A Compilation of the Messages and Papers of the Presidents
by
James D. Richardson
Part 2 out of 9
example in the history of our country. If the acts of the public
servants, who are responsible to the people for the manner in which
they execute their duty, may thus be checked and controlled by an
irresponsible money corporation, then indeed the whole frame of our
Government is changed, and we have established a power in the Bank
of the United States above what we derive from the people.
It will be seen from the accompanying statement (marked A) that
according to the latest accounts received at the War Department the Bank
of the United States and its branches have in their possession near half
a million of the public money, received by them under the law of 1832,
which they have not yet accounted for, and which they refuse to pay over
to the proper agents for the use of those persons for whose benefit it
was withdrawn from the Treasury. It is to be regretted that this attempt
on the part of the bank to guide and direct the Executive upon the
construction and execution of an act of Congress should have been put
forward and insisted on in a case where the immediate sufferers from
their conduct will be the surviving veterans of the Revolutionary war,
for this evil falls exclusively upon the gallant defenders of their
country and delays and embarrasses the payment of the debt which the
gratitude of the nation has awarded to them, and which in many instances
is necessary for their subsistence and comfort in their declining years.
The character of the claim set up by the bank and the interest of the
parties to be immediately affected by it make it my duty to submit the
whole subject to the consideration of Congress, and I leave it to their
wisdom to adopt such measures as the honor of the Government and the
just claims of the individuals injured by the proceedings may be deemed
to require.
Having called for the opinion of the Attorney-General upon this occasion
with a view to a thorough investigation of the question which has thus
been presented for my consideration, I inclose a copy of the report of
that officer and add my entire concurrence in the views he has taken.
ANDREW JACKSON.
WASHINGTON, _February 12, 1834_.
_To the House of Representatives_:
I transmit to the House of Representatives a report[3] from the
Secretary of State, in relation to the subject of a resolution of the
8th of this month.
ANDREW JACKSON.
[Footnote 3: Relating to the boundary line between Georgia and Florida.]
WASHINGTON, _February 12, 1834_.
_To the House of Representatives_:
I transmit to the House of Representatives a report from the Secretary
of State, containing the information requested[4] by the resolution of
the 14th ultimo, with the documents which accompanied that report.
ANDREW JACKSON.
[Footnote 4: List of presents from foreign governments to officers of
the United States, deposited in the State Department.]
WASHINGTON, _February 22, 1834_.
_To the Senate of the United States_:
I transmit herewith to the Senate, for their advice concerning its
ratification, an additional and explanatory convention to the treaty of
peace, amity, commerce, and navigation between the United States and
the Republic of Chile, which additional and explanatory convention was
concluded at the city of Santiago by the plenipotentiaries of the United
States and of Chile on the 1st of September, 1833. I also transmit a
report from the Secretary of State on the subject.
ANDREW JACKSON.
WASHINGTON, _March 8, 1834_.
_To the House of Representatives_:
I transmit herewith to the House a report from the Secretary of State,
containing the instructions and other papers called for by the
resolution of the House of the 14th ultimo, "relative to the trade
between the United States and the islands of Cuba and Porto Rico," etc.
ANDREW JACKSON.
WASHINGTON, _March 11, 1834_.
_To the Senate_:
I renominate Henry D. Gilpin, Peter Wager, and John T. Sullivan, of
Philadelphia, and Hugh McEldery, of Baltimore, to be directors in the
Bank of the United States for the year 1834.
I disclaim all pretension of right on the part of the President
officially to inquire into or call in question the reasons of the
Senate for rejecting any nomination whatsoever. As the President is
not responsible to them for the reasons which induce him to make a
nomination, so they are not responsible to him for the reasons which
induce them to reject it. In these respects each is independent of
the other and both responsible to their respective constituents.
Nevertheless, the attitude in which certain vital interests of the
country are placed by the rejection of the gentlemen now renominated
require of me frankly to communicate my views of the consequences
which must necessarily follow this act of the Senate if it be not
reconsidered.
The characters and standing of these gentlemen are well known to the
community, and eminently qualify them for the offices to which I propose
to appoint them. Their confirmation by the Senate at its last session to
the same offices is proof that such was the opinion of them entertained
by the Senate at that time, and unless something has occurred since to
change it this act may now be referred to as evidence that their talents
and pursuits justified their selection. The refusal, however, to confirm
their nominations to the same offices shows that there is something
in the conduct of these gentlemen during the last year which, in the
opinion of the Senate, disqualifies them, and as no charge has been
made against them as men or citizens, nothing which impeaches the
fair private character they possessed when the Senate gave them their
sanction at its last session, and as it, moreover, appears from the
Journal of the Senate recently transmitted for my inspection that it was
deemed unnecessary to inquire into their qualifications or character,
it is to be inferred that the change in the opinion of the Senate
has arisen from the official conduct of these gentlemen. The only
circumstances in their official conduct which have been deemed of
sufficient importance to attract public attention are the two reports
made by them to the executive department of the Government, the one
bearing date the 22d day of April and the other the 19th day of August
last, both of which reports were communicated to the Senate by the
Secretary of the Treasury with his reasons for removing the deposit.
The truth of the facts stated in these reports is not, I presume,
questioned by anyone. The high character and standing of the citizens
by whom they were made prevent any doubt upon the subject. Indeed, the
statements have not been denied by the president of the bank and the
other directors. On the contrary, they have insisted that they were
authorized to use the money of the bank in the manner stated in the two
reports, and have not denied that the charges there made against the
corporation are substantially true.
It must be taken, therefore, as admitted that the statements of the
public directors in the reports above mentioned are correct, and they
disclose the most alarming abuses on the part of the corporation and the
most strenuous exertions on their part to put an end to them. They prove
that enormous sums were secretly lavished in a manner and for purposes
that can not be justified, and that the whole of the immense capital
of the bank has been virtually placed at the disposal of a single
individual, to be used, if he thinks proper, to corrupt the press and
to control the proceedings of the Government by exercising an undue
influence over elections.
The reports are made in obedience to my official directions, and I
herewith transmit copies of my letters calling for information of the
proceedings of the bank. Were they bound to disregard the call? Was it
their duty to remain silent while abuses of the most injurious and
dangerous character were daily practiced? Were they bound to conceal
from the constituted authorities a course of measures destructive to the
best interests of the country and intended gradually and secretly to
subvert the foundations of our Government and to transfer its powers
from the hands of the people to a great moneyed corporation? Was it
their duty to sit in silence at the board and witness all these abuses
without an attempt to correct them, or, in case of failure there, not to
appeal to higher authority? The eighth fundamental rule authorizes any
one of the directors, whether elected or appointed, who may have been
absent when an excess of debt was created, or who may have dissented
from the act, to exonerate himself from personal responsibility by
giving notice of the fact to the President of the United States,
thus recognizing the propriety of communicating to that officer the
proceedings of the board in such cases. But independently of any
argument to be derived from the principle recognized in the rule
referred to, I can not doubt for a moment that it is the right and the
duty of every director at the board to attempt to correct all illegal
proceedings, and, in case of failure, to disclose them, and that every
one of them, whether elected by the stockholders or appointed by the
Government, who had knowledge of the facts and concealed them, would be
justly amenable to the severest censure.
But in the case of the public director it was their peculiar and
official duty to make the disclosures, and the call upon them for
information could not have been disregarded without a flagrant breach
of their trust. The directors appointed by the United States can not be
regarded in the light of the ordinary directors of a bank appointed by
the stockholders and charged with the care of their pecuniary interests
in the corporation. They have higher and more important duties. They are
public officers. They are placed at the board not merely to represent
the stock held by the United States, but to observe the conduct of the
corporation and to watch over the public interests. It was foreseen
that this great moneyed monopoly might be so managed as to endanger the
interests of the country, and it was therefore deemed necessary as a
measure of precaution to place at the board watchful sentinels, who
should observe its conduct and stand ready to report to the proper
officers of the Government every act of the board which might affect
injuriously the interests of the people.
The whole frame of the charter, as well as the manner of their
appointment, proves this to be their true character. The United States
are not represented at the board by these directors merely on account
of the stock held by the Government. The right of the United States to
appoint directors and the number appointed do not depend upon the amount
of the stock, for if every share should be sold and the United States
cease to be a stockholder altogether, yet under the charter the right
to appoint five directors would still remain. In such a case what would
be the character of the directors? They would represent no stock and
be chosen by no stockholders. Yet they would have a right to sit at
the board, to vote on all questions submitted to it, and to be made
acquainted with all the proceedings of the corporation. They would not
in such a case be ordinary directors chosen by the stockholders in
proportion to their stock, but they would be public officers, appointed
to guard the public interest, and their duties must conform to their
office. They are not the duties of an ordinary director chosen by a
stockholder, but they are the peculiar duties of a public officer who
is bound on all occasions to protect to the utmost of his lawful means
the public interests, and, where his own authority is not sufficient
to prevent injury, to inform those to whom the law has confided the
necessary power. Such, then, is the character and such are the duties
of the directors appointed by the United States, whether the public be
stockholders or not. They are officers of the United States, and not
the mere representatives of a stockholder.
The mode of their appointment and their tenure of office confirm this
position. They are appointed like other officers of the Government and
by the same authority. They do not hold their offices irrevocably a year
after their appointment; on the contrary, by the express terms of the
law, they are liable to be removed from office at any time by the
President when in his judgment the public interest shall require it.
In every aspect, therefore, in which the subject can be considered it is
evident that the five directors appointed by the United States are to be
regarded as public officers who are placed there in order to observe the
conduct of the corporation and to prevent abuses which might otherwise
be committed.
Such being the character of the directors appointed on behalf of the
United States, it is obviously their duty to resist, and in case of
failure to report to the President or to the Secretary of the Treasury,
any proceedings of the board by which the public interests may be
injuriously affected. The President may order a _scire facias_ against
the bank for a violation of its charter, and the Secretary of the
Treasury is empowered to direct the money of the United States to be
deposited elsewhere when in his judgment the public interest requires it
to be done. The directors of this bank, like all others, are accustomed
to sit with closed doors, and do not report their proceedings to any
department of the Government.
The monthly return which the charter requires to be made to the Treasury
Department gives nothing more than a general statement of its pecuniary
condition, and of that but an imperfect one; for although it shows the
amount loaned at the bank and its different branches, it does not show
the condition of its debtors nor the circumstances under which the loans
were made. It does not show whether they were in truth accommodations
granted in the regular and ordinary course of business upon fair banking
principles or from other motives. Under the name of loans advances may
be made to persons notoriously insolvent for the most corrupt and
improper purposes, and a course of proceeding may be adopted in
violation of its charter, while upon the face of its monthly statement
everything would appear to be fair and correct.
How, then, is the executive branch of the Government to become
acquainted with the official conduct of the public directors or the
abuses practiced by the corporation for its private ends and in
violation of its duty to the public? The power of displacing the public
directors and that of issuing a _scire facias_ and of removing the
deposits were not intended to be idle and nugatory provisions without
the means of enforcement. Yet they must be wholly inoperative and
useless unless there be some means by which the official conduct of the
public directors and the abuses of power on the part of the corporation
may be brought to the knowledge of the executive department of the
Government.
Will it be said that the power is given to the Secretary of the
Treasury to examine himself, or by his authorized agent, into the
conduct and condition of the bank? The answer is obvious. It could not
have been expected or intended that he would make an examination unless
information was first given to him which excited his suspicions; and
if he did make such a general examination without previous information
of misconduct, it is most probable that in the complex concerns and
accounts of a bank it would result in nothing, whatever abuses might
have been practiced.
It is, indeed, the duty of every director to give information of such
misconduct on the part of the board. But the power to issue a _scire
facias_ and to remove the deposits presupposes that the directors
elected by the stockholders might abuse their power, and it can not be
presumed that Congress intended to rely on these same directors to give
information of their own misconduct. The Government is not accustomed
to rely on the offending party to disclose his offense. It was intended
that the power to issue a _scire facias_ and remove the deposits be
real and effective. The necessary means of information were therefore
provided in the charter, and five officers of the Government, appointed
in the usual manner, responsible to the public and not to the
stockholders, were placed as sentinels at the board, and are bound by
the nature and character of their office to resist, and if unsuccessful
to report to the proper authority, every infraction of the charter and
every abuse of power, in order that due measures should be taken to
punish or correct it; and in like manner it is their duty to give, when
called upon, any explanation of their own official conduct touching the
management of the institution.
It was perhaps scarcely necessary to present to the Senate these views
of the power of the Executive and of the duties of the five directors
appointed by the United States. But the bank is believed to be now
striving to obtain for itself the government of the country, and is
seeking by new and strained constructions to wrest from the hands of the
constituted authorities the salutary control reserved by the charter;
and as misrepresentation is one of its most usual weapons of attack,
I have deemed it my duty to put before the Senate in a manner not to be
misunderstood the principles on which I have acted.
Entertaining as I do a solemn conviction of the truth of these
principles, I must adhere to them and act upon them with constancy and
firmness. Aware as I now am of the dangerous machinations of the bank,
it is more than ever my duty to be vigilant in guarding the rights of
the people from the impending danger. And I should feel that I ought to
forfeit the confidence with which my countrymen have honored me if I did
not require regular and full reports of everything in the proceedings
of the bank calculated to affect injuriously the public interests from
the public directors; and if the directors should fail to give the
information called for, it would be my imperious duty to exercise
the power conferred on me by law of removing them from office and of
appointing others who would discharge their duties with more fidelity to
the public. I can never suffer anyone to hold office under me who would
connive at corruption or who should fail to give the alarm when he saw
the enemies of liberty endeavoring to sap the foundations of our free
institutions and to subject the free people of the United States to the
dominion of a great moneyed corporation.
Any directors of the bank, therefore, who might be appointed by the
Government would be required to report to the Executive as fully as the
late directors have done, and more frequently, because the danger is
more imminent; and it would be my duty to require of them a full detail
of every part of the proceedings of the corporation, or any of its
officers, in order that I might be enabled to decide whether I should
exercise the power of ordering a _scire facias_, which is reserved to
the President by the charter, or adopt such other lawful measures as the
interests of the country might require. It is too obvious to be doubted
that the misconduct of the corporation would never have been brought to
light by the aid of a public proceeding at the board of directors. The
board when called on by the Government directors refused to institute an
inquiry or require an account, and the mode adopted by the latter was
the only one by which the object could be attained. It would be absurd
to admit the right of the Government directors to give information and
at the same time deny the means of obtaining it. It would be but another
mode of enabling the bank to conceal its proceedings and practice with
impunity its corruptions. In the mode of obtaining the information,
therefore, and in their efforts to put an end to the abuses disclosed,
as well as in reporting them, the conduct of the late directors was
judicious and praiseworthy, and the honesty, firmness, and intelligence
which they have displayed entitle them, in my opinion, to the gratitude
of the country.
But if I do not mistake the principles on which the Senate have recently
rejected them, the conduct which I deem worthy of praise they treat as
a breach of duty, and in their judgment the measures which they took to
obtain the informations and their efforts to put an end to the practices
disclosed and the reports they have made to the Executive, although true
in all their parts, are regarded as an offense and supposed to require
some decisive mark of strong disapprobation.
If the views of the Senate be such as I have supposed, the difficulty of
sending to the Senate any other names than those of the late directors
will be at once apparent. I can not consent to place before the Senate
the name of anyone who is not prepared with firmness and honesty to
discharge the duties of a public director in the manner they were
fulfilled by those whom the Senate have refused to confirm. If for
performing a duty lawfully required of them by the Executive they are
to be punished by the subsequent rejection of the Senate, it would not
only be useless, but cruel, to place men of character and honor in that
situation, if even such men could be found to accept it. If they failed
to give the required information or to take proper measures to obtain
it, they would be removed by the Executive. If they gave the information
and took proper measures to obtain it, they would upon the next
nomination be rejected by the Senate. It would be unjust in me to place
any other citizens in the predicament in which this unlooked-for
decision of the Senate has placed the estimable and honorable men who
were directors during the last year.
If I am not in error in relation to the principles upon which these
gentlemen have been rejected, the necessary consequence will be that
the bank will hereafter be without Government directors, and the people
of the United States must be deprived of their chief means of protection
against its abuses, for whatever conflicting opinions may exist as to
the right of the directors appointed in January, 1833, to hold over
until new appointments shall be made, it is very obvious that whilst
their rejection by the Senate remains in force they can not with
propriety attempt to exercise such a power. In the present state of
things, therefore, the corporation will be enabled effectually to
accomplish the object it has been so long endeavoring to attain.
Its exchange committees and its delegated powers to its president may
hereafter be dispensed with without incurring the danger of exposing
its proceedings to the public view. The sentinels which the law had
placed at its board can no longer appear there.
Justice to myself and to the faithful officers by whom the public has
been so well and so honorably served without compensation or reward
during the last year has required of me this full and frank exposition
of my motives for nominating them again after their rejection by the
Senate. I repeat that I do not question the right of the Senate to
confirm or reject at their pleasure, and if there had been any reason
to suppose that the rejection in this case had not been produced by the
causes to which I have attributed it, or if my views of their duties and
the present importance of their rigid performance were other than they
are, I should have cheerfully acquiesced and attempted to find others
who would accept the unenviable trust; but I can not consent to appoint
directors of the bank to be the subservient instruments or silent
spectators of its abuses and corruptions, nor can I ask honorable men to
undertake the thankless duty with the certain prospect of being rebuked
by the Senate for its faithful performance in pursuance of the lawful
directions of the Executive.
I repeat that I do not claim a right to inquire into or officially
to censure the acts of the Senate, but the situation in which the
important interests of the American people vested in the Bank of the
United States and affected by its arrangements must necessarily be left
by the rejection of the gentlemen now renominated has made it my duty
to give this explanation to the Senate and submit the matter to their
reconsideration. If it shall be determined by the Senate that all
channels of information in relation to the corrupt proceedings of this
dangerous corporation shall be cut off and the Government and country
left exposed to its unrestrained machinations against the purity of the
press and public liberty, I shall, after having made this effort to
avert so great an evil, rest for the justification of my official course
with respectful confidence on the judgment of the American people.
In conclusion it is proper I should inform the Senate that there is now
no Government director appointed for the present year, Mr. Bayard, who
was nominated, and confirmed by the Senate, having refused to accept
that appointment.
ANDREW JACKSON.
WASHINGTON, _March 14, 1834_.
_To the Senate and House of Representatives_:
I transmit herewith a report from the Secretary of State, accompanied by
a copy of a letter from the commissioners appointed to adjust the claims
of our citizens under the late treaty with Naples, and suggest for the
consideration of Congress the expediency of extending the term allowed
for the performance of the duties assigned to them.
ANDREW JACKSON.
WASHINGTON, _March 20, 1834_.
_To the Senate of the United States_:
I transmit herewith to the Senate a report[5] from the Secretary of
State, with the documents accompanying it, in pursuance of their
resolution of the 7th instant, relative to the ship _Olive Branch_.
ANDREW JACKSON.
[Footnote 5: Transmitting memorial of the heir at law of General Ira
Allen, relative to the capture, detention, and condemnation of the ship
_Olive Branch_ and her cargo by the British Government; also copy of
instructions given to the United States minister to Great Britain and of
correspondence between him and the British Government on the subject.]
WASHINGTON, _March 22, 1834_.
_To the House of Representatives of the United States_:
I transmit to the House of Representatives a report[6] from the Secretary
of State, upon the subject of a resolution of the 10th instant, which
was referred to that officer.
ANDREW JACKSON.
[Footnote 6: Transmitting correspondence and papers relating to the
claim of Don Juan Madrazo, a Spanish subject, for losses occasioned
by acts of the United States and Georgia.]
WASHINGTON, _April 1, 1834_.
_To the Senate and House of Representatives_:
I transmit for the consideration of Congress a report from the Secretary
of State, and recommend that legislative measures may be taken to
prevent the counterfeiting of foreign coins and the exporting of
counterfeit coins from the United States.
ANDREW JACKSON.
WASHINGTON, _April 2, 1834_.
_To the Senate and House of Representatives_:
I lay before Congress a communication from the governor of New York and
a copy of a communication from the governor of New Jersey, addressed to
me with a view of obtaining the consent of Congress to an agreement
which has been entered into by the States of New York and New Jersey
to settle the boundary line between those States. The agreement and
authenticated copies of the acts of the legislatures of New York and
New Jersey relating to it are also transmitted.
ANDREW JACKSON.
WASHINGTON, _April 8, 1834_.
_To the Senate_:
I transmit herewith a report from the Commissioner of the General Land
Office, made in compliance with the resolution of the Senate of the 29th
ultimo, calling for "the dates of the proclamations and the times of
sale specified in each of the sales of the public lands in the district
of country acquired from the Choctaw tribe of Indians by the treaty of
Dancing Rabbit Creek and from the Creek tribe of Indians in Alabama; and
also the causes, if any existed, of a shorter notice being given for the
sale of these lands than is usual in the sale of the other public lands."
ANDREW JACKSON.
WASHINGTON, _April 17, 1834_.
_To the Senate of the United States_:
I transmit to the Senate, for their consideration and advice with regard
to its ratification, a convention for the settlement of claims between
the United States of America and Her Catholic Majesty, concluded at
Madrid on the 17th of February, 1834.
ANDREW JACKSON.
WASHINGTON, _May 1, 1834_.
_The Speaker of the House of Representatives_:
I submit for the sanction of Congress certain proposals for amending the
present laws in relation to the naval service, prepared and reported by
the board constituted under the act of May 19, 1832.
The papers on this subject are Nos. 1 to 5, inclusive.
These proposals are approved by me, and if adopted in the form of laws
appear well suited "to the present and future exigencies of that
important arm of national defense."
ANDREW JACKSON.
WASHINGTON, _May 12, 1834_.
_To the Senate and House of Representatives of the United States_:
I communicate to Congress copies of a treaty of navigation and commerce
between the United States and His Majesty the Emperor of all the
Russias, concluded at St. Petersburg on the 6th (18th) of December,
1832, and the ratifications of which were exchanged in this city on
the 11th of May, 1833.
ANDREW JACKSON.
WASHINGTON, _May 13, 1834_.
_To the Senate and House of Representatives of the United States_:
I communicate to Congress copies of a convention between the United
States and His Majesty the King of the Kingdom of the Two Sicilies, to
terminate the reclamations of the former for the depredations inflicted
upon American commerce by Murat during the years 1809, 1810, 1811,
and 1812, concluded at Naples on the 14th of October, 1832, and the
ratifications of which were exchanged at the same place on the 8th
of June, 1833.
ANDREW JACKSON.
WASHINGTON, _May 15, 1834_.
_To the Senate and House of Representatives_:
I transmit herewith to Congress copies of a treaty of peace, amity,
commerce, and navigation between the United States and the Republic of
Chile, concluded at Santiago de Chile on the 1st of September, 1833, and
the ratifications of which were exchanged in this city on the 29th of
April last.
ANDREW JACKSON.
WASHINGTON, _May 19, 1834_.
_To the House of Representatives of the United States_:
I transmit a letter from the Marquis de Rochambeau to the minister of
the United States in France, together with a translation of the same,
referring to the petition of certain descendants of the Count de
Rochambeau, which was communicated to the House of Representatives with
my message of the 22d of February, 1833. Extracts from the dispatches of
Mr. Livingston to the Secretary of State respecting the same subject are
also sent.
I likewise transmit, for the consideration of the House, a petition
from the heirs of the Baron de Kalb, accompanied by a note from General
Lafayette, praying remuneration for the services rendered by the Baron
to the United States during the War of the Revolution.
ANDREW JACKSON.
MAY 21, 1834.
_To the Senate of the United States_:
I nominate Arthur St. Clair to be register of the land office for the
district of lands subject to sale at Indianapolis, in the State of
Indiana, in the place of William B. Slaughter, appointed during the
recess of the Senate.
As Arthur St. Clair was heretofore appointed to this office and was
removed during the recess, it is proper to state the reasons which
induce me again to nominate him to the Senate.
During the last summer an agent was appointed by the Treasury
Department to examine the land offices in Indiana, and upon his report
to the Department of the proceedings in the register's and receiver's
offices at Indianapolis I deemed it proper to remove both of those
officers without delay. A subsequent examination by a different agent
enabled the parties to offer explanations of the charges against them
in the first report, and although I am satisfied that the duty of the
first agent was honestly and faithfully performed by him, yet the
circumstances on which his report is founded have since been so
explained as to acquit both of the officers who were removed of any
intentional misconduct. In the case of Mr. St. Clair, however, it
appears from both of the reports that he had permitted the clerk in his
office to be the agent of speculations in land scrip contrary to the
instructions received by him from the Treasury Department, but I am
convinced that he himself did not participate in the speculation nor
share in the profits, and that he gave the permission under a mistaken
construction of the order and erroneous views of his duty as an officer.
His mistake in this respect seems to have arisen in a great measure
from his reliance on the judgment of others in whom he might well have
supposed he could confide, and who appear to have sanctioned the course
he adopted without sufficiently examining the subject and the evils to
which such a practice would necessarily lead. Under these circumstances
I have believed it to be an act of justice to Mr. St. Clair to present
his name again to the Senate, as he can be reinstated in the office from
which he was removed without injury to the person who in the recess was
selected to succeed him. And I should have adopted the same course in
relation to the receiver but for the peculiar circumstances in which his
successor has been placed, and which would render it an act of injustice
to him not to submit his name to the Senate for confirmation.
The reports and papers in relation to these removals are herewith
transmitted to the Senate, in order that they may act in the case with
the whole evidence before them.
ANDREW JACKSON.
WASHINGTON, _May 21, 1834_.
_To the House of Representatives_:
I lay before the House of Representatives a copy of a "convention for
the settlement of claims between the United States of America and Her
Catholic Majesty," concluded on the 17th of February last.
This convention has been ratified by me, agreeably to the Constitution,
and will be immediately transmitted to Madrid, where it will doubtless
be ratified by Her Majesty.
It is deemed proper to communicate the convention thus early, that
provision may be made for carrying the first article into effect as soon
as the ratifications shall have been exchanged, in order that our
citizens may with as little delay as possible obtain the stipulated
compensation.
ANDREW JACKSON.
WASHINGTON, _May 28, 1834_.
_To the Senate of the United States_:
I transmit herewith to the Senate, for their advice and consent as
to the ratification of the same, a treaty and a supplement thereto,
concluded between John H. Eaton, a commissioner on the part of the
United States, and a delegation from the Chickasaw tribe of Indians,
together with the journal of proceedings.
ANDREW JACKSON.
WASHINGTON, _May 30, 1834_.
_To the Senate of the United States_:
It having been represented to me by persons whose statements and
opinions were thought worthy of confidence that the trade of the United
States might be extended and rendered more lucrative by commercial
arrangements with the countries bordering on the Indian Ocean, and
being informed that the success of any efforts which might be made to
accomplish that object would materially depend upon the secrecy with
which they should be conducted, I appointed Mr. Edmund Roberts a special
agent of this Government for the purpose of visiting those seas and
concluding such commercial conventions as might have the effect of
securing additional advantages to our trade in that quarter. This agency
has resulted in the conclusion of treaties with the King of Siam and
the Sultan of Muscat, whereby the commerce of the United States with
the countries subject to the dominion of those princes, which had been
previously embarrassed by serious disadvantages and obstructions, is
placed upon a footing with that of the most favored nation. These
treaties, the former of which was signed at the city of Siayuthia
(commonly called Bankok) on the 20th day of March, 1833, and the latter
at the city of Muscat on the 21st day of September of the same year,
are submitted to the Senate for their consideration and advice.
I transmit a copy of the instructions which were given to the special
agent and a communication made by him to the Secretary of State,
containing particular and important information respecting the countries
with which these treaties have been concluded. The expenses of the
agency have been defrayed out of the contingent fund for foreign
intercourse.
ANDREW JACKSON.
WASHINGTON, _June 13, 1834_.
_To the Senate_:
I have this day received a resolution of the 12th instant, requesting me
to communicate to the Senate a copy of the first official communication
which was made to Andrew Stevenson of the intention of the President to
nominate him as a minister plenipotentiary and envoy extraordinary to
the United Kingdom of Great Britain and Ireland, and his answer thereto.
As a compliance with this resolution might be deemed an admission of
the right of the Senate to call upon the President for confidential
correspondence of this description, I consider it proper on this
occasion to remark that I do not acknowledge such a right. But to avoid
misrepresentation I herewith transmit a copy of the paper in question,
which was the only communication made to Mr. Stevenson on the subject.
This communication merely intimated the intention of the President in a
particular contingency to offer to Mr. Stevenson the place of minister
to the Court of St. James, and as the negotiations to which it refers
were commenced early in April, 1833, in this city instead of London, and
have been since conducted here, no further communication was made to
him. I have no knowledge that an answer was received from Mr. Stevenson;
none is to be found in the Department of State and none has been
received by me.
ANDREW JACKSON.
WASHINGTON, _June 18, 1834_.
_To the Senate and House of Representatives of the United States_:
I transmit to Congress an extract of a dispatch from Mr. Livingston, the
minister of the United States at Paris, dated the 7th ultimo, and the
copy of a communication made to him by Captain Ballard, commander of the
frigate _United States_, by which it appears that in firing a national
salute from that ship at Toulon, in honor of the birthday of the King
of the French, two men were killed and four others wounded on board the
French ship of war _Suffren_. Suitable explanations were immediately
made to the French admiral; and the officers and crew of the American
frigate, with that generosity which distinguishes their profession,
promptly contributed, by a liberal subscription, toward providing for
the families of the unfortunate sufferers. I am sure, however, that I
should not do justice to the feelings of the American people on this
occasion if I did not invite Congress to assume, on their part, this
melancholy duty. I propose, therefore, that the same provision be made
by law for these French seamen and their families as would be made for
American seamen killed or wounded in battle. This proceeding will show
the deep sensibility with which the disastrous accident is viewed by the
United States, and their readiness to alleviate those consequences which
can not be remedied.
ANDREW JACKSON.
WASHINGTON, _June 20, 1834_.
_To the House of Representatives of the United States_:
I transmit to the House of Representatives, for their consideration, a
memorial from the granddaughters of the Count de Rochambeau, together
with their letter to the minister of the United States in France, from
whom these papers have been recently received.
Translations of these documents accompany them.
ANDREW JACKSON.
WASHINGTON, _June 21, 1834_.
_To the Senate and House of Representatives of the United States_:
The afflicting intelligence of the death of the illustrious Lafayette
has been received by me this morning.
I have issued the general order inclosed[7] to cause appropriate honors
to be paid by the Army and Navy to the memory of one so highly venerated
and beloved by my countrymen, and whom Providence has been pleased to
remove so unexpectedly from the agitating scenes of life.
ANDREW JACKSON.
[Footnote 7: See under Executive Orders, pp. 94-95.]
JUNE 23, 1834.
_To the Senate of the United States_:
I transmit for the consideration and action of the Senate a treaty
concluded with the Cherokees for the cession of their lands east of the
Mississippi River.
It is known to the Senate that for some years great difficulties have
been experienced in the relations of that tribe. Without further
allusion to these than as they furnish strong inducements to a final
settlement of all the questions involved in our intercourse with these
Indians, it is obvious from the existing state of things that they
can not continue in their present position with any hope of ultimate
prosperity. I have been, therefore, desirous that a just and
satisfactory arrangement should be made for their removal, and
propositions to that effect upon a liberal scale have been repeatedly
made to them. These have until now been rejected, and their rejection,
I have been induced to believe, has been owing more to the ascendency
acquired by individuals who are unwilling to go than to the deliberative
opinion of a majority of the Cherokee people. Some years since a form
of government was established among them, but since the extension of
the laws of Georgia and Alabama over them this government can have no
binding effect upon a great majority of them. Its obligation is also
denied by many of them in consequence of the continuance of certain
persons in power contrary to the principles of their fundamental
articles of association. A delegation from the persons claiming to hold
their authority under the former existing state of things is in this
city, and have communicated with the War Department on the subject of
their situation and removal. They deny the right of the persons who have
negotiated this treaty to perform such an act, and have remonstrated
against it. Copies of their communications are herewith transmitted.
The delegation who have signed the present treaty have produced an
authority from William Hicks, designating himself as principal chief,
and others, signing the same in an official capacity. It is understood
from the report of Major Currie, the enrolling agent, that public
notice was given to all persons desirous of emigrating to attend
upon a particular day and place in order to appoint representatives
to communicate with the Government and to arrange the terms of cession
and removal. In conformity with this notice a meeting was held and the
authority herein referred to was the result.
In consequence of this application John H. Eaton was appointed to meet
and confer with them and to report their views to the War Department.
These are embodied in the treaty which is presented to your
consideration.
Under these circumstances I submit the matter to the decision of the
Senate. The practice of the Government has not been very strict on the
subject of the authority of the persons negotiating treaties on the part
of the Indians. Sometimes it has been done by persons representing the
tribe and sometimes by the individuals composing it. I am not aware that
a case similar in its features to the present has ever before required
the action of the Government. But, independently of the considerations
which so forcibly urge a settlement of this matter, no injustice can be
done to the Indians by the ratification of this treaty. It is expressly
provided that it will not be binding upon them till a majority has
assented to its stipulations. When that assent is given no one can
justly deny its obligation.
The Cherokees east of the Mississippi occupy a portion of the
territories of four States, to wit, Georgia, North Carolina, Tennessee,
and Alabama. The treaty provides that the communities inhabiting
those divisions shall each be considered as acting for themselves
independently of the others. We have frequently in our intercourse
with the Indians treated with different portions of the same tribe as
separate communities. Nor is there any injustice in this as long as they
are separated into divisions without any very strong bond of union, and
frequently with different interests and views. By requiring the assent
of a majority to any act which will bind them we insure the preservation
of a principle which will afford adequate security to their rights.
ANDREW JACKSON.
VETO MESSAGE.[8]
[Footnote 8: Pocket veto.]
DECEMBER 4, 1833.
_To the Senate of the United States_:
At the close of the last session of Congress I received from that body
a bill entitled "An act to appropriate for a limited time the proceeds
of the sales of the public lands of the United States and for granting
lands to certain States." The brief period then remaining before
the rising of Congress and the extreme pressure of official duties
unavoidable on such occasions did not leave me sufficient time for that
full consideration of the subject which was due to its great importance.
Subsequent consideration and reflection have, however, confirmed the
objections to the bill which presented themselves to my mind upon its
first perusal, and have satisfied me that it ought not to become a law.
I felt myself, therefore, constrained to withhold from it my approval,
and now return it to the Senate, in which it originated, with the
reasons on which my dissent is founded.
I am fully sensible of the importance, as it respects both the harmony
and union of the States, of making, as soon as circumstances will allow
of it, a proper and final disposition of the whole subject of the public
lands, and any measure for that object providing for the reimbursement
to the United States of those expenses with which they are justly
chargeable that may be consistent with my views of the Constitution,
sound policy, and the rights of the respective States will readily
receive my cooperation. This bill, however, is not of that character.
The arrangement it contemplates is not permanent, but limited to five
years only, and in its terms appears to anticipate alterations within
that time, at the discretion of Congress; and it furnishes no adequate
security against those continued agitations of the subject which it
should be the principal object of any measure for the disposition of
the public lands to avert.
Neither the merits of the bill under consideration nor the validity of
the objections which I have felt it to be my duty to make to its passage
can be correctly appreciated without a full understanding of the manner
in which the public lands upon which it is intended to operate were
acquired and the conditions upon which they are now held by the United
States. I will therefore precede the statement of those objections by a
brief but distinct exposition of these points.
The waste lands within the United States constituted one of the early
obstacles to the organization of any government for the protection of
their common interests. In October, 1777, while Congress were framing
the Articles of Confederation, a proposition was made to amend them to
the following effect, viz:
That the United States in Congress assembled shall have the sole and
exclusive right and power to ascertain and fix the western boundary of
such States as claim to the Mississippi or South Sea, and lay out the
land beyond the boundary so ascertained into separate and independent
States from time to time as the numbers and circumstances of the people
thereof may require.
It was, however, rejected, Maryland only voting for it, and so difficult
did the subject appear that the patriots of that body agreed to waive it
in the Articles of Confederation and leave it for future settlement.
On the submission of the Articles to the several State legislatures for
ratification the most formidable objection was found to be in this
subject of the waste lands. Maryland, Rhode Island, and New Jersey
instructed their delegates in Congress to move amendments to them
providing that the waste or Crown lands should be considered the common
property of the United States, but they were rejected. All the States
except Maryland acceded to the Articles, notwithstanding some of them
did so with the reservation that their claim to those lands as common
property was not thereby abandoned.
On the sole ground that no declaration to that effect was contained in
the Articles, Maryland withheld her assent, and in May, 1779, embodied
her objections in the form of instructions to her delegates, which were
entered upon the Journals of Congress. The following extracts are from
that document, viz:
Is it possible that those States who are ambitiously grasping at
territories to which in our judgment they have not the least shadow of
exclusive right will use with greater moderation the increase of wealth
and power derived from those territories when acquired than what they
have displayed in their endeavors to acquire them? ...
We are convinced policy and justice require that a country unsettled at
the commencement of this war, claimed by the British Crown and ceded to
it by the treaty of Paris, if wrested from the common enemy by the blood
and treasure of the thirteen States, should be considered as a common
property, subject to be parceled out by Congress into free, convenient,
and independent governments, in such manner and at such times as the
wisdom of that assembly shall hereafter direct. ...
Virginia proceeded to open a land office for the sale of her Western
lands, which produced such excitement as to induce Congress, in October,
1779, to interpose and earnestly recommend to "the said State and all
States similarly circumstanced to forbear settling or issuing warrants
for such unappropriated lands, or granting the same, during the
continuance of the present war."
In March, 1780, the legislature of New York passed an act tendering a
cession to the United States of the claims of that State to the Western
territory, preceded by a preamble to the following effect, viz:
Whereas nothing under Divine Providence can more effectually contribute
to the tranquillity and safety of the United States of America than a
federal alliance on such liberal principles as will give satisfaction to
its respective members; and whereas the Articles of Confederation and
Perpetual Union recommended by the honorable Congress of the United
States of America have not proved acceptable to all the States, it
having been conceived that a portion of the waste and uncultivated
territory within the limits or claims of certain States ought to be
appropriated as a common fund for the expenses of the war, and the
people of the State of New York being on all occasions disposed to
manifest their regard for their sister States and their earnest desire
to promote the general interest and security, and more especially to
accelerate the federal alliance, by removing as far as it depends upon
them the before-mentioned impediment to its final accomplishment. ...
This act of New York, the instructions of Maryland, and a remonstrance
of Virginia were referred to a committee of Congress, who reported a
preamble and resolutions thereon, which were adopted on the 6th
September, 1780; so much of which as is necessary to elucidate the
subject is to the following effect, viz:
That it appears advisable to press upon those States which can remove
the embarrassments respecting the Western country a liberal surrender of
a portion of their territorial claims, since they can not be preserved
entire without endangering the stability of the General Confederacy; to
remind them how indispensably necessary it is to establish the Federal
Union on a fixed and permanent basis and on principles acceptable to all
its respective members; how essential to public credit and confidence,
to the support of our Army, to the vigor of our counsels and success of
our measures, to our tranquillity at home, our reputation abroad, to our
very existence as a free, sovereign, and independent people; that they
are fully persuaded the wisdom of the several legislatures will lead
them to a full and impartial consideration of a subject so interesting
to the United States, and so necessary to the happy establishment of the
Federal Union; that they are confirmed in these expectations by a review
of the before-mentioned act of the legislature of New York, submitted to
their consideration. ...
_Resolved_, That copies of the several papers referred to the committee
be transmitted, with a copy of the report, to the legislatures of the
several States, and that it be earnestly recommended to those States who
have claims to the Western country to pass such laws and give their
delegates in Congress such powers as may effectually remove the only
obstacle to a final ratification of the Articles of Confederation, and
that the legislature of Maryland be earnestly requested to authorize
their delegates in Congress to subscribe the said Articles.
Following up this policy, Congress proceeded, on the 10th October, 1780,
to pass a resolution pledging the United States to the several States as
to the manner in which any lands that might be ceded by them should be
disposed of, the material parts of which are as follows, viz:
_Resolved_, That the unappropriated lands which may be ceded or
relinquished to the United States by any particular State pursuant to
the recommendation of Congress of the 6th day of September last shall be
disposed of for the common benefit of the United States and be settled
and formed into distinct republican States, which shall become members
of the Federal Union and have the same rights of sovereignty, freedom,
and independence as the other States; ... that the said lands shall be
granted or settled at such times and under such regulations as shall
hereafter be agreed on by the United States in Congress assembled, or
nine or more of them.
In February, 1781, the legislature of Maryland passed an act authorizing
their delegates in Congress to sign the Articles of Confederation. The
following are extracts from the preamble and body of the act, viz:
Whereas it hath been said that the common enemy is encouraged by this
State not acceding to the Confederation to hope that the union of the
sister States may be dissolved, and therefore prosecutes the war in
expectation of an event so disgraceful to America, and our friends and
illustrious ally are impressed with an idea that the common cause would
be promoted by our formally acceding to the Confederation. ...
The act of which this is the preamble authorizes the delegates of that
State to sign the Articles, and proceeds to declare "that by acceding
to the said Confederation this State doth not relinquish, nor intend
to relinquish, any right or interest she hath with the other united or
confederated States to the back country," etc.
On the 1st of March, 1781, the delegates of Maryland signed the Articles
of Confederation, and the Federal Union under that compact was complete.
The conflicting claims to the Western lands, however, were not disposed
of, and continued to give great trouble to Congress. Repeated and urgent
calls were made by Congress upon the States claiming them to make
liberal cessions to the United States, and it was not until long after
the present Constitution was formed that the grants were completed.
The deed of cession from New York was executed on the 1st of March,
1781, the day the Articles of Confederation were ratified, and it was
accepted by Congress on the 29th October, 1782. One of the conditions of
this cession thus tendered and accepted was that the lands ceded to the
United States "_shall be and inure for the use and benefit of such of
the United States as shall become members of the federal alliance of
the said States, and for no other use or purpose whatsoever_."
The Virginia deed of cession was executed and accepted on the 1st day of
March, 1784. One of the conditions of this cession is as follows, viz:
That all the lands within the territory as ceded to the United States,
and not reserved for or appropriated to any of the before-mentioned
purposes or disposed of in bounties to the officers and soldiers of the
American Army, _shall be considered as a common fund for the use and
benefit of such of the United States as have become or shall become
members of the confederation or federal alliance of the said States,
Virginia inclusive, according to their usual respective proportions in
the general charge and expenditure, and shall be faithfully and bona
fide disposed of for that purpose, and for no other use or purpose
whatsoever_.
Within the years 1785, 1786, and 1787 Massachusetts, Connecticut, and
South Carolina ceded their claims upon similar conditions. The Federal
Government went into operation under the existing Constitution on
the 4th of March, 1789. The following is the only provision of that
Constitution which has a direct bearing on the subject of the public
lands, viz:
The Congress shall have power to dispose of and make all needful rules
and regulations respecting the territory or other property belonging
to the United States, and nothing in this Constitution shall be so
construed as to prejudice any claims of the United States or of any
particular State.
Thus the Constitution left all the compacts before made in full force,
and the rights of all parties remained the same under the new Government
as they were under the Confederation.
The deed of cession of North Carolina was executed in December, 1789,
and accepted by an act of Congress approved April 2, 1790. The third
condition of this cession was in the following words, viz:
That all the lands intended to be ceded by virtue of this act to the
United States of America, and not appropriated as before mentioned,
_shall be considered as a common fund for the use and benefit of the
United States of America, North Carolina inclusive, according to their
respective and usual proportions of the general charge and expenditure,
and shall be faithfully disposed of for that purpose, and for no other
use or purpose whatever_.
The cession of Georgia was completed on the 16th June, 1802, and in its
leading condition is precisely like that of Virginia and North Carolina.
This grant completed the title of the United States to all those lands
generally called _public lands_ lying within the original limits of the
Confederacy. Those which have been acquired by the purchase of Louisiana
and Florida, having been paid for out of the common treasure of the
United States, are as much the property of the General Government, to
be disposed of for the common benefit, as those ceded by the several
States.
By the facts here collected from the early history of our Republic it
appears that the subject of the public lands entered into the elements
of its institutions. It was only upon the condition that those lands
should be considered as common property, to be disposed of for the
benefit of the United States, that some of the States agreed to come
into a "perpetual union." The States claiming those lands acceded to
those views and transferred their claims to the United States upon
certain specific conditions, and on those conditions the grants were
accepted. These solemn compacts, invited by Congress in a resolution
declaring the purposes to which the proceeds of these lands should be
applied, originating before the Constitution and forming the basis on
which it was made, bound the United States to a particular course of
policy in relation to them by ties as strong as can be invented to
secure the faith of nations.
As early as May, 1785, Congress, in execution of these compacts, passed
an ordinance providing for the sales of lands in the Western territory
and directing the proceeds to be paid into the Treasury of the United
States. With the same object other ordinances were adopted prior to the
organization of the present Government.
In further execution of these compacts the Congress of the United States
under the present Constitution, as early as the 4th of August, 1790, in
"An act making provision for the debt of the United States," enacted as
follows, viz:
That the proceeds of sales which shall be made of lands in the
Western territory now belonging or that may hereafter belong to the
United States shall be and are hereby appropriated toward sinking or
discharging the debts for the payment whereof the United States now
are or by virtue of this act may be holden, and shall be applied solely
to that use until the said debt shall be fully satisfied.
To secure to the Government of the United States forever the power to
execute these compacts in good faith the Congress of the Confederation,
as early as July 13, 1787, in an ordinance for the government of the
territory of the United States northwest of the river Ohio, prescribed
to the people inhabiting the Western territory certain conditions which
were declared to be "articles of compact between the original States and
the people and States in the said territory," which should "forever
remain unalterable, unless by common consent." In one of these articles
it is declared that--
The legislatures of those districts, or new States, shall never
interfere with the primary disposal of the soil by the United States in
Congress assembled, nor with any regulations Congress may find necessary
for securing the title in such soil to the _bona fide purchasers_.
This condition has been exacted from the people of all the new
territories, and to put its obligation beyond dispute each new State
carved out of the public domain has been required explicitly to
recognize it as one of the conditions of admission into the Union. Some
of them have declared through their conventions in separate acts that
their people "forever disclaim all right and title to the waste and
unappropriated lands lying within this State, and that the same shall
be and remain at the sole and entire disposition of the United States."
With such care have the United States reserved to themselves, in all
their acts down to this day, in legislating for the Territories and
admitting States into the Union, the unshackled power to execute in good
faith the compacts of cession made with the original States. From these
facts and proceedings it plainly and certainly results--
1. That one of the fundamental principles on which the Confederation of
the United States was originally based was that the waste lands of the
West within their limits should be the common property of the United
States.
2. That those lands were ceded to the United States by the States which
claimed them, and the cessions were accepted on the express condition
that they should be disposed of for the common benefit of the States,
according to their respective proportions in the general charge and
expenditure, and for no other purpose whatsoever.
3. That in execution of these solemn compacts the Congress of the United
States did, under the Confederation, proceed to sell these lands and put
the avails into the common Treasury, and under the new Constitution did
repeatedly pledge them for the payment of the public debt of the United
States, by which pledge each State was expected to profit in proportion
to the general charge to be made upon it for that object.
These are the first principles of this whole subject, which I think
can not be contested by anyone who examines the proceedings of the
Revolutionary Congress, the cessions of the several States, and the acts
of Congress under the new Constitution. Keeping them deeply impressed
upon the mind, let us proceed to examine how far the objects of the
cessions have been completed, and see whether those compacts are not
still obligatory upon the United States.
The debt for which these lands were pledged by Congress may be
considered as paid, and they are consequently released from that lien.
But that pledge formed no part of the compacts with the States, or of
the conditions upon which the cessions were made. It was a contract
between new parties--between the United States and their creditors.
Upon payment of the debt the compacts remain in full force, and the
obligation of the United States to dispose of the lands for the common
benefit is neither destroyed nor impaired. As they can not now be
executed in that mode, the only legitimate question which can arise is,
In what other way are these lands to be hereafter disposed of for the
common benefit of the several States, "_according to their respective
and usual proportion in the general charge and expenditure?_" The
cessions of Virginia, North Carolina, and Georgia in express terms,
and all the rest impliedly, not only provide thus specifically the
proportion according to which each State shall profit by the proceeds
of the land sales, but they proceed to declare that they shall be
"_faithfully and bona fide disposed of for that purpose, and for no
other use or purpose whatsoever_." This is the fundamental law of the
land at this moment, growing out of compacts which are older than the
Constitution, and formed the corner stone on which the Union itself
was erected.
In the practice of the Government the proceeds of the public lands have
not been set apart _as a separate fund_ for the payment of the public
debt, but have been and are now paid into the Treasury, where they
constitute a part of the aggregate of revenue upon which the Government
draws as well for its current expenditures as for payment of the public
debt. In this manner they have heretofore and do now lessen the general
charge upon the people of the several States in the exact proportions
stipulated in the compacts.
These general charges have been composed not only of the public debt and
the usual expenditures attending the civil and military administrations
of the Government, but of the amounts paid to the States with which
these compacts were formed, the amounts paid the Indians for their
right of possession, the amounts paid for the purchase of Louisiana and
Florida, and the amounts paid surveyors, registers, receivers, clerks,
etc., employed in preparing for market and selling the Western domain.
From the origin of the land system down to the 30th September, 1832, the
amount expended for all these purposes has been about $49,701,280, and
the amount received from the sales, deducting payments on account of
roads, etc., about $38,386,624. The revenue arising from the public
lands, therefore, has not been sufficient to meet the general charges
on the Treasury which have grown out of them by about $11,314,656. Yet
in having been applied to lessen those charges the conditions of the
compacts have been thus far fulfilled, and each State has profited
according to its usual proportion in the general charge and expenditure.
The annual proceeds of land sales have increased and the charges have
diminished, so that at a reduced price those lands would now defray all
current charges growing out of them and save the Treasury from further
advances on their account. Their original intent and object, therefore,
would be accomplished as fully as it has hitherto been by reducing the
price and hereafter, as heretofore, bringing the proceeds into the
Treasury. Indeed, as this is the only mode in which the objects of the
original compact can be attained, it may be considered for all practical
purposes that it is one of their requirements.
The bill before me begins with an entire subversion of every one of the
compacts by which the United States became possessed of their Western
domain, and treats the subject as if they never had existence and as if
the United States were the original and unconditional owners of all the
public lands. The first section directs--
That from and after the 31st day of December, 1832, there shall be
allowed and paid to each of the States of Ohio, Indiana, Illinois,
Alabama, Missouri, Mississippi, and Louisiana, over and above what each
of the said States is entitled to by the terms of the compacts entered
into between them respectively upon their admission into the Union and
the United States, the sum of 12-1/2 per cent upon the net amount of the
sales of the public lands which subsequent to the day aforesaid shall be
made within the several limits of the said States, which said sum of
12-1/2 per cent shall be applied to some object or objects of internal
improvement or education within the said States under the direction of
their several legislatures.
This 12-1/2 per cent is to be taken out of the net proceeds of the land
sales before any apportionment is made, and the same seven States which
are first to receive this proportion are also to receive their due
proportion of the residue according to the ratio of general
distribution.
Now, waiving all considerations of equity or policy in regard to this
provision, what more need be said to demonstrate its objectionable
character than that it is in direct and undisguised violation of the
pledge given by Congress to the States before a single cession was made,
that it abrogates the condition upon which some of the States came into
the Union, and that it sets at naught the terms of cession spread upon
the face of every grant under which the title to that portion of the
public land is held by the Federal Government?
In the apportionment of the remaining seven-eighths of the proceeds this
bill, in a manner equally undisguised, violates the conditions upon
which the United States acquired title to the ceded lands. Abandoning
altogether the ratio of distribution according to the general charge and
expenditure provided by the compacts, it adopts that of the Federal
representative population. Virginia and other States which ceded their
lands upon the express condition that they should receive a benefit from
their sales in proportion to their part of the general charge are by the
bill allowed only a portion of seven-eighths of their proceeds, and that
not in the proportion of general charge and expenditure, but in the
ratio of their Federal representative population.
The Constitution of the United States did not delegate to Congress the
power to abrogate these compacts. On the contrary, by declaring that
nothing in it "_shall be so construed as to prejudice any claims of the
United States or of any particular State_," it virtually provides that
these compacts and the rights they secure shall remain untouched by
the legislative power, which shall only make all "_needful rules and
regulations_" for carrying them into effect. All beyond this would seem
to be an assumption of undelegated power.
These ancient compacts are invaluable monuments of an age of virtue,
patriotism, and disinterestedness. They exhibit the price that great
States which had won liberty were willing to pay for that union without
which they plainly saw it could not be preserved. It was not for
territory or state power that our Revolutionary fathers took up arms;
it was for individual liberty and the right of self-government. The
expulsion from the continent of British armies and British power was to
them a barren conquest if through the collisions of the redeemed States
the individual rights for which they fought should become the prey of
petty military tyrannies established at home. To avert such consequences
and throw around liberty the shield of union, States whose relative
strength at the time gave them a preponderating power magnanimously
sacrificed domains which would have made them the rivals of empires,
only stipulating that they should be disposed of for the common benefit
of themselves and the other confederated States. This enlightened policy
produced union and has secured liberty. It has made our waste lands
to swarm with a busy people and added many powerful States to our
Confederation. As well for the fruits which these noble works of our
ancestors have produced as for the devotedness in which they originated,
we should hesitate before we demolish them.
But there are other principles asserted in the bill which would have
impelled me to withhold my signature had I not seen in it a violation
of the compacts by which the United States acquired title to a large
portion of the public lands. It reasserts the principle contained in
the bill authorizing a subscription to the stock of the Maysville,
Washington, Paris and Lexington Turnpike Road Company, from which I was
compelled to withhold my consent for reasons contained in my message of
the 27th May, 1830, to the House of Representatives.
The leading principle then asserted was that Congress possesses no
constitutional power to appropriate any part of the moneys of the
United States for objects of a local character within the States.
That principle I can not be mistaken in supposing has received the
unequivocal sanction of the American people, and all subsequent
reflection has but satisfied me more thoroughly that the interests of
our people and the purity of our Government, if not its existence,
depend on its observance. The public lands are the common property of
the United States, and the moneys arising from their sales are a part of
the public revenue. This bill proposes to raise from and appropriate a
portion of this public revenue to certain States, providing expressly
that it shall "_be applied to objects of internal improvement or
education within those States_," and then proceeds to appropriate the
balance to all the States, with the declaration that it shall be applied
"_to such purposes as the legislatures of the said respective States
shall deem proper_." The former appropriation is expressly for internal
improvements or education, without qualification as to the kind of
improvements, and therefore in express violation of the principle
maintained in my objections to the turnpike-road bill above referred
to. The latter appropriation is more broad, and gives the money to be
applied to any local purpose whatsoever. It will not be denied that
under the provisions of the bill a portion of the money might have been
applied to making the very road to which the bill of 1830 had reference,
and must of course come within the scope of the same principle. If the
money of the United States can not be applied to local purposes _through
its own agents_, as little can it be permitted to be thus expended
_through the agency of the State governments_.
It has been supposed that with all the reductions in our revenue which
could be speedily effected by Congress without injury to the substantial
interests of the country there might be for some years to come a surplus
of moneys in the Treasury, and that there was in principle no objection
to returning them to the people by whom they were paid. As the literal
accomplishment of such an object is obviously impracticable, it was
thought admissible, as the nearest approximation to it, to hand them
over to the State governments, the more immediate representatives of
the people, to be by them applied to the benefit of those to whom they
properly belonged. The principle and the object were to return to the
people an unavoidable surplus of revenue which might have been paid by
them under a system which could not at once be abandoned, but even this
resource, which at one time seemed to be almost the only alternative to
save the General Government from grasping unlimited power over internal
improvements, was suggested with doubts of its constitutionality.
But this bill assumes a new principle. Its object is not to return to
the people an unavoidable surplus of revenue paid in by them, but to
create a surplus for distribution among the States. It seizes the entire
proceeds of one source of revenue and sets them apart as a surplus,
making it necessary to raise the moneys for supporting the Government
and meeting the general charges from other sources. It even throws the
entire land system upon the customs for its support, and makes the
public lands a perpetual charge upon the Treasury. It does not return
to the people moneys accidentally or unavoidably paid by them to the
Government, by which they are not wanted, but compels the people to pay
moneys into the Treasury for the mere purpose of creating a surplus for
distribution to their State governments. If this principle be once
admitted, it is not difficult to perceive to what consequences it may
lead. Already this bill, by throwing the land system on the revenues
from imports for support, virtually distributes among the States a part
of those revenues. The proportion may be increased from time to time,
without any departure from the principle now asserted, until the State
governments shall derive all the funds necessary for their support from
the Treasury of the United States, or, if a sufficient supply should be
obtained by some States and not by others, the deficient States might
complain; and to put an end to all further difficulty Congress, without
assuming any new principle, need go but one step further and put the
salaries of all the State governors, judges, and other officers, with a
sufficient sum for other expenses, in their general appropriation bill.
It appears to me that a more direct road to consolidation can not be
devised. Money is power, and in that Government which pays all the
public officers of the States will all political power be substantially
concentrated. The State governments, if governments they might be
called, would lose all their independence and dignity; the economy which
now distinguishes them would be converted into a profusion, limited
only by the extent of the supply. Being the dependents of the General
Government, and looking to its Treasury as the source of all their
emoluments, the State officers, under whatever names they might pass and
by whatever forms their duties might be prescribed, would in effect be
the mere stipendiaries and instruments of the central power.
I am quite sure that the intelligent people of our several States will
be satisfied on a little reflection that it is neither wise nor safe to
release the members of their local legislatures from the responsibility
of levying the taxes necessary to support their State governments and
vest it in Congress, over most of whose members they have no control.
They will not think it expedient that Congress shall be the taxgatherer
and paymaster of all their State governments, thus amalgamating all
their officers into one mass of common interest and common feeling.
It is too obvious that such a course would subvert our well-balanced
system of government, and ultimately deprive us of all the blessings
now derived from our happy Union.
However willing I might be that any unavoidable surplus in the
Treasury should be returned to the people through their State
governments, I can not assent to the principle that a surplus may be
created for the purpose of distribution. Viewing this bill as in effect
assuming the right not only to create a surplus for that purpose, but to
divide the contents of the Treasury among the States without limitation,
from whatever source they may be derived, and asserting the power to
raise and appropriate money for the support of every State government
and institution, as well as for making every local improvement, however
trivial, I can not give it my assent.
It is difficult to perceive what advantages would accrue to the old
States or the new from the system of distribution which this bill
proposes if it were otherwise unobjectionable. It requires no argument
to prove that if $3,000,000 a year, or any other sum, shall be taken out
of the Treasury by this bill for distribution it must be replaced by the
same sum collected from the people through some other means. The old
States will receive annually a sum of money from the Treasury, but they
will pay in a larger sum, together with the expenses of collection and
distribution. It is only their proportion of _seven-eighths_ of the
proceeds of land sales which they are _to receive_, but they must _pay_
their due proportion of the _whole_. Disguise it as we may, the bill
proposes to them a dead loss in the ratio of _eight_ to _seven_,
in addition to expenses and other incidental losses. This assertion
is not the less true because it may not at first be palpable. Their
receipts will be in large sums, but their payments in small ones. The
_governments_ of the States will receive _seven_ dollars, for which the
_people_ of the States will pay _eight_. The large sums received will
be palpable to the senses; the small sums paid it requires thought to
identify. But a little consideration will satisfy the people that the
effect is the same as if _seven hundred dollars_ were given them from
the public Treasury, for which they were at the same time required to
pay in taxes, direct or indirect, _eight hundred_.
I deceive myself greatly if the new States would find their interests
promoted by such a system as this bill proposes. Their true policy
consists in the rapid settling and improvement of the waste lands within
their limits. As a means of hastening those events, they have long been
looking to a reduction in the price of public lands upon the final
payment of the national debt. The effect of the proposed system would be
to prevent that reduction. It is true the bill reserves to Congress the
power to reduce the price, but the effect of its details as now arranged
would probably be forever to prevent its exercise.
With the just men who inhabit the new States it is a sufficient reason
to reject this system that it is in violation of the fundamental laws
of the Republic and its Constitution. But if it were a mere question of
interest or expediency they would still reject it. They would not sell
their bright prospect of increasing wealth and growing power at such
a price. They would not place a sum of money to be paid into their
treasuries in competition with the settlement of their waste lands and
the increase of their population. They would not consider a small
or a large annual sum to be paid to their governments and immediately
expended as an equivalent for that enduring wealth which is composed of
flocks and herds and cultivated farms. No temptation will allure them
from that object of abiding interest, the settlement of their waste
lands, and the increase of a hardy race of free citizens, their glory
in peace and their defense in war.
On the whole, I adhere to the opinion, expressed by me in my annual
message of 1832, that it is our true policy that the public lands shall
cease as soon as practicable to be a source of revenue, except for the
payment of those general charges which grow out of the acquisition of
the lands, their survey and sale. Although these expenses have not been
met by the proceeds of sales heretofore, it is quite certain they will
be hereafter, even after a considerable reduction in the price. By
meeting in the Treasury so much of the general charge as arises from
that source they will hereafter, as they have been heretofore, be
disposed of for the common benefit of the United States, according to
the compacts of cession. I do not doubt that it is the real interest
of each and all the States in the Union, and particularly of the new
States, that the price of these lands shall be reduced and graduated,
and that after they have been offered for a certain number of years
the refuse remaining unsold shall be abandoned to the States and the
machinery of our land system entirely withdrawn. It can not be supposed
the compacts intended that the United States should retain forever a
title to lands within the States which are of no value, and no doubt
is entertained that the general interest would be best promoted by
surrendering such lands to the States.
This plan for disposing of the public lands impairs no principle,
violates no compact, and deranges no system. Already has the price of
those lands been reduced from $2 per acre to $1.25, and upon the will of
Congress it depends whether there shall be a further reduction. While
the burdens of the East are diminishing by the reduction of the duties
upon imports, it seems but equal justice that the chief burden of the
West should be lightened in an equal degree at least. It would be just
to the old States and the new, conciliate every interest, disarm the
subject of all its dangers, and add another guaranty to the perpetuity
of our happy Union.
Sensible, however, of the difficulties which surround this important
subject, I can only add to my regrets at finding myself again compelled
to disagree with the legislative power the sincere declaration that any
plan which shall promise a final and satisfactory disposition of the
question and be compatible with the Constitution and public faith shall
have my hearty concurrence.
ANDREW JACKSON.
[NOTE.--For reasons for the pocket veto of "An act to improve the
navigation of the Wabash River," see Sixth Annual Message, dated
December 1, 1834, pp. 118-123.]
PROTEST.[9]
[Footnote 9: The Senate ordered that it be not entered on the Journal.]
APRIL 15, 1834.
_To the Senate of the United States_:
It appears by the published Journal of the Senate that on the 26th of
December last a resolution was offered by a member of the Senate, which
after a protracted debate was on the 28th day of March last modified
by the mover and passed by the votes of twenty-six Senators out of
forty-six who were present and voted, in the following words, viz:
_Resolved_, That the President, in the late Executive proceedings in
relation to the public revenue, has assumed upon himself authority and
power not conferred by the Constitution and laws, but in derogation of
both.
Having had the honor, through the voluntary suffrages of the American
people, to fill the office of President of the United States during
the period which may be presumed to have been referred to in this
resolution, it is sufficiently evident that the censure it inflicts was
intended for myself. Without notice, unheard and untried, I thus find
myself charged on the records of the Senate, and in a form hitherto
unknown in our history, with the high crime of violating the laws and
Constitution of my country.
It can seldom be necessary for any department of the Government, when
assailed in conversation or debate or by the strictures of the press or
of popular assemblies, to step out of its ordinary path for the purpose
of vindicating its conduct or of pointing out any irregularity or
injustice in the manner of the attack; but when the Chief Executive
Magistrate is, by one of the most important branches of the Government
in its official capacity, in a public manner, and by its recorded
sentence, but without precedent, competent authority, or just cause,
declared guilty of a breach of the laws and Constitution, it is due to
his station, to public opinion, and to a proper self-respect that the
officer thus denounced should promptly expose the wrong which has been
done.
In the present case, moreover, there is even a stronger necessity for
such a vindication. By an express provision of the Constitution, before
the President of the United States can enter on the execution of his
office he is required to take an oath or affirmation in the following
words:
I do solemnly swear (or affirm) that I will faithfully execute the
office of President of the United States and will to the best of my
ability preserve, protect, and defend the Constitution of the United
States.
The duty of defending so far as in him lies the integrity of the
Constitution would indeed have resulted from the very nature of his
office, but by thus expressing it in the official oath or affirmation,
which in this respect differs from that of any other functionary, the
founders of our Republic have attested their sense of its importance
and have given to it a peculiar solemnity and force. Bound to the
performance of this duty by the oath I have taken, by the strongest
obligations of gratitude to the American people, and by the ties which
unite my every earthly interest with the welfare and glory of my
country, and perfectly convinced that the discussion and passage of
the above-mentioned resolution were not only unauthorized by the
Constitution, but in many respects repugnant to its provisions and
subversive of the rights secured by it to other coordinate departments,
I deem it an imperative duty to maintain the supremacy of that sacred
instrument and the immunities of the department intrusted to my care
by all means consistent with my own lawful powers, with the rights of
others, and with the genius of our civil institutions. To this end I
have caused this my _solemn protest_ against the aforesaid proceedings
to be placed on the files of the executive department and to be
transmitted to the Senate.
It is alike due to the subject, the Senate, and the people that the
views which I have taken of the proceedings referred to, and which
compel me to regard them in the light that has been mentioned, should
be exhibited at length, and with the freedom and firmness which are
required by an occasion so unprecedented and peculiar.
Under the Constitution of the United States the powers and functions
of the various departments of the Federal Government and their
responsibilities for violation or neglect of duty are clearly defined
or result by necessary inference. The legislative power is, subject to
the qualified negative of the President, vested in the Congress of the
United States, composed of the Senate and House of Representatives; the
executive power is vested exclusively in the President, except that in
the conclusion of treaties and in certain appointments to office he is
to act with the advice and consent of the Senate; the judicial power is
vested exclusively in the Supreme and other courts of the United States,
except in cases of impeachment, for which purpose the accusatory power
is vested in the House of Representatives and that of hearing and
determining in the Senate. But although for the special purposes which
have been mentioned there is an occasional intermixture of the powers of
the different departments, yet with these exceptions each of the three
great departments is independent of the others in its sphere of action,
and when it deviates from that sphere is not responsible to the others
further than it is expressly made so in the Constitution. In every other
respect each of them is the coequal of the other two, and all are the
servants of the American people, without power or right to control or
censure each other in the service of their common superior, save only
in the manner and to the degree which that superior has prescribed.
The responsibilities of the President are numerous and weighty.
He is liable to impeachment for high crimes and misdemeanors, and on
due conviction to removal from office and perpetual disqualification;
and notwithstanding such conviction, he may also be indicted and
punished according to law. He is also liable to the private action
of any party who may have been injured by his illegal mandates or
instructions in the same manner and to the same extent as the humblest
functionary. In addition to the responsibilities which may thus be
enforced by impeachment, criminal prosecution, or suit at law, he
is also accountable at the bar of public opinion for every act of his
Administration. Subject only to the restraints of truth and justice,
the free people of the United States have the undoubted right, as
individuals or collectively, orally or in writing, at such times and in
such language and form as they may think proper, to discuss his official
conduct and to express and promulgate their opinions concerning it.
Indirectly also his conduct may come under review in either branch of
the Legislature, or in the Senate when acting in its executive capacity,
and so far as the executive or legislative proceedings of these bodies
may require it, it may be exercised by them. These are believed to be
the proper and only modes in which the President of the United States
is to be held accountable for his official conduct.
Tested by these principles, the resolution of the Senate is wholly
unauthorized by the Constitution, and in derogation of its entire
spirit. It assumes that a single branch of the legislative department
may for the purposes of a public censure, and without any view to
legislation or impeachment, take up, consider, and decide upon the
official acts of the Executive. But in no part of the Constitution is
the President subjected to any such responsibility, and in no part of
that instrument is any such power conferred on either branch of the
Legislature.
The justice of these conclusions will be illustrated and confirmed by
a brief analysis of the powers of the Senate and a comparison of their
recent proceedings with those powers.
The high functions assigned by the Constitution to the Senate are in
their nature either legislative, executive, or judicial. It is only in
the exercise of its judicial powers, when sitting as a court for the
trial of impeachments, that the Senate is expressly authorized and
necessarily required to consider and decide upon the conduct of the
President or any other public officer. Indirectly, however, as has
already been suggested, it may frequently be called on to perform that
office. Cases may occur in the course of its legislative or executive
proceedings in which it may be indispensable to the proper exercise of
its powers that it should inquire into and decide upon the conduct of
the President or other public officers, and in every such case its
constitutional right to do so is cheerfully conceded. But to authorize
the Senate to enter on such a task in its legislative or executive
capacity the inquiry must actually grow out of and tend to some
legislative or executive action, and the decision, when expressed,
must take the form of some appropriate legislative or executive act.
The resolution in question was introduced, discussed, and passed not as
a joint but as a separate resolution. It asserts no legislative power,
proposes no legislative action, and neither possesses the form nor any
of the attributes of a legislative measure. It does not appear to have
been entertained or passed with any view or expectation of its issuing
in a law or joint resolution, or in the repeal of any law or joint
resolution, or in any other legislative action.
Whilst wanting both the form and substance of a legislative measure,
it is equally manifest that the resolution was not justified by any
of the executive powers conferred on the Senate. These powers relate
exclusively to the consideration of treaties and nominations to office,
and they are exercised in secret session and with closed doors. This
resolution does not apply to any treaty or nomination, and was passed
in a public session.
Nor does this proceeding in any way belong to that class of incidental
resolutions which relate to the officers of the Senate, to their Chamber
and other appurtenances, or to subjects of order and other matters of
the like nature, in all which either House may lawfully proceed without
any cooperation with the other or with the President.
On the contrary, the whole phraseology and sense of the resolution seem
to be judicial. Its essence, true character, and only practical effect
are to be found in the conduct which it charges upon the President and
in the judgment which it pronounces on that conduct. The resolution,
therefore, though discussed and adopted by the Senate in its legislative
capacity, is in its office and in all its characteristics essentially
judicial.
That the Senate possesses a high judicial power and that instances may
occur in which the President of the United States will be amenable to it
is undeniable; but under the provisions of the Constitution it would
seem to be equally plain that neither the President nor any other
officer can be rightfully subjected to the operation of the judicial
power of the Senate except in the cases and under the forms prescribed
by the Constitution.
The Constitution declares that "the President, Vice-President, and all
civil officers of the United States shall be removed from office on
impeachment for and conviction of treason, bribery, or other high crimes
and misdemeanors;" that the House of Representatives "shall have the
sole power of impeachment;" that the Senate "shall have the sole power
to try all impeachments;" that "when sitting for that purpose they shall
be on oath or affirmation;" that "when the President of the United
States is tried the Chief Justice shall preside;" that "no person shall
be convicted without the concurrence of two-thirds of the members
present," and that "judgment shall not extend further than to removal
from office and disqualification to hold and enjoy any office of honor,
trust, or profit under the United States."
The resolution above quoted charges, in substance, that in certain
proceedings relating to the public revenue the President has usurped
authority and power not conferred upon him by the Constitution and
laws, and that in doing so he violated both. Any such act constitutes
a high crime--one of the highest, indeed, which the President can
commit--a crime which justly exposes him to impeachment by the House
of Representatives, and, upon due conviction, to removal from office
and to the complete and immutable disfranchisement prescribed by the
Constitution. The resolution, then, was in substance an impeachment of
the President, and in its passage amounts to a declaration by a majority
of the Senate that he is guilty of an impeachable offense. As such it is
spread upon the journals of the Senate, published to the nation and to
the world, made part of our enduring archives, and incorporated in the
history of the age. The punishment of removal from office and future
disqualification does not, it is true, follow this decision, nor would
it have followed the like decision if the regular forms of proceeding
had been pursued, because the requisite number did not concur in the
result. But the moral influence of a solemn declaration by a majority of
the Senate that the accused is guilty of the offense charged upon him
has been as effectually secured as if the like declaration had been
made upon an impeachment expressed in the same terms. Indeed, a greater
practical effect has been gained, because the votes given for the
resolution, though not sufficient to authorize a judgment of guilty
on an impeachment, were numerous enough to carry that resolution.
That the resolution does not expressly allege that the assumption of
power and authority which it condemns was intentional and corrupt is no
answer to the preceding view of its character and effect. The act thus
condemned necessarily implies volition and design in the individual to
whom it is imputed, and, being unlawful in its character, the legal
conclusion is that it was prompted by improper motives and committed
with an unlawful intent. The charge is not of a mistake in the exercise
of supposed powers, but of the assumption of powers not conferred by
the Constitution and laws, but in derogation of both, and nothing is
suggested to excuse or palliate the turpitude of the act. In the absence
of any such excuse or palliation there is only room for one inference,
and that is that the intent was unlawful and corrupt. Besides, the
resolution not only contains no mitigating suggestions, but, on the
contrary, it holds up the act complained of as justly obnoxious to
censure and reprobation, and thus as distinctly stamps it with impurity
of motive as if the strongest epithets had been used.
The President of the United States, therefore, has been by a majority of
his constitutional triers accused and found guilty of an impeachable
offense, but in no part of this proceeding have the directions of the
Constitution been observed.
The impeachment, instead of being preferred and prosecuted by the House
of Representatives, originated in the Senate, and was prosecuted without
the aid or concurrence of the other House. The oath or affirmation
prescribed by the Constitution was not taken by the Senators, the Chief
Justice did not preside, no notice of the charge was given to the
accused, and no opportunity afforded him to respond to the accusation,
to meet his accusers face to face, to cross-examine the witnesses, to
procure counteracting testimony, or to be heard in his defense. The
safeguards and formalities which the Constitution has connected with
the power of impeachment were doubtless supposed by the framers of that
instrument to be essential to the protection of the public servant, to
the attainment of justice, and to the order, impartiality, and dignity
of the procedure. These safeguards and formalities were not only
practically disregarded in the commencement and conduct of these
proceedings, but in their result I find myself convicted by less than
two-thirds of the members present of an impeachable offense.
In vain may it be alleged in defense of this proceeding that the form of
the resolution is not that of an impeachment or of a judgment thereupon,
that the punishment prescribed in the Constitution does not follow its
adoption, or that in this case no impeachment is to be expected from the
House of Representatives. It is because it did not assume the form of an
impeachment that it is the more palpably repugnant to the Constitution,
for it is through that form only that the President is judicially
responsible to the Senate; and though neither removal from office nor
future disqualification ensues, yet it is not to be presumed that the
framers of the Constitution considered either or both of those results
as constituting the whole of the punishment they prescribed. The
judgment of _guilty_ by the highest tribunal in the Union, the stigma it
would inflict on the offender, his family, and fame, and the perpetual
record on the Journal, handing down to future generations the story of
his disgrace, were doubtless regarded by them as the bitterest portions,
if not the very essence, of that punishment. So far, therefore, as some
of its most material parts are concerned, the passage, recording, and
promulgation of the resolution are an attempt to bring them on the
President in a manner unauthorized by the Constitution. To shield him
and other officers who are liable to impeachment from consequences
so momentous, except when really merited by official delinquencies,
the Constitution has most carefully guarded the whole process of
impeachment. A majority of the House of Representatives must think the
officer guilty before he can be charged. Two-thirds of the Senate must
pronounce him guilty or he is deemed to be innocent. Forty-six Senators
appear by the Journal to have been present when the vote on the
resolution was taken. If after all the solemnities of an impeachment
thirty of those Senators had voted that the President was guilty, yet
would he have been acquitted; but by the mode of proceeding adopted in
the present case a lasting record of conviction has been entered up by
the votes of twenty-six Senators without an impeachment or trial, whilst
the Constitution expressly declares that to the entry of such a judgment
an accusation by the House of Representatives, a trial by the Senate,
and a concurrence of two-thirds in the vote of guilty shall be
indispensable prerequisites.
Whether or not an impeachment was to be expected from the House of
Representatives was a point on which the Senate had no constitutional
right to speculate, and in respect to which, even had it possessed the
spirit of prophecy, its anticipations would have furnished no just
ground for this procedure. Admitting that there was reason to believe
that a violation of the Constitution and laws had been actually
committed by the President, still it was the duty of the Senate, as his
sole constitutional judges, to wait for an impeachment until the other
House should think proper to prefer it. The members of the Senate
could have no right to infer that no impeachment was intended. On the
contrary, every legal and rational presumption on their part ought to
have been that if there was good reason to believe him guilty of an
impeachable offense the House of Representatives would perform its
constitutional duty by arraigning the offender before the justice of
his country. The contrary presumption would involve an implication
derogatory to the integrity and honor of the representatives of the
people. But suppose the suspicion thus implied were actually entertained
and for good cause, how can it justify the assumption by the Senate of
powers not conferred by the Constitution?
It is only necessary to look at the condition in which the Senate and
the President have been placed by this proceeding to perceive its utter
incompatibility with the provisions and the spirit of the Constitution
and with the plainest dictates of humanity and justice.
If the House of Representatives shall be of opinion that there is just
ground for the censure pronounced upon the President, then will it be
the solemn duty of that House to prefer the proper accusation and to
cause him to be brought to trial by the constitutional tribunal. But in
what condition would he find that tribunal? A majority of its members
have already considered the case, and have not only formed but expressed
a deliberate judgment upon its merits. It is the policy of our benign
systems of jurisprudence to secure in all criminal proceedings, and even
in the most trivial litigations, a fair, unprejudiced, and impartial
trial, and surely it can not be less important that such a trial should
be secured to the highest officer of the Government.
The Constitution makes the House of Representatives the exclusive
judges, in the first instance, of the question whether the President
has committed an impeachable offense. A majority of the Senate, whose
interference with this preliminary question has for the best of all
reasons been studiously excluded, anticipate the action of the House of
Representatives, assume not only the function which belongs exclusively
to that body, but convert themselves into accusers, witnesses, counsel,
and judges, and prejudge the whole case, thus presenting the appalling
spectacle in a free State of judges going through a labored preparation
for an impartial hearing and decision by a previous _ex parte_
investigation and sentence against the supposed offender.
There is no more settled axiom in that Government whence we derived the
model of this part of our Constitution than that "the lords can not
impeach any to themselves, nor join in the accusation, _because they
are judges_." Independently of the general reasons on which this rule
is founded, its propriety and importance are greatly increased by the
nature of the impeaching power. The power of arraigning the high
officers of government before a tribunal whose sentence may expel them
from their seats and brand them as infamous is eminently a popular
remedy--a remedy designed to be employed for the protection of private
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