supposed favorable circumstance, offered in the Senate a resolution censuring the President, which, after long debates, was adopted by a vote of 26 to 20. General Jackson answered by protesting. This rigid defender of the Executive Power thus proved that this high assembly had exceeded its rightful authority.

"That the Senate," said he, "possesses a high judicial power, and that instances may occur in which the President of the United States will be amenable to it, is undeniable. But under the provisions of the Constitution it would seem to be equally plain that neither the President nor any other officer can be rightfully subjected to the operation of the judicial power of the Senate, except in the cases and under the forms prescribed by the Constitution. The Constitution declares that the President, Vice-president, and all civil officers of the United States, shall be removed from office on impeachment for and conviction of treason, bribery, and other high crimes and misdemean

ors.

That the House of Representatives shall have the sole power of impeachment. That the Senate 'shall have the sole power to try all impeachments.' That, 'when sitting for that purpose, they shall be on oath or affirmation.' That 'when the President of the United States is tried, the Chief Justice shall preside.' That 'no person shall be

convicted without the concurrence of two-thirds of the members present..........'

"The resolution above quoted," continues General Jackson, "charges in substance that in certain proceedings relating to the public revenue the President has usurped authority and power not conferred upon him by the Constitution and laws, and that in doing so he violated both. Any such act constitutes a high crime-one of the highest indeed which the President can commit a crime which justly exposes him to impeachment by the House of Representatives, and upon due conviction to removal from office."

But even admitting the Senate's right to vote of censure, it could do nothing more.

pass

this It had

no means of forcing the President in his stronghold. It was therefore constrained to confine its further action to a refusal to receive his protest in answer. On the other hand his friends at once went to work. The Senator who particularly represented the ideas of the administration, immediately announced that he should propose not only to rescind the resolution, but even to expunge from the journal. To this end he soon after made a motion in due form. It was, of course, at first rejected by the same majority that had adopted the resolution; but the popular reaction in favor of General Jackson continued to increase, and at the succeeding partial renewal of the Senate a

majority of the members elected were found to be devoted to him. Finally, three years after he had been censured, the expunging resolution was adopted. At that moment a Senator rose and said, that it only remained to execute at once the order of the Senate.

"The Secretary thereupon produced the original manuscript journal of the Senate, and opening at the page which contained the condemnatory sentence of March 28th, 1834, proceeded in open Senate to draw a square of broad black lines around the sentence, and to write across its face in strong letters these words: 'Expunged by order of the Senate, this 16th day of March, 1837.'"1

Thus General Jackson came victorious out of this struggle. Without pronouncing a judgment upon his character, which cannot yet be done with entire impartiality, it suffices to remark that during his two terms the Executive Power was maintained in its plentitude, and that he achieved this signal success by his energy in defending his constitutional prerogatives.

Since then Congress has had many contests with the President. It has not in the main gained more over him, than he has over it. In fact, that branch of the Government which seeks to attack the other cannot do so, in the greater number of instances, without exceeding the limits of the Constitution.

1 Thirty Years' View, Vol. I., p. 730.

The framers of the Constitution so effectually guarded the independence of the executive, that Congress has not been able to deal it fatal blows. Upon the whole, the prerogatives of the President are to day nearly what they were in the time of Washington; they have even been rather increased than diminished.

The "Federalist" observed that the legislative power always tended to intrench upon the other branches of the government, and it feared that the President could not resist its attacks. These fears were ill-founded; at least the danger was exaggerated. Elected by the people, the first magistrate of the republic sways the popular mind with that natural ascendency which a living and acting personality exercises over the masses. They behold in him their direct representative. Congress, on the contrary, appears to them as a kind of abstraction, and in a contest their instincts lead them to sustain him. It must, then, be under very exceptional conditions that they will do violence to their inclinations and give their support to Con. gress when opposed to him.

WR

CHAPTER V.

THE POWER OF DECLARING WAR.

E cannot here refrain from presenting some considerations on the province assigned by the Constitution to the Legislative and the Executive Power in questions concerning peace and

war.

At their session, August 17th, 1787, the convention discussed, for the first time, that portion of the draft of the Constitution in which this grave problem was placed. The most contradictory opinions were in turn advanced. It was proposed to confer on the Legislature the power "to make war." Two members of the convention asked that the word "declare" should be substituted for "make"; for in this way, said they, the executive would be in a position to repel any sudden attack.

This motion having been adopted by an almost unanimous vote, it followed that the power of declaring war was confided to the legislature, whilst the convention remitted to the President and Senate that of making peace.1 The temper of

1 The Madison Papers, Vol. III., p. 1551 et. seq.