out what these petitions were. Such is the case of 1806. It is a complete and perfect precedent for the case of 1836. The memorials were attacks upon Mr. Jefferson. They contained impeachable matter against him. They charged him with connivance and secret participation in the unlawful, disastrous, and tragical expedition of Miranda. The charges which they contained bad filled all the opposition newspapers of the day, and had been used for every purpose of party warfare against him. To get these criminal charges on the journals was the next object. In the Senate, and in the House of Representatives, they were presented by the political enemies of Mr. Jefferson, and so far as they received support or countenance, it was from the ranks of the opposition. So of the proceeding against President Jackson. They are attacks upon him. They charge him with violating the laws and the constitution. They go to criminate and stigmatize him. The charges which they exhibit were universally circulated in the opposition newspapers before they were presented in the Senate. The Bank of the United States had formally accused the President, and all the publications of the day, periodical, diurnal, and what not, that espoused the cause of the bank, were filled with the charges. Parly warfare had used them to the uttermost in the fall elections of 1833; but that was not sufficient; the same party spirit, and the same party, the bank federal party, which in 1806 wished to have its charges against President Jefferson transferred from the newspapers to the journals of Congress, thence to be transmitted to posterity as a part of the legislative history of the country; that same spirit, and that same party, has wished to do the same thing with the accusations against President Jackson. The Congress of 1806, both House and Senate, met this unconstitutional attempt as it deserved. The House refused the memorial, and voted it to be unsustained by evidence, and reprehensible in its character; the Senate ordered the whole proceeding, and every trace and letter of it, to be expunged from the journal. It is to no purpose, Mr. President, that any one may attempt to draw a distinction where there is no difference. It is to no purpose that any one may attempt to draw a distinction between expunging at the same session, and at a subsequent one. There is no difference between The right to expunge rests upon the right to keep the journal clear of what ought never to be upon it. It rests upon the right to purify it from any thing improper, which inadvertence, mistake, or the injustice, virulence, and fury of party spirit, may have put upon it. To this purification there is no limit of time, either in law or in morals. It is not a case for a statute of limitations. Thus, from its very nature, the purification of the journal is to be effected when it can be; and that always implies a time posterior to the wrong; and in the case of faction, it implies a time posterior to the downfall of the faction. The precedent of 1806 meets the objection of 1836. It meets it full and fair in the face. The objection is, that the Senate is bound to preserve is proceedings; that it must write down all its proceedings in the journal, and then preserve them for ever; never altering, changing, or effacing one word, one letter, one iota, one tittle, of the sacred work, from the moment it is to be done to the end of time. This is the objection; and it has been repeated rather too often to be itself changed or altered to avoid the overpowering authority of the precedent of 1806. And this, sir, is my answer to the Senator from Louisiana, [Mr. PORTER.] I tell him the expunging was not only at the same session, but on the same day that the proceeding took place.

the cases.

I would here drop this head of my argument, but it seems that something has occurred in our own history on which gentlemen rely, either to justify themselves

[MARCH 18, 1836.

or to criminate their opponents; I allude to the case of Mr. Barry, who was condemned for a violation of the laws by the unanimous vote of the Senate. This was done at the same session, and a few months later than the President was condemned. Both parties voted for that condemnation of Mr. Barry; and it is argued this must sanction the proceeding against the President, or involve in an inconsistency those who voted for that condemnation without objection, and now object to the proceeding in the case of the President. Not so the fact or the consequence. The proceeding against Mr. Barry was objected to, and that in the very first stages of it, upon the same grounds on which we now stand in the case of the President; and the vote which was given by me and my friends was a vote forced upon us by the majority of the Senate, and, being so forced upon us, was given, as we believed, according to the truth and the fact. I well recollect that vote, and the conversation among ourselves to which it gave rise. Some thought we should vote against it, on the ground that the proceeding was unconstitutional, and that a vote in in its favor would commit us on that point; others, of whom I was one, objected to the negative vote, because it would be against evidence, and would subject us to the imputation of voting as partisans, and not as Senators, and because a negative vote admitted the jurisdiction, just as much as an affirmative one. Upon these grounds, and because the majority had the power, and enforced it, to compel a vote, we took the alternative which truth seemed to require, and acted upon the same principle in both cases, that of Mr. Barry and that of President Jackson, voting according to what we believed to be the fact in each case. But let no one delude himself with the notion that the proceeding against Mr. Barry was not objected to! Let no one suppose that the difference in rank has made a difference in the opinions held in the two cases! The proceeding against Mr. Barry was objected to, and fully and unequivocally, in open debate, and upon all the grounds assumed afterwards in the case of President Jackson. Here is the proof, taken from the debate of February 10, 1831, and preserved in the congressional history of that period. debate was on the adoption of a resolution, of criminative aspect, concerning the examination of witnesses as to the causes of their removal by the Postmaster General from office, and the speaker the same that now addresses you.

The

"Mr. Benton then rose and said that he did not appear on the floor for the purpose of joining in the debate, nor to express any opinion on the truth of the allegations so violently urged against the Postmaster General. He had no opinion on the matter, and did not wish to have one, except it was that presumptive opinion of innocence which the laws awarded to all that were accused, and which the pure and elevated character of Mr. Barry so eminently claims. If impeached, it might be his duty to sit in judgment upon him, or, if he had an opinion in the case, to retire from the judgment seat; as he could neither reconcile it to the dictates of his conscience, nor the rights of the accused, to take the oath of a judge, with a preconceived opinion in his bosom, to be dropped out as soon as the forms would permit. He rose, he repeated, not to accuse or to absolve Mr. Barry, but to express his opinion of the character of the proceeding which was carrying on against him, and to intimate an idea of what might be proper to be done hereafter in regard to it. He then affirmed that he looked upon the whole proceeding, from its first inception to that moment, as one of eminent impropriety, compromising the judical purity of the Senate on one hand, and invading the privileges of the House of Representatives on the other. The Senate, under the constitution, tries impeachments--the House of Representatives prefers them.

The argument in the whole pamphlet is pertinent to the motion now before the Senate, as showing the relation between the proceedings of the bank and the proceedings of the Senate against the President, and how close ly the latter, arguments and all, were copied from the former. The whole pamphlet was pertinent to his motion, and it ought to be printed and preserved among the public documents, as a part of the history of the case; but time forbid him to read any more; and having arrived at the point where the bank turned over the President to Congress for criminal prosecution, and where the Senate took it up, he went on to say: The three resolves which I have read, though varied in their forms, are all intended to accomplish what the bank indicated when it vouchsafed "to leave to the Congress of the United States the assertion of their own constitutional power, and the vindication of the principles of our Government, against the most violent assault they had ever encountered;" and the first of these three was accompanied by another resolve which pursued the civil branch of the subject which the bank had reserved to itself; namely, to show that the reasons assigned for the removal of the deposites were "unsatisfactory and insufficient," or, as the bank pamphlet expresses it, "unfounded as the object itself is illegal." Thus the proceedings in the Senate and in the bank were identical; and, what is too obvious and striking to escape observation, the very form of commencing the work against the President, and the precise material upon which the work was commenced, was the same in both bodies. The bank commenced its process, and took for the foundation of its proceeding "a certain paper, signed Andrew Jackson,' and purporting to have been read to what was called a cabinet on the 18th day of September, in the year 1833." So of the proceeding in the Senate. It takes for its commencement, and for its foundation, the same identical paper, and, in every essential phrase, describes and calls for it in the same words. Our journal of that period, at page 40, and for Wednesday, the 11th of December, 1833, just nine days after the promulgation of the bank proceedings, exhibits an entry in these words:

"The following motion, submitted by Mr. Clay, was considered:

"Resolved, That the President of the United States be requested to communicate to the Senate a copy of the paper which had been published, and which purports to have been read by him to the heads of the executive Departments, dated the 15th day of September last, relating to the removal of the deposites of the public money from the Bank of the United States and its offices."

This call was adopted by the Senate. The President was requested to furnish the paper described; and, upon his declining to do so, the Senate of the United States proceeded, as the Bank of the United States had previously done, to use the copy of the paper, as found in the

columns of the Globe.

Upon the contents of this paper two distinct resolutions were submitted by a Senator from Kentucky, [Mr. CLAY]-one criminal, the other civil. The criminal resolution has been read. It stands at the head of the three resolves quoted in the preamble to the resolution which I have offered, and follows not only the charges and the specifications which the bank had preferred against the President, but uses the very words which that institution had used. The civil resolution offered at the same time is not inserted in the preamble, because the expunging process is not proposed to reach it; but it is necessary to read it by way of identifying the proceedings of the bank and of the Senate, and to show how faithfully the Senate took up the cause of the Bank. This is it:

"Resolved, That the reasons assigned by the Secreta. VOL. XII.-57

[SENATE.

ry of the Treasury for the removal of the money of the United States deposited in the Bank of the United States and its branches, communicated to Congress on the 3d day of December, 1833, are unsatisfactory and insufficient." The reasons assigned for the removal were voted by the bank to be unfounded; by the Senate they were voted to be unsatisfactory and insufficient; showing the exact division of the subject in the Senate to be what it was in the bank, and expressed in the same phrases.

The bank refers the paper which was read to what was called a cabinet to one of its committees, to report "what steps are necessary to be taken on the part of the board." They report two steps: First, to vindicate the constitution and laws from the most violent assault they had ever encountered, which, being interpreted, signified to impeach him; and such was the language of the bank gazettes, and a member actually named who was to move the impeachment. Secondly, to assert its own right to redress for the injury of removing the deposites. Both these steps were pursued in the Senate; only, for want of a regular impeachment preferred by the House of Representatives, the Senate took it up irregularly, as indicated by the bank.

I do not detain the Senate, Mr. President, to make any remark upon the unparalleled and almost incredible audacity of this moneyed institution, which, erecting itself into a co-ordinate branch of the federal Government, and assuming a political, judicial, and moral supremacy over the President of the United States, takes cognizance of his imputed offences, refers his conduct to one of its committees as to a grand jury, receives a report arraigning him for a public crime as well as for a private injury, adopts it in both aspects, and adjudges him guilty of the crime, while it demands redress for the injury, with the unceremonious indifference and perfect self-complacency which belongs to the conduct of an established constitutional tribunal. Nor do I comment upon the significant intimation for an impeachment, which their high mightinesses, the serene directors of this moneyed corporation, so distinctly hold out to Congress. Nor shall I dwell upon the coincidence that the bank proceeding against the President should have made its appearance in Philadelphia cotemporaneously with the assembling of Congress in this city. All these circumstances, and many others, will naturally attract the attention and excite the reflections of the people. My purpose at present is quite different. It is to show that the Bank of the United States is the original author of all the proceedings against the President, and that what has been done in this chamber is nothing but a copy of what had first been done at the board of directors in the city of Philadelphia. The extracts which I have read are sufficient for the present, and I shall only refer, at this time, in confirmation of them, to the columns of the bank gazettes at that period; the meetings got up by the bank to condemn the President; the committees and memorials sent here; the purchase by the bank of 800,000 copies of the speeches made against the President; its efforts to distress and alarm the country; and the palpable line which is still drawn in the Legislatures of all the States, between the friends of the bank and the friends of the President, wherever expunging resolutions are brought forward.

These are sufficient to prove that the bank, from first to last, took charge of this proceeding against the Presi dent; that she originated it, followed it here, nursed and cherished it, adopted all that was done, and now opposes the expunging resolutions in the different States with such fidelity that the list of votes, except in Tennessee, and some individual exceptions in the other States, shows the question of expunging to be a mere bank question, to be lost or carried as the bank party predominate or not in the Legislature.

Mr. B. then took up his expurgatory resolution, and said that he had digested his motion, for the sake of a more convenient and intelligible presentation of his subject, into a series of distinct propositions, covering the whole ground of the case, yet separating the parts, so that a distinct consideration and a distinct vote may be taken on each distinct point:

I. The first proposition which I submit assumes the cardinal position that the proceeding against President Jackson was for an impeachable offence; and that, being conducted without the forms of an impeachment, it was, by consequence, irregular, illegal, unconstitutional, and subversive of the fundamental principles of law and justice.

The stress of this proposition lies in the position that the offence charged upon the President was impeachable; and, to maintain this position, I shall show, first, what it is that constitutes an impeachable offence under our constitution; and next, what the offence is that the President was charged with.

By section 4, article 2, of the constitution, the President may be impeached:

1. For treason;

2. For bribery;

3. For other high crimes;

4. For misdemeanors.

Here are four classes of offences for which impeachment lies; two of them well defined by common and constitutional law; and two of them resting, not upon strict legal definitions, but rather upon the general acceptation of terms, and the moral sense of the community. Treason and bribery have their precise definitions; other high crimes and misdemeanors have their import, but have not been legally defined, so as to include all cases which may fall under their heads. They were evidently adopted by the framers of the constitution, on purpose to include all the unknown and all the possible cases of malfeasance in office which should amount either to a high offence, or to a petty offence, and for which the officer might deserve actual punishment at common law, or a mere removal from that particular office, or a general disqualification to hold any office whatever. A crime is a great offence; a misdemeanor is a petty offence. A high crime is always understood to be some great offence against the State or the public; a misdemeanor is some petty offence in office, consisting of any kind of misbehaviour, or ill behaviour. So say the books. It would be sufficient for my argument to show that the offence charged upon President Jackson by the Senate of 1833-34, was one of those petty offences growing out of misbehaviour, or ill behaviour in office, which constitutes a misdemeanor; for even that would be impeachable, and would sustain my position that the President was adjudged guilty of an impeachable offence. But I will not wrong the Senators who passed that judgment upon him so far as to lower their charge to the petty offence, which constitutes a mere misdemeanor. I will not undertake to deprive them of their excuse or justification for alarming and agitating the country as they then did, and denouncing President Jackson with the violence then exhibited, by reducing the offence with which they charged him to the mere misbehaviour which amounts to misdemeanor. But I will take the charge in its natural import, and according to the understanding of it then manifested by gentlemen in all their speeches; and, according to these, I say that President Jackson was charged with a great, heinous, and daring offence; and, being so charged, was impeachably charged, not with a petty misdemeanor, but with a high crime.

How was he charged? The record answers that he was charged, first, with assuming the exercise of a pow

[MARCH 18, 1836.

er over the treasury of the United States not granted to him by the constitution and laws, and dangerous to the liberties of the people; because he dismissed Mr. Duane from the Treasury Department, and appointed Mr. Taney to it. Secondly, with assuming the exercise of a power over the treasury of the United States, not granted to him by the constitution and laws, and dangerous to the liberties of the people; because he took upon himself the responsibility of removing the deposites from the Bank of the United States; and, thirdly, with assuming upon himself authority and power not conferred by the constitution and laws, but in derogation of both; because of the late executive proceedings in relation to the revenue. These were the charges; and how much soever the specifications were again and again changed, and finally all dropped, yet the charge itself remained the same, and wears its meaning plainly on its face, that of usurping power and authority, and violating the laws and constitution of the land. This is the plain meaning of the charge in every instance of its threefold repetition, and so was understood and expressed by every speaker, who constantly applied the terms of usurper and violator of the laws and constitution, and rummaged history to find, in the lives of the most odious of tyrants, acts of usurpation and of lawless violence sufficiently infamous, wicked, and dangerous, to exemplify the conduct which they charged upon the President.

The precise words in the resolve adopted fully charge the violation, and that twice over. To assume power not conferred by the laws and constitution is to violate the laws and the constitution; to do an act in derogation of both is, in the President, a violation of both. The legislative power may derogate from a law, that is to say, can repeal and take away a part of it; but it cannot derogate from the constitution, that is to say, repeal or take away a part of it; and the attempt to do it is to violate it. The President can neither derogate from the common law, nor from statute law, nor from the constitution. He has no repealing power over them; by consequence, to derogate from them is to violate them.

Mr. B. well recollected that some of the gentlemen in opposition called the President's conduct a gross abuse of power. Be it so. The smallest abuse of power is a misbehaviour in office, and a misdemeanor, for which the officer may be impeached; a gross abuse of power is a high crime, for which impeachment also lies. The charge then still continues impeachable, whether qualified as a gross abuse of power, or charged as a direct violation of law.

The charge, then, stripped of its thin disguise, taken in its obvious sense, and put into the words proclaimed by every speaker, is a charge of usurpation of power and authority, and of a violation of the laws and constitution. I do not make a separate head of the usurpation bere charged, because it is merely subsidiary in its reference, and explanatory in its import, of the main charge more distinctly expressed. To usurp power and authority is to seize upon power and authority without right or law; to violate the laws and constitution is to do the same thing; so that all the charges substantially end in one, that of violating the laws and the constitution. Is this a petty offence, or a great crime? It is sufficient for my argument that it should be a petty offence; but truth and justice will qualify it as a great crime. In a country of law, the violation of law is always a crime. In the mere citizen it is criminal, in the common magistrate it is heinous, in the chief officer of a republic it is atrocious and parricidal. In a President of the United States, bound by his oath not only to preserve, protect, and defend the constitution, but to cause all others faithfully to execute the laws, the violation of the laws and