March 28, 1860: Protest of Congressional Investigations
After a delay which has afforded me ample time for reflection, and after much and careful deliberation, I find myself constrained by an imperious sense of duty, as a coordinate branch of the Federal Government, to protest against the first two clauses of the first resolution adopted by the House of Representatives on the 5th instant, and published in the Congressional Globe on the succeeding day. These clauses are in the following words:
Resolved, That a committee of five members be appointed by the Speaker for the purpose, first, of investigating whether the President of the United States or any other officer of the Government has, by money, patronage, or other improper means, sought to influence the action of Congress or any committee thereof for or against the passage of any law appertaining to the rights of any State or Territory; and, second, also to inquire into and investigate whether any officer or officers of the Government have, by combination or otherwise, prevented or defeated, or attempted to prevent or defeat, the execution of any law or laws now upon the statute book, and whether the President has failed or refused to compel the execution of any law thereof.
I confine myself exclusively to these two branches of the resolution, because the portions of it which follow relate to alleged abuses in post-offices, navy-yards, public buildings, and other public works of the United States. In such cases inquiries are highly proper in themselves and belong equally to the Senate and the House, as incident to their legislative duties and being necessary to enable them to discover and to provide the appropriate legislative remedies for any abuses which may be ascertained. Although the terms of the latter portion of the resolution are extremely vague and general, yet my sole purpose in adverting to them at present is to mark the broad line of distinction between the accusatory and the remedial clauses of this resolution. The House of Representatives possess no power under the Constitution over the first or accusatory portion of the resolution except as an impeaching body, whilst over the last, in common with the Senate, their authority as a legislative body is fully and cheerfully admitted.
It is solely in reference to the first or impeaching power that I propose to make a few observations. Except in this single case, the Constitution has invested the House of Representatives with no power, no jurisdiction, no supremacy whatever over the President. In all other respects he is quite as independent of them as they are of him. As a coordinate branch of the Government he is their equal. Indeed, he is the only direct representative on earth of the people of all and each of the sovereign States. To them, and to them alone, is he responsible whilst acting within the sphere of his constitutional duty, and not in any manner to the House of Representatives. The people have thought proper to invest him with the most honorable, responsible, and dignified office in the world, and the individual, however unworthy, now holding this exalted position, will take care, so far as in him lies, that their rights and prerogatives shall never be violated in his person, but shall pass to his successors unimpaired by the adoption of a dangerous precedent. He will defend them to the last extremity against any unconstitutional attempt, come from what quarter it may, to abridge the constitutional rights of the Executive and render him subservient to any human power except themselves.
The people have not confined the President to the exercise of executive duties. They have also conferred upon him a large measure of legislative discretion. No bill can become a law without his approval, as representing the people of the United States, unless it shall pass after his veto by a majority of two-thirds of both Houses. In his legislative capacity he might, in common with the Senate and the House, institute an inquiry to ascertain any facts which ought to influence his judgment in approving or vetoing any bill.
This participation in the performance of legislative duties between the coordinate branches of the Government ought to inspire the conduct of all of them in their relations toward each other with mutual forbearance and respect. At least each has a right to demand justice from the other. The cause of complaint is that the constitutional rights and immunities of the Executive have been violated in the person of the President.
The trial of an impeachment of the President before the Senate on charges preferred and prosecuted against him by the House of Representatives would be an imposing spectacle for the world. In the result not only his removal from the Presidential office would be involved, but, what is of infinitely greater importance to himself, his character, both in the eyes of the present and of future generations, might possibly be tarnished. The disgrace cast upon him would in some degree be reflected upon the character of the American people, who elected him. Hence the precautions adopted by the Constitution to secure a fair trial. On such a trial it declares that "the Chief Justice shall preside." This was doubtless because the framers of the Constitution believed it to be possible that the Vice-President might be biased by the fact that "in case of the removal of the President from office * * * the same shall devolve on the Vice-President."
The preliminary proceedings in the House in the case of charges which may involve impeachment have been well and wisely settled by long practice upon principles of equal justice both to the accused and to the people. The precedent established in the case of Judge Peck, of Missouri, in 1831, after a careful review of all former precedents, will, I venture to predict, stand the test of time.
In that case Luke Edward Lawless, the accuser, presented a petition to the House, in which he set forth minutely and specifically his causes of complaint. He prayed "that the conduct and proceedings in this behalf of said Judge Peck may be inquired into by your honorable body, and such decision made thereon as to your wisdom and justice shall seem proper." This petition was referred to the Judiciary Committee; such has ever been deemed the appropriate committee to make similar investigations. It is a standing committee, supposed to be appointed without reference to any special case, and at all times is presumed to be composed of the most eminent lawyers in the House from different portions of the Union, whose acquaintance with judicial proceedings and whose habits of investigation qualify them peculiarly for the task. No tribunal, from their position and character, could in the nature of things be more impartial. In the case of Judge Peck the witnesses were selected by the committee itself, with a view to ascertain the truth of the charge. They were cross-examined by him, and everything was conducted in such a manner as to afford him no reasonable cause of complaint. In view of this precedent, and, what is of far greater importance, in view of the Constitution and the principles of eternal justice, in what manner has the President of the United States been treated by the House of Representatives? Mr. John Covode, a Representative from Pennsylvania, is the accuser of the President. Instead of following the wise precedents of former times, and especially that in the case of Judge Peck, and referring the accusation to the Committee on the Judiciary, the House have made my accuser one of my judges.
To make the accuser the judge is a violation of the principles of universal justice, and is condemned by the practice of all civilized nations. Every freeman must revolt at such a spectacle. I am to appear before Mr. Covode, either personally or by a substitute, to cross-examine the witnesses which he may produce before himself to sustain his own accusations against me; and perhaps even this poor boon may be denied to the President.
And what is the nature of the investigation which his resolution proposes to institute? It is as vague and general as the English language affords words in which to make it. The committee is to inquire, not into any specific charge or charges, but whether the President has, by "money, patronage, or other improper means, sought to influence," not the action of any individual member or members of Congress, but "the action" of the entire body "of Congress" itself "or any committee thereof." The President might have had some glimmering of the nature of. the offense to be investigated had his accuser pointed to the act or acts of Congress which he sought to pass or to defeat by the employment of "money, patronage, or other improper means." But the accusation is bounded by no such limits. It extends to the whole circle of legislation--to interference "for or against the passage of any law appertaining to the rights of any State or Territory." And what law does not appertain to the rights of some State or Territory? And what law or laws has the President failed to execute? These might easily have been pointed out had any such existed.
Had Mr. Lawless asked an inquiry to be made by the House whether Judge Peck, in general terms, had not violated his judicial duties, without the specification of any particular act, I do not believe there would have been a single vote in that body in favor of the inquiry.
Since the time of the star-chamber and of general warrants there has been no such proceeding in England.
The House of Representatives, the high impeaching power of the country, without consenting to hear a word of explanation, have indorsed this accusation against the President and made it their own act. They even refused to permit a Member to inquire of the President's accuser what were the specific charges against him. Thus, in this preliminary accusation of "high crimes and misdemeanors" against a coordinate branch of the Government, under the impeaching power, the House refused to hear a single suggestion, even in regard to the correct mode of proceeding, but without a moment's delay passed the accusatory resolutions under the pressure of the previous question.
In the institution of a prosecution for any offense against the most humble citizen--and I claim for myself no greater rights than he enjoys--the constitutions of the United States and of the several States require that he shall be informed in the very beginning of the nature and cause of the accusation against him, in order to enable him to prepare for his defense. There are other principles which I might enumerate, not less sacred, presenting an impenetrable shield to protect every citizen falsely charged with a criminal offense. These have been violated in the prosecution instituted by the House of Representatives against the executive branch of the Government. Shall the President alone be deprived of the protection of these great principles which prevail in every land where a ray of liberty penetrates the gloom of despotism? Shall the Executive alone be deprived of rights which all his fellow-citizens enjoy? The whole proceeding against him justifies the fears of those wise and great men who, before the Constitution was adopted by the States, apprehended that the tendency of the Government was to the aggrandizement of the legislative at the expense of the executive and judicial departments.
I again declare emphatically that I make this protest for no reason personal to myself, and I do it with perfect respect for the House of Representatives, in which I had the honor of serving as a member for five successive terms. I have lived long in this goodly land, and have enjoyed all the offices and honors which my country could bestow. Amid all the political storms through which I have passed, the present is the first attempt which has ever been made, to my knowledge, to assail my personal or official integrity; and this as the time is approaching when I shall voluntarily retire from the service of my country. I feel proudly conscious that there is no public act of my life which will not bear the strictest scrutiny. I defy all investigation. Nothing but the basest perjury can sully my good name. I do not fear even this, because I cherish an humble confidence that the gracious Being who has hitherto defended and protected me against the shafts of falsehood and malice will not desert me now when I have become "old and gray headed." I can declare before God and my country that no human being (with an exception scarcely worthy of notice) has at any period of my life dared to approach me with a corrupt or dishonorable proposition, and until recent developments it had never entered into my imagination that any person, even in the storm of exasperated political excitement, would charge me in the most remote degree with having made such a proposition to any human being. I may now, however, exclaim in the language of complaint employed by my first and greatest predecessor, that I have been abused "in such exaggerated and indecent terms as could scarcely be applied to a Nero, to a notorious defaulter, or even to a common pickpocket."
I do therefore, for the reasons stated and in the name of the people of the several States, solemnly protest against these proceedings of the House of Representatives, because they are in violation of the rights of the coordinate executive branch of the Government and subversive of its constitutional independence; because they are calculated to foster a band of interested parasites and informers, ever ready, for their own advantage, to swear before ex parte committees to pretended private conversations between the President and themselves, incapable from their nature of being disproved, thus furnishing material for harassing him, degrading him in the eyes of the country, and eventually, should he be a weak or a timid man, rendering him subservient to improper influences in order to avoid such persecutions and annoyances; because they tend to destroy that harmonious action for the common good which ought to be maintained, and which I sincerely desire to cherish, between coordinate branches of the Government; and, finally, because, if unresisted, they would establish a precedent dangerous and embarrassing to all my successors, to whatever political party they might be attached.