SENATE.] * President's Protest. [MAY, 1834. of new charges, volleys of new epithets, and torrents of new invective; with an affected cry of danger, and standing in the breach; as if public attention could be drawn off from the true point in dispute-from the examination of the Senate's conduct by mere dint of clamor, by reckless accumulation of fresh accusation, by distortion and perversion of every word in the protest, and by pursuing the President, like a constable's posse, with one incessant uproar, as if engaged in the hue-and-cry pursuit of a fugitive from justice. No, sir, said Mr. B., this is not the business now in hand. The present question is to examine into the constitutionality of the Senate's proceeding against the President, and not to try the President over again upon the old accusation, or to eke out stale charges with new aggravations. The Senate has judged the President, and the country will now judge the Senate. Our present occupation is the defence of the Senate; and what is that defence, stripped of all additions and glosses, and reduced to its point and essence? What is that defence, now that all the defenders have mediate organ of the people's grievances, as well as of the people's rights, and appropriately styled the grand inquest of the nation. No member of that body rises in his place to obey the impulsion of the bank, to avenge its cause, to verify its proclamation, and to move the impeachment of the President. In a body of two hundred and forty-eight members, many of them young, many warm, impetuous, daring, none could be found to minister to the vengeance of the bank, and to redeem the pledge for which that institution stood committed in the face of the country. * * * The impeachment could not be commenced in the House of Representatives! What next? It is actually commenced in the Senate! On the 26th day of December-just three weeks after Congress had met-and when the whole subject of the finances, the treasury, and the bank, had been referred to the Finance Committee, to originate the legislative measures which the case might require, a resolution is laid upon the table of the Senate, by a member of that body, to condemn the President for the identical acts for which the bank presses had fore-been heard; when the last advocate has spoken, told, and demanded his impeachment. and the case is ready for submission to the The resolution is laid upon the table, without judgment of the people? What is this defence? any legislative object; for the legislative in- Sir, it is nothing more nor less than a refuge quiry had already gone to the appropriate com- under a subterfuge-a flight from every thing mittee. It is laid upon the table by a member like defence—and a palpable confession that no of the Senate; a speech in the style and tem- defence can be made; for the whole excuse of per of the most relentless criminal prosecution, the Senate rests upon a solitary assumption, such as the civilization of the age does not which every speaker has made, and which asadmit against the greatest offenders, is pro-sumption is neither true in fact nor material in longed for three days upon it; a debate of the law. It rests upon the assumption that the same character rages for three months; the motives of the President were not impugned! resolution is then three times altered by the that wicked, corrupt, and criminal intentions mover in the face of the Senate, and a vote is were not imputed to him! This is the sum taken upon it, defined by an exact party line, total of the defence. "The resolution is silent finding the President guilty of a violation of the as to the motive," says one, (Mr. CLAY.) "It laws and the constitution, and actually con- carefully abstains from the imputation of a demning him, without trial, for the commission criminal intent," says another, (Mr. Leigh.) of an impeachable offence, and that by the very "It imputes no crime; it charges no corrupt body which could neither begin an impeach- motive; it proposes no punishment," says a ment nor decline the trial of one when regu- third, (Mr. WEBSTER.) Here, then, said Mr. larly brought before them. The act of the Sen-B., is the whole point and power of the defence. ate being finished and consummated, their sen- Its concentrated essence lies in the allegation, tence of condemnation being pronounced-the that criminal intentions are not imputed to the President, for the first time, breaks silence, and President. lifts his voice in a proceeding so extraordinary in its nature, and so unjust in its consequences to himself. He sends in his protest! A calm and dignified remonstrance, an impressive and temperate appeal against the injustice that has been done him. In this protest he has taken his stand upon clear, constitutional law-upon the first principles of criminal justice that the Senate, being his judges, had no right to prejudge his case, and to pronounce him guilty without trial or hearing. This is the ground taken by the President; and what is the answer, the defence, the justification of the Senate! Not a response to the accusation, not a reply to the charge, not a defence for usurping jurisdiction, exercising extrajudicial power, and conducting an ex parte proceeding, but clouds Upon this defence Mr. B. took two distinct and separate issues: first, that it was not true, in point of fact; and secondly, that if true, it was not material in point of law. In discussing the first of these issues, he said he should not commit the folly of confining himself to the words which were inserted in the resolution, especially as altered, and altered for the third time, in the face of the Senate, and the last hour of the debate. He must be permitted to believe, and to maintain, that the omission to charge a criminal intent, and especially its careful and studied omission, operated nothing in favor of the Senate, but the contrary. The averment, though not in the resolution in words, was nevertheless effectually there by implication; and, what MAY, 1834.] President's Protest. [SENATE. Briefly recapitulating what had been said by other Senators opposed to the resolution, and especially from his old friend from Tennessee, (Mr. GRUNDY,) whose skili as a criminal lawyer he had been almost amused to see called in question; briefly adverting to the high and clear ground taken by these Senators; first, that the criminal intent was always presumed by the law when the illegal act was proved; and, secondly, that the Senate's resolution was not an indictment, but a judgment; not the preferment, but the conclusion, of an impeachment; and that judgments never recited intentions; grounds which Mr. B. undertook to affirm entirely upset the defence of the Senate. Leaving all these solid considerations where others had placed them, he would proceed to a new point in the case-to a new reason for the immateriality of criminal averments in prosecutions of impeachments. And upon this new ground would strip the Senate's defence of the last disguise, and leave their resolution ready for the spunge of obliteration, and ripe for the knife of expurgation, the moment the representation in the Senate should be brought into harmony and concord with the feelings and sentiments of the people. is infinitely more, it was evidently in the hearts, | sion of the privileges of the House of Repreand notoriously in the speeches, of all the sentatives, and the misconduct of the Senate, members who supported the resolution. The were just as gomplete and just as flagrant, in charge was, therefore, in the bosoms of the the adoption of the resolution, as finally modijudges; it was in their pleadings; it was pro- fied and passed, as it would have been if passed mulgated in their speeches, even in all those in the form it first wore, or if stuffed and disdelivered on the distress memorials, as on the tended with all the tautologous averments of formal resolution. Even now, within this wicked intentions and corrupt motives-"moved hour, in the hearing of all present, the last and seduced by the instigation of the devil, and speaker on the side of the Senate (Mr. WEB- not having the fear of God before his eyes" STER) has openly said, that President Jackson's which are to be found in the black-letter ediconduct, in assuming and sanctioning Mr. Ta- tions of common law indictments. ney's appointment of a salaried officer to superintend the deposit banks-(which appointment Mr. Taney never made!)—that such conduct of a President, in the time of Washington and Jefferson, could not have passed a week before it became the foundation for an impeachment. After this, what merit can there be in saying that evil intentions are not charged on the record? The injury to the President is the same, whether in the record or not; for being a man of sound mind, he is presumed to act with intentions, and to violate the law and the constitution with bad intentions, if he violates them at all. Having sworn to support them, the breach of the oath involves perjury. To the Senate the consequence is the same, whether the evil intention is retained in the heart, spread upon the record, or proclaimed in the speeches of the Senators: in either case they pass upon the guilt and innocence of the accused; and become disqualified, upon every principle of honor and decency, for the office of judge, in the event that a regular impeachment for the same offence should afterwards be preferred. Surely those Senators who have thus spoken, and thus impugned the motives of the President, can never be impartial judges, although their recorded opinion, upon the pas- Entering upon the examination of this new sage of the resolution, is limited to the fact of point, Mr. B. first called the attention of the violated law and constitution. Resting upon Senate to the nature of an impeachment under the notoriety of the speeches daily delivered on the Constitution of the United States, and the floor of the Senate-widely diffused over the wherein it differed from an impeachment in country in pamphlets and newspapers; pressed England; while impeachments in both couninto the hands of all readers, and stuck up in tries essentially differed from prosecutions on taverns, steamboats, and barbers' shops, to indictments. The difference, he said, was markrouse the people against the President, and to ed and essential, and exercised a decided influrender him odious-relying upon the speeches, ence over the whole proceeding. In the United thus pressed into notice, replete with every States, the sentence upon conviction on imviolent epithet, crammed with every odious peachment, extended only to a removal from comparison-Caesar, Nero, Caligula, Cromwell, office, and a disqualification for holding future. Bonaparte, and the infatuated Stuarts; and re-office, with an express liability in the person ferring to every lawyer's knowledge, that the law presumes the bad intention for every illegal act, he (Mr. B.) would go no further for evidence to prove his first issue, that the Senate's defence was not true in point of fact. thus removed and disqualified, to a prosecution upon indictment, and judgment and punishment upon that indictment, for the same offence, according to the law of the land, in the same manner as if no impeachment had taken place. But he meant to take and to maintain, his Thus, the effect of conviction upon an impeachgreat stand upon the second issue, that the ment in the United States was purely preventomission of the averment of the criminal intent ive-purely to prevent further crime-to prewas not material in point of law; that the reso-vent the same person from acting longer in a lution was the same without the averment as with it; and that the infraction of the constitution, the wrong to the President, the subversion of all the rights of the accused, the invaVOL. XII-23 station in which his actions were hurtful to the community; while punishment, if any, was left to flow from the ordinary tribunals, and where the trial by jury was a safeguard to the life and SENATE.] President's Protest. [MAY, 1834. Senate, in one of which there could be no corrupt or wicked intention, for the party was insane, and therefore incapable both in law and in fact, of being either corrupt or wicked; and in another, of which a mere naked violation of law was charged, without the slightest reference to the intentions, or quo animo of the party; he alluded to the cases of the Judges Pickering and Chase. Mr. B. then went into a statement of the impeachment of these two judges, to sustain the view he had been taking, and to apply historitrines which he had laid down. Judge Pickering, a district judge of the United States for the State of New Hampshire, was impeached for acts of flagrant illegality, and which, in truth, implied great wickedness. The articles of impeachment charged wicked and corrupt intentions; yet it was proved that he was incapable in law, or in fact, of wickedness or corruption; for he was utterly insane, both at the time of committing the acts, and at the time he was tried for them; and could not, and did not, appear before the Senate to make any defence. liberty and property of the innocent. In the | eye of the American constitution, there is no punishment following impeachment; for removal from office is not regarded as punishment, which must follow from the indictment, if necessary, and be superadded to the removal and disqualification; which could not be if the removal from office, either in law or in fact, was punishment; for no man can be twice punished for the same offence. In England, on the contrary, the sentence on conviction under impeachment extends to legal and actual pun-cal facts and judicial decisions to the legal docishment, to punishment in person and in property; for the party may be both fined and imprisoned. On indictments, as everybody knows, both in England and America, the direct object of the prosecution is punishment-punishment in life, limb, person, or property; and preventive justice is only an incident, resulting from conviction for crimes, which presumes too much depravity to admit of further trust or confidence in the offender. Whenever, then, punishment would follow conviction, whether on indictment or impeachment-whenever the life or limb of the party was to be touched-His unfortunate condition was proved and adwhenever his body might be cast into prison, or his property taken by fine or forfeiture-in every such case, the quo animo, the state of the mind, the criminal intent, was of the essence of the offence; and must be duly averred, and fully proved, or clearly inferrible from the nature of the act done; but, in the case of impeachment under the Constitution of the United States, where the sentence could extend no further than merely to prevent the party from using his power to do further mischief, leaving him subject to a future indictment, then the intent of the party, whether good or bad, charitable or wicked, became wholly immaterial; not necessary to be alleged, nor requiring to be proved, or to be inferred, if the allegation should chance to be made. Every averment relative to the intention would be surplusage; for the mischief to the public was the same, whether a public functionary should violate the law from weakness or wickedness, from folly or from design. In either case the injury to the community was the same; the unfitness of the party to remain in office was the same; the inducement to remove him the same; and, in both cases, the removal would be effected by impeachment; the community would be protected from further injury by the sentence under impeachment; and the offending party, if deserving punishment, would be turned over to the ordinary tribunals, and to all the technicalities and formalities of a jury trial, upon indictment, to receive that punishment. mitted, and the Senate was moved, by counsel, to stop the proceedings against him, and to remit or postpone the trial; but the Senate took the clear distinction between a proceeding which could only go to a removal from office and a disqualification for holding office, and a prosecution which might involve a criminal punishment; and they proceeded with the trial, heard the evidence, found the illegal acts to have been committed, and pronounced the sentence which the good of the community required, and which the unfortunate judge was a proper subject to receive-that of removal from office. They did not add a sentence of disqualification for holding future offices; for he might again recover his understanding, and become a useful citizen. The Senate limited itself to a sentence which the good of the community demanded-which was applicable to misfortune and not to criminality—which was suited to the acts of the judge, and not to his intentions; a sentence which virtually acquitted him of evil intentions; for the acts were of such a nature as to have required, if committed by a person of sound mind, not only disqualification for future office, but prosecution, and punishment upon indictment. Mr. B. relied upon this case as one of the strongest which history could present, or imagination could conceive, to show the immateriality of criminal intentions to support impeachments under the Constitution of the United States. It was a stronger case than it would have been if corYoung as the United States were, Mr. B. rupt and wicked intentions had not been chargsaid, brief and scanty as their history, and es-ed; for being charged, and then disproved, it pecially their criminal history, yet was, still the history of these States already afforded ample illustrations of the truth of the positions which he had taken relative to impeachments under the constitution of the Union. It afforded examples of two impeachments tried before the was a positive decision of the Senate upon the total immateriality of the allegation; it was a clear declaration that the averment was surplusage, and that an officer should be impeached, and removed from office, for illegal acts alone, without the least reference to his intentions, MAY, 1834.] President's Protest. [SENATE. did not charge, corrupt intentions. They went to trial upon the whole alike; put in no demurrers; made no motions to quash; reserved no points; and defended the whole upon the law and the facts of each separate case. This, said Mr. B., should exterminate doubt, and silence cavil. It is the decision of the managers, and they were eminent lawyers and profound statesmen!-it was the decision of the managers who prepared the articles of impeachment-the decision of the House which preferred them— the decision of the Senate who tried them-and the admission of the learned judge who was tried upon them, and of the able counsel who conducted his defence, that the quo animo averment, the allegation of wicked intentions, was entirely immaterial in an article of impeachment under the Constitution of the United States. Mr. B. made an apology, or rather stated his justification to the Senate, for having gone so minutely into the cases of the Judges Pickering and Chase. He had done so from a sense of duty to the President and to the country, and to prevent the law of the land from being borne down by the weight of names, and the array of authority. Many Senators had taken their stand upon the legal position, that these proceedings against the President are not tantamount to impeachment, because the resolution does not contain the formal allegation of corrupt or wicked intentions. Two, at least, of the Senators, (Messrs. WEBSTER and LEIGH,) thus staking themselves upon this legal position, were eminent lawyers, and possessed high and deserved reputation as jurists. Their opinions, if left uncontroverted, if not completely overthrown, could not but have great weight in the country. It was necessary to encounter the high authority of their opinions, with the still higher authority of adjudged cases; and this was most effectually and thoroughly done in the production and application of the two impeachment cases of Judge Pickering and Judge Chase, in which the solemn judgments of two full Senates, and the acquiescence of all concerned, were set in opposition to the solitary opinions of individual Senators: and thus the sole ground on which the defence of the Senate rested, was swept from under their feet, and expunged from the face of the earth. and even in the face of the fact that he was in- | articles which charged, and the articles which capable of legal volition, and therefore, could have no intentions in the eye of the law. The case of Judge Chase, Mr. B. said, was a case of a different kind, to prove the same point: it was a case with, or without, averments of criminal intentions. Judge Chase was impeached upon eight articles; five of them charged corrupt and wicked intentions; three charged no intentions at all; being wholly silent upon the question of motives, and merely alleging the commission of the acts, and the violation of the law. The three articles, thus silent on the question of motives, were distinct and substantive articles in themselves, not variations of the other articles, but containing new and distinct charges; and, therefore, to stand or fall upon their own merits, without being helped out by a reference to the same charges in another form, in another part of the proceedings. They were the articles first, fourth, and fifth. Mr. B. would state them particularly; for, if the least doubt remained on the mind of any one, after seeing the case of Judge Pickering, the tenor of these three articles in the impeachment of Judge Chase would entirely remove and dispel that doubt. The first of these articles, which is No. 1 in the impeachment, relates to the trial of Fries, at Philadelphia, and charged the judge with three specific instances of misconduct in conducting that trial; and concluded them with the allegation, that they were "dangerous to our liberties," and "in violation of law and justice," but without the slightest reference to the quo animo of the judge, or the state of mind in which the acts were done. The article is wholly silent with respect to his intentions. The fourth article contains four specifications of misconduct; all charged to have occurred on the trial of Callender, in Richmond, and alleged them to be "subversive of justice," and "disgraceful to the character of a judge; " but were wholly silent as to the intentions of the judge, and left the quo animo with which he did the acts entirely out of the record. The fifth article charged a specific and single violation of law in ordering the arrest of Callender upon a capias, instead of directing him to be called in upon a summons; but without imputing any motive or intention whatever, good or bad, to the judge, for preferring the capias to the summons. The only averment is, "that Callender was arrested, and committed to close custody, contrary to law, in that case made and provided." Such were the three articles, said Mr. B., which charged violations of law upon Judge Chase, without imputing criminal intentions or corrupt motives to him; and upon which the judge was as fully tried, The Senate is composed of individuals, said and made as ample a defence, both upon the Mr. B., some of whom aspire to the occupation law and the facts, as he did upon the five other of the place which President Jackson now articles, which contained the ordinary aver- holds, others of whom have contended with him ments of wicked and corrupt intentions. for that place, and have been left by the people Neither the learned judge himself, nor any one-longo sed proximus intervallo at a long of his counsel, numerous and eminent as they interval behind; and others, again, who, having were, made the least distinction between the real or fancied grievances to complain of, appear Mr. B. having fully encountered, and, as he trusted and believed, entirely overthrown the whole defence set up by the Senate, would now extend his view to some auxiliary considerations, and examine the propriety and decorum of the Senate's conduct in adopting a resolution of this character against the President. SENATE.] President's Protest. [MAY, 1834. before the public as his implacable enemies | Representatives to impeach the President, the and incontinent revilers. From all such Sena- | failure of any member of the Honse to move tors the laws of honor, a sense of decorum, against him, was next relied upon by Mr. B. as respect for public opinion, and a due regard to an aggravation of the Senate's conduct in usurpthe sanctity of public justice, would require a ing the function of the House; although, by rigorous impartiality in the discharge of an an infatuated perversity of logic, that omission acknowledged duty, and a punctilious refusal of the House was expressly relied upon by one to engage in any proceeding which involved the of the Senators, (Mr. CLAY,) as a reason for the assumption of gratuitous powers, or required Senate to assume their office. No member the discharge of invidious offices. It was a from the House of Representatives, fresh from case even in which the refusal of many Senators the ranks of the people-no member of that to sit in judgment, although a regular impeach- body, constituting the grand inquest of the ment had been brought in, might have attracted nation, and exclusively charged with the origithe admiration, and commanded the applause, nation of impeachments-no such member could of all honorable men. This impartiality-this be induced, or stimulated, to follow the lead of abstinence this refusal to sit in judgment, had the bank press, and to prefer charges against not been witnessed on this occasion; on the President Jackson for violations of the law and contrary, there had been witnessed an eagerness constitution in dismissing Mr. Duane, beand promptitude in volunteering for attack; a cause he would not give the order for removviolence and personality in carrying it on; a ing the public deposits; in appointing Mr. grossness and turbulence of invective; a read- Taney to give the order; and in assuming the iness to draw inferences without warrant, and exercise of ungranted power over the Treasury to impute charges without evidence, which was of the United States, which was alleged to be never before exhibited in any American assem- the Bank of the United States. No member bly-which has no parallel in England, since of the House could be found to make such a the time that Jeffries rode the Western circuit, motion; and it was left for the Senate, by an nor in France, except in the days of the exist- extra-judicial and ex parte impeachment, to ence of the revolutionary tribunal-which usurp an office which the appropriate organ cannot be tolerated in any country where civil- would not exercise; and thus to aggravate, by ization has advanced far enough to require contrast, a proceeding wholly unconstitutional competitors for high office, in becoming adver- in itself, and sufficiently odious in all its attendsaries, to remain gentlemen; and which, on ant circumstances. this occasion, has presented the American Senate, and that in reference to the American President, as sitting for the picture which General Hamilton, in the Federalist, has drawn of a heated and factious assembly, borne away by envy and hatred, running down an envied political adversary upon groundless accusations! in which passion furnished charges; animosity supplied proof; the cunning found tools; and the decision was regulated, not by the guilt, or innocence, of the accused person, but by the strength and numbers of the accusing party. Continuing his remarks upon the indelicacy and indecorum of the Senate's conduct towards the President, Mr. B. said that Senators were the constitutional judges of the President, selected by that instrument to sit upon him, and, therefore, could not be challenged or set aside for ill will or prejudice towards him. They were not like jurors, to be set aside propter affectum, propter delectum; and, therefore, should be the more delicate and scrupulous in abstaining from all pre-occupation and judgment against him. If called to sit upon the trial of a person to whom they were inimical, the question was in their own breasts to sit or retire. Withdrawal was certainly the commendable course; and the Senate had witnessed one instance, at least, of that conduct, and that within a few years past; but the example did not seem to threaten, at present, to become contagious. The refusal, or omission, of the House of The variations which the resolution had undergone at the hands of its author, since it had been first introduced, was the next aggravation which Mr. B. pointed out. When first introduced it covered the very points which the bank press had indicated, and was couched in the very words which they had used in demanding the impeachment of the President; and, in addition to that, contained the precise criminal averment which is usually found in impeachments for public offences, and which was actually contained in the first article of the impeachment against Judge Chase-" dangerous to the liberties of the people!" The first form contained three specifications of violated law and constitution, to wit, dismissing Mr. Duane, appointing Mr. Taney, and exercising ungranted power over the Treasury of the United States, with an averment that all this was dangerous to the liberties of the people. The next shape it assumed left out the specifications on the subject of dismissing Mr. Duane and appointing Mr. Taney, but retained the clause about exercising ungranted power over the Treasury, and the danger to the liberties of the people! The third metamorphosis of this most flexible and pliant resolution, left out all the specifications, and even the concluding averment of "dangerous to the liberties of the people!" and assumed a shape-"if shape it can be called, which shape has none," of such vagueness and generality, such studied ambiguity and duplicity of signification, such total independence of facts, date, and circumstances, |