Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-Third Congress Page: 1,469
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1469
OF DEBATES IN CONGRESS.
1470
Apbil 24, 1834-.]
President's Protest.
[Sexate.
efforts to produce an amendment of the constitution, to
embrace both of these indispensable requisites of a free
government. I will not now, sir, enter into the question,
whether, for the purposes of instruction, the Legislature,
or the people of a State, constitute the sovereign power.
But I beg leave to read to the Senate a few paragraphs
from a report of the Virginia Legislature, adopted some
years ago, upon this very subject This report expresses
the views I entertain upon this point—is beautifully, and
in my judgment, unanswerably written. After tracing
the doctrine of instruction down through English history,
and showing that the whigs of England acknowledged
the right, (whatever our new-light whigs lately sprung
in amongst us may think of it,) and after showing, in the
clearest manner, that the right of the constituent to in-
struct the representative is an essential principle of the
representative system, the report proceeds to say: " But
although the position be admitted, which, indeed, it seems
impossible to deny, that the people have a right to i
struct our immediate representatives, or that the people
composing each State in their sovereign capacity, may
instruct their Senators in Congress, it may still be denied
that the State Legislatures have any such right of instruc-
tion."
" It is obvious to remark, in the first place, that those
who allow to the people of each State the exercise of this
act of sovereignty, the instruction of their Senators, and
deny the same power to the State Legislatures, give us the
empty theory and deny us the beneficial practice of such
instructions. It is difficult to conceive how the people
can give such instructions, otherwise than through then-
State Legislatures."
" The several State constitutions, saving to the people
the sole right to alter, amend, or abolish the forms of
government—saving certain other great natural rights,
which the Legislatures are forbidden to touch—and ex-
cepting certain powers specified in the constitution of
the United States, which are transferred by the people
and by the States, from the State Governments to the
General Government, do certainly vest in the State Legis-
latures every power and attribute of sovereignty, which
the people themselves would otherwise exercise in per-
son. Those Legislatures are, in fact, in the daily exer-
cise of all powers belonging to the State sovereignty,
except those thus forbidden to them. Now, the power
to instruct the Senators of the States in Congress, has
not been forbidden by the State constitutions to the State
Legislatures, and retained by the people in their own
hands."
" Therefore, the State Legislatures may exercise this
act of sovereignty, this right of instructing their Sena-
tors, as properly as they may exercise any of those pow-
ers which they exercise daily without any doubt about
their right, and which yet are not granted to them by any
express delegation."
Other objections have been taken to the protest hardly
worth mentioning, because they are so totally groundless.
For instance, it has been said that the President refers to
his oath of office as a source of power. Upon referring"
to the paper, you find that the oath of office is referred
to only by way of attesting the importance of the duties
of the Executive office in the view of the framers of the
constitution.
The resolutions now before us, charge upon the Presi-
dent another violation of the constitution, in sending to
us his defence and protest, for which he is now upon trial
again, without any opportunity of defending himself, and
he is about to be tried and condemned for presenting a
paper which we may, and probably shall, refuse to re-
ceive. So inexpressibly sublimated is the dignity of this
august body, that we nmy well expect a proposition to
condemn the Executive for violations of the constitution,
whenever he shall look at the Capitol. But of all the ex-
traordinary pretensions which any branch of any free Gov-
ernment ever set up, is the one contained in one of the
resolutions declaring that the President had violated the
privileges of the Senate, for daring to question the infal-
libility of their opinions and decisions. Gentlemen, too,
with a wisdom and research which marks the course of
the opposition to the present administration, refer us to
the British history of parliamentary proceedings, to show
that the King cannot interfere with pending subjects of
legislation before the House of Lords!
Yet, we have not been shown a case where the Lords
have considered their privileges violated by the King's
sending his defence and protest to them upon a matter
determined, and no longer pending in a legislative shape,
as was the case with the resolution against which our re-
publican President protests.
Let us examine, however, the British doctrine of par-
liamentary privilege. The only definition of privilege
which 1 have ever met with, is that given by Sir John
Fortesque, described by Blackstone, as follows:
" The privileges of Parliament are likewise very large
and indefinite. And, therefore, when, in 31 Henry Sixth,
the House of Lords propounded a question to the Judges
concerning them, the Chief Justice, Sir John Fortesque,
in the name of his brethren, declared that they ought not
to make answer to that question; for it hath not been
used aforetime, that the justices should in any wise deter-
mine the privileges of the high court of Parliament. For
it is so high and mighty in its nature, that it may make law;
and that which is law, it may make no law; and the de-
termination and knowledge of that privilege belongs to
the Lords of Parliament, and not to the justices."
To exemplify this doctrine, 1 have looked into the prac-
tice of the British Parliament upon this their theory, and
now beg leave to read to the Senate a case from an old
standard English work, called " Lex Partiamentaria."
" Johnson, a servant to Sir James Whillock, a member
of the Commons House, was arrested upon an execution
by Moore and Lock, who, being told that Sir James
Whitlock was a Parliament man, Fulk, one of the prose-
cutors, said, he had known greater men's men than Sir
James Whitlock's taken from their masters' heels in Par-
liament times. This appearing, Lock and Moore were
called into the bar, and by the judgment of the House
were sentenced, first, that at the bar they should ask for-
giveness of the House and of Sir James Whitlock, on
their knees; secondly, that they should both ride upon
one horse, bare-backed, back to back, from Westminster
to the Exchange, with papers on their breasts, and this
inscription: For arresting a servant of a member of the
Commons House of Parliament; and this to be done se-
denti curia. Which sentence was pronounced by Mr.
Speaker against them at the bar, upon their knees."
Thus we see, Mr. President, something of the charac-
ter of the privileges of an English Parliament, and it is
by the aid of such authority that we are now called upon
to decide that the President of the United States has
committed a breach of the privileges of the Senate, in
virtue of our power derived from our English prototype,
to make that which is law no law, and vice versa. -Can
we appeal to nothing more rational ' Have not the fra-
mers of our constitution given us all the security which
reason and liberty require? The constitution has secured
to each House of Congress, in express terms—■
1st. The privilege of freedom from arrest of the per-
sons of members.
2d. Exemption from question elsewhere for what is
said in the House.
3d. Power over their own members and proceedings.
As illustrative of this view of our privileges, suffer me
to read an extract from Jefferson's Manual:
" The editor of the Aurora having, in his paper of Feb-
ruary 19th, 1800, inserted some paragraphs defamatory
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Gales, Joseph, 1761-1841. Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-Third Congress, book, 1834; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc30746/m1/40/: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.