A Biography of Henry Clay, the Senator from Kentucky / Containing Also, a Complete Report of All His Speeches; Selections From His Private Correspondence; Eulogies in the Senate and House; and a Poem, by George D. Prentice, Esq.

by Unknown

My mind conducts me to a totally different conclusion. I think, I solemnly believe, that the president ‘assumed upon himself authority and power not conferred by the constitution and laws, but in derogation of both,’ in the language of the resolution. I believed then in the truth of the resolution; and I now in my place, and under all my responsibility, reavow my unshaken conviction of it.

But it has been contended on this occasion, as it was in the debate which preceded the adoption of the resolution of 1834, that the senate has no right to express the truth on any question which by possibility, may become a subject of impeachment. It is manifest, that if it may, there is no more usual or appropriate form in which it may be done than that of resolutions, joint or separate, orders, or bills. In no other mode can the collective sense of the body be expressed. But senators maintain, that no matter what may be the executive encroachment upon the joint powers of the two houses, or the separate authority of the senate, it is bound to stand mute, and not breathe one word of complaint or remonstrance. According to the argument, the greater the violation of the constitution or the law, the greater the incompetency of the senate to express any opinion upon it! Further, that this incompetency is not confined to the acts of the president only, but extends to those of every officer who is liable to impeachment under the constitution. Is this possible? Can it be true? Contrary to all the laws of nature, is the senate the only being which has no power of self-preservation; no right to complain or to remonstrate against attacks upon its very existence?

The argument is, that the senate, being the constitutional tribunal to try all impeachments, is thereby precluded from the exercise of the right to express any opinion upon any official malfeasance, except when acting in its judicial character.

If this disqualification exist, it applies to all impeachable officers, and ought to have protected the late postmaster-general against the resolution, unanimously adopted by the senate, declaring that he had borrowed money contrary to law. And it would disable the senate from considering that treasury order, which has formed such a prominent subject of its deliberations during the present session.

And how do senators maintain this obligation of the senate to remain silent, and behold itself stripped, one by one, of all constitutional powers, without resistance, and without murmur? Is it imposed by the language of the constitution? Has any part of that instrument been pointed to which expressly enjoins it? No, no, not a syllable. But attempts are made to deduce it by another far-fetched implication. Because the senate is the body which is to try impeachments, therefore it is inferred the senate can express no opinion on any matter which may form the subject of impeachment. The constitution does not say so. That is undeniable; but senators think so.

The senate acts in three characters, legislative, executive, and judicial; and their importance is in the order enumerated. By far the most important of the three is its legislative. In that, almost every day that it has been in session, from 1789 to the present time, some legislative business has been transacted; whilst in its judicial character, it has not sat more than three or four times in that whole period.

Why should the judicial function limit and restrain the legislative function of the senate, more than the legislative should the judicial? If the degree of importance of the two should decide which ought to impose the restraint, in cases of conflict between them, none can doubt which it should be.

But if the argument is sound, how is it possible for the senate to perform its legislative duties? An act in violation of the constitution or laws is committed by the president or a subordinate executive officer, and it becomes necessary to correct it by the passage of a law. The very act of the president in question was under a law to which the senate had given its concurrence. According to the argument, the correcting law cannot originate in the senate, because it would have to pass in judgment upon that act. Nay, more, it cannot originate in the house, and be sent to the senate, for the same reason of incompetency in the senate to pass upon it. Suppose the bill contained a preamble reciting the unconstitutional or illegal act, to which the legislative corrective is applied; according to the argument, the senate must not think of passing it. Pushed to its legitimate consequence, the argument requires the house of representatives itself cautiously to abstain from the expression of any opinion upon an executive act, except when it is acting as the grand inquest of the nation, and considering articles of impeachment.

Assuming that the argument is well founded, the senate is equally restrained from expressing any opinion, which would imply the innocence or the guilt of an impeachable officer, unless it be maintained, that it is lawful to express praise and approbation, but not censure or difference of opinion. Instances have occurred in our past history, (the case of the British minister, Jackson, was a memorable one,) and many others may arise in our future progress, when in reference to foreign powers, it may be important for congress to approve what has been done by the executive, to present a firm and united front, and to pledge the country to stand by and support him. May it not do that? If the senate dare not entertain and express any opinion upon an executive measure, how do those who support this expunging resolution justify the acquittal of the president, which it proclaims?

No senator believed in 1834, that, whether the president merited impeachment or not, he ever would be impeached. In point of fact he has not been, and we have every reason to suppose, that henever will be impeached. Was the majority of the senate, in a case where it believed the constitution and laws to have been violated, and the liberties of the people to be endangered, to remain silent, and to refrain from proclaiming the truth, because, against all human probability, the president might be impeached by a majority of his political friends in the house of representatives?