But it is contended by the Senator that the Secretary of the Treasury is a sort of independent power in the State, and is released from the control of the executive. And why? Simply because he is directed by law to make his annual report to Congress and not to the President. If this position be correct, then it necessarily follows that the executive is released from the obligation of taking care that the numerous and important acts of Congress regulating the fiscal concerns of the country shall be faithfully executed. The Secretary of the Treasury is thus made independent of his control. What would be the position of this officer under such a construction of the Constitution and laws, it would be very difficult to decide. And this wonderful transformation of his character has arisen from the mere circumstance that Congress have by law directed him to make an annual report to them! No, sir; the executive is responsible to Congress for the faithful execution of all the laws; and if the present or any other President should prove faithless to his high trust, the present Senate, notwithstanding all which has been said, would be as ready as their predecessors to inflict condign punishment upon him, in the mode pointed out by the Constitution.
I have now arrived at the great question of the constitutional power of the Senate to adopt the resolution of March, 1834. It is my firm conviction that the Senate possesses no such power; and it is now my purpose to establish this position. The decision on this point must depend upon a true answer to the question: Does this resolution contain any impeachable charge against the President? If it does, I trust I shall demonstrate that the Senate violated its constitutional duty in proceeding to condemn him in this manner. I shall again read the resolution:
“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.”
This language is brief and comprehensive. It comes at once to the point. It bears a striking impress of the character of the Senator from Kentucky. Does it charge an impeachable offence against the President?
The fourth section of the second article of 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.”
It has been contended that this condemnatory resolution contains no impeachable offence, because it charges no criminal intention against the President; and I admit that it does not attribute to him any corrupt motive in express words. Is this sufficient to convince the judgment of any impartial man that none was intended? Let us, for a few moments, examine this proposition. If it be well founded, the Senate may for ever hereafter usurp the power of trying, condemning, and destroying any officer of the Government, without affording him the slightest opportunity of being heard in his defence. They may abuse their power, and prostrate any object of their vengeance. It seems we have now made the discovery, that the Senate are authorized to exert this tremendous power—that they may thus assume to themselves the office both of accuser and of judge, provided the indictment contains no express allegation of a criminal intention. The President, or any officer of the Government, may be denounced by the Senate as a violator of the Constitution of his country,—as derelict in the performance of his public duties, provided there is no express imputation of an improper motive. The characters of men whose reputation is dearer to them than their lives may thus be destroyed. They may be held up to public execration by the omission of a few formal words. The condemnation of the Senate carries with it such a moral power, that perhaps there is no man in the United States, except Andrew Jackson, who could have resisted its force. No, sir; such an argument can never command conviction. That which we have no power to do directly, we can never accomplish by indirect means. We cannot by resolution convict a man of an impeachable offence, merely because we may omit the formal words of an impeachment. We must regard the substance of things, and not the mere form.
But again. Although a criminal intention be not charged, in so many words, by this resolution, yet its language, even without the attendant circumstances, clearly conveys this meaning. The President is charged with having “assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.” “Assumed upon himself.” What is the plain palpable meaning of this phrase connected with what precedes and follows? Is it not “to arrogate,” “to claim or seize unjustly.” These are two of the first meanings of the word assume, according to the lexicographers. To assume upon one’s self is a mode of expression which is rarely taken in a good sense. As it is used here, I ask if any man of plain common understanding, after reading this resolution, would ever arrive at the conclusion that any Senator voted for it under the impression that the President was innocent of any improper intention, and that he violated the Constitution from mere mistake and from pure motives? The common sense of mankind revolts at the idea. How can it be contended, for a single moment, that you can denounce the President as a man who had “assumed upon himself” the power of violating the laws and the Constitution of his country, and in the same breath declare that you had not the least intention to criminate him, and that your language was altogether inoffensive. The two propositions are manifestly inconsistent.
But I go one step further. If we were sitting as a court of impeachment, and the bare proposition were established to our satisfaction that the President had, in violation of the Constitution and the laws, withdrawn the public revenue of the country from the depository to whose charge Congress had committed it, and assumed the control over it himself, we would be bound to convict him of a high official misdemeanor. Under such circumstances, we should be bound to infer a criminal intention from this illegal and unconstitutional act. Criminal justice could never be administered,—society could not exist, if the tribunals of the country should not attribute evil motives to illegal and unconstitutional conduct. Omniscience alone can examine the heart. When poor frail man is placed in the judgment-seat, he must infer the intentions of the accused from his actions. That “the tree is known by its fruits” is an axiom which we have derived from the fountain of all truth. Does a poor, naked, hungry wretch, at this inclement season of the year, take from my pocket a single dollar; the law infers a criminal intent, and he must be convicted and punished as a thief, though he may have been actuated by no other motive than that of saving his wife and his children from starvation. And shall a different rule be applied to the President of the United States? Shall it be said of a man elevated to the highest station on earth, for his wisdom, his integrity, and his virtues, with all his constitutional advisers around him, when he violates the Constitution of his country and usurps the control over its entire revenue, that he may successfully defend himself by declaring he had done this deed without any criminal intention? No, sir; in such a case, above all others, the criminal intention must be inferred from the unconstitutional exercise of high and dangerous powers. The safety of the Republic demands that the President of the United States should never shield himself behind such flimsy pretexts. This resolution, therefore, although it may not have assumed the form of an article of impeachment, possesses all the substance.
It was my fate some years ago to have assisted as a manager, in behalf of the House of Representatives, in the trial of an impeachment before this body. It then became my duty to examine all the precedents in such cases which had occurred under our Government, since the adoption of the Federal Constitution. On that occasion, I found one which has a strong bearing upon this question. I refer to the case of Judge Pickering. He was tried and condemned by the Senate upon all the four articles exhibited against him; although the first three contained no other charge than that of making decisions contrary to law, in a cause involving a mere question of property, and then refusing to grant the party injured an appeal from his decision, to which he was entitled. From the clear violation of law in this case, the Senate must have inferred an impure and improper motive.
If any thing further were wanting to prove that the resolution of the Senate contained a criminal and impeachable charge against the President, it might be demonstrated from all the circumstances attending the transaction. Whilst this resolution was in progress through the Senate, the Bank of the United States was employed in producing panic and pressure throughout the land. Much actual suffering was experienced by the people; and where that did not exist, they dreaded unknown and awful calamities. Confidence between man and man was at an end. There was a fearful pause in the business of the country. We were then engaged in the most violent party conflict recorded in our annals. To use the language of the Senator from Kentucky, we were in the midst of a revolution. On the one side it was contended that the power over the purse of the nation had been usurped by the President; that in his own person he had united this power with that of the sword, and that the liberties of the people were gone, unless he could be arrested in his mad career. On the other hand, the friends of the President maintained that the removal of the deposits from the Bank of the United States was an act of stern justice to the people; that it was strictly legal and constitutional; that he was impelled to it by the highest and purest principles of patriotism; and that it was the only means of prostrating an institution which threatened the destruction of our dearest rights and liberties. During this terrific conflict public indignation was aroused to such a degree, that the President received a great number of anonymous letters, threatening him with assassination unless he should restore the deposits.