MR. WEBSTERS SPEECH

ON

THE PRESIDENTS PROTEST:

'1)E?!LIVEIlI:§U
IN THE SENATE 01% THE QNITED STATES,

Mn 7, 1834.

  . WASHINGTON:
PRINTED BY’ Gamma AND smmow.

1834

season

-6'@e—
it/ir. Pnnstnninr:

I feel, sir, the magnitude -of this question. ‘We are coming to a vote
which cannot fail to produce inoportant effects onthe character of the S811-
ate, and the character of the Government. , i "

Unhappily, sir, the Senate finds itself involved in a controwrsy Wltll the
President of p the United States; a man, who has rendered most distinguished
services to his country, has hitherto possessed a degree of popular favor, per-
haps never excelled, and whose honesty of motive, and integrity of purpose,

are stilimaintained by those wlioadniit that his administration has fallen into,

lamentable errors. ii

011 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 canisustain itself only by its own pru-
dence and the justice of its cause. It has no patronage by which to secure
friends; it can raise up no aclvocates 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 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 sympathetic contact with the whole people. Under these dis-
advantages, 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. a p .
As an individual member of the Senate, it gives me great pain to be en-—
gaged in such a conflict with the Executive Government. The occurrences

of the lastsession are, fresh in all our re-collections; and, having felt it to be a

"my duty, at that time,to givemy 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 have found nothing in the

“measures ‘of, the Executive Governrnent which I could net cheerfully sup-

port. The present occasion of difference has not been sought ormade by

me. It is thrust upon me, in oppositionto strong opinions and wishes, on my

part not concealed. The interference with the public deposites dispelled
all hope of continued concurrencelwith the administration; and was a mea-
sure so uncalled for, -sounnecessa—ry, and, in my judgment, so illegal and inde-
fensible, that, with whatever reluctance it might be opposed, opposition was
unavoidable. ‘ t ‘ , l

this protest; to examine the principles which it attempts to

4

The paper before us has grown out of the consequences of this interf'e- r
' rence.

It is a paper which cannot .-be treated with indifference; The doc-—
trines whichit advances, the circumstances which have attended its~trans-
mission 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, assent. to its sentiments, and submit to its
rebuke; or we must answer it, with the respect due to the Chief Magistrate,
but with suchganimadversion ‘on its doctrines as they deserve, and with the
firmness imposed upon us by our public duties. r

I shall proceed, then, sir, to consider the circumstances which gave riseto
establish; and
to compare those principles with the constitution and the laws. I c

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 Pre-

, sident had assumed a power notconferred by the constit-ution_ and laws, but

-in derogation of both.” In that resolution I concurred. V
t It is not a direct question, new again before us, whether the President
really had assumed such illegal power; that point is decided, so far as the

 Senate ever dan decide it. But the protest denies that, supposing the Presi-

dent to have assumed such illegal power, the Senate couldproperly passthe
resolution; or, whatis 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 ofthe lead-is

ing doctrines of the protest, I propose to consider. it But, as I concurred in the

resolution of the 28th of March, and did not trouble the Senate, at thatgtime, ,
with any statement of my own reasons, I will avail myself of this opportunity 

to explain, shortly, what-those reasons were. i
In the first place, then, I have to say, that I did not vote for the resolu-

tion on the mere ground of, the removal of Mr. Duane from the ofifice of Se-S

cretary of the Treasury. Although I disapprove of the removal altogether,

yet the power of removal does exist in the President, according to the es- 
tablished construction of the rconstitution; and, therefore, although, in apar--«

ticular case, ittrnay 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, tlierefore, been re-,-
moved by a power constitutionally competent to ‘removehim, whatever may
be thought of the exercise of that power, under: the circumstances of the case.
If,.then,”theact of removing the Secretary be not the assumption of power
which the resolution declares, in what is that assumption found? Before.
givinga precise answer to this inquiry, allow me to recur to someof the
principal previous events. a , A, t .
At the end of the last session of Congress"; the public moneys of the
Unitedpstates, 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

/t conferred, to be exercised by himself, if emergency should arise, and tobe
exercised for rreasons which he was bound to lay, before Congress. w No other i

oflicer of the Government had the slightest pretence of authority to lay his hand
on=_these moneys for the purpose oftchangingpthe place of their custody. »All.
the other heads of Departmentstogether could not touch them. The President

p could not touch them."The power of change was a trust ‘confided to the discre-- t

5

tion‘ of "the Secretary, and;, to his discretion alone. The President had no
more authority to take upon himself this duty, thus assigned expressly bylaw
to the Secretary, thanlhe 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
deposites, 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, hisdecision; and
the act of removal, his act. V s - ,
Now, sir, on the 18th day of September last, a resolution was taken to

, remove these deposites from their legislative (that is "to say, their legal) cus-

tody. Wk-oserresolution was this? On the 1st day, of October. they were
removed. And by whose power was this done? The papers necessary to
accomplish the removal»(that is, the orders and drafts) are, it is true, signed
bv the Secretary. ‘T The President’s name does not appear 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, bad the legal
effect. The deposites were removed. But whose act was it in truthand reali-—
ty}; ‘Whose will accomplished it’! On to/toss responsibility was it eadopted?
These questio:hs‘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 bags his cabinet to consider the proposed measure as his
own; thatits responsibility has been assumed by him; and that /the names the
firstday of October as a period proper for its eanecution, T

Now, sir, it is precisely this which I deem an assumption of power not V

conferred by the constitution and laws. I think the law did not give this
authority to the President, nor impose on him the responsib‘ili.ty of its exer-
cise. It isevident that in thisrremoval the Secretary was in reality;jnothing

but the scribe: he was the pen in the President’s hand, and no more... Notlling i

depended-on his discretion, his judgment, or ~his,resp0nsib-ility. _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 Pree-

sident had issued an order for the removal of the deposites 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 sliown, on its face, that it was

illegal and invalid. No one can doubt that.» The act of removal, to be law- .

ful, rmusthe the bona fide act of the Secretary; his a judgment, the result of
this deliberations, the volition of Iris mind. Allarei able to see the difference

betweenthe powerrrtoremove the Secretary from office, and the power to ‘

control him, in all‘ or "any of his duties, while in oflice.» The law, charges
the officer, whoever he may be,'with the performance of certain duties. The

President, withthe.consent‘of the Senate, appoints any individual to be such

oflicer, and» this inidividuual hegmay remove, if ‘he so please; ‘but, until removed,
“he is the oflicer, and ‘T remains chargedwitli the duties of _hisstatio.n; duties

’ which nobody else can perform,»and for the neglect orpviolation of which he

is liable to -be impeaclled.

6

T 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. This power
of control and direction, no where given, certainly, by any express provision of
the constitution or laws, is derived, by those whommaintain it, from the right
of removal; that is to say, it is a constructive power‘. But the right of
removal itself is but atconstructive power: it has no eitpress 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 satisfiedof 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. ‘ i

VVe may try this question by supposing it to arise in a judicial proceeding.
If the Secretary of the Treasury were impeached for removing the deposites,
could he justify himself by sayingtthat 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 oflicers limpeachable at

i 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 deposites; that he took the
whole responsibility of the measure upon himself; that he wishedit to be con-
sidered Iais own act; that he not only himself decided that the thing should
be done, but that he regulated its details also, and named the day for carrying
it into effect. , P i c t-

I have always entertained a very erroneous view of the partitionof 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, bylaw, for the keeping of the public

money. They had, atthe same time,-and by the same law, createdand conferred

a power of removal, to be exercised contingently. This power they hadvest-i..

edin the Secretary, by express words. The law did not say that the depos-
ites should be made in the Bank unless the Presidentshould order otherwise;
butit did pay that «they should be made there unless the Secretary of Ute
Treasury should order ‘otherwise. I_ put it to the plain sense and common
candor of allmen, whether the discretion which wasthus to be exercisedover

T the subject was not the Secretary’s ownipersonal discretion; and whether, there-- ,

fore,the‘ interposition of the authority of ‘another, acting directly and concluu
sively on the “ subject, deciding the whole question, even inkits particulars
a—nd»detai.ls, be not an assumption of power’! , T ~ “to ~ 

t The Senate regarded this interposition as an encroachment, by the Execu-

‘Y

‘rive, on other branches of the Government; as an i"nter‘feren’ce with the legis-»
iative disposition of the public treasure. It was strongly and forcibly urged, yes»
terday, by the honorable member from South Carolina-, that tl1e 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 ‘theifirst step. The question is, therefore, whether, upon ihe true
principles of the constitution, this exercise of power by the President can be
justified. Whether the cons"equences 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‘ he suffered to pass unnoticed. Every encroachnient, great or small,
is important enough to awaken the attention of those who are intrusted with
the preservafion of a constitutional Government. We are not to wait till
great public mischiefs come, till the Government is overthrown, or liberty itself
put in extreme jeopardy. VVe 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 Parlia-
ment of Great Britain asserted a right to tax the colonies in all cases whatso-
ever, 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, en-ough. I t was against the recital
of an act of Parliament, rather than against any suflfering under its enact-
ments, 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 theirbloodlike water, in a contest, in opposition to 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 itlforth from underneath itsplausible
dis uises, struck at it, nor did it elude either their steady eye, or their well-direct-

ed blow, till they had ezxti-rpated and destroyed it, to the smallest fibre. On this

question of principle, while actual suffering was yetafarofl’, they raised their flag
against a power to which, for. purposes offoreign conquesttand subjugation,
Rome, inthe height of "her glory, isnot to be compared; a power, which has dot»-
ted over the surface of the whole, globe withher possessions and military posts,
whose morning drum-beat, following the sun, and keeping company with the
hours, circles the earth daily with one continuous and unbroken strain of the
martial airs of England. . t '

~ The necessity of holding strictly to the principle upon which free Govern-
ments are constructed, and to the precise lineswhich fix the partitions of pow-
er between different branches, is as plain, if not as cogent, as that of resisting,
as our fathers did, the strides of the parent country upon the rights of the
colonies; because, whethentlte power whichexceeds 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 high-

est and most important of all the powers of Government; that isto say, the

custody and control of the public money.  The act of removing the deposw

i fies, which Inowyconsider as the President's act, and which his friends on this '

,8

floor defend as his act, tools’. the national purse from beneath the security and

guardianship of the law, and disposed of its contents, in parcels, in such places
of deposits as he chose to select. At thisvery 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 isto-day; still less do we know
where it may be to-gmorrow. V V
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
moreindefensible inpits character. It is something whiclnmay well teach us
the tendency of power to move forward, with accelerated pace, if it be al-
lowed to take the first step. The Bank of the United S-tates,tin addition to
the services rendered to the Treasury, gave for its charter, and for the use

of the public deposites, 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. a 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, duringhthe
..period,for which it was proposed to renew it. c 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 deposites is a benefit, for which a bank may welll
afford-~ to pay a large annual sum. The banks which now hold the depositee
pay nothing to the public; they give no bonus, they pay no annuity. But;
tlris: 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 1-'na,y be agreed upon

d between themselves and the E':2;ecut‘ive Government. W’ e are ofliciallyin--

formed ‘ that an oflicer is appointed by the Secretary of the Treasury to»
inspect or superintend these "selected ‘banks; and this otiicer is compensated by a
salary fixed by the Executive, agreedto 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 advan---
tage of holding the deposites? If a dollar is received on thataccount, is not
its only true destination into the general treasury of the Government? And
who has authority,without i1_aw, i to create an oflice, to fix a salary, and
to pay that salary out of this money? Here is. an inspector, or super»
visor of the de-posite banks, But what law has provided for such an officer?
What commission has he received? Who concurred in his appointment’l'
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 Governmentfl. The value of the use of this public money to the deposite
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
oflicers he pleases, with whatever duties he pleases, and pay them as much
as he pleases out of these moneys thus paid by the banks, for the sake of
Framing tlwl deposites? ~ it t ’

O

, Mr... President, the executive claim of power is exactly_tl'1is,l that the Pre«
sident may keep the money of thepublic in whatever banks he chooses, on
whatever terms he chooses,”and to apply the sums which these banks are will-

ing to pay for its use to whatever purposes he tchooses. These sums are not to,
come into the general treasury. ‘They are to be appropriated before they get’

there; they are never to he brought undelr‘ the ‘control of Congressgitliey are to,

9

be paid to oflic‘ers 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
andjustify it’! In my opinion, sir, it is "a clear and a most dangerous assump-
tion 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 reso-
lution, 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 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 clearly visible, and close at hand. In the
first place, it is the right of self-defence. In the second place, it is a right
founded onjtlte duty of representative bodies, in a free Government, to defend
the public liberty against encroachment. I 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 neces-
sary 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. - “ t j i t to
If one, or both, the other branches of the Government happen to do that

iwhichappears to us inconsistent with the constitutional rights of the Senate,

will any one say that the Senate is yetbound to be passive, and to be silent;

to do nothing, and to say nothing’? ,Or if one branch app_ears to encroach on

the rights of the other two, havetltese two no power of remonstrance, com-4
plaint,‘ 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 thistl/rind? If
it may have an opinion, how is that opinion to be ascertained“ but by
resolution andvote? The objection must go the whole length; it must main-
tain that the Senate has not only no right to express opinionspbut no right
to form opinions,,on_,tl1e conduct of the Executive Government, though in matw
ters intimately aifectitng 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 encroaclnnents, by resolutions
expressive of their sentiments, and their purpose to resist such encroach-
ments. 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 autho-
rity. The usages of Parliament, the practice in our State Legislaturesand
Assembl'ies,§both{ before and since the Revolution, and precedents in the
Senate“ itself, fully, maintain this right- The case of j the ‘Panama mission
is in point. I In that cash, Mr. BRANGI-I,,fI‘Om NorthC_arolina,' introduceda
resolution, which, after reciting that the President, in his annual message, and

in his communication to the Senate, had asserted that Ahepossessed an,autho- r

rity to make certain appointments, although the appointments had not been
made, went on to declare that “ ct silent acquiescence, on the part of this body,

10

tact-3), at some future time, be drawn into dange-ro'2ts 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 ven-
tured to contend. that, whether the rights of the Senate were invaded ‘or not,
the Senate must hold its peace. , " ii

The protest labors strenuously to show that the Senate adopted the reso-
lution 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 tryingithe 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. VVhatever attacks our own rights and pri-
vileges, or whatever encroaches on the power of both Houses, we may op-~
pose and resist, by declaration, resolution, or other similar proceeding. 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 theiSenate. It declares that no power is confer-

 red on either branch of the Legislature, to consider or decide upon ofiicial

acts of the Executive, for the purpose of censure, and without a View to le-
gislation or impeachment. This, I think, sir, is pretty high-toned pretension.
According to this doctrine, neither House canassert its own rights, however
the Executive lmight 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
I-Icmses 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 Repu
resentatives are not about to impeach the President,,they have nothing to
say of his measures or of r his conduct; and unless the Senate are engaged in
tryingman impeachment, their mouths, too, are stopped. It is the practice
of the Executive 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
tlast annual message, what he had previously told us in his cabinet paper, that
the removal of the deposites was his act, done on his responsibility; andthat
the. Secretary of the Treasury hadexercised no discretion,“ formed no judgn
rment, 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 theyisayi They think it shows a plain violation of the constitution and
the laws; but the President is not impeached; theréil'ore, they can express no
censure. They think it a direct invasion of legislative lpower,"buI: they must
not say so. They may, indeed, commend, if they can. The grateful business
of praise is lawf'ultothern;rbu1; if, instead of commendation and applause, they

» ll
iind cause for disapprobation, censure, or alarm, the protest enjoins upon
them absolute silence. i ~ T ,

Formerly, sir, it was a practice for the President to meet both wHouses, at
the opening of the session, and deliver a speech, as is still theusage "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 rightto comment, with the utmost latitude, con.

* sistent 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 thosesentiments. 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 dis-
plays of constitutional law, as at the high and dangerous pretensions which it

uts forth. Neither branch of the Legislature, can express censure upon the
lj’resident’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 armyand the fleet

in action; are we still to be silent? Suppose we should see him borrowing ‘

money ontlw credit of the United States,-”are we yet to wait forimpeachmentl
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 hap-
pen, but to what has actually happened. We are intbrmed that the Post
Oflice 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, tl1e,.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 creditiof the United States, but that it is borrowed on the credit of
the Post Office Department. But that would be more evasion. The De-
partment is but a name. It is an office, and nothing more. The banks have
not lent this money to any ofiicer. . 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 author-
ize... If the Post Ofiice Department may borrow money, so may the War

12

Departnient, and the Navy Department. If half a million may be borrowed,
ten" millions may be borrowed. Wliat, then, if this transaction shall banjos-
tified, is to hinder the Executive from borrowing money, to maintain fleets
and armies, or for any other purpose, at this 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 die»

partment has violated the constitution and broken the law, by borrgwing
money on the credit of the United States. Nor could we make a similar

rdeclaratiopn, if we were to see the Executive, by means of this borrowed

mone , enlistin armies and e uippin fleets. And et, sir,_the President
.5’ r 2%’ q g Y

has found no difiiculty, heretofore, in expressing his opinions, in a_paper,not

called for by the exercise of any ofiicial duty, upon the conduct and proceed-
ings of the two Houses or of Congress. At the commencement of this sessiom.
he sent us a message, commentingon the land bill which the two Houses
passed at the end of 1 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 berevived. No communi--
cation from him could have the least possible? effects as an ofiicial 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 wlaichtthe United
States became possessed of their western domain; that one of its provisions
was in direct and undisguised violation of the pledge given by Coizgress to
the States; that the constitution provides that these compacts shall be un-—
touched by the legislative power, which can only make needful rules and
regulations; and that all beyond that is an assumption of undelegated power.
l These are the terms in which the President speaks of an act of the two
Houses; in no ofljcial paper, in no. 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. it ii p H ,
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 exe-
cutive 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 r

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 main»
tain all and singular its own powers and privileges, against either or both of
the 0l2l1eI‘_l3I'8.11C,l1_BS.. , p t it  i ’ “ 4‘ 

If any thing be done or threatened derogatory to the rights of the States,
as securedibypthe organization of the Senate, may we not lift up our voices
against it’! Suppose the. House of Representatives shouldtvote that-the Se-a
nate ought notto propose amendments torevenue bills; would it be the duty
of the“ Senate to take no notice of such gproceedingig Or, if we were to see
the President issuing commissions to ofiice to persons who had never been
nominated to the Senate, are we not to retnonstratei T ‘ ~

13

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. . T T .

And yet, sir, it is easy to perceive why this right of declaring its senti-
ments, 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. t This is evi-
dently an attempt to appeal to popular feeliWng,‘and to represent the President
as unjustly treated and unfairly tried. Sir, it is a false appeal. The Pre-,
slident has not been tried at all; he has not been accused; he has not been

“c urged 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 ioxerpcise of judicial power, either in form, in substance, or in’

intent. " Every bddy 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, noanswer, no hearing, no judgment. All that the Senate
did was to pass a resolution, in legislative form, declaring its opinion of cer-
tain,acts‘o__f 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 on to the judi-
ciallcharacter 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 Repre-
sentatives, can express its opinions on the conduct of the fresident, except
in some form connected with impeachment; so that if the power of impeach-
ment 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 tramplizogon 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 ot
the British Parliament, to maintainthat the House could not, by vote or resolu-
tion,“ maintain its own rights and privileges, would make ‘even the tory

benches hang. their heads forvery shame.‘ There was,‘indeecl, a time when . I

such proceedings were not allowed. Some of the kings of the Stuart race
wouldnot tolerate them. Asignal instance of royal “displeasure with the
proceedings of Parliament occurred in the latter part of the reignlof James
the First. The.House of Commons had spoken, onsorne occasion, T“ 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 mightlstill hold by his own royal

grace _nm.d permission. Sir Edward Coke and  Granville were not sa-y

14

T tisiied with this title to their pritiilegras; and, under their lead, the House en»

tered on its journals a resolution, asserting its iprivileges, as its own 2572-»
doubted 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 hislords and
great ofiicers 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, thatthis English example will be
followed, on this occasion, to its full extent; not would I insinuate that any
thing outrageous has been thoughtlof, or intended, except outrageous preten-
sions; but such pretensions I must impute to the author of this protest, who»
ever that author be. ‘“ M i V ' T" , r 

‘When this and the other House shall lose the freedom of speech and d-
abate; when they shallsurrender the rights of publicly and freely canvassing
all irnportantirneasures of the Executive; when they shall not be allowed to
maintain their own authority and their own privileges by.,.votd‘, declaration,
or resolution, they will then be no longer free representatives of a free peo-
ple, but slaves themselves, and fit instrurn‘ents~ to make slavesof others.

The protest, Mr. President, concedes vvliat it doubtless ,.regards as a‘ liberal
right of discussion to the people themselves. But its language, even in ac-»
knowledging this right of the it 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 crfficial conductof the President, in
such language and form as they may think proper, “ subject only to the
rest-raints of truth and. ijustico, But then who is to be judge of this truth

and justice’! a Are the people to judge for themselves, or are others to judge

f'or.theml~ ,“The protest is here speaking of political rights, and not moral
rights; and if restraints are imposed on political rights, it must fellow, 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 per-

ceive that, by using this language, he was pushing the President into adirect ,

avowal of the doctrines of 1798. The text of theprotest and the text of
the obnoxious act of that year are nearly identical, , P 7  _ ._ ; 

But, sir, if the people have a right to discuss the official: conduct“ of the
Executive, so have their representatives. N-“Vet have been taught to regard
a representative of the people as a sentinelyon the watch--tower of liberty.
Is he to be blind, though “visible dang'er*,a13proacl1es’l i 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 andeager vision
of an unhooded hawk, detecting, through alldisguises, every enemy advanc-
ing, in any form,.tovvards the citadel -which heaguardsl Sir, this watchfulness

~ for?public1iberty,this dutyof‘ foreseeing dangerand proclaiming it, this prornp-
t titude and boldness in resisting attacks on the constitution from any quarter,

i this defence offlestablished landmarks, this fearlesslresistance of vvliatelver
would transcend or retnove"thern,l all belong to -the representative character,"
a areintjerwoven with its very nature, and of which it cannot be deprived, With-

unresisting andfpassive instrument of ipovver. T v';{5rrepresentativ‘er‘l body which
gives up these rights and duties, gives itself up.,,j' It is at«reipr‘esentat1y§ body

out converting tan,'act.ive, intelligent, faithful agent {ofi7tl1'e -peopl‘e,into an

15

no longer. Ithas brolszen the tie between itself and its constituents, and

henceforth is lit only to be regarded as an inert, self-sacrificed mass, from‘

which all appropriate principle of vitality has departed forever.

. I have thus endeavored to vindicate theright o’f‘the~ Senate to pass the
resolution of‘ the 28th of March, notwithstanding the denial of that right in the
protest.  T ‘ - T r i * _

But there are other sentiments and opinions expressed in the protest, oi
the very highest importance, and which demand nothing less than our utmost

attention. r W t ~- r

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 moredeceptive 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‘ imposenumerous limitations
and qualificaiflioxis 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 politicalinstitutions. 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 encroach-
ment, jealous of power, jealous of man. It demands checks, it seeks
for guards‘.',.....,...it....insists on securities; it entrenches itself behind strong do-i
fences, and fo1*tiliie'isiv'illt‘l1 all ‘possible --car~eA,-»~aga.i.nst~ltherassanltstof.am.biti.on 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 Will} 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, it" we will rightly understand
and preserve it. Every tree Government is necessarily complicated, because
all such Governments establish restraints, as well on the power of Government
itself, as on that oi'indiv-iduals. If we will abolish the distinction of branches,
and have but one branch; if'tv.e will abolish jury trials, and ‘leave all to the
judge; ifwe will then ordain that the legislator shall himself he that judge;
and if we will placeltlie elszecutive power in the same hands, we may readily
simplify,egovernrnent. -' We mayieasily bring it tothe simplest of__ all possible
forms, a pure despotism. But a separation of departments, so far as practi—-
cable, anclthe preservation of clear lines of division between them, isthe
l':mdamental idea in ‘the creation of all our constitutions; t and, doubtless,

- the contixiuance of regulated liberty depends on maintaining theseboundaries.

i  In the progress, sir, of the Government-of the» United States, we seem

exposed to two classes of clangersor disturbaucesgjone 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 2 this kind existed lastiyear. It was my conscientious
opinion, on that occasion, that the authority claimed by an individual State
was subversive of the just powers of this,Government, and, indeed, inconv-
patible with its existence. I gave “an hearty co-operati—o‘n, therpelfore, to mea--_

sures which the crisis seemed to require. rWe‘ have novv before-us‘ what ,
appears, to my judgment, to be an instance of the lalifir kind. A _~(:outest, has

 arisen between different ‘branches of the same Government, interrupting their ,

16

harmony, -and threatening to disturb their balance. It is of the highest im-
portance, 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 establishedin any Government of the world, and, per-
haps, never can be. The general principle is of inestimable value, and the
leading lines of distinction sufficiently plain; yet there are powersrof so un-
decideda 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, orthe 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 agai , it grants a
power in general terms, but yet, in the same, or some other arvficle or section,
imposes a limitation or qualificationon the grant; and the grant and the
limitation must, of course, be construed together. Thus the“ constitution says
that alllegislative power, therein granted, shall be vested in Congress, which
Congress shall consist of a a Senate and 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 es-
tablish. It gives, nevertheless, in another provision, judicial power to the
Senate; and,in like i 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-malring power, and the ap- V .

pointing 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 Govern-
ment, 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 con-
tend 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 three first articles of the constitution, as all know, are employed in

* prescribing the organization, and enumerating the powers, of the threidj dew

partments. The first article treats of“ the Legislature,”and its first, section is:
F‘ All legislative power, herein‘ ‘T granted, shall be vested in a Congressof the
United States,which shall consist of a Senate and House of Representatives.”

The secondarticle treats of’ the~executiv_e power, and its first section de-
clares that “the executive power shall be vested in a President of the United
States of America.” , , t_ ~ ‘ , ~ ’  _ t \

Thethird article treats of the judicial power,an-dt its first section declares
that “ the judicial powerof the United States ‘shall tbevested in one,_Supreme
Court, and in’ such inferior courts as the Congress may, from time ajto time,
ordain and'}establish.’,’ T T r t i l g  i  : t S by i

It is too plain‘ to rbefdoubted, I think, sir, that tlieseliidescriptions.»of the
persons or oflicers, in whom the executive and the judicial powers are to be

l7

nested, 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 int-rod-u-ctory
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 powerunder 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 prin-
ciple of the distinction is laid down in most of them, and, iii some of them,
in very positive and emphatic terms. In some of these States, notw-ithstand—
ing 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

I -two: First, that the denomination of a departmentdoes 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 char-
acter 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. I ‘ I ‘

The President appears to have taken a different view of this subject. He
seems to regard the appointing power as originally and inher-e.nt:ly in the Execu-
tive, and as remaining absolute in his hands, except so far as the constitution
restrains it. This I do not agree to, and shall have occasion hereafter to examine
the questionfurther. I have intended, thus far, only to insist on the high and
indispensable duty of maintaining the division of power, as the constitzttiarz
has marked that cliuision out; and to oppose claims of authority not founded on
express grants or necessary implication, but sustained merely by argument,
or inference, from names or denominati-ons 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 pro-
test 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 in-
quiring how far the subsequent message has modified-or explained it. It
is singular, indeed, that a paper, so long in preparation, so elaborate in com-~
position, 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. Explain-~
ed, or unexplained, however, the paper contains sentiments,whichjustify us,
as I think, in adopting these resolutions. I I

In the first place, I think the protest a clear breach of privilege. I It is a I

reproof, or rebuke, of the Senate, in language hardly respectful, for the "ex-'
ercise of a power clearlybelonging to it as a legislative body. , It entirely

misrepresents the proceedings of the ,Senate. I find this paragraph in it,

among others of asirnilar 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
O l .‘ I \

AV

I
u

18

“ Representatives, assume not only the titnctiotg which belongs exclusively
“ to that body, but convert themselves into accusers, witnesses, counsel, and‘
“ judges, and prejudge the whole case. A Thus presenting the appalling spec-
“ tacle, in a free State, of judges going through a labored preparation for an
“ impartial hearing and decision, by a previous ca: parts investigation and
“ sentence against the supposed offender.” i

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 anti-
cipated 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 em parts 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 para-
graph manifests, is a breach of privilege. ..

But there is another breach of privilege. The
the members of the Senate and their constituents, and charges them with acting
contrary tolthe will ofthose constituents. He says itis his right and duty to look
to the journals of the Senate, to ascertain who voted for the resolution of the
538th 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?
lWhat 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 Crontwell’s time, dared to send such a message to Par1ia-
ment? 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. It"

Cromwell’s examples 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 interfereiice, after pointing out those Senators whom he would re-
present as having disobeyed the known will of their constituents, he disc-laims
all design of interjiering at all ! Sir, who could be the writer of a message,
Wlticli, in the first place, makes the President assert such monstrous sp'*reten-
sions, and, in the next line, affrotit the understanding of the Senate "by dis-

shvowing 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
glgtis equa,nin1ity,it is this disclaimer of all design -to interfere With the respon-~»

,sib.il..ity,of mtemhegrs of the Senate to their constituents, after such interference-vi

j;l;t,ad already been made, in the same -paper, in the most objectionable and
~qyfi‘ensi.ve form. If it were notfor the purpose of telling these Se‘?ln1ators; that

they idi-sobeyed the will -of ‘ -»th”e"f*,7fli,=:"gislatures of the States tlieyrepresent,

,6, Km: flaw-pose rates it that ”the' prdtestii has pointed out the four ‘Serrato¥rs,~andl~

par ga«:;,;g_ againstijtlteni the seni"ime'tits nit‘ their Legislatures’! -r There. can be no
i ii " S “The, jjprotesltt,sa;ts,'intleed, that “ these ‘facts belong to the“

-«‘r _t_i_s‘e. , ,
filihter it iD*h‘ili'iiei‘:t‘i'roce?e?tl=ings-l”  ltzliethistory of what proce~edings’E~ To
5 015’ of 0... W i  msldfint was party? i To an,y..protceetd‘i-ng tev

it ts which

,3.” i S .
. Jy proceedmg

-pm,

President interferes between t

19

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, .

towhat interests, are these facts important’! They cannot 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 in-

tervention between us and our constituents; and is, therefore, a manifest and

-flagrant breach of privilege. t

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 custodyof the public property, under such regulations as may be
"" prescribed by legislative authority, has always been considered an appro-
“ priate function‘ of the executive department in this and all other Govern-
“ rnents. 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 appoint-—
“ ed by the President, whether it be lands, or buildings, or merchandise, or
“ provisions, or clothing, or arms and munitions of war. The ‘superintende-
“ents andkeepers of the whole are appointed; by the President, and re-
“ movable at his will. i

“ Public money is but a species of public property. It cannot bevraised
“" by taxation or customs, nor brought into the treasury in any other way
“ except by law; p, but whenever or howsoever obtained, its custody always
“‘ has been, and always musttbe, 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 re-
“ sponsible 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
propertyor money, without an assumption of’ executive power, and a sub-
versioniof the first principles of the constitution.” These, sir,tare proposi-
tions which cannot receive too ‘ much attention. They affirm, that the“
-custodyof 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‘remov- '
able at his will. If these assertions be correct, we have, indeed, a singular P .

constitution for a republican Government; for we give the Executivegthe

20

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 i 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 dis-

pose of it, that it shall be under the superintendence of keepers not appoint-
ed by the President, nor removable at his will. I think it competent for
Congress to declare, as Congress did declare in the Bank charter, thatthe
public deposites 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 pro-
vision 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 enact-
ment? Might not the law have provided that the public moneys should re-
main in the Bank, until’ Congress itself should. otherwise order, leaving
no power of removal any where 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 branchesfor
collection, without the reservation of any power of removal to the Secretary
or any body else. 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 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 ac-
tuallylhold the money, and, therefore, must necessarily subject its custody, at
all times, to his own individual will. This is the argument. . ,

I It is true, that the appointment of all public oflicers, 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 otficer,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 Pre_si.dent.,and
Senate. Congress may still, if it shall so see fit, place the public treasure in the
hand of no ofi"1cer 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 subjectto. no contingency, by the law of 1800. The_pro-
test, in the first place, seizes on the fact that all officers must, be appointed

I 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, insistingthat
public money, like other public, property, must be kept by some publicgoflicer,

it thus arrives at the conclusion; that it must always be in the hands of those

who are appointed by the President, andipwho are removable at ;his~pleasure.
And it is very clearthat the protest means to maintain that the rytemtre of efiice

21

cannot best) regulated by law, as that public ofi-cers shall not be removable
sit the pleasure of the President. a « .

The President COnSlCl'(-3I‘S“il1B right of removal as a fixed, vested con-
stitutional -riglit, which Congress cannot limit, control, or quality, until the

constitution shall be altered. This, sir, is doctrine which I am not prepared p

to admit. I shall not now discuss the question, whether the law may not
place the tenure of ofiice 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 pro-
test. 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 oiiicers, and appoint
others, at least temporarily, witfhout the concurrence of the Senate, he may
hold these 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 giiardiaiiship of the inirnediate represeii-
tatives of the people. '

But, sir, there is, in this paper, somethiiig even yet more strange than these
extraordinary claims of power. There is, sir, a strong disposition, running

‘througih the whole protest, to represent the executive department of this

‘Government as the eculiar rotector of the ublic libert the chief secu-
_ , P P _ P Y» ,
my on which the people are to rely against the encroachment of other
branches of the Government. Nothing can be more manifest than this pur-
pose. 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 "‘ pre-
serve,'protect, and defendthe coiistitntion;” and ineinbers of Congress are
to swear that they will F‘supp;ort the constitution.” There are more words
in one oath than the other, but the sense, is precisely the same. Wliy, then,
this reference to his oflicial 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 co'nsti~
tution,” he is, therefore, to use what meaiis he pleases, or any means for
sticli preservation, protection, and defence, except those which the constitu-
tion and laws have specifically given him’! Such an argument would be pre-
posterous; 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 td sup.-
port the "general idea that the mainteiiance of the constitution and the pre-
pprvation of Ehe ppbliclliberties arle especclriallyhconfifdesd to the safe dispretriiroln,
ie sure mo era 1-on, tie paterna guar ians ip 0. executive power. « re
oath pf the President contains three words, all of equal import; that is, that
‘he will preserve, protect, and defiend the constitution. The oath of members
of Congress ‘is’ expressed in shorter phrase; it is, that they will support the
coiist1tut_ion.. If there be any diflerence in the meaning of the two oaths, I
cannot discern‘1t; and yet the protest solemnly and formally argues.thus: “ The
duty of defending, so far as in him lies, the integrityl of the constitution, would,

“indeed, have resulted; from the very nature of his oflice; but, by thus express-

ing it in the otiicial oath or affirmation, which, in this respect, diliersl i 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.”

2:?

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, pf 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 Presi-
dent is the chief Executive Magistrate. He is commander-in—chief of the
army and navy, nominates all persons to oflice, 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 leis ojice; and that the founders of our republic have

given to this duty, thus confided to him, peculiar solernnity 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 be»
.. tween 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 restrainit. To

7 this end the spirit ofliberty, 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 re-
presentative right has kept up its warfare against prerogative, with "various

success; sometimes writing the history of a whole age in blood, sometimes W-it-

nessing 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 lead»
ing 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 hasleft behind it... Crowned heads have been compelled to submit to the
ggestraints 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 en"-

, joyment 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 es-

tablishment of free representative Governments; Governments, borrowing
more or less from the models of other free States, but strengthens-d,isecured,

23

improved in their synnnetry, and deepened in their foundation, by those great
{Hen of our own country whose names'will be as familiar to future times as
If theyiwere written on the arch of the sky. ,
Tltrough all this history of the contest for liberty, executive power has been
fiegarded as a lion which must be caged. So. far from being the object of en-

lightened popular trust, so far from being considered the natural protector of
. P0P11lar right, it has been dreaded, uniformly, always dreaded, as the great

30urce of its danger.
And now, sir, who is he, so ignorant of the history of liberty, at home and

3bl‘0ad; who is he, yet dwelling, in his contemplations, among the principles
and dogmas ofthe middle ages; who is he, from whose bosom all original in-
fusion of American spirit has become so entirely evaporated and exhaled, as
that he shall put into the mouth of the President of the United States the doc-
trine that the defence of liberty .'n,at'urall_ty results to executive power, and is its
,t3ecu]iar duty? Wire 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,
‘hat, reversing the order of the state, and up-heaving the base, would poise the
lijjramid of the political system upon its apex; who is he, that, overlooking
Vvitli contempt the guardianship of the representatives of the people, and,
jrvtth equal contempt, the higher guardianship of the people themselves; who
*3 he, that declares to us, through the President’s lips, that the security for
ffftedom rests in executive authority? Who is he that belies the blood and
hbels 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’! W110 is he that thus charges them with the insanity,
01‘ the recklessness, of putting the lamb beneath the lion’s paw? No, sir.
N0: Sir. Our security is in our watchfuluess of executive power. It was the
Constitution of this department, which was infinitely the most difficult part in
tile great work of creating our present Government. To give to the execu-
UVB department such power as sliould make it useful, and yet not such as
Svllould render it dangerous; to make ifleflicient, independent, and strong, and
3’ _*311_ to prevent it from sweeping away every thing by its union of military and
C1V1l authority, by the influence of patronage, and office, and favor: this, in-
deed, was difficult. They who had the work to do saw the difliculty, 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
isomeppopular Executive,by the power of patronage and party, and the
Power, too, of that very popularity, shall not hereafter prove an over-match
1191‘ all other branches of the Government. , .

I do not wish, sir, to impair the power of the President, as it stands writ-

iien down in the constitution, and as great and good men have hitherto exter-

fiised it. In this, as in other respects, I am for the constitution as it is. But 

I will not acquiesce inthe reversal of all just ideas of Government; I will
got degrade the character of popular representation; I will not blindly con-
dea_ where all experience admonishes me to be jealous; I will not trust ex-
e§;‘~11t;JVe power, vested in the hands of a single magistrate, to keep the vigils
0 i erty. , , I
Having claimed for the Executive the especial guardianship of the consti-

iv “Mona the protest proceeds to present a summary view of the powers which
.ar'3 Supposed, to be conferred on the Executive by that instrument. And it is

to this part’ of the message, sir, that ii would", more tliarr to all others, Cali‘ the
particular attention of the Senate. I confess,.that it was only upon careful re»
perusal of the paper, that I perceived the extent to which its assertions of pow-
or reach. I do not speak, now, of the President’s claims of power, as op...
posed to legislative authority, but of his opinions as to his own authori-ty’,

duty, and responsibility, as connected with all other ofl-icers under the Governe-
P rnent. He is of opinion that the whole executive power is vested in him», _

and thathe is responsible for its entire exercise; that,» among the duties
imposed on him, is that of “taking care that the laws be faithfully exe-
cutedg” and that "" being thus made responsible for the entire action of the
“ executive cliepartment, it was but reasonable that the power of appointing,
“" overseeing, and contr'olling those who execute the laws»:-a power in its new
“’ ture 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 lieaids of depart»-5:
“' ments."’*t » ,_ V

The first proposition, then,‘ which the protest asserts, in regard to the Pre--»
sident’s powers, as Executive Magistrate, is, that tlie general duty being iron-

posed on him by the constitution of taking care that the laws be faitlifully

executed, /ire t/zereby becomes ltnnself res]90nstit‘2le for the comizwt of every
person employerl in the Goocrmnmzt; "‘ for the entire action,”” as the paperex--w
presses it, “ of the executive clepartnient.” This, sir, is very d"angerous
logic‘. I -reject the inference altogether. No such responsi-bility,- nor any
thing like it, follows from the general provision of the constitution, making it
his duty to see the Paws executed. Ifit did,we should have, in fact, but one ofli'-
cer in the whole Government. The President would be every body. And the

“protest assumes to the President this whole responsibility for every othe-r
‘officer, for the very purpose of ‘making the President every body, of annihi‘-v

lating everyitliizig like independence, responsibility, or cltctracier in all other
public agents. The whole responsibility is assumed, in order that it may be
more plausibly argued that all oflicers of Governnrent are, not agents of the
law, but the President’s agents,a11d therefore responsible to him alone. If he be
responsible for the conduct of all oficers, and they be responsible to himonly.,.
then it rnaybe 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
‘overall individuals in ofiioe, as being merely the President’s agents. This

\' is tl1e"l*anguage:y "" The whole executive power being vested in the President,.

“Wl‘)0iS" responsipble for its exercise, it is a necessary‘ consequence that he
"‘ should." have a right to employ agents of his own choice-,. totaid him in the

“ perforrrrance or his duties, and to discharge thorn when he is no longer .

“ willing to be responsible for their acts.” _ p
This, sir, completes the work. This handsomely rounds off itlie whole
executive system of executive authority. ' First, the President has the whole re-
sponsibility; and then, being thus ‘responsible for all, he has, and ought to have,.
the whole po-worst We have ltearci. of pol ist-ica~.l- '.tmits,,and.~ o.-uir A.merican~ Extectitive,

925

as here represented, is, indeed, a unit. We have a charmingly simple Govern»:
ment! ‘Instead of many officers in different departments, each having ‘appro-
priate duties, and each responsible for his own duties, we are so fortunate as

to have to deal with but one ofiicer. The President carries on the Govern- ‘

ment; 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 ofiicer under the
Government perfbrms, 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. , H , a r
7 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 Pre-
sident declares that he is “ responsible for the entire action of the executive
departme11t.’i Respo11sible?,Wliat does he mean by being “responsible?” Does
he mean legal responsibility? -Certainly not. No such thing. Legal respon-

d sihility signifies .liability to punishment for misconduct or mal-r-arlministratiorz.

But the ‘protest doesnot mean that the President is liable to- be impeached
and punished, ifta 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 110-»
tion of that responsibility, which it says the President is under for all officers,
and which authorizes him to consider all ofiicers as hisown 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 are-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 doc-—
trines of the protest hold the President subject. ‘ ’ I r r t
It is precisely the 7'esponsibilit_r/ under which Cromwell. acted, when be
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 Bona—~
parte broke up the popular assembly of France. I donot mean, sir, certainly,
by these illustrations, to insinuate designs of violent usurpations 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 consti-
tutional responsibility, no republican responsibility; but a mere liability to
loss of oflice, 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 it his discretion, and his pleasure.
V 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.

Theyare sentiments which give us all one master. The protest asserts an abso-

lute right to remove all personsfrom office, at pleasure; and for what reason’!
Because they are incormpietentl tBecause- they are incapable? Because they

26

are. remiss, negligent, or inattentive? No, sir, these are not the reasons. . But
he may discharge them, one and all, simply because i“ 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 oflicer of the Govern-
ment, 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
controllers, and direct them how to settle every man’s account; what abate-
ments 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 ofiicers are sworn to
discharge the duties of their respective oflices honestly and fairly, according
to their own best abilities; it is true, that many of them are liable to indict-
ment for official misconduct, and others responsible, in suits of individuals, for
damages and penalties, if such omcial misconduct be proved; but notwith-
standing all this, the protest avers that all these officers are but the Presi-
dent’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 Pre-
sident calls the secretaries his secretaries, not once only,but repeatedly. After
half at century’s administration of this Government, sir, after we have endea-
vored, by statute upon statute, and by provision following provision, to define

and limit official authority, to assign particular duties to particular public ser-

vants, 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 establishthe prevalence, of equal rule, to make the law, has

i 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 oflicial agency, in its smallest ramifications, as well as in its
larger masses, there is but one RESPONSIBILITY, one DISCRETION, ONE WILLl
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

be repeated from Louis the 14th, “ I am the State.” a. V

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 ques-
tion,I should answer, “look to the constitution and see; examine the par-
ticulars of the grant, and learn what that executive power is, which is given
to the President, either by express words or by necessary irnplication.”_ But
so the writer of this protest does no_t 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 con-

stitution prescribes. This is clearly the writer’s view of the subject, unless,

indeed, he goes behind the constitution altogether, as some expressionswould
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;"con-
stitution makes it his duty, to appoint persons to office; as if j the right ex-
isted before the constitution had created the duty. It speaks, too, of the
power-of removal, not as at power granted by the constitution, butexpressly
as “an original executive power,left unchecked bythe, constitjutiont. How
original’! Coming from what source higher than the constitution’! I should be

27

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 lefl‘, 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 oflicers,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 lzad power to appoint and
“ remove at will all oflicers, executive and judicial. It was to take the
“judges out of this general power of removal, and thus make them inde-
“pendent of the Executive, that the tenure of their offices was changed to
“good behavior. Nor is it conceivable why they are placed, in our con-
“ stitution, upon a tenure difi"erent from that of all other oflicers 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 notclose enough to guide us
safely; it can only mislead us. It has entirely misled the writer of the pro-
test. 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 ap-

pointingand removing all ofiicers at pleasure; but which right, so far as it
respects the judges, has since been checked and controlled by act of Par-

liament; 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 ex-
tent of power that constitution has granted. The grant of power, the whole
source of a 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. T/zeirs are limited, whenever limited at all, by reason of re-
straints, imposed at-difl'erent times, on Governments originally unlimited and
despotic. Our American questions, therefore, must he 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 F renclrcomedies, as you know, in which the
dullness and prolixity of legal argument is intended to be severely satirized,

.while the advocate is tediously groping among ancient lore having nothing

28

‘to do with his case, the judge grows impatient, and at last cries outtto him
togcome 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. 1 de-
sire that all 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. I .
In asserting power for an American President, I prefer he should attempt
tolmaintainhis 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 Eng-
land. It is true, that in England the King is regarded as the original foun-
tain 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
history 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 main-
tain itself, these favors were turned into rights. r Before and during the reigns
ofthe princes of the Stuart family, they were acknowledged only as favors

or privileges, graciously allowed, although, even then, whenever opportunity I

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 rights
in England, by the prince who then ascended the throne, and as the condi-
tion 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 pos-
sesses, or can possess; and what is not given, they retain. In England, be--
fore 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 allow-
ances, and indulgencies. But, with us, we go to grants and to constitutions
to learn the extertt of tire powers of Governnienti 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 Govern--

‘ rnents, but from the words of the grant itself, in their plain sense and neces-

sary import, and according to “an interpretation consistent with our own his-
tory and the spirit of our own institutions. And I will never agree that a.
President of the United States “holds the whole undivided power of oflicein
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 Governrnent and exe-
cuting the laws. Such a responsibility is purely ideal, delusive, and Vain.
There is, there can be, no substantial responsibility, any farther than every

 individual is answerable, not merely in his reputation, not merely in the opin-

ion of mankind, but-to the law, for the faithful discharge of his own appro-

29

A priate duties. Again and again we hear it said that the President is responsi-A

ble 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, republi-
can 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 re-
strained 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
with 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 Presidentis the direct representative of the American peo-
ple. This.isdeclared, in the protest, in so many words: “ The President,”
says the protest, “ is the direct representative of the American people.” Now,
sir, this is not the language of the constitution. The constitution no where
calls him the representative of the American people, still less their direct re-
presentative. 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 representa-
tive 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 Presi-
dent 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 denomi-
nation of his oflice- How is it, then,that on this oflicial character,thus cautiously
created, limited, and defined, he is to engraft another, and a very imposing
character, viz: the character of the direct representative of thejlmerican
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 represen-
tative which they all have. Nobody else presumes to represent all the
people. And if he may be allowed to sconsiderphimself as the some REPRE-
seN'I‘,A-rrrvs on ALL THE AMERICAN PEOPLE, _and;..is to act under no other re-
sponsibility 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 sen»
timent, therefore,and I protest against the language; neither the sentiment nor
the language is to be found in the constitution of the country; and whosoever
is not satisfied to. describe the powers of the President in the language of the
constitution‘, may be justly suspected of beingas little satisfied with the powers

30

themselves. The President is President. His olfice'- and his name of office
are known, andboth are fixed and described by law. Being commander of
the army and navy, holding the power of nominating to oflice and removing
from ofiice, 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 be-
comes, 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 as the nation’s I"
1

Will’!

I will now, sir, ask leave to recapitulate the general doctrines of this pro-
test, 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 Preside_nt, without some view to
legislation or impeachment;

That not only the passage, but the discussion of the resolution of the Sen»-
ate of the 28th of March, was unauthorized by the constitution, and repug-
nant 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 any
where, except with 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 tize
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 otiicial
oath, have given. to it peculiar solemnity and force; ,

That as he is to take care that the laws be faithfully executed, he is there-
by made responsible for the entire action of the executive department, with
power of appointing, overseeing, and controlling those who execute the laws;

That the power of removal from ofiice, like that of appointment, is an ori-
ginal executive power, and is left in his hands, unclzeclced 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; i

That the secretaries are his secretaries, and all persons appointed to ofiices
created by law, except the judges, his agents, responsible to him, and remov-
able at his pleasure; I

And, finally, that he is, the direct representative of the Americanpcaple.

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 said nothing which I do not believe. 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 ut-
terance to a single sentiment which does not flow from entire conviction.

31

feel that I am not wrong. I feel that an inborn and inbred love of constitu-
tional 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 ar-~
rows 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 constit'u--
tion 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 col-
lision 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 dis-
regarded, 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 pee»
ple 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 constiu
tunon.

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