himself in the very small minority to which he belonged, and that he had done this to serve the gallant and patriotic State of South Carolina. Would the gentleman say that he did not step forward in defence of South Carolina, in the great and magnanimous stand which she took in defence of her rights? Now, he wished the senator to understand him, that he had put himself in a minority of at least one to a hundred; that he had abandoned party voluntarily, freely; and he would tell every senator-for he was constrained to speak of himself, and therefore he should speak boldly-he would not turn upon his heel for the administration of the affairs of this government. He believed that such was the hold which corruption had obtained in this government, that any man who should under take to reform it would not be sustained." Mr. King of Alabama moved that the resolutions be printed, which motion was superseded by a motion to lay it on the table, which prevailed-yeas twenty-seven, nays twenty-as follows: "YEAS.-Messrs. Bell, Bibb, Black, Calhoun, Clay, Clayton, Ewing, Frelinghuysen, Goldsborough, Hendricks, Kent, Knight, Leigh, Mangum. Naudain, Poindexter, Porter, Prentiss, Robbins, Silsbee, Smith, Southard, Swift, Tomlinson, Tyler. Waggaman, Webster. "NAYS.-Messrs. Benton, Brown, Buchanan, Cuthbert, Grundy, Hill, Kane, King of Alabama, King of Georgia, Linn, McKean, Moore, Morris, Preston, Robinson, Shepley, Tallmadge, Tipton, White, Wright." And thus the resolutions of a sovereign State, in favor of expunging what it deemed to be a lawless sentence passed upon the President, were refused even a reception and a printing-a circumstance which seemed to augur badly for the final success of the series of expunging motions which I had pledged myself to make. But, in fact, it was not discouraging-but the contrary. It strengthened the conviction that such conduct would sooner induce the change of senators in the democratic States, and permit the act to be done. CHAPTER CXXIII. THE EXPUNGING RESOLUTION. FROM the moment of the Senate's condemnation of General Jackson, Mr. Benton gave notice of his intention to move the expunction of the sentence from the journal, periodically and continually until the object should be effected, or his political life come to its end. In conformity to this notice, he made his formal motion at the session '34-35; and in these words: "Resolved, That the resolution adopted by the Senate, on the 28th day of March, in the year 1834, in the following words: '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,' be, and the same hereby is, ordered to be expunged from the journals of the Senate; because the said resolution is illegal and unjust, of evil example, indefinite and vague, expressing a criminal charge without specification; and was irregularly and unconstitutionally adopted by the Senate, in subversion of and impeachable officer; and at a time and the rights of defence which belong to an accused under circumstances to endanger the political rights, and to injure the pecuniary interests of the people of the United States." This proposition was extremely distasteful to the Senate-to the majority which passed the sentence on General Jackson; and Mr. Southard, senator from New Jersey, spoke their sentiments, and his own, when he thus bitterly characterized it as an indictment which the Senate itself was required to try, and to degrade itself in its own condemnation,―he said: "The object of this resolution (said Mr. S.), is not to obtain an expression from the Senate that their former opinions were erroneous, nor that the Executive acted correctly in relation to the public treasury. It goes further, and denounces the act of the Senate as so unconstitutional, unjustifiable, and offensive, that the evidence of it ought not to be permitted to remain upon the records of the government. It is an indictment against the Senate. The senator from Missouri calls upon us to sit in judgment upon our own act, and warns us that we can save ourselves from future and lasting denunciation and reproach only by pronouncing our own condemnation by our votes. He assures us that he has no desire or intention to degrade the Senate, but the position in which he would place us is one of deep degradation-degradation of the most humiliating character—which not only acknowledges error, and admits inexcusable misconduct in this legislative branch of the government, but bows it down before the majesty of the Executive, and makes us offer incense to his infallibility." The bitterness of this self trial was aggravated by seeing the course which the public mind All that he denied. He denied the authority of the Senate to pass such a resolution at all; and he affirmed that it was unjust, and contra This being his view of the resolution, he held that the true and proper course, the parliamentary course of proceeding in such a case, was to expunge it. was taking. A current, strong and steady, and constantly swelling, was setting in for the President and against the Senate; and resolutions from the legislatures of several States-ry to the truth, as well as contrary to law. Alabama, Mississippi, New Jersey, North Carolina—had already arrived instructing their senators to vote for the expurgation which Mr. Benton proposed. In the mean time he had not yet made his leading speech in favor of his motion; and he judged this to be the proper time to do so, in order to produce its effects on the elections of the ensuing summer; and accordingly now spoke as follows: But, said Mr. B., it is objected that the Senate has no right to expunge any thing from its journal; that it is required by the constitution to keep a journal; and, being so required, could not destroy any part of it. This, said Mr. B., is sticking in the bark; and in the thinnest bark in which a shot, even the smallest, was ever lodged. Various are the meanings of the word keep, used as a verb. To keep a jour you do. For the Senate to keep a journal is to cause to be written down, every day, the account of its proceedings; and, having done that, the constitutional injunction is satisfied. The constitution was satisfied by entering this criminating resolution on the journal; it will be equally satisfied by entering the expunging resolution on the same journal. In each case the Senate keeps a journal of its own proceedings. It is objected, also, that we have no right to destroy a part of the journal; and that to expunge is to destroy and to prevent the expunged part from being known in future. Not so the fact, said Mr. B. The matter expunged is not destroyed. It is incorporated in the expunging resolution, and lives as long as that lives; the only effect of the expurgation being to express, in the most emphatic manner, the opinion that such matter ought never to have been put in the journal. "Mr. Benton then rose and addressed the Senate in support of his motion. He said that the resolution which he had offered, though resolved upon, as he had heretofore stated, without consultation with any person, was not re-nal is to write down, daily, the history of what solved upon without great deliberation in his own mind. The criminating resolution, which it was his object to expunge, was presented to the Senate, December 26th, 1833. The senator from Kentucky who introduced it [Mr. Clay], commenced a discussion of it on that day, which was continued through the months of January and February, and to the end, nearly, of the month of March. The vote was taken upon it the 28th of March; and about a fortnight thereafter he announced to the Senate his intention to commence a series of motions for expunging the resolution from the journal. Here, then, were nearly four months for consideration; for the decision was expected; and he had very anxiously considered, during that period, all the difficulties, and all the proprieties, of the step which he meditated. Was the intended motion to clear the journal of the resolution right in itself? The convictions of his judgment told him that it was. Was expurgation the proper mode? Yes; he was thoroughly satisfied that that was the proper mode of proceeding in this case. For the criminating resolution which he wished to get rid of combined all the charac-punging was the proper course, the parliamenteristics of a case which required erasure and obliteration for it was a case, as he believed, of the exercise of power without authority, without even jurisdiction; illegal, irregular, and unjust. Other modes of annulling the resolution, as rescinding, reversing, repealing, could not be proper in such a case; for they would imply rightful jurisdiction, a lawful authority, a legal action, though an erroneous judgment. VOL. I.-34 Mr. B. said he would support these positions by authority, the authority of eminent examples; and would cite two cases, out of a multitude that might be adduced, to show that ex mentary course, in such a case as the one now before the Senate, and that the expunged matter was incorporated and preserved in the expunging resolution. Mr. B. then read, from a volume of British Parliamentary History, the celebrated case of the Middlesex election, in which the resolution to expel the famous John Wilkes was expunged from the journal, but preserved in the expurga tory resolution, so as to be just as well read latest ages. President Jackson is not a character now as if it had never been blotted out from to be forgotten in history. His name is not to the journals of the British House of Commons. be confined to the dry catalogue and official The resolution ran in these words: "That the nomenclature of mere American Presidents. resolution of the House of the 17th February, Like the great Romans who attained the con1769, 'that John Wilkes, Esq., having been, in sulship, not by the paltry arts of electioneering, this session of Parliament, expelled this House, but through a series of illustrious deeds, his was and is incapable of being elected a member name will live, not for the offices he filled, but to serve in the present Parliament,' be expung- for the deeds which he performed. He is the ed from the journals of this House, as being first President that has ever received the consubversive of the rights of the whole body of demnation of the Senate for the violation of the electors of this kingdom." Such, said Mr. B., laws and the constitution, the first whose name were the terms of the expunging resolution in is borne upon the journals of the American Sethe case of the Middlesex election, as it was nate for the violation of that constitution which annually introduced from 1769 to 1782; when it he is sworn to observe, and of those laws which was finally passed by a vote of near three to he is bound to see faithfully executed. Such one, and the clause ordered to be expunged was a condemnation cannot escape the observation blotted out of the journal, and obliterated, by of history. It will be read, considered, judged! the clerk at the table, in the presence of the when the men of this day, and the passions of whole House, which remained silent, and all this hour, shall have passed to eternal repose. business suspended until the obliteration was complete. Yet the history of the case is not lost. Though blotted out of one part of the journal, it is saved in another; and here, at the distance of half a century, and some thousand miles from London, the whole case is read as fully as if no such operation had ever been performed upon it. Having given a precedent from British parliamentary history, Mr. B. would give another from American history; not, indeed, from the Congress of the assembled States, but from one of the oldest and most respectable States of the Union: he spoke of Massachusetts, and of the resolution adopted in the Senate of that State during the late war, adverse to the celebration of our national victories; and which, some ten years afterwards, was expunged from the journals by a solemn vote of the Senate. A year ago, said Mr. B., the Senate tried President Jackson; now the Senate itself is on trial nominally before itself; but in reality before America, Europe, and posterity. We shall give our voices in our own case; we shall yote for or against this motion; and the entry upon the record will be according to the majority of voices. But that is not the end, but the beginning of our trial. We shall be judged by others; by the public, by the present age, and by all posterity! The proceedings of this case, and of this day, will not be limited to the present age; they will go down to posterity, and to the Before he proceeded to the exposition of the case which he intended to make, he wished to avail himself of an argument which had been conclusive elsewhere, and which he trusted could not be without effect in this Senate. It was the argument of public opinion. In the case of the Middlesex election, it had been decisive with the British House of Commons; in the Massachusetts case, it had been decisive with the Senate of that State. In both these cases many gentlemen yielded their private opinions to public sentiment; and public sentiment having been well pronounced in the case now before the Senate, he had a right to look for the same deferential respect for it here which had been shown elsewhere." Mr. B. then took up a volume of British par liamentary history for the year 1782, the 221 volume, and read various passages from pages 1407, 1408, 1410, 1411, to show the stress which had been laid on the argument of public opinion in favor of expunging the Middlesex resolutions; and the deference which was paid to it by the House, and by members who had, until then, opposed the motion to expunge. He read first from Mr. Wilkes' opening speech, on renewing his annual motion for the fourteenth time, as follows: "If the people of England, sir, have at any time explicitly and fully declared an opinion respecting a momentous constitutional question, it has been in regard to the Middlesex election in 1768." * "Their voice was never heard in a more clear and distinct manner than on this point of the first magnitude for all the electors of the kingdom, and I trust will now be heard favorably." He then read from Mr. Fox's speech. Mr. Fox had heretofore opposed the expunging resolution, but now yielded to it in obedience to the voice of the people. the voice of the people came rolling in-a swelling tide, rising as it flowed-and covering the capitol with its mountain waves. Can that voice be disregarded? Will members of a republican Congress be less obedient to the voice of the people than were the representatives of a monarchical House of Commons? Mr. B. then proceeded to the argument of his motion. He moved to expunge the resolution of March 28, 1834, from the journals of the Senate, because it was illegal and unjust; vague and indefinite; a criminal charge without spe*cification; unwarranted by the constitution and laws; subversive of the rights of defence which belong to an accused and impeachable officer; of evil example; and adopted at a time and under circumstances to involve the political rights and the pecuniary interests of the people of the United States in peculiar danger and serious injury. "He (Mr. Fox) had turned the question often in his mind, he was still of opinion that the resolution which gentlemen wanted to expunge was founded on proper principles." * * "Though he opposed the motion, he felt very little anxiety for the event of the question; for when he found the voice of the people was against the privilege, as he believed was the case at present, he would not preserve the privilege." "The people had associated, they had declared their sentiments to Parliament, and had taught Parliament to listen to the voice of their constituents." Having read these passages, Mr. B. said they were the sentiments of an English whig of the old school. Mr. Fox was a whig of the old school. He acknowledged the right of the people to instruct their representatives. He yielded to the general voice himself, though not specially instructed; and he uses the remarkable expression which acknowledges the duty of Parliament to obey the will of the people. "They had declared their sentiments to Parliament, and had taught Parliament to listen to the voice of their constituents." This, said Mr. B., was fifty years ago; it was spoken by a member of Parliament, who, besides being the first debater of his age, was at that time Secretary at War. He acknowledged the duty of Parliament to obey the voice of the people. The son of a peer of the realm, and only not a peer himself because he was not the eldest son, he still acknowledged the great democratic principle which lies at the bottom of all representative government. After this, after such an example, will American Senators be unwilling to obey the people? Will they require people to teach Congress the lesson which Mr. Fox says the English people had taught their Parliament fifty years ago? The voice of the people of the United States had been heard on this subject. The elections declared it. The vote of many legislatures dedeclared it. From the confines of the Republic These reasons for expunging the criminating resolution from the journals, Mr. B. said, were not phrases collected and paraded for effect, or strung together for harmony of sound. They were each, separately and individually, substantive reasons; every word an allegation of fact, or of law. Without going fully into the argument now, he would make an exposition which would lay open his meaning, and enable each allegation, whether of law or of fact, to be fully understood, and replied to in the sense intended. 1. Illegal and unjust.-These were the first heads under which Mr. B. would develope his objections, he would say the outline of his objections, to the resolution proposed to be expunged. He held it to be illegal, because it contained a criminal charge, on which the President might be impeached, and for which he might be tried by the Senate. The resolution adopted by the Senate is precisely the first step taken in the House of Representatives to bring on an impeachment. It was a resolution offered by a member in his place, containing a criminal charge against an impeachable officer, debated for a hundred days; and then voted upon by the Senate, and the officer voted to be guilty. This is the precise mode of bringing on an impeachment in the House of Representatives; and, to prove it, Mr. B. would read from a work of approved authority on parliamentary practice; it was from Mr. Jefferson's Manual. Mr. B. then read from the Manual, under the section entitled Impeachment, and from that head of the section entitled accusation. The writer was giving the British Parliamentary practice, to which our own constitution is conformable. "The Commons, as the grand inquest of the nation, became suitors for penal justice. The general course is to pass a resolution containing a criminal charge against the supposed delinquent; and then to direct some member to impeach him by oral accusation at the bar of the House of Lords, in the name of the Commons." Repeating a clause of what he had read, Mr. B. said the general course is to pass a criminal charge against the supposed delinquent. This is exactly what the Senate did; and what did it do next? Nothing. And why nothing? Because there was nothing to be done by them but to execute the sentence they had passed; and that they could not do. Penal justice was the consequence of the resolution; and a judgment of penalties could not be attempted on such an irregular proceeding. The only kind of penal justice which the Senate could inflict was that of public opinion; it was to ostracize the President, and to expose him to public odium, as a violator of the laws and constitution of his country. Having shown the resolution to be illegal, Mr. B. would pronounce it to be unjust; for he affirmed the resolution to be untrue; he maintained that the President had violated no law, no part of the constitution, in dismissing Mr. Duane from the Treasury, appointing Mr. Taney, or causing the deposits to be removed; for these were the specifications contained in the original resolution, also in the second modification of the resolution, and intended in the third modification, when stripped of specifications, and reduced to a vague and general charge. It was in this shape of a general charge that the resolution passed. No new specifications were even suggested in debate. The alterations were made voluntarily, by the friends of the resolution, at the last moment of the debate, and just when the vote was to be taken. And why were the specifications then dropped? Because no majority could be found to agree in them? or because it was thought prudent to drop the name of the Bank of the United States? or for both these reasons together? Be that as it may, said Mr. B., the condemnation of the President, and the support of the bank, were connected in the resolution, and will be indissolubly connected in the public mind; and the President was unjustly condemned in the same resolution that befriended and sustained the cause of the bank. He held the condemnation to be untrue in point of fact, and therefore unjust; for he maintained that there was no breach of the laws and constitution in any thing that President Jackson did, in removing Mr. Duane, or in appointing Mr. Taney, or in causing the deposits to be removed. There was no violation of law, or constitution, in any part of these proceedings; on the contrary, the whole country, and the government itself, was redeemed from the dominion of a great and daring moneyed corporation, by the wisdom and energy of these very proceedings. 2. Vague and indefinite; a criminal charge without specification. Such was the resolution, Mr. B. said, when it passed the Senate; but such it was not when first introduced, nor even when first altered; in its first and second forms it contained specifications, and these specifications identified the condemnation of the President with the defence of the bank; in its third form, these specifications were omitted, and no others were substituted; the bank and the resolution stood disconnected on the record, but as much connected, in fact, as ever. The resolution was reduced to a vague and indefinite form, on purpose, and in that circumstance, acquired a new character of injustice to President Jackson. His accusers should have specified the law, and the clause in the constitution, which was violated; they should have specified the acts which constituted the violation. This was due to the accused, that he might know on what points to defend himself; it was due to the public, that they might know on what points to hold the accusers to their responsibility, and to make them accountable for an unjust accusation. To sustain this position, Mr. B. had recourse to history and example, and produced the case of Mr. Giles's accusation of General Hamilton, then Secretary of the Treasury, in the year 1793. Mr. Giles, he said, proceeded in a manly, responsible manner. He specified the law and the alleged violations of the law, so that the friends of General Hamilton could see what to defend, and so as to make himself accountable for the accusation. He specified the law, which he believed to be violated, by its date and its title; and he specified the two instances in which he held that law to have been infringed. |