Chapter 9

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.