But above all, we should be the most cautious in guarding our judicial character from suspicion. We constitute the high court of impeachment of this nation, before which every officer of the Government may be arraigned. To this tribunal is committed the character of men whose character is far dearer to them than their lives. We should be the rock standing in the midst of the ocean, for the purpose of affording a shelter to the faithful officer from unjust persecution, against which the billows might dash themselves in vain. Whilst we are a terror to evil doers, we should be a praise to those who do well. We should never voluntarily perform any act which might prejudice our judgment, or render us suspected as a judicial tribunal. More especially, when the President of the United States is arraigned at the bar of public opinion for offences which might subject him to an impeachment, we should remain not only chaste but unsuspected. Better, infinitely better, would it be for us not to manifest our feeling, even in a case in which we were morally certain the House of Representatives would not prefer before us articles of impeachment, than to reach the object of our disapprobation by a usurpation of their rights. It is true that when the Senate passed the resolution condemning the President, a majority in the House were of a different opinion. But the next elections might have changed that majority into a minority. The House might then have voted articles of impeachment against the President. Under such circumstances, I pray you to consider in what a condition the Senate would have been placed. They had already prejudged the case. They had already convicted the President, and denounced him to the world as a violator of the Constitution. In criminal prosecutions, even against the greatest malefactor, if a juror has prejudged the cause, he cannot enter the jury box. The Senate had rendered itself wholly incompetent in this case to perform its highest judicial functions. The trial of the President, had articles of impeachment been preferred against him, would have been but a solemn mockery of justice.
The Constitution of the United States has carefully provided against such an enormous evil, by declaring that “the House of Representatives shall have the sole power of impeachment,” and “the Senate shall have the sole power to try all impeachments.” Until the accused is brought before us by the House, it is a manifest violation of our solemn duty to condemn him by a resolution.
If a court of criminal jurisdiction, without any indictment having been found by a grand jury, without having given the defendant notice to appear, without having afforded him an opportunity of cross-examining the witnesses against him, and making his defence, should resolve that he was guilty of a high crime, and place this conviction upon their records, all mankind would exclaim against the injustice and unconstitutionality of the act. Wherein consists the difference between this case and the condemnation of the President? In nothing, except that such a conviction by the Senate, on account of its exalted character, would fall with tenfold force upon its object. I have often been astonished, notwithstanding the extended and well deserved popularity of General Jackson, that the moral influence of this condemnation by the Senate had not crushed him. With what tremendous effect might this assumed power of the Senate be used to blast the reputation of any man who might fall under its displeasure! The precedent is extremely dangerous; and the American people have wisely determined to blot it out forever.
It is painful to reflect what might have been the condition of the country, if at the inauspicious moment of the passage of the resolution against the President, its interests and its honor had rendered it necessary to engage in a foreign war. The fearful consequences of such a condition, at such a moment, must strike every mind. Would the Senate then have confided to the President the necessary power to defend the country? Where could the sinews of war have been found? In what condition was this body, at that moment, to act upon an important treaty negotiated by the President, or upon any of his nominations? But I forbear to enlarge upon this topic.
I have now arrived at the last point in this discussion. Do the Senate possess the power, under the Constitution, of expunging the resolution of March, 1834, from their journals, in the manner proposed by the Senator from Missouri? (Mr. Benton.) I cheerfully admit we must show that this is not contrary to the Constitution; for we can never redress one violation of that instrument by committing another. Before I proceed to this branch of the subject, I shall put myself right, by a brief historical reminiscence. I entered the Senate in December, 1834, fresh from the ranks of the people, without the slightest feeling of hostility against any Senator on this floor. I then thought that the resolution of the Senator from Missouri was too severe in proposing to expunge. Although I was anxious to record, in strong terms, my entire disapprobation of the resolution of March, 1834, yet I was willing to accomplish this object without doing more violence to the feelings of my associates on this floor, than was absolutely necessary to justify the President. Actuated by these friendly motives, I exerted all my little influence with the Senator from Missouri, to induce him to abandon the word expunge, and substitute some others in its place. I knew that this word was exceedingly obnoxious to the Senators who had voted for the former resolution. Other friends of his also exerted their influence; and at length his kindly feelings prevailed, and he consented to abandon that word, although it was peculiarly dear to him. I speak from my own knowledge. “All which I saw and part of which I was.”
The resolution of the Senator from Missouri came before the Senate on the 3d of March, 1835. Under it the resolution of March, 1834, was “ordered to be expunged from the journal,” for reasons appearing on its face, which I need not enumerate. The Senator from Tennessee (Mr. White) moved to amend the resolution of the Senator from Missouri, by striking out the order to expunge, with the reasons for it, and inserting in their stead the words, “rescinded, reversed, repealed, and declared to be null and void.” Some difference of opinion then arose among the friends of the Administration as to the words which should be substituted in place of the order to expunge. For the purpose of leaving this question perfectly open, you, sir, (Mr. King, of Alabama, was in the chair,) then moved to amend the original motion of Mr. Benton, by striking out the words, “ordered to be expunged from the journal of the Senate.” This motion prevailed, on the ayes and noes, by a vote of 39 to 7; and amongst the ayes, the name of the Senator from Missouri is recorded. The resolution was thus left a blank, in its most essential features, ready to be filled up as the Senate might direct. The era of good feeling, in regard to this subject had commenced. It was nipped in the bud, however, by the Senator from Massachusetts (Mr. Webster). Whilst the resolution was still in blank, he rose in his place, and proclaimed the triumph of the Constitution, by the vote to strike out the word expunge, and then moved to lay the resolution on the table, declaring that he would neither withdraw his motion for friend nor foe. This motion precluded all amendment and all debate. It prevailed by a party vote; and thus we were left with our resolution a blank. Such was the manner in which the Senators in opposition received our advances of courtesy and kindness, in the moment of their strength and our weakness. Had the Senator from Massachusetts suffered us to proceed but for five minutes, we should have filled up the blank in the resolution. It would then have assumed a distinct form, and they would never afterwards have heard of the word expunge. We should have been content with the words “rescinded, reversed, repealed, and declared to be null and void.” But the conduct of the Senator from Massachusetts on that occasion, and that of the party with which he acted, roused the indignation of every friend of the Administration on this floor. We then determined that the word expunge should never again be surrendered.
The Senator from Kentucky has introduced a precedent from the proceedings of the House of Representatives of Pennsylvania, for the purpose of proving that we have no right to adopt this resolution. To this I can have no possible objection. But I can tell the Senator, if I were convinced that I had voted wrong, when comparatively a boy, more than twenty years ago, the fear of being termed inconsistent would not now deter me from voting right upon the same question. I do not, however, repent of my vote upon that occasion. I would now vote in the same manner, under similar circumstances. I should not vote to expunge, under any circumstances, any proceeding from the journals by obliterating the record. If I do not prove before I take my seat, that the case in the Legislature of Pennsylvania was essentially different from that now before the Senate, I shall agree to be proclaimed inconsistent and time-serving.
It was my settled conviction at the commencement of the last session of Congress, that the Senate had no power to obliterate their journal. This was shaken, but not removed, by the argument of the Senator from Louisiana, (Mr. Porter), who confessedly made the ablest speech on the other side of the question. The Constitution declares that “each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy.” What was the position which that Senator then attempted to maintain? In order to prove that we had no power to obliterate or destroy our journals, he thought it necessary to contend that the word “keep” as used in the Constitution, means both to record and to preserve. This appeared to me to be a mere begging of the question.
I shall attempt no definition of the word “keep.” At least since the days of Plato, we know that definitions have been dangerous. Yet I think that the meaning of this word, as applied to the subject matter, is so plain that he who runs may read. If I direct my agent to keep a journal of his proceedings, and publish the same, my palpable meaning is, that he shall write these proceedings down, from day to day, and publish what he has written for general information. After he has obeyed my commands, after he has kept his journal, and published it to the world, he has executed the essential part of the trust confided to him. What becomes of this original manuscript journal afterwards, is a matter of total indifference. So in regard to the manuscript journals of either House of Congress: after more than a thousand copies have been printed, and published, and distributed over the Union, it is a matter of not the least importance what disposition may be made of them. They have answered their purpose, and, in any practical view, become useless. If they were burnt, or otherwise destroyed, it would not be an event of the slightest public consequence. Such indifference has prevailed upon this subject, that these journals have been considered, in the House of Representatives, as so much waste paper, and, during a period of thirty-four years after the organization of the Government, they were actually destroyed. From this circumstance, no public or private inconvenience has been or ever can be sustained; because our printed journals are received in evidence in all courts of justice in the same manner as if the originals were produced.
The Senator from Louisiana has discovered that to “keep” means both “to record” and “to preserve.” But can you give this, or any other word in the English language, two distinct and independent meanings at the same time, as applied to the same subject? I think not. From the imperfection of human language, from the impossibility of having appropriate words to express every idea, the same word, as applied to different subjects, has a variety of significations. As applied to any one subject, it cannot, at the same time, convey two distinct meanings. In the Constitution it must mean either “to write down,” or “to preserve.” It cannot have both significations. Let Senators, then, take their choice. If it signifies “to write down,” as it unquestionably does, what becomes of the constitutional injunction to preserve? The truth is, that the Constitution has not provided what shall be done with the manuscript journal, after it has served the purposes for which it was called into existence. When it has been published to the people of the United States, for whose use it was ordered to be kept; after it has thus been perpetuated, and they have been furnished with the means of judging of the public conduct of their public servants, it ceases to be an object of the least importance. Whether it be thrown into the garret of the Capitol with other useless lumber, or be destroyed, is a matter of no public interest. It has probably never once been referred to in the history of our Government. If it should ever be determined to be a violation of the Constitution to obliterate or destroy this manuscript journal, it must be upon different principles from those which have been urged in this debate. My own impression is, that as the framers of the Constitution have directed us to keep a journal, a constructive duty may be implied from this command, which would forbid us to obliterate or destroy it. Under this impression, I should vote, as I did twenty years ago, in the Legislature of Pennsylvania, against any proposition actually to expunge any part of the journal. But waiving this unprofitable discussion, let us proceed to the real point in controversy.