an overmatch for all other branches of the
government.
I do not wish, Sir, to impair the power of the President, as it stands
written down in the Constitution, and as great and good men have
hitherto exercised it. In this, as in other respects, I am for the
Constitution as it is. But I will not acquiesce in the reversal of all
just ideas of government; I will not degrade the character of popular
representation; I will not blindly confide, where all experience
admonishes me to be jealous; I will not trust executive power, vested in
the hands of a single magistrate, to be the guardian of liberty.
Having claimed for the executive the especial guardianship of the
Constitution, the Protest proceeds to present a summary view of the
powers which are supposed to be conferred on the executive by that
instrument. And it is to this part of the message, Sir, that I would,
more than to all others, call the particular attention of the Senate. I
confess that it was only upon careful reperusal of the paper that I
perceived the extent to which its assertions of power reach. I do not
speak now of the President's claims of power as opposed to legislative
authority, but of his opinions as to his own authority, duty, and
responsibility, as connected with all other officers under the
government. He is of opinion that the whole executive power is vested in
him, and that he is responsible for its entire exercise; that among the
duties imposed on him is that of "taking care that the laws be
faithfully executed"; and that, "being thus made responsible for the
entire action of the executive department, it is 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 first proposition, then, which the Protest asserts, in regard to the
President's powers as executive magistrate, is, that, the general duty
being imposed on him by the Constitution of taking care that the laws be
faithfully executed, _he thereby becomes himself responsible for the
conduct of every person employed in the government_; "for the entire
action," as the paper expresses it, "of the executive department." This,
Sir, is very dangerous logic. I reject the inference altogether. No such
responsibility, nor any thing like it, follows from the general
provision of the Constitution making it his duty to see the laws
executed. If it did, we should have, in fact, but one officer in the
whole government. The President would be everybody. And the Protest
assumes to the President this whole responsibility for every other
officer, for the very purpose of making the President everybody, of
annihilating every thing like independence, responsibility, or
_character_, in all other public agents. The whole responsibility is
assumed, in order that it may be more plausibly argued that all officers
of government are not agents of the law, but the President's agents, and
therefore responsible to him alone. If he be responsible for the conduct
of all officers, and they be responsible to him only, then it may be
maintained that such officers are but his own agents, his substitutes,
his deputies. The first thing to be done, therefore, is to assume the
responsibility for all; and this you will perceive, Sir, is done, in the
fullest manner, in the passages which I have read. Having thus assumed
for the President the entire responsibility of the whole government, the
Protest advances boldly to its conclusion, and claims, at once, absolute
power over all individuals in office, as being merely the President's
agents. This is the language: "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."
This, Sir, completes the work. This handsomely rounds off the whole
executive system of executive authority. First, the President has the
whole responsibility; and then, being thus responsible for all, he has,
and ought to have, the whole power. We have heard of political _units_,
and our American executive, as here represented, is indeed a _unit_. We
have a charmingly simple government! Instead of many officers, in
different departments, each having appropriate duties, and each
responsible for his own duties, we are so fortunate as to have to deal
with but one officer. The President carries on the government; all the
rest are but sub-contractors. Sir, whatever _name_ we give him, we have
but ONE EXECUTIVE OFFICER. A Briareus sits in the centre of our system,
and with his hundred hands touches every thing, moves every thing,
controls every thing. I ask, Sir, Is this republicanism? Is this a
government of laws? Is this legal responsibility?
According to the Protest, the very duties which every officer under the
government performs are the duties of the President himself. It says
that the President has a right to employ _agents_ of his _own choice_,
to aid HIM in the performance of HIS duties.
Mr. President, if these doctrines be true, it is idle for us any longer
to talk about any such thing as a government of laws. We have no
government of laws, not even the semblance or shadow of it; we have no
legal responsibility. We have an executive, consisting of one person,
wielding all official power, and which is, to every effectual purpose,
completely _irresponsible_. The President declares that he is
"responsible for the entire action of the executive department."
Responsible? What does he mean by being "responsible"? Does he mean
legal responsibility? Certainly not. No such thing. Legal responsibility
signifies liability to punishment for misconduct or maladministration.
But the Protest does not mean that the President is liable to be
impeached and punished if a secretary of state should commit treason, if
a collector of the customs should be guilty of bribery, or if a
treasurer should embezzle the public money. It does not mean, and cannot
mean, that he should be answerable for any such crime or such
delinquency. What then, is its notion of that _responsibility_ which it
says the President is under for all officers, and which authorizes him
to consider all officers as his own personal agents? Sir, it is merely
responsibility to public opinion. It is a liability to be blamed; it is
the chance of becoming unpopular, the danger of losing a re-election.
Nothing else is meant in the world. It is the hazard of failing in any
attempt or enterprise of ambition. This is all the responsibility to
which the doctrines of the Protest hold the President subject.
It is precisely the _responsibility_ under which Cromwell acted when he
dispersed Parliament, telling its members, not in so many words, indeed,
that they disobeyed the will of their constituents, but telling them
that the people were sick of them, and that he drove them out "for the
glory of God and the good of the nation." It is precisely the
responsibility upon which Bonaparte broke up the popular assembly of
France. I do not mean, Sir, certainly, by these illustrations, to
insinuate designs of violent usurpation against the President; far from
it; but I do mean to maintain, that such responsibility as that with
which the Protest clothes him is no legal responsibility, no
constitutional responsibility, no republican responsibility, but a mere
liability to loss of office, loss of character, and loss of fame, if he
shall choose to violate the laws and overturn the liberties of the
country. It is such a responsibility as leaves every thing in his
discretion and his pleasure.
Sir, it exceeds human belief that any man should put sentiments such as
this paper contains into a public communication from the President to
the Senate. They are sentiments which give us all one master. The
Protest asserts an absolute right to remove all persons from office at
pleasure; and for what reason? Because they are incompetent? Because
they are incapable? Because they are remiss, negligent, or inattentive?
No, Sir; these are not the reasons. But he may discharge them, one and
all, simply because "he is no longer willing to be responsible for their
acts"! It insists on an absolute right in the President to _direct and
control_ every act of every officer of the government, except the
judges. It asserts this right of direct _control_ over and over again.
The President may go into the treasury, among the auditors and
comptrollers, and _direct_ them how to settle every man's account; what
abatements to make from one, what additions to another. He may go into
the custom-house, among collectors and appraisers, and may _control_
estimates, reductions, and appraisements. It is true that these officers
are sworn to discharge the duties of their respective offices honestly
and fairly, according to their _own_ best abilities; it is true, that
many of them are liable to indictment for official misconduct, and
others responsible, in suits of individuals, for damages and penalties,
if such official misconduct be proved; but notwithstanding all this, the
Protest avers that all these officers are but the _President's agents_;
that they are but aiding _him_ in the discharge of _his_ duties; that
_he_ is responsible for their conduct, and that they are removable at
his will and pleasure. And it is under this view of his own authority
that the President calls the Secretaries _his_ Secretaries, not once
only, but repeatedly. After half a century's administration of this
government, Sir;--after we have endeavored, by statute upon statute, and
by provision following provision, to define and limit official
authority; to assign particular duties to particular public servants; to
define those duties; to create penalties for their violation; to adjust
accurately the responsibility of each agent with his own powers and his
own duties; to establish the prevalence of equal rule; to make the law,
as far as possible, every thing, and individual will, as far as
possible, nothing;--after all this, the astounding assertion rings in
our ears, that, throughout the whole range of official agency, in its
smallest ramifications as well as in its larger masses, there is but ONE
RESPONSIBILITY, ONE DISCRETION, ONE WILL! True indeed is it, Sir, if
these sentiments be maintained,--true indeed is it that a President of
the United States may well repeat from Napoleon what he repeated from
Louis the Fourteenth, "I am the state"!
The argument by which the writer of the Protest endeavors to establish
the President's claim to this vast mass of accumulated authority, is
founded on the provision of the Constitution that the executive power
shall be vested in the President. No doubt the executive power is vested
in the President; but what and how much executive power, and how
limited? To this question I should answer, "Look to the Constitution,
and see; examine the particulars of the grant, and learn what that
executive power is which is given to the President, either by express
words or by necessary implication." But so the writer of this Protest
does not reason. He takes these words of the Constitution as being, of
themselves, a general original grant of all executive power to the
President, subject only to such express limitations as the Constitution
prescribes. This is clearly the writer's view of the subject, unless,
indeed, he goes behind the Constitution altogether, as some expressions
would intimate, to search elsewhere for sources of executive power.
Thus, the Protest says that it is not only the _right_ of the President,
but that the Constitution makes it his _duty_, to appoint persons to
office; as if the _right_ existed before the Constitution had created
the _duty_. It speaks, too, of the power of removal, not as a power
_granted_ by the Constitution, but expressly as "an original executive
power, _left_ unchecked by the Constitution." How original? Coming from
what source higher than the Constitution? I should be glad to know how
the President gets possession of any power by a title earlier, or more
_original_, than the grant of the Constitution; or what is meant by an
_original_ power, which the President possesses, and which the
Constitution has _left_ unchecked in his hands. The truth is, Sir, most
assuredly, that the writer of the Protest, in these passages, was
reasoning upon the British constitution, and not upon the Constitution
of the United States. Indeed, he professes to found himself on authority
drawn from the constitution of England. I will read, Sir, the whole
passage. It is this:--
"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."
Mr. President, I do most solemnly protest (if I, too, may be permitted
to make a protest) against this mode of reasoning. The analogy between
the British constitution and ours, in this respect, is not close enough
to guide us safely; it can only mislead us. It has entirely misled the
writer of the Protest. The President is made to argue, upon this
subject, as if he had some right _anterior_ to the Constitution, which
right is by that instrument checked, in some respects, and in other
respects is left unchecked, but which, nevertheless, still derives its
being from another source; just as the British king had, in the early
ages of the monarchy, an uncontrolled right of appointing and removing
all officers at pleasure, but which right, so far as it respects the
judges, has since been checked and controlled by act of Parliament; the
right being original and inherent, the _check_ only imposed by law. Sir,
I distrust altogether British precedents, authorities, and analogies, on
such questions as this. We are not inquiring how far our Constitution
has imposed checks on a pre-existing authority. We are inquiring what
extent of power that Constitution has _granted_. The grant of power, the
whole source of power, as well as the restrictions and limitations which
are imposed on it, is made in and by the Constitution. It has no other
origin. And it is this, Sir, which distinguishes our system so very
widely and materially from the systems of Europe. _Our_ governments are
limited governments; limited in their origin, in their very creation;
limited, because none but specific powers were ever granted, either to
any department of government, or to the whole: _theirs_ are limited,
whenever limited at all, by reason of restraints imposed at different
times on governments originally unlimited and despotic. Our American
questions, therefore, must be discussed, reasoned on, decided, and
settled, on the appropriate principles of our own constitutions, and not
by inapplicable precedents and loose analogies drawn from foreign
states.
Mr. President, in one of the French comedies, as you know, in which the
dulness and prolixity of legal argument is intended to be severely
satirized, while the advocate is tediously groping among ancient lore
having nothing to do with his case, the judge grows impatient, and at
last cries out to him to _come down to the flood_! I really wish, Sir,
that the writer of this Protest, since he was discussing matters of the
highest importance to us as Americans, and which arise out of our own
peculiar Constitution, had kept himself, not only on this side the
general deluge, but also on this side the Atlantic. I desire that the
broad waves of that wide sea should continue to roll between us and the
influence of those foreign principles and foreign precedents which he so
eagerly adopts.
In asserting power for an American President, I prefer that he should
attempt to maintain his assertions on American reasons. I know not, Sir,
who the writer was (I wish I did); but whoever he was, it is manifest
that he argues this part of his case, throughout, on the principles of
the constitution of England. It is true, that, in England, the king is
regarded as the original fountain of all honor and all office; and that
anciently, indeed, he possessed all political power of every kind. It is
true that this mass of authority, in the progress of that government,
has been diminished, restrained, and controlled, by charters, by
immunities, by grants, and by various modifications, which the friends
of liberty have, at different periods, been able to obtain or to impose.
All liberty, as we know, all popular privileges, as indeed the word
itself imports, were formerly considered as favors and concessions from
the monarch. But whenever and wherever civil freedom could get a
foothold, and could maintain itself, these favors were turned into
rights. Before and during the reigns of the princes of the Stuart
family, they were acknowledged only as favors or privileges graciously
allowed, although, even then, whenever opportunity offered, as in the
instance to which I alluded just now, they were contended for as rights;
and by the Revolution of 1688 they were acknowledged as the rights of
Englishmen, by the prince who then ascended the throne, and as the
condition on which he was allowed to sit upon it. But with us there
never was a time when we acknowledged original, unrestrained, sovereign
power over us. Our constitutions are not made to limit and restrain
pre-existing authority. They are the instruments by which the people
confer power on their own servants. If I may use a legal phrase, the
people are grantors, not grantees. They give to the government, and to
each branch of it, all the power it possesses, or can possess; and what
is not given they retain. In England, before her revolution, and in the
rest of Europe since, if we would know the extent of liberty or popular
right, we must go to grants, to charters, to allowances and indulgences.
But with us, we go to grants and to constitutions to learn the extent of
the powers of government. No political power is more original than the
Constitution; none is possessed which is not there granted; and the
grant, and the limitations in the grant, are in the same instrument.
The powers, therefore, belonging to any branch of our government, are to
be construed and settled, not by remote analogies drawn from other
governments, but from the words of the grant itself, in their plain
sense and necessary import, and according to an interpretation
consistent with our own history and the spirit of our own institutions.
I will never agree that a President of the United States holds the whole
undivided power of office in his own hands, upon the theory that he is
responsible for the entire action of the whole body of those engaged in
carrying on the government and executing the laws. Such a responsibility
is purely ideal, delusive, and vain. There is, there can be, no
substantial responsibility, any further than every individual is
answerable, not merely in his reputation, not merely in the opinion of
mankind, but _to the law_, for the faithful discharge of his own
appropriate duties. Again and again we hear it said that the President
is responsible to the American people! that he is responsible to the bar
of public opinion! For whatever he does, he assumes accountability to
the American people! For whatever he omits, he expects to be brought to
the high bar of public opinion! And this is thought enough for a
limited, restrained, republican government! an undefined, undefinable,
ideal responsibility to the public judgment!
Sir, if all this mean any thing, if it be not empty sound, it means no
less than that the President may do any thing and every thing which he
may expect to be tolerated in doing. He may go just so far as he thinks
it safe to go; and Cromwell and Bonaparte went no farther. I ask again,
Sir, is this legal responsibility? Is this the true nature of a
government with written laws and limited powers? And allow me, Sir, to
ask, too, if an executive magistrate, while professing to act under the
Constitution, is restrained only by this responsibility to public
opinion, what prevents him, on the same responsibility, from proposing a
change in that Constitution? Why may he not say, "I am about to
introduce new forms, new principles, and a new spirit; I am about to try
a political experiment on a great scale; and when I get through with it,
I shall be responsible to the American people, I shall be answerable to
the bar of public opinion"?
Connected, Sir, with the idea of this airy and unreal responsibility to
the public is another sentiment, which of late we hear frequently
expressed; and that is, _that the President is the direct representative
of the American people_. This is declared in the Protest in so many
words. "The President," it says, "_is the direct representative of the
American people_." Now, Sir, this is not the language of the
Constitution. The Constitution nowhere calls him the representative of
the American people; still less, their direct representative. It could
not do so with the least propriety. He is not chosen directly by the
people, but by a body of electors, some of whom are chosen by the
people, and some of whom are appointed by the State legislatures. Where,
then, is the authority for saying that the President is the _direct
representative of the people_? The Constitution calls the members of the
other house Representatives, and declares that they shall be chosen by
the people; and there are no other direct or immediate representatives
of the people in this government. The Constitution denominates the
President simply the President of the United States; it points out the
complex mode of electing him, defines his powers and duties, and imposes
limits and restraints on his authority. With these powers and duties,
and under these restraints, he becomes, when chosen, President of the
United States. That is his character, and the denomination of his
office. How is it, then, that, on this official character, thus
cautiously created, limited, and defined, he is to engraft another and a
very imposing character, namely, the character _of the direct
representative of the American people_? I hold this, Sir, to be mere
assumption, and dangerous assumption. If he is the representative of
_all_ the American people, he is the only representative which they all
have. Nobody else presumes to represent all the people. And if he may be
allowed to consider himself as the SOLE REPRESENTATIVE OF ALL THE
AMERICAN PEOPLE, and is to act under no other responsibility than such
as I have already described, then I say, Sir, that the government (I
will not say the people) has already a master. I deny the sentiment,
therefore, and I protest against the language; neither the sentiment nor
the language is to be found in the Constitution of the country; and
whoever is not satisfied to describe the powers of the President in the
language of the Constitution may be justly suspected of being as little
satisfied with the powers themselves. The President is President. His
office and his name of office are known, and both are fixed and
described by law. Being commander of the army and navy, holding the
power of nominating to office and removing from office, and being by
these powers the fountain of all patronage and all favor, what does he
not become if he be allowed to superadd to all this the character of
single representative of the American people? Sir, he becomes what
America has not been accustomed to see, what this Constitution has never
created, and what I cannot contemplate but with profound alarm. He who
may call himself the single representative of a nation may speak in the
name of the nation, may undertake to wield the power of the nation; and
who shall gainsay him in whatsoever he chooses to pronounce to be the
nation's will?
I will now, Sir, ask leave to recapitulate the general doctrines of this
Protest, and to present them together. They are,--
That neither branch of the legislature can take up, or consider, for the
purpose of censure, any official act of the President, without some view
to legislation or impeachment;
That not only the passage, but the discussion, of the resolution of the
Senate of the 28th of March, was unauthorized by the Constitution, and
repugnant to its provisions;
That the custody of the public treasury always must be intrusted to the
executive; that Congress cannot take it out of his hands, nor place it
anywhere under such superintendents and keepers as are appointed by him,
responsible to him, and removable at his will;
That the whole executive power is in the President, and that therefore
the duty of defending the integrity of the Constitution _results to him
from the very nature of his office_; and that the founders of our
republic have attested their sense of the importance of this duty, and,
by expressing it in his official oath, have given to it peculiar
solemnity and force;
That, as he is to take care that the laws be faithfully executed, he is
thereby made responsible for the entire action of the executive
department, with the power of appointing, overseeing, and _controlling_
those who execute the laws;
That the power of removal from office, like that of appointment, is an
_original_ executive power, and is _left_ in his hands _unchecked_ by
the Constitution, except in the case of judges; that, being responsible
for the exercise of the whole executive power, he has a right to employ
agents of his own choice to assist _him_ in the performance of _his_
duties, and to discharge them when he is no longer willing to be
responsible for their acts;
That the Secretaries are _his_ Secretaries, and all persons appointed to
offices created by law, except the judges, _his_ agents, responsible to
him, and removable at his pleasure;
And, finally, that he is the _direct representative of the American
people_.
These, Sir, are some of the leading propositions contained in the
Protest; and if they be true, then the government under which we live is
an elective monarchy. It is not yet absolute; there are yet some checks
and limitations in the Constitution and laws; but, in its essential and
prevailing character, it is an elective monarchy.
Mr. President, I have spoken freely of this Protest, and of the
doctrines which it advances; but I have spoken deliberately. On these
high questions of constitutional law, respect for my own character, as
well as a solemn and profound sense of duty, restrains me from giving
utterance to a single sentiment which does not flow from entire
conviction. I feel that I am not wrong. I feel that an inborn and inbred
love of constitutional liberty, and some study of our political
institutions, have not on this occasion misled me. But I have desired to
say nothing that should give pain to the chief magistrate personally. I
have not sought to fix arrows in his breast; but I believe him mistaken,
altogether mistaken, in the sentiments which he has expressed; and I
must concur with others in placing on the records of the Senate my
disapprobation of those sentiments. On a vote which is to remain so long
as any proceeding of the Senate shall last, and on a question which can
never cease to be important while the Constitution of the country
endures, I have desired to make public my reasons. They will now be
known, and I submit them to the judgment of the present and of after
times. Sir, the occasion is full of interest. It cannot pass off without
leaving strong impressions on the character of public men. A collision
has taken place which I could have most anxiously wished to avoid; but
it was not to be shunned. We have not sought this controversy; it has
met us, and been forced upon us. In my judgment, the law has been
disregarded, and the Constitution transgressed; the fortress of liberty
has been assaulted, and circumstances have placed the Senate in the
breach; and, although we may perish in it, I know we shall not fly from
it. But I am fearless of consequences. We shall hold on, Sir, and hold
out, till the people themselves come to its defence. We shall raise the
alarm, and maintain the post, till they whose right it is shall decide
whether the Senate be a faction, wantonly resisting lawful power, or
whether it be opposing, with firmness and patriotism, violations of
liberty and inroads upon the Constitution.
[Footnote 1: Commonly called the Sedition Act, approved 14th July,
1798.]
[Footnote 2: South Carolina.]