Copyright by the editor, Hal Morris, Secaucus, NJ 1997. Permission is granted to copy, but not for sale, nor in multiple copies, except by permission.
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On the front page of the May 3, 1834 issue of Niles Weekly Register, appeared the following item:
There are several fearful reports in circulation -- such as that the president will issue a proclamation as soon as the senate decides not to receive his protest, and that a gathering is already making at Washington to support him in certain ulterior measures.
The Register seem not to take the report very seriously, but to feel obligated to report it all the same. On the second page, the Register notes George McDuffy, speaking before 3,000 people in Baltimore, and promising or predicting:
"Ten days after the entrance of soldiers into the senate chamber, to send the senators home, that 200,000 volunteers would be in Washington".
Niles says that in response to this was raised "such a shout as we have seldom before heard."
What started this talk of the President attacking the Senate was the following Senate resolution of December 26, 1833, in response to Andrew Jackson's beginning to remove federal deposits from the Bank of the United States.
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.
and the response to it, made by Andrew Jackson on April 15, 1934, from which I will present enough excerpts to convey the gist of a particular aspect of Jackson's argument.
These excerpts are easier to find on a library shelf than most of what goes into Jacksonian Miscellanies, but the next issue will present some of the debate in the Senate in reaction to the proclamation, and other aspects of how the proclamation affected Washington and the country.
The constitution said the Senate is entitled to pass laws, jointly with the House, to confirm or reject presidential appointments, and to accomplish other actions by either a majority, or two thirds vote. But could the Senate make, vote on, and enter into the Senate Journal an assertion which accused the President of unconstitutional activity? One position is to ridicule the idea that the Senate would need an provision in the Constitution to vote in agreement or disagreement with an assertion, which does not claim the right to put anyone out of office, raise taxes, start a war, etc.
Jackson made it clear that he took the Senate's resolution as a kind of accusation and conviction of that worst of crimes -- bad faith, and there was a wide expectation that he would, in effect, challenge the Senate to a duel.
What is most interesting in Jackson's protest of the Senate action, reflects a belief, characteristic of southern culture, that there are no "mere assertions". Words were too powerful for that (and their power is to be cultivated). They must be handled with care; restrained by formal rules. What was true for the individual "southern gentleman" was certainly true for the Senate of the United States.
Another characteristic attitude toward words is that two versions of reality cannot exist amiably side by side. There must be a confrontation leading to the extinction of one or the other. If X. says you're a poltroon, you can't shrug it off with "I know better, and my friends, and other sensible people know better".
... 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.
... 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 selfrespect
[to] promptly expose the wrong which has been done.
[The accusation is made worse, because the Constitution requires the
following oath of the President, unlike other officials:]
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.
... [I am] perfectly convinced that the discussion and passage of the abovementioned 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 ... departments, [I must] maintain the supremacy of that sacred instrument and the immunities of the department intrusted to my care ....
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.
... In every other respect each of [the three branches of government]
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 to many other
checks on his power, which Jackson enumerates]
[But] 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 ... 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 [constitutional functions of the Senate are] either legislative,
executive, or judicial. [It is only] 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. [Outside of that, an inquiry] upon
the conduct of the President or other public officers.... 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 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, ... , 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.
...
The Constitution [specifies exactly the only form in which the Senate
may take judicial action on the President, etc., namely:] "the
President, VicePresident, 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 twothirds 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 [...] 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. ... . 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...
...
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 crossexamine 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 twothirds 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; [...] 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 ..., the Constitution has most
carefully guarded the whole process of impeachment...
... 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. ... 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...
If the House of Representatives shall be of opinion that there is just
ground for [impeachment, its duty is to bring the official to trial before
the Senate]. But in what condition would he find that tribunal? A majority
of its members have already considered the case.... 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,...
[The English law stated] that "the lords can not impeach any to
themselves, nor join in the accusation, because they are judges."
...
The constitutional mode of procedure on an impeachment has not only
been wholly disregarded, but some of the first principles of natural right
and enlightened jurisprudence have been violated in the very form of the
resolution. It carefully abstains from averring in which of "the
late proceedings in relation to the public revenue the President has assumed
upon himself authority and power not conferred by the Constitution and
laws." It carefully abstains from specifying what laws or what
parts of the Constitution have been violated. Why was not the certainty
of the offense" the nature and cause of the accusation "set out
in the manner required in the Constitution before even the humblest individual,
for the smallest crime, can be exposed to condemnation? ...
...the resolution as originally offered to the Senate specified with
adequate precision certain acts of the President which it denounced as
a violation of the Constitution and laws, and that it was not until the
very close of the debate, and when perhaps it was apprehended that a majority
might not sustain the specific accusation contained in it, that the resolution
was so modified as to assume its present form. A more striking illustration
of the soundness and necessity of the rules which forbid vague and indefinite
generalities ... has seldom been exhibited.
In this view of the resolution it must certainly be regarded not as
a vindication of any particular provision of the law or the Constitution,
but simply as an official rebuke or condemnatory sentence, too general
and indefinite to be easily repelled, but yet sufficiently precise to bring
into discredit the conduct and motives of the Executive. But whatever it
may have been intended to accomplish, it is obvious that the vague, general,
and abstract form of the resolution is in perfect keeping with those other
departures from first principles and settled improvements in jurisprudence
so properly the boast of free countries in modern times. And it is not
too much to say of the whole of these proceedings that if they shall be
approved and sustained by an intelligent people, then will that great contest
with arbitrary power which had established in statutes, in bills of rights,
in sacred charters, and in constitutions of government the right of every
citizen to a notice before trial, to a hearing before conviction and to
an impartial tribunal for deciding on the charge have been waged in vain.
If the resolution had been left in its original form it is not to be
presumed that it could ever have received the assent of a majority of the
Senate, for the acts therein specified as violations of the Constitution
and laws were clearly within the limits of the Executive authority. They
are the "dismissing the late Secretary of the Treasury because he
would not, contrary to his sense of his own duty, remove the money of the
United States in deposit with the Bank of the United States and its branches
in conformity with the President's opinion, and appointing his successor
to effect such removal, which has been done." But as no other specification
has been substituted, and as these were the "Executive proceedings
in relation to the public revenue" principally referred to in the
course of the discussion, they will doubtless be generally regarded as
the acts intended to be denounced as "an assumption of authority and
power not conferred by the Constitution or laws, but in derogation of both."
It is therefore due to the occasion that a condensed summary of the views
of the Executive in respect to them should be here exhibited.
The remainder of the text is of a different nature, building the case for the constitutionality of the bank removals, and also citing various state proclamations in favor of the measure. The full text will be online at http://www.panix.com/~hal/pres-msg/AJ34-04-15.htm.
It response to debates immediately following Jackson's proclamation,
he sent the following addendum to the Senate:
APRIL 21, 1834
To the Senate of the United Slates:
Having reason to believe that certain passages contained in my message
and protest transmitted to the Senate on the 17th [15th] instant may be
misunderstood, I think it proper to state that it was not my intention
to deny in the said message the power and right of the legislative department
to provide by law for the custody, safekeeping, and disposition of
the public money and property of the United States.
Although I am well satisfied that such a construction is not warranted
by anything contained in that message, yet aware from experience that detached
passages of an argumentative document, when disconnected from their context
and considered without reference to previous limitations and the particular
positions they were intended to refute or to establish, may be made to
bear a construction varying altogether from the sentiments really entertained
and intended to be expressed, and deeply solicitous that my views on this
point should not, either now or hereafter, be misapprehended, I have deemed
it due to the gravity of the subject, to the great interests it involves,
and to the Senate as well as to myself to embrace the earliest opportunity
to make this communication.
I admit without reserve, as I have before done, the constitutional power
of the Legislature to prescribe by law the place or places in which the
public money or other property is to be deposited, and to make such regulations
concerning its custody, removal, or disposition as they may think proper
to enact. Nor do I claim for the Executive any right to the possession
or disposition of the public property or treasure or any authority to interfere
with the same, except when such possession, disposition, or authority is
given to him by law. Nor do I claim the right in any manner to supervise
or interfere with the person intrusted with such property or treasure,
unless he be an officer whose appointment, under the Constitution and laws,
is devolved upon the President alone or in conjunction with the Senate,
and for whose conduct he is constitutionally responsible.
As the message and protest referred to may appear on the Journal of
the Senate and remain among the recorded documents of the nation, I am
unwilling that opinions should be imputed to me, even through misconstruction,
which are not entertained, and more particularly am I solicitous that I
may not be supposed to claim for myself or my successors any power or authority
not clearly granted by the Constitution and laws to the President. I have
therefore respectfully to request that this communication may be considered
a part of that message and that it may be entered therewith on the journals
of the Senate.
ANDREW JACKSON.