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 enclose a copy of the report of that officer, and add my entire concurrence in the views he has taken.

PROTEST.

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 twenty-eighth 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. :

66

Resolved, That the president, in the late executive proceeding 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 the breach of the laws and constitution, it is due to his station, to public opinion, and to 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 every other functionary, the founders of our republic have attested their sense of its importance, and have given to it a peculiar solemnity and force. 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 co-ordinate 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, subject to the qualified negative of the president, is 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 co-equal 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 examined 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.

While wanting both the form and substance of a legislative measure, it is equally manifest that the resolution was not justified by any of the exec

utive 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 resolutions, 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 delares, 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 offence. 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 offence 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 violation 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, and 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 suggestion, 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 offence; 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 chiefjustice 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 defence. 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 offence.

In vain it may be alleged, in defence of this proceeding, that the form of the resolution is not that of an impeachment or a judgment thereuponthat 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 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