In 1842, the Legislature demanded that the President produce certain documents. President Tyler refused the demand stating, "it is not deemed consistent with the public interest to communicate the information requested."

President Tyler also sent a letter of protest regarding the congressional actions.

A Compilation of the Messages and Papers of the Presidents: Tyler, Section 2 (of 3) of Volume 4: John Tyler

WASHINGTON, August 23, 1842.

To the Senate of the United States:

A resolution of the Senate of the 21st of June last requested the President to communicate to the Senate, so far as he might deem it compatible with the public interests, what measures, if any, had been taken to obtain the recognition by the Mexican Government of such claims of American citizens as were laid before the late joint commission, but were not finally acted on by it, and the satisfaction of such claims as were admitted by said commission; also whether any facts had come to his knowledge calculated to induce a belief that any such claims had been rejected in consequence of the evidence thereof having been withheld by the Mexican Government, its officers or agents, and any other information which he might deem it expedient to communicate relative to said claims; and another resolution of the 6th instant requested the President, so far as he might deem it compatible with the public service, to communicate to the Senate the measures taken to obtain the performance of the stipulations contained in the convention with Mexico in relation to the awards made by the commissioners and umpire under said convention.

In the present state of the correspondence and of the relations between the two Governments on these important subjects it is not deemed consistent with the public interest to communicate the information requested. The business engages earnest attention, and will be made the subject of a full communication to Congress at the earliest practicable period.

JOHN TYLER.

PROTEST.[79]

[Footnote 79: The House of Representatives ordered that it be not entered on the Journal.]

WASHINGTON, August 30, 1842.

To the House of Representatives:

By the Constitution of the United States it is provided that "every bill which shall have passed the House of Representatives and the Senate shall before it become a law be presented to the President of the United States; if he approve, he shall sign it; but if not, he shall return it with his objections to that House in which it shall have originated, who shall enter the objections at large upon the Journal and proceed to reconsider it."

In strict compliance with the positive obligation thus imposed upon me by the Constitution, not having been able to bring myself to approve a bill which originated in the House of Representatives entitled "An act to provide revenue from imports, and to change and modify existing laws imposing duties on imports, and for other purposes," I returned the same to the House with my objections to its becoming a law. These objections, which had entirely satisfied my own mind of the great impolicy, if not unconstitutionality, of the measure, were presented in the most respectful and even deferential terms. I would not have been so far forgetful of what was due from one department of the Government to another as to have intentionally employed in my official intercourse with the House any language that could be in the slightest degree offensive to those to whom it was addressed. If in assigning my objections to the bill I had so far forgotten what was due to the House of Representatives as to impugn its motives in passing the bill, I should owe, not only to that House, but to the country, the most profound apology. Such departure from propriety is, however, not complained of in any proceeding which the House has adopted. It has, on the contrary, been expressly made a subject of remark, and almost of complaint, that the language in which my dissent was couched was studiously guarded and cautious.

Such being the character of the official communication in question, I confess I was wholly unprepared for the course which has been pursued in regard to it. In the exercise of its power to regulate its own proceedings the House for the first time, it is believed, in the history of the Government thought proper to refer the message to a select committee of its own body for the purpose, as my respect for the House would have compelled me to infer, of deliberately weighing the objections urged against the bill by the Executive with a view to its own judgment upon the question of the final adoption or rejection of the measure.

Of the temper and feelings in relation to myself of some of the members selected for the performance of this duty I have nothing to say. That was a matter entirely within the discretion of the House of Representatives. But that committee, taking a different view of its duty from that which I should have supposed had led to its creation, instead of confining itself to the objections urged against the bill availed itself of the occasion formally to arraign the motives of the President for others of his acts since his induction into office. In the absence of all proof and, as I am bound to declare, against all law or precedent in parliamentary proceedings, and at the same time in a manner which it would be difficult to reconcile with the comity hitherto sacredly observed in the intercourse between independent and coordinate departments of the Government, it has assailed my whole official conduct without the shadow of a pretext for such assault, and, stopping short of impeachment, has charged me, nevertheless, with offenses declared to deserve impeachment.

Had the extraordinary report which the committee thus made to the House been permitted to remain without the sanction of the latter, I should not have uttered a regret or complaint upon the subject. But unaccompanied as it is by any particle of testimony to support the charges it contains, without a deliberate examination, almost without any discussion, the House of Representatives has been pleased to adopt it as its own, and thereby to become my accuser before the country and before the world. The high character of such an accuser, the gravity of the charges which have been made, and the judgment pronounced against me by the adoption of the report upon a distinct and separate vote of the House leave me no alternative but to enter my solemn protest against this proceeding as unjust to myself as a man, as an invasion of my constitutional powers as Chief Magistrate of the American people, and as a violation in my person of rights secured to every citizen by the laws and the Constitution. That Constitution has intrusted to the House of Representatives the sole power of impeachment. Such impeachment is required to be tried before the most august tribunal known to our institutions. The Senate of the United States, composed of the representatives of the sovereignty of the States, is converted into a hall of justice, and in order to insure the strictest observance of the rules of evidence and of legal procedure the Chief Justice of the United States, the highest judicial functionary of the land, is required to preside over its deliberations. In the presence of such a judicatory the voice of faction is presumed to be silent, and the sentence of guilt or innocence is pronounced under the most solemn sanctions of religion, of honor, and of law. To such a tribunal does the Constitution authorize the House of Representatives to carry up its accusations against any chief of the executive department whom it may believe to be guilty of high crimes and misdemeanors. Before that tribunal the accused is confronted with his accusers, and may demand the privilege, which the justice of the common law secures to the humblest citizen, of a full, patient, and impartial inquiry into the facts, upon the testimony of witnesses rigidly cross-examined and deposing in the face of day. If such a proceeding had been adopted toward me, unjust as I should certainly have regarded it, I should, I trust, have met with a becoming constancy a trial as painful as it would have been undeserved. I would have manifested by a profound submission to the laws of my country my perfect faith in her justice, and, relying on the purity of my motives and the rectitude of my conduct, should have looked forward with confidence to a triumphant refutation in the presence of that country and by the solemn judgment of such a tribunal not only of whatever charges might have been formally preferred against me, but of all the calumnies of which I have hitherto been the unresisting victim. As it is, I have been accused without evidence and condemned without a hearing. As far as such proceedings can accomplish it, I am deprived of public confidence in the administration of the Government and denied even the boast of a good name—a name transmitted to me from a patriot father, prized as my proudest inheritance, and carefully preserved for those who are to come after me as the most precious of all earthly possessions. I am not only subjected to imputations affecting my character as an individual, but am charged with offenses against the country so grave and so heinous as to deserve public disgrace and disfranchisement. I am charged with violating pledges which I never gave, and, because I execute what I believe to be the law, with usurping powers not conferred by law, and, above all, with using the powers conferred upon the President by the Constitution from corrupt motives and for unwarrantable ends. And these charges are made without any particle of evidence to sustain them, and, as I solemnly affirm, without any foundation in truth.

Why is a proceeding of this sort adopted at this time? Is the occasion for it found in the fact that having been elected to the second office under the Constitution by the free and voluntary suffrages of the people, I have succeeded to the first according to the express provisions of the fundamental law of the same people? It is true that the succession of the Vice-President to the Chief Magistracy has never occurred before and that all prudent and patriotic minds have looked on this new trial of the wisdom and stability of our institutions with a somewhat anxious concern. I have been made to feel too sensibly the difficulties of my unprecedented position not to know all that is intended to be conveyed in the reproach cast upon a President without a party. But I found myself placed in this most responsible station by no usurpation or contrivance of my own. I was called to it, under Providence, by the supreme law of the land and the deliberately declared will of the people. It is by these that I have been clothed with the high powers which they have seen fit to confide to their Chief Executive and been charged with the solemn responsibility under which those powers are to be exercised. It is to them that I hold myself answerable as a moral agent for a free and conscientious discharge of the duties which they have imposed upon me. It is not as an individual merely that I am now called upon to resist the encroachments of unconstitutional power. I represent the executive authority of the people of the United States, and it is in their name, whose mere agent and servant I am, and whose will declared in their fundamental law I dare not, even were I inclined, to disobey, that I protest against every attempt to break down the undoubted constitutional power of this department without a solemn amendment of that fundamental law.

I am determined to uphold the Constitution in this as in other respects to the utmost of my ability and in defiance of all personal consequences. What may happen to an individual is of little importance, but the Constitution of the country, or any one of its great and clear principles and provisions, is too sacred to be surrendered under any circumstances whatever by those who are charged with its protection and defense. Least of all should he be held guiltless who, placed at the head of one of the great departments of the Government, should shrink from the exercise of its unquestionable authority on the most important occasions and should consent without a struggle to efface all the barriers so carefully erected by the people to control and circumscribe the powers confided to their various agents. It may be desirable, as the majority of the House of Representatives has declared it is, that no such checks upon the will of the Legislature should be suffered to continue. This is a matter for the people and States to decide, but until they shall have decided it I shall feel myself bound to execute, without fear or favor, the law as it has been written by our predecessors.

I protest against this whole proceeding of the House of Representatives as ex parte and extrajudicial. I protest against it as subversive of the common right of all citizens to be condemned only upon a fair and impartial trial, according to law and evidence, before the country. I protest against it as destructive of all the comity of intercourse between the departments of this Government, and destined sooner or later to lead to conflicts fatal to the peace of the country and the integrity of the Constitution. I protest against it in the name of that Constitution which is not only my own shield of protection and defense, but that of every American citizen. I protest against it in the name of the people, by whose will I stand where I do, by whose authority I exercised the power which I am charged with having usurped, and to whom I am responsible for a firm and faithful discharge according to my own convictions of duty of the high stewardship confided to me by them. I protest against it in the name of all regulated liberty and all limited government as a proceeding tending to the utter destruction of the checks and balances of the Constitution and the accumulating in the hands of the House of Representatives, or a bare majority of Congress for the time being, an uncontrolled and despotic power. And I respectfully ask that this my protest may be entered upon the Journal of the House of Representatives as a solemn and formal declaration for all time to come against the injustice and unconstitutionality of such a proceeding.

JOHN TYLER.

That John Tyler refused to produce documents on demand, and that he sent a protest letter are documented facts. The congressional response is also documented fact. Resoultions were almost immediately issued, and later Articles of Impeachment were introduced.

Congressional discussion of the matter is documented in the Congressional Globe, 27th Cong., 2nd Sess., at 973-75, 30 August 1842. There, the record documents three resolutions that were adopted in the Senate, and one resolution failed.

In 1834 the Senate had adopted certain resolu­tions, condemning the course of President Jackson in the removal of the deposites from the Bank of the United States io the State banks. In conse­quence of this movement on the part of the Senate President Jackson sent to that body a protest against the right of the Senate io express any opin­ion censuring his public conne; and, what made the case then stronger than the present case, was, that the Senate constituted the jury by whom he was to be tried, should any impeachment be brought against him. The Senate, after a long, elaborate discussion of the whole mat er, and the most elo­quent and overpowering torrent of debate that ever was listened to in this country, adopted the three following resolutions:

“1. Resolved, That, while the Senate is, and ever will be, ready to receive from the President all such messages and com­munications as the Constitution and laws, and the usual course of business, authorize him to transmit to it; yet it cannot recognise any right in him to make a formal protest against votes and proceedings of the Senate, declaring such votes and pro­ceedings to be illegal and unconstitutional, and requesting the Senate to enter such protest on its journal.”

On this resolution the yeas and nays were taken; and it was adopted, by a vote of 27 to 16: and, among the recorded votes in its favor, stood the names of John Tyler, now acting President of the United States, and Daniel Webster, now his Prime Minister.

The second resolution was as follows:

“2. Resolved, That the aforesaid protest is a breach of the privileges of the Senate, and that it be not entered on the jour­nal.”

The same vote, numerically, was given in favor of this resolution; and among the yeas stood the names of John Tyler, now acting President of the United States, and of Daniel Webster, now his Prime Minister.

The third resolution read as follows:

“3. Resolved, That the President of the United States has no right to send a protest to the Senate against any of its proceedings.”

And in sanction of this resolution also, the rec­ord showed the names of the same John Tyler and Daniel Webster.

It was not often that he was driven to the neces­sity of adopting the sentiments of others; for he had been in the habit, throughout his life, of think­ing, and speaking, and acting for himself; but on this occasion, he begged the privilege of adopting a few extracts from a speech that, on the occasion to which he had referred, was made by a gentle­man whom, whatever opinions he (Mr. B.) might entertain of his views on other matters, he never hesi­tated to acknowledge as the soundest constitutional lawyer in the country—he meant Daniel Webster, the Secretary of State, and the Prime Minister of John Tyler; and never could words fall from the lips of man more appropriate, and more accurate, than the words he was about io read.

He read long extracts from Mr. Webster’s speech, delivered in the Senate of the United Slates on the protest of President Jackson; and then said those were the views of the intellectual giant to which he had referred. He forbore to add any opinion of his own. He was willing to adopt ihe sentiments he had read as his; and he submitted to the House, for its adoption, the following resolu­tions, the three first of which were in the precise form, and in ihe precise language of those adopted by John Tyler himself:

Resolved, That whilst this House is, and ever will be, ready to receive from the President all such messages and communi­cations as the Conatitution and laws, and the usual course of public business, authorize him to transmit to it; yet it cannot re­cognise in him any right to make a formal protest against votes and proceedings of this House, declaring such votes and pro­ceedings to be illegal and unconstitutional, and requesting the House to enter such protest on its journal.

Resolved, That the aforesaid protest is a breach of the priv­ileges of this House; and that it be not entered on the jour­nal.

Resolved, That the President of the United States has no right to send a protest to this House against any of its proceedings.

If this were the first time a protest had been sent by a President to Congress, he should content him­self with offering these resolutions; but since the present President had given them his opinion of such a protest, he would add the following:

Resolved, That the Clerk of this House be directed to return the message and protest to its author.

Inasmuch as he had only read resolutions which were adopted by John Tyler, and extracts from the speech of John Tyler’s Prime Minister, without saying anything for himself, except that he adopt­ed those sentiments, he now moved the previous question.

Mr. PROFFIT rose to a question of order. He objected to the iniroduction of those resolutions without a vote of two-thirds, the majority that would be necessary to suspend the rules for the re­ception of resolutions—the suspension having only been made for the reception and disposition of the message,

The SPEAKER was understood to ask she gentleman from Virginia to withdraw his resolu­tions.

Mr. BOTTS said he would not do so until he had made a single remark. He was the last man in this House to make a speech, and then to move the previous question. But on this occasion he had merely read from the journal of the Senate on a similar proposition, and from the speech of the present Secretary of State. He moved the pre­vious question, because he did not desire to express his views at this time. He was too full of indigna­tion at this time to express his opinions.

[Laughter]

Mr. WISE rose, amidst much confusion, and challenged the gentleman from Virginia to with­draw the motion for the previous question.

Mr. BOTTS replied that neither a challenge nor a threat would make a man honest.

Tellers were appointed on the motion for the previous question, and they reported 66 in the af­firmative, and 48 in the negative—being less than a quorum.

Mr. HOLMES moved an adjournment; which was negatived—yeas 47, nays 92.

The vote was then taken on seconding the call for the previous question, and it was carried in the affirmative.

Mr. PROFFIT moved to lay the resolutions on the table; which was negatived.

The main question was then ordered.

Mr. WARD called for the yeas and nays on the adoption of the resolutions.

Mr. UNDERWOOD called for a division of them, so that the second resolution should be voted on separately.

Mr. SMITH of Virginia moved that they be all voted on separately.

Mr. W. W. IRWIN moved an adjournment, on which he called for the yeas and nays; but they were not ordered, and the motion to adjourn was negatived.

The first resolution being then in order,

Mr. WM. W. IRWIN moved to lay it on the table.

The SPEAKER deeided the motion to be out of order; and

The resolution was then adopted—yeas 87, nays 46, as follows:

[Recording of the Yeas and Nays omitted.]

So the first resolution was adopted.

On the second resolution, which is in the follow­ing words;

Resolved, That the aforesaid protest is a breach of the priv­ileges of this House, and that it be not entered on the journal.

The vote resulted as follows:

[86 Yeas, 48 Nays, recording of the Yeas and Nays omitted.]

So the second resolution was adopted.

On the third resolution, which is in the following words:

Resolved, That the President of the United States has no right to send a protest Co this House against any of its proceed­ings.

The vote resulted as follows:

[Yeas 86, Nays 53, recording of the Yeas and Nays omitted.]

And so, in August 1842, there were Resolutions.

In January 1843 came Articles of Impeachment.

One hundred members of this House had declared, and placed it on record, that John Tyler had committed impeachable offences.

Congressional Globe, 27th Cong., 3rd Sess., 10 Jan 1843

Page 144

IMPEACHMENT OF THE PRESIDENT OF THE UNITED STATES.

Mr. BOTTS rose and inquired of the Chair whether the proposition which he had given notice of his intention to submit on yesterday, could be now received and entertained as a privileged ques­tion.

The SPEAKER replied in the affirmative.

Mr. BOTTS then said that he came prepared to acquit himself of the pledge which he was under, to prefer charges against the acting President of the United States.

Here Mr. EVERETT arose and inquired if he was to understand the Chair as deciding that the proceeding on the part of the gentleman from Vir­ginia was in order at that time.

The SPEAKER replied that he had so decided. The gentleman from Virginia, [Mr. Botts,] in bringing forward articles of impeachment, presented to the House a high constitutional question, and one which was privileged.

Mr. EVERETT said, as he desired to take the sense of the House upon this point, he would appeal from the decision of the Chair.

Mr. CUSHING asked for the yeas and nays on the appeal.

Mr. WISE. State the quesion before the House.

Mr. BOTTS inquired whether he was to under­stand the gentlemen [Messrs. Wise and Cushing] as objecting to the consideration of the motion he had made?

Several voices: “No.”

The bustle prevailing throughout the hall about this time having subsided,

Mr. BOTTS resumed the remarks he had begun, he said that he proposed to introduce charges of corruption, of mal-conduct in office, of high crimes and misdemeanors, committed by the acting Presi­dent of the United States—charges which he stood prepared to prove, by testimony the most conclu­sive. He asked that the House might appoint a committee to investigate the charges, and to report what course it was proper to pursue. He was himself prepared to prove every charge which he should bring against the President. He not only asked, but he demanded an opportunity of making these charges good. Were he to come here as the humblest citizen of the Republic, and declare his readiness to prove them, he would claim the priv­ilege of doing so as such, much more so, then, did he claim, and insist upon it, as the Representative of fifty thousand people. It was his highest con­stitutional privilege. One hundred members of this House had declared, and placed it on record, that John Tyler had committed impeachable offences. He (Mr. B.) had to declared; and he considered it due to his own personal honor and reputation that he should be permitted to prove the truth of what he asserted. He was not one of those who dealt in vague and general churls, but would not come up and put their assertions in a tangible form. He made no charges which he was not prepared to sustain with the most conclusive proof. Since his first agitation of this subject at the last session, he had been deeply reflecting and deliberating upon it; and the more he reflected, the more imperative appear­ed his duty to make these charges. In doing so, he must declare that, so far from being actuated by a desire to render himself conspicuous before the country, and place himself ahead of those on that floor whose lead he generally followed, and whom he would be proud to follow on this as on other subjects, he must be permitted to declare that this was the most painful duty he had ever undertaken to perform. He declared that he was actuated alone by the obligations which rested upon him. He knew not how long he should be a member of the House of Representatives. If the ability of the legislature of his State was equal to their good will towards him, he should not sit here long; [laughter;] but he could not retire to private life, unless he had first discharged this sacred duty.

Should he live to see the overgrown power of the Executive hereafter trampling under foot all opposi­tion—the independence of the Legislature sacri­ficed—the energies of the people relaxed into listlessness at Executive encroachment and obedience to his will;—should he witness such a state of things in this country, he would have the satisfac­tion, with a proud heart and erect bearing, that he, for one, at least, had endeavored to arrest it.

Here Mr. EVERETT rose to a question of or­der. He said he had taken an appeal from the decision of the Chair, by which the gentleman [Mr. Botts] was allowed to proceed.

Mr. BOTTS asked if the gentleman was not too late with his objection?

The SPEAKER said no. The gentleman had a right to insist on his appeal.

Mr. BOTTS said he was recognised by the Chair, and inquired whether his resolution could not be entertained as a privileged question.

The SPEAKER replied in the affirmative.

Mr. BOTTS was proceeding with his remarks before the gentleman [Mr. Everett] made his objection, and he submitted whether the gentle­man was not too late in taking an appeal.

Mr. EVERETT insisted upon his position. He was anxious to have the bill to repeal the bank­rupt law taken up and disposed of.

Mr. BOTTS said that if the gentleman appre­hended that his resolution, would consume too much of the time of the House, he was prepared to submit it in such a form as would render it not liable to the least objection. The whole subject might then be disposed of in fifteen minutes.

Mir. EVERETT observed that he did not, at first, know the object the gentleman had in view; and, therefore, listened awhile to his remarks, till he learned what it was. He then immediately rose, and appealed from the decision of the Chair. It was with great reluctance that he interrupted the gentleman, but he fell desirous that the business of the House should not be delayed by any collateral matter. There were two subjects now before the House, on which debate was going on; and he was for bringing both those subjects to a close as soon as possible. The Speaker had decided that this was a privileged question, and from that decision he appealed. If the House decided against the appeal, then the gentleman from Virginia could go on with his remarks.

The SPEAKER had no doubt that, if the gen­tleman from Vermont insisted on his point of order and the appeal, he must put the question on it.

The SPEAKER then stated the question; and, at the request of Mr. GILMER, repeated his deci­sion, and the point of order and appeal of the gen­tleman from Vermont.

Mr. WISE asked if any motion was made in writing. If so, he should like to have it read, in order that he might judge for himself when he came to vote.

Mr. BOTTS said that he would read it himself.

Mr. WISE wished the Clerk to read it.

Mr. BOTTS replied that he would rather read it himself, as he understood his own writing better than anybody else did.

Mr. B. then began reading, and had read but a few passages, when

Mr. COOPER of Georgia expressed a wish that the gentleman would read from the Clerk’s table. We can’t (said he) hear a word in this part of the House.

Mr. BOTTS. I will take a position where the gentleman can here (sic) me, [going to a seat further back in the circle.] Mr. B. then read the follow­ing charge:

“I do impeach John Tyler, Vice President, acting as President of the United Stales, of the following high crimes and misdemeanors:

“1. I charge him with gross usurpation of power and violation of law, in attempting to exercise a controlling influence over the accounting officers of the Treasury Department, by ordering the pay­ment of amounts of long standing, that had been by them rejected for want of legal authority to pay, and threatening them with expulsion from office unless his orders were obeyed; by virtue of which threat, thousands were drawn from the public treasury without the authority of law.

“2. I charge him with a wicked and corrupt abuse of the power of appointment to, and removal from, office; first, in displacing those who were competent and faithful in the discharge of their public duties, only because they were supposed to entertain a political preference for another; and, secondly, in bestowing them on creatures of his own will, alike regardless of the public welfare and his duty to the country.

“3. I charge him with the high crime and misde­meanor of aiding to excite a disorganizing and revolutionary spirit in the country, by placing on the records of the State Department his objections to a law, as carrying no constitutional obligation with it; whereby the several States of this Union were invited to disregard and disobey a law of Congress, which he himself had sanctioned and sworn to see faithfully executed, from which nothing but disorder, confusion, and anarchy can follow.

“4, I charge him with being guilty of a high misdemeanor, in retaining men in office for months after they have been rejected by the Senate as unworthy, incompetent, and unfaithful, with an utter defiance of the public will, and total indiffer­ence to the public interests.

“5. I charge him with the high crime and misde­meanor of withholding his assent to laws undispensable to the just operations of government, which involved no constitutional difficulty on his part; of depriving the Government of all legal sources of revenue; and of assuming to himself the whole power of taxation, and of collecting duties of the people without the authority or sanction of law.

“6. I charge him with an arbitrary, despotic, and corrupt abuse of the veto power, to gratify his personal and political resentments against the Sen­ate of the United States, for a constitutional exer­cise of their prerogative, in the rejection of his nominees to office, with such evident marks of inconsistency and duplicity as leave no room to doubt his disregard of the interests of the people, and his duty to his country.

“7. I charge him with gross official misconduct, in having been guilty of a shameless duplicity, equivocation, and falsehood, with his late Cabinet and Congress, which led to idle legislation, and useless public expense; and by which he has brought such dishonor on himself as to disqualify him from administering the Government with ad­vantage, honor, or virtue, and for which alone he would deserve to be removed from office.

“8. I charge him with an illegal and unconsti­tutional exercise of power, in instituting a commis­sion to investigate the past transactions under a former administration of the custom house in New York, under the pretence of seeing the laws faith­fully executed—with having arrested the investiga­tion at a moment when the inquiry was to be made as to the manner in which those laws were execu­ted under his own administration—with having di­rected or sanctioned the appropriation of large sums of the public revenue to the compensation of officers of his own creation, without the authority of law; which, if sanctioned, would place the en­tire revenues of the country at his disposal.

“9. I charge him with the high misdemeanor of having withheld from the Representatives of the people information called for, and declared to be necessary to the investigation of stupendous frauds and abuses alleged to have been committed by agents of the Government, both upon individuals and the Government itself, whereby he himself be­comes accessary to these frauds.”

Mr. BOTTS then said that he wished to connect no man or set of men with his fame on this resolu­tion. He wished no man to commit himself on it till he had an opportunity of proving the truth of his charges.

Mr. WISE interrupted his colleague, and asked for the reading of the proposition founded on the charges. He did not wish to hear the gentleman’s speech till he was in possession of the whole subject.

Mr. BOTTS submitted that the matter was not within the control of his colleague.

The SPEAKER requested the gentleman to submit his motion to the House; when

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Page 145

Mr. BOTTS read the following resolution:

Resolved, That a committee of nine members be appointed, with instructions diligently to inquire into the truth of the preceding charges preferred against John Tyler, and to report to this House the testimony taken to establish said charges, to­gether with their opinion whether the said John Tyler hath so acted in his official capacity as to require the interposition of the constitutional power of this House; and that the committee have power to send for persons and papers.

[After legal wrangling, the vote on the main question was taken up.]

So the main question was ordered.

Mr. UNDERWOOD moved a reconsideration, of the vote by which the House had ordered the main question to be put, and also of the vote by which the previous question was seconded. He was about to debate the motion; but was called to order.

The SPEAKER decided that one motion only could be entertained at a time. The motion to reconsider the vote by which the main question was ordered to be put, would first be in order.

Mr. UNDERWOOD accordingly made that mo­tion, and asked for the yeas and nays thereon.

The House refused to order the yeas and nays.

Mr. UNDERWOOD asked for tellers.

The House refused to order tellers.

The question was then taken on the motion to reconsider, and the House refused to agree to it.

The question then recurring upon the adoption of the resolution of the gentleman from Virginia [Mr. Botts] i.e. of impeachment—Mr. GRANGER rose and said that one of the proposed charges against the President of the United Slates was, that he removed certain inno-

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Page 146

cent men from office. [Laughter] Now, there was a time when he (Mr. G.) acted as accessory to the President, in the execution of a number of political innocents, [laughter,] and he should there­fore ask to be excused from voting upon the ac­ceptance of the charges preferred.

Mr. HOPKINS asked for the yeas and nays on the motion, and they were ordered.

The House agreed to excuse the gentleman— yeas 111, nays 91. When Mr. Houston’s name was called, he rose and inquired if it was too late to ask the gentleman [Mr. Granger] a question. He wished to know whether the gentleman from New York considered the charge of the gentleman from Virginia, [Mr. Botts,] as implicating him­self, and rendering him liable to the charge of cor­ruption in office?

The SPEAKER said it was too late to ask and answer a question after the call of the roll had been commenced.

The question then recurred on the resolution of the gentleman from Virginia, [Mr. Botts,] and re­sulted as follows ayes 83, nays 127.

[Recording of the Yeas and Nays omitted.]

So the House refused to adopt the resolution.

And so, with President Tyler having refused to provide certain documents, having filed a letter of protest, and with “One hundred members of this House had declared, and placed it on record, that John Tyler had committed impeachable offences,” the House refused to adopt a resolution with Articles of Impeachment.

A few weeks later, on 31 January 31, 1843, President Tyler sent the following letter to the House of Representatives.

Apprehensive that silence under the claim supposed to be set up in the resolutions of the House of Representatives under consideration might be construed as an acquiescence in its soundness, I have deemed it due to the great importance of the subject to state my views, that a compliance in part with the resolution may not be deemed a surrender of a necessary authority of the Executive.

James A. Richardson, A Compilation of the Messages and Papers of the Presidents (Volume IV, Part 2: John Tyler)

WASHINGTON, January 31, 1843.

To the House of Representatives:

At the last session of Congress a resolution was passed by the House of Representatives requesting me to cause to be communicated to the House "the several reports made to the Department of War by Lieutenant-Colonel Hitchcock relative to the affairs of the Cherokee Indians, together with all information communicated by him concerning the frauds he was charged to investigate; also all facts in the possession of the Executive relating to the subject."

A resolution of the same import had been passed by the House of Representatives on the 18th of May last, requiring the Secretary of War to communicate to the House the same reports and matters. After consultation with me and under my directions, the Secretary of War informed the House that the reports referred to relative to the affairs of the Cherokees contained information and suggestions in reference to the matters which it was supposed would become the subject of a negotiation between that Department and the delegates of the Cherokee Nation. It was stated by him that the nature and subject of the report, in the opinion of the President and the Department, rendered its publication at that time inconsistent with the public interest. The negotiation referred to subsequently took place, and embraced the matters upon which Lieutenant-Colonel Hitchcock had communicated his views. That negotiation terminated without the conclusion of any arrangement. It may, and in all probability will, be renewed. All the information communicated by Lieutenant-Colonel Hitchcock respecting the Cherokees—their condition as a nation and their relations to other tribes—is herewith transmitted. But his suggestions and projects respecting the anticipated propositions of the delegates and his views of their personal characters can not in any event aid the legislation of Congress, and in my opinion the promulgation of them would be unfair and unjust to him and inconsistent with the public interest, and they are therefore not transmitted.

The Secretary of War further stated in his answer to the resolution that the other report referred to in it, relating to the alleged frauds which Lieutenant-Colonel Hitchcock was charged to investigate, contained such information as he (Colonel Hitchcock) was enabled to obtain by ex parte inquiries of various persons whose statements were necessarily without the sanction of an oath, and which the persons implicated had had no opportunity to contradict or explain. He expressed the opinion that to promulgate those statements at that time would be grossly unjust to those persons and would be calculated to defeat rather than promote the objects of the inquiry, and he remarked that sufficient opportunity had not been given to the Department to pursue the investigation or to call upon the parties affected for explanations or to determine on the measures proper to be adopted. And he hoped these reasons would be satisfactory for not transmitting to the House at that time the reports referred to in its resolution.

It would appear from the report of the Committee on Indian Affairs, to whom the communication of the Secretary of War was referred, and which report has been transmitted to me, together with the resolutions of the House adopted on the recommendation of the committee, and from those resolutions, that the reasons given by the Secretary were not deemed satisfactory and that the House of Representatives claims the right to demand from the Executive and heads of Departments such information as maybe in their possession relating to "subjects of the deliberations of the House and within the sphere of its legitimate powers," and that in the opinion of the House the reports and facts called for by its resolution of the 18th of May related to subjects of its deliberations and were within the sphere of its legitimate powers, and should have been communicated.

If by the assertion of this claim of right to call upon the Executive for all the information in its possession relating to any subject of the deliberation of the House, and within the sphere of its legitimate powers, it is intended to assert also that the Executive is bound to comply with such call without the authority to exercise any discretion on its part in reference to the nature of the information required or to the interests of the country or of individuals to be affected by such compliance, then do I feel bound, in the discharge of the high duty imposed upon me "to preserve, protect, and defend the Constitution of the United States," to declare in the most respectful manner my entire dissent from such a proposition. The instrument from which the several departments of the Government derive their authority makes each independent of the other in the discharge of their respective functions. The injunction of the Constitution that the President "shall take care that the laws be faithfully executed" necessarily confers an authority commensurate with the obligation imposed to inquire into the manner in which all public agents perform the duties assigned to them by law. To be effective these inquiries must often be confidential. They may result in the collection of truth or of falsehood, or they may be incomplete and may require further prosecution. To maintain that the President can exercise no discretion as to the time in which the matters thus collected shall be promulgated or in respect to the character of the information obtained would deprive him at once of the means of performing one of the most salutary duties of his office. An inquiry might be arrested at its first stage and the officers whose conduct demanded investigation may be enabled to elude or defeat it. To require from the Executive the transfer of this discretion to a coordinate branch of the Government is equivalent to the denial of its possession by him and would render him dependent upon that branch in the performance of a duty purely executive.

Nor can it be a sound position that all papers, documents, and information of every description which may happen by any means to come into the possession of the President or of the heads of Departments must necessarily be subject to the call of the House of Representatives merely because they relate to a subject of the deliberations of the House, although that subject may be within the sphere of its legitimate powers. It can not be that the only test is whether the information relates to a legitimate subject of deliberation. The Executive Departments and the citizens of this country have their rights and duties as well as the House of Representatives, and the maxim that the rights of one person or body are to be so exercised as not to impair those of others is applicable in its fullest extent to this question. Impertinence or malignity may seek to make the Executive Departments the means of incalculable and irremediable injury to innocent parties by throwing into them libels most foul and atrocious. Shall there be no discretionary authority permitted to refuse to become the instruments of such malevolence?

And although information comes through a proper channel to an executive officer it may often be of a character to forbid its being made public. The officer charged with a confidential inquiry, and who reports its result under the pledge of confidence which his appointment implies, ought not to be exposed individually to the resentment of those whose conduct may be impugned by the information he collects.

The knowledge that such is to be the consequence will inevitably prevent the performance of duties of that character, and thus the Government will be deprived of an important means of investigating the conduct of its agents.

It is certainly no new doctrine in the halls of judicature or of legislation that certain communications and papers are privileged, and that the general authority to compel testimony must give way in certain cases to the paramount rights of individuals or of the Government. Thus no man can be compelled to accuse himself, to answer any question that tends to render him infamous, or to produce his own private papers on any occasion. The communications of a client to his counsel and the admissions made at the confessional in the course of religious discipline are privileged communications. In the courts of that country from which we derive our great principles of individual liberty and the rules of evidence it is well settled— and the doctrine has been fully recognized in this country—that a minister of the Crown or the head of a department can not be compelled to produce any papers or disclose any transactions relating to the executive functions of the Government which he declares are confidential or such as the public interest requires should not be divulged; and the persons who have been the channels of communication to officers of the State are in like manner protected from the disclosure of their names. Other instances of privileged communications might be enumerated if it were deemed necessary. These principles are as applicable to evidence sought by a legislature as to that required by a court.

The practice of the Government since its foundation has sanctioned the principle that there must necessarily be a discretionary authority in reference to the nature of the information called for by either House of Congress.

The authority was claimed and exercised by General Washington in 1796. In 1825 President Monroe declined compliance with a resolution of the House of Representatives calling for the correspondence between the Executive Departments of this Government and the officers of the United States Navy and others at or near the ports of South America on the Pacific Ocean. In a communication made by the Secretary of War in 1832 to the Committee of the House on the Public Lands, by direction of President Jackson, he denies the obligation of the Executive to furnish the information called for and maintains the authority of the President to exercise a sound discretion in complying with calls of that description by the House of Representatives or its committees. Without multiplying other instances, it is not deemed improper to refer to the refusal of the President at the last session of the present Congress to comply with a resolution of the House of Representatives calling for the names of the members of Congress who had applied for offices. As no further notice was taken in any form of this refusal, it would seem to be a fair inference that the House itself admitted that there were cases in which the President had a discretionary authority in respect to the transmission of information in the possession of any of the Executive Departments.

Apprehensive that silence under the claim supposed to be set up in the resolutions of the House of Representatives under consideration might be construed as an acquiescence in its soundness, I have deemed it due to the great importance of the subject to state my views, that a compliance in part with the resolution may not be deemed a surrender of a necessary authority of the Executive. Many of the reasons which existed at the date of the report of the Secretary of War of June 1, 1842, for then declining to transmit the report of Lieutenant-Colonel Hitchcock concerning the frauds which he was charged to investigate have ceased to operate. It has been found wholly impracticable to pursue the investigation in consequence of the death and removal out of the country of those who would be called upon to testify, and in consequence of the want of adequate authority or means to render it effectual. It could not be conducted without expense. Congress at its last session prohibited the payment of any account or charge whatever growing out of or in any way connected with any commission or inquiry, except military and naval courts-martial and courts of inquiry, unless special appropriations should be made for the payment of such accounts and charges. Of the policy of that provision of law it does not become me to speak, except to say that the institution of inquiries into the conduct of public agents, however urgent the necessity for such inquiry may be, is thereby virtually denied to the Executive, and that if evils of magnitude shall arise in consequence of the law I take to myself no portion of the responsibility.

In relation to the propriety of directing prosecutions against the contractors to furnish Indians rations who are charged with improper conduct, a correspondence has been had between the War Department and the Solicitor of the Treasury, which is herewith transmitted in a conviction that such prosecution would be entirely ineffectual.

Under these circumstances I have thought proper to direct that the report of Lieutenant-Colonel Hitchcock concerning the frauds which he was charged to investigate be transmitted to the House of Representatives, and it accordingly accompanies this message. At the same time, I have to request the House to consider it so far confidential as not to direct its publication until the appropriate committee shall have examined it and expressed their opinion whether a just regard to the character and rights of persons apparently implicated, but who have not had an opportunity to meet the imputations on them, does not require that portions at least of the report should not at present be printed.

This course is adopted by me from a desire to render justice to all and at the same time avoid even the appearance of a desire to screen any, and also to prevent the exaggerated estimate of the importance of the information which is likely to be made from the mere fact of its being withheld.

The resolution of the House also calls for "all facts in the possession of the Executive, from any source, relating to the subject." There are two subjects specified in the resolution—one "relative to the affairs of the Cherokee Indians," and another "concerning the frauds he [Lieutenant-Colonel Hitchcock] was charged to investigate."

All the papers in the War Department or its bureaus relating to the affairs of the Cherokee Indians, it is believed, have been from time to time communicated to Congress and are contained in the printed documents, or are now transmitted, with the exception of those portions of Lieutenant-Colonel Hitchcock's report hereinbefore mentioned, and excepting the correspondence with the Cherokee delegates in the negotiations which took place during the last summer, which are not supposed to be within the intent of the resolution of the House. For the same reason a memorial from the Old Settlers, or Western Cherokees, as they term themselves, recently presented, is not transmitted. If these or any other public documents should be desired by the House, a specification of them will enable me to cause them to be furnished if it should be found proper.

All the papers in the War Office or its bureaus known or supposed to have any relation to the alleged frauds which Lieutenant-Colonel Hitchcock was charged to investigate are herewith transmitted.

And the non-impeachment of President John Taylor ended.