Chapter IV: Front Matter (4)

I am fully sensible of the importance, as it respects both the harmony and union of the States, of making, as soon as circumstances will allow of it, a proper and final disposition of the whole subject of the public lands, and any measure for that object providing for the reimbursement to the United States of those expenses with which they are justly chargeable that may be consistent with my views of the Constitution, sound policy, and the rights of the respective States will readily receive my cooperation. This bill, however, is not of that character. The arrangement it contemplates is not permanent, but limited to five years only, and in its terms appears to anticipate alterations within that time, at the discretion of Congress; and it furnishes no adequate security against those continued agitations of the subject which it should be the principal object of any measure for the disposition of the public lands to avert.

Neither the merits of the bill under consideration nor the validity of the objections which I have felt it to be my duty to make to its passage can be correctly appreciated without a full understanding of the manner in which the public lands upon which it is intended to operate were acquired and the conditions upon which they are now held by the United States. I will therefore precede the statement of those objections by a brief but distinct exposition of these points.

The waste lands within the United States constituted one of the early obstacles to the organization of any government for the protection of their common interests. In October, 1777, while Congress were framing the Articles of Confederation, a proposition was made to amend them to the following effect, viz:

That the United States in Congress assembled shall have the sole and
exclusive right and power to ascertain and fix the western boundary of
such States as claim to the Mississippi or South Sea, and lay out the
land beyond the boundary so ascertained into separate and independent
States from time to time as the numbers and circumstances of the people
thereof may require.

It was, however, rejected, Maryland only voting for it, and so difficult did the subject appear that the patriots of that body agreed to waive it in the Articles of Confederation and leave it for future settlement.

On the submission of the Articles to the several State legislatures for ratification the most formidable objection was found to be in this subject of the waste lands. Maryland, Rhode Island, and New Jersey instructed their delegates in Congress to move amendments to them providing that the waste or Crown lands should be considered the common property of the United States, but they were rejected. All the States except Maryland acceded to the Articles, notwithstanding some of them did so with the reservation that their claim to those lands as common property was not thereby abandoned.

On the sole ground that no declaration to that effect was contained in the Articles, Maryland withheld her assent, and in May, 1779, embodied her objections in the form of instructions to her delegates, which were entered upon the Journals of Congress. The following extracts are from that document, viz:

Is it possible that those States who are ambitiously grasping at
territories to which in our judgment they have not the least shadow of
exclusive right will use with greater moderation the increase of wealth
and power derived from those territories when acquired than what they
have displayed in their endeavors to acquire them? ...

We are convinced policy and justice require that a country unsettled at
the commencement of this war, claimed by the British Crown and ceded to
it by the treaty of Paris, if wrested from the common enemy by the blood
and treasure of the thirteen States, should be considered as a common
property, subject to be parceled out by Congress into free, convenient,
and independent governments, in such manner and at such times as the
wisdom of that assembly shall hereafter direct. ...

Virginia proceeded to open a land office for the sale of her Western lands, which produced such excitement as to induce Congress, in October, 1779, to interpose and earnestly recommend to "the said State and all States similarly circumstanced to forbear settling or issuing warrants for such unappropriated lands, or granting the same, during the continuance of the present war."

In March, 1780, the legislature of New York passed an act tendering a cession to the United States of the claims of that State to the Western territory, preceded by a preamble to the following effect, viz:

Whereas nothing under Divine Providence can more effectually contribute
to the tranquillity and safety of the United States of America than a
federal alliance on such liberal principles as will give satisfaction to
its respective members; and whereas the Articles of Confederation and
Perpetual Union recommended by the honorable Congress of the United
States of America have not proved acceptable to all the States, it
having been conceived that a portion of the waste and uncultivated
territory within the limits or claims of certain States ought to be
appropriated as a common fund for the expenses of the war, and the
people of the State of New York being on all occasions disposed to
manifest their regard for their sister States and their earnest desire
to promote the general interest and security, and more especially to
accelerate the federal alliance, by removing as far as it depends upon
them the before-mentioned impediment to its final accomplishment. ...

This act of New York, the instructions of Maryland, and a remonstrance of Virginia were referred to a committee of Congress, who reported a preamble and resolutions thereon, which were adopted on the 6th September, 1780; so much of which as is necessary to elucidate the subject is to the following effect, viz:

That it appears advisable to press upon those States which can remove
the embarrassments respecting the Western country a liberal surrender of
a portion of their territorial claims, since they can not be preserved
entire without endangering the stability of the General Confederacy; to
remind them how indispensably necessary it is to establish the Federal
Union on a fixed and permanent basis and on principles acceptable to all
its respective members; how essential to public credit and confidence,
to the support of our Army, to the vigor of our counsels and success of
our measures, to our tranquillity at home, our reputation abroad, to our
very existence as a free, sovereign, and independent people; that they
are fully persuaded the wisdom of the several legislatures will lead
them to a full and impartial consideration of a subject so interesting
to the United States, and so necessary to the happy establishment of the
Federal Union; that they are confirmed in these expectations by a review
of the before-mentioned act of the legislature of New York, submitted to
their consideration. ...

_Resolved_, That copies of the several papers referred to the committee
be transmitted, with a copy of the report, to the legislatures of the
several States, and that it be earnestly recommended to those States who
have claims to the Western country to pass such laws and give their
delegates in Congress such powers as may effectually remove the only
obstacle to a final ratification of the Articles of Confederation, and
that the legislature of Maryland be earnestly requested to authorize
their delegates in Congress to subscribe the said Articles.

Following up this policy, Congress proceeded, on the 10th October, 1780, to pass a resolution pledging the United States to the several States as to the manner in which any lands that might be ceded by them should be disposed of, the material parts of which are as follows, viz:

_Resolved_, That the unappropriated lands which may be ceded or
relinquished to the United States by any particular State pursuant to
the recommendation of Congress of the 6th day of September last shall be
disposed of for the common benefit of the United States and be settled
and formed into distinct republican States, which shall become members
of the Federal Union and have the same rights of sovereignty, freedom,
and independence as the other States; ... that the said lands shall be
granted or settled at such times and under such regulations as shall
hereafter be agreed on by the United States in Congress assembled, or
nine or more of them.

In February, 1781, the legislature of Maryland passed an act authorizing their delegates in Congress to sign the Articles of Confederation. The following are extracts from the preamble and body of the act, viz:

Whereas it hath been said that the common enemy is encouraged by this
State not acceding to the Confederation to hope that the union of the
sister States may be dissolved, and therefore prosecutes the war in
expectation of an event so disgraceful to America, and our friends and
illustrious ally are impressed with an idea that the common cause would
be promoted by our formally acceding to the Confederation. ...

The act of which this is the preamble authorizes the delegates of that State to sign the Articles, and proceeds to declare "that by acceding to the said Confederation this State doth not relinquish, nor intend to relinquish, any right or interest she hath with the other united or confederated States to the back country," etc.

On the 1st of March, 1781, the delegates of Maryland signed the Articles of Confederation, and the Federal Union under that compact was complete. The conflicting claims to the Western lands, however, were not disposed of, and continued to give great trouble to Congress. Repeated and urgent calls were made by Congress upon the States claiming them to make liberal cessions to the United States, and it was not until long after the present Constitution was formed that the grants were completed.

The deed of cession from New York was executed on the 1st of March, 1781, the day the Articles of Confederation were ratified, and it was accepted by Congress on the 29th October, 1782. One of the conditions of this cession thus tendered and accepted was that the lands ceded to the United States "_shall be and inure for the use and benefit of such of the United States as shall become members of the federal alliance of the said States, and for no other use or purpose whatsoever_."

The Virginia deed of cession was executed and accepted on the 1st day of March, 1784. One of the conditions of this cession is as follows, viz:

That all the lands within the territory as ceded to the United States,
and not reserved for or appropriated to any of the before-mentioned
purposes or disposed of in bounties to the officers and soldiers of the
American Army, _shall be considered as a common fund for the use and
benefit of such of the United States as have become or shall become
members of the confederation or federal alliance of the said States,
Virginia inclusive, according to their usual respective proportions in
the general charge and expenditure, and shall be faithfully and bona
fide disposed of for that purpose, and for no other use or purpose
whatsoever_.

Within the years 1785, 1786, and 1787 Massachusetts, Connecticut, and South Carolina ceded their claims upon similar conditions. The Federal Government went into operation under the existing Constitution on the 4th of March, 1789. The following is the only provision of that Constitution which has a direct bearing on the subject of the public lands, viz:

The Congress shall have power to dispose of and make all needful rules
and regulations respecting the territory or other property belonging
to the United States, and nothing in this Constitution shall be so
construed as to prejudice any claims of the United States or of any
particular State.

Thus the Constitution left all the compacts before made in full force, and the rights of all parties remained the same under the new Government as they were under the Confederation.

The deed of cession of North Carolina was executed in December, 1789, and accepted by an act of Congress approved April 2, 1790. The third condition of this cession was in the following words, viz:

That all the lands intended to be ceded by virtue of this act to the
United States of America, and not appropriated as before mentioned,
_shall be considered as a common fund for the use and benefit of the
United States of America, North Carolina inclusive, according to their
respective and usual proportions of the general charge and expenditure,
and shall be faithfully disposed of for that purpose, and for no other
use or purpose whatever_.

The cession of Georgia was completed on the 16th June, 1802, and in its leading condition is precisely like that of Virginia and North Carolina. This grant completed the title of the United States to all those lands generally called _public lands_ lying within the original limits of the Confederacy. Those which have been acquired by the purchase of Louisiana and Florida, having been paid for out of the common treasure of the United States, are as much the property of the General Government, to be disposed of for the common benefit, as those ceded by the several States.

By the facts here collected from the early history of our Republic it appears that the subject of the public lands entered into the elements of its institutions. It was only upon the condition that those lands should be considered as common property, to be disposed of for the benefit of the United States, that some of the States agreed to come into a "perpetual union." The States claiming those lands acceded to those views and transferred their claims to the United States upon certain specific conditions, and on those conditions the grants were accepted. These solemn compacts, invited by Congress in a resolution declaring the purposes to which the proceeds of these lands should be applied, originating before the Constitution and forming the basis on which it was made, bound the United States to a particular course of policy in relation to them by ties as strong as can be invented to secure the faith of nations.

As early as May, 1785, Congress, in execution of these compacts, passed an ordinance providing for the sales of lands in the Western territory and directing the proceeds to be paid into the Treasury of the United States. With the same object other ordinances were adopted prior to the organization of the present Government.

In further execution of these compacts the Congress of the United States under the present Constitution, as early as the 4th of August, 1790, in "An act making provision for the debt of the United States," enacted as follows, viz:

That the proceeds of sales which shall be made of lands in the
Western territory now belonging or that may hereafter belong to the
United States shall be and are hereby appropriated toward sinking or
discharging the debts for the payment whereof the United States now
are or by virtue of this act may be holden, and shall be applied solely
to that use until the said debt shall be fully satisfied.

To secure to the Government of the United States forever the power to execute these compacts in good faith the Congress of the Confederation, as early as July 13, 1787, in an ordinance for the government of the territory of the United States northwest of the river Ohio, prescribed to the people inhabiting the Western territory certain conditions which were declared to be "articles of compact between the original States and the people and States in the said territory," which should "forever remain unalterable, unless by common consent." In one of these articles it is declared that--

The legislatures of those districts, or new States, shall never
interfere with the primary disposal of the soil by the United States in
Congress assembled, nor with any regulations Congress may find necessary
for securing the title in such soil to the _bona fide purchasers_.

This condition has been exacted from the people of all the new territories, and to put its obligation beyond dispute each new State carved out of the public domain has been required explicitly to recognize it as one of the conditions of admission into the Union. Some of them have declared through their conventions in separate acts that their people "forever disclaim all right and title to the waste and unappropriated lands lying within this State, and that the same shall be and remain at the sole and entire disposition of the United States."

With such care have the United States reserved to themselves, in all their acts down to this day, in legislating for the Territories and admitting States into the Union, the unshackled power to execute in good faith the compacts of cession made with the original States. From these facts and proceedings it plainly and certainly results--

1. That one of the fundamental principles on which the Confederation of the United States was originally based was that the waste lands of the West within their limits should be the common property of the United States.

2. That those lands were ceded to the United States by the States which claimed them, and the cessions were accepted on the express condition that they should be disposed of for the common benefit of the States, according to their respective proportions in the general charge and expenditure, and for no other purpose whatsoever.

3. That in execution of these solemn compacts the Congress of the United States did, under the Confederation, proceed to sell these lands and put the avails into the common Treasury, and under the new Constitution did repeatedly pledge them for the payment of the public debt of the United States, by which pledge each State was expected to profit in proportion to the general charge to be made upon it for that object.

These are the first principles of this whole subject, which I think can not be contested by anyone who examines the proceedings of the Revolutionary Congress, the cessions of the several States, and the acts of Congress under the new Constitution. Keeping them deeply impressed upon the mind, let us proceed to examine how far the objects of the cessions have been completed, and see whether those compacts are not still obligatory upon the United States.

The debt for which these lands were pledged by Congress may be considered as paid, and they are consequently released from that lien. But that pledge formed no part of the compacts with the States, or of the conditions upon which the cessions were made. It was a contract between new parties--between the United States and their creditors. Upon payment of the debt the compacts remain in full force, and the obligation of the United States to dispose of the lands for the common benefit is neither destroyed nor impaired. As they can not now be executed in that mode, the only legitimate question which can arise is, In what other way are these lands to be hereafter disposed of for the common benefit of the several States, "_according to their respective and usual proportion in the general charge and expenditure?_" The cessions of Virginia, North Carolina, and Georgia in express terms, and all the rest impliedly, not only provide thus specifically the proportion according to which each State shall profit by the proceeds of the land sales, but they proceed to declare that they shall be "_faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever_." This is the fundamental law of the land at this moment, growing out of compacts which are older than the Constitution, and formed the corner stone on which the Union itself was erected.

In the practice of the Government the proceeds of the public lands have not been set apart _as a separate fund_ for the payment of the public debt, but have been and are now paid into the Treasury, where they constitute a part of the aggregate of revenue upon which the Government draws as well for its current expenditures as for payment of the public debt. In this manner they have heretofore and do now lessen the general charge upon the people of the several States in the exact proportions stipulated in the compacts.

These general charges have been composed not only of the public debt and the usual expenditures attending the civil and military administrations of the Government, but of the amounts paid to the States with which these compacts were formed, the amounts paid the Indians for their right of possession, the amounts paid for the purchase of Louisiana and Florida, and the amounts paid surveyors, registers, receivers, clerks, etc., employed in preparing for market and selling the Western domain.

From the origin of the land system down to the 30th September, 1832, the amount expended for all these purposes has been about $49,701,280, and the amount received from the sales, deducting payments on account of roads, etc., about $38,386,624. The revenue arising from the public lands, therefore, has not been sufficient to meet the general charges on the Treasury which have grown out of them by about $11,314,656. Yet in having been applied to lessen those charges the conditions of the compacts have been thus far fulfilled, and each State has profited according to its usual proportion in the general charge and expenditure. The annual proceeds of land sales have increased and the charges have diminished, so that at a reduced price those lands would now defray all current charges growing out of them and save the Treasury from further advances on their account. Their original intent and object, therefore, would be accomplished as fully as it has hitherto been by reducing the price and hereafter, as heretofore, bringing the proceeds into the Treasury. Indeed, as this is the only mode in which the objects of the original compact can be attained, it may be considered for all practical purposes that it is one of their requirements.

The bill before me begins with an entire subversion of every one of the compacts by which the United States became possessed of their Western domain, and treats the subject as if they never had existence and as if the United States were the original and unconditional owners of all the public lands. The first section directs--

That from and after the 31st day of December, 1832, there shall be
allowed and paid to each of the States of Ohio, Indiana, Illinois,
Alabama, Missouri, Mississippi, and Louisiana, over and above what each
of the said States is entitled to by the terms of the compacts entered
into between them respectively upon their admission into the Union and
the United States, the sum of 12-1/2 per cent upon the net amount of the
sales of the public lands which subsequent to the day aforesaid shall be
made within the several limits of the said States, which said sum of
12-1/2 per cent shall be applied to some object or objects of internal
improvement or education within the said States under the direction of
their several legislatures.

This 12-1/2 per cent is to be taken out of the net proceeds of the land sales before any apportionment is made, and the same seven States which are first to receive this proportion are also to receive their due proportion of the residue according to the ratio of general distribution.

Now, waiving all considerations of equity or policy in regard to this provision, what more need be said to demonstrate its objectionable character than that it is in direct and undisguised violation of the pledge given by Congress to the States before a single cession was made, that it abrogates the condition upon which some of the States came into the Union, and that it sets at naught the terms of cession spread upon the face of every grant under which the title to that portion of the public land is held by the Federal Government?

In the apportionment of the remaining seven-eighths of the proceeds this bill, in a manner equally undisguised, violates the conditions upon which the United States acquired title to the ceded lands. Abandoning altogether the ratio of distribution according to the general charge and expenditure provided by the compacts, it adopts that of the Federal representative population. Virginia and other States which ceded their lands upon the express condition that they should receive a benefit from their sales in proportion to their part of the general charge are by the bill allowed only a portion of seven-eighths of their proceeds, and that not in the proportion of general charge and expenditure, but in the ratio of their Federal representative population.

The Constitution of the United States did not delegate to Congress the power to abrogate these compacts. On the contrary, by declaring that nothing in it "_shall be so construed as to prejudice any claims of the United States or of any particular State_," it virtually provides that these compacts and the rights they secure shall remain untouched by the legislative power, which shall only make all "_needful rules and regulations_" for carrying them into effect. All beyond this would seem to be an assumption of undelegated power.

These ancient compacts are invaluable monuments of an age of virtue, patriotism, and disinterestedness. They exhibit the price that great States which had won liberty were willing to pay for that union without which they plainly saw it could not be preserved. It was not for territory or state power that our Revolutionary fathers took up arms; it was for individual liberty and the right of self-government. The expulsion from the continent of British armies and British power was to them a barren conquest if through the collisions of the redeemed States the individual rights for which they fought should become the prey of petty military tyrannies established at home. To avert such consequences and throw around liberty the shield of union, States whose relative strength at the time gave them a preponderating power magnanimously sacrificed domains which would have made them the rivals of empires, only stipulating that they should be disposed of for the common benefit of themselves and the other confederated States. This enlightened policy produced union and has secured liberty. It has made our waste lands to swarm with a busy people and added many powerful States to our Confederation. As well for the fruits which these noble works of our ancestors have produced as for the devotedness in which they originated, we should hesitate before we demolish them.

But there are other principles asserted in the bill which would have impelled me to withhold my signature had I not seen in it a violation of the compacts by which the United States acquired title to a large portion of the public lands. It reasserts the principle contained in the bill authorizing a subscription to the stock of the Maysville, Washington, Paris and Lexington Turnpike Road Company, from which I was compelled to withhold my consent for reasons contained in my message of the 27th May, 1830, to the House of Representatives.

The leading principle then asserted was that Congress possesses no constitutional power to appropriate any part of the moneys of the United States for objects of a local character within the States. That principle I can not be mistaken in supposing has received the unequivocal sanction of the American people, and all subsequent reflection has but satisfied me more thoroughly that the interests of our people and the purity of our Government, if not its existence, depend on its observance. The public lands are the common property of the United States, and the moneys arising from their sales are a part of the public revenue. This bill proposes to raise from and appropriate a portion of this public revenue to certain States, providing expressly that it shall "_be applied to objects of internal improvement or education within those States_," and then proceeds to appropriate the balance to all the States, with the declaration that it shall be applied "_to such purposes as the legislatures of the said respective States shall deem proper_." The former appropriation is expressly for internal improvements or education, without qualification as to the kind of improvements, and therefore in express violation of the principle maintained in my objections to the turnpike-road bill above referred to. The latter appropriation is more broad, and gives the money to be applied to any local purpose whatsoever. It will not be denied that under the provisions of the bill a portion of the money might have been applied to making the very road to which the bill of 1830 had reference, and must of course come within the scope of the same principle. If the money of the United States can not be applied to local purposes _through its own agents_, as little can it be permitted to be thus expended _through the agency of the State governments_.

It has been supposed that with all the reductions in our revenue which could be speedily effected by Congress without injury to the substantial interests of the country there might be for some years to come a surplus of moneys in the Treasury, and that there was in principle no objection to returning them to the people by whom they were paid. As the literal accomplishment of such an object is obviously impracticable, it was thought admissible, as the nearest approximation to it, to hand them over to the State governments, the more immediate representatives of the people, to be by them applied to the benefit of those to whom they properly belonged. The principle and the object were to return to the people an unavoidable surplus of revenue which might have been paid by them under a system which could not at once be abandoned, but even this resource, which at one time seemed to be almost the only alternative to save the General Government from grasping unlimited power over internal improvements, was suggested with doubts of its constitutionality.

But this bill assumes a new principle. Its object is not to return to the people an unavoidable surplus of revenue paid in by them, but to create a surplus for distribution among the States. It seizes the entire proceeds of one source of revenue and sets them apart as a surplus, making it necessary to raise the moneys for supporting the Government and meeting the general charges from other sources. It even throws the entire land system upon the customs for its support, and makes the public lands a perpetual charge upon the Treasury. It does not return to the people moneys accidentally or unavoidably paid by them to the Government, by which they are not wanted, but compels the people to pay moneys into the Treasury for the mere purpose of creating a surplus for distribution to their State governments. If this principle be once admitted, it is not difficult to perceive to what consequences it may lead. Already this bill, by throwing the land system on the revenues from imports for support, virtually distributes among the States a part of those revenues. The proportion may be increased from time to time, without any departure from the principle now asserted, until the State governments shall derive all the funds necessary for their support from the Treasury of the United States, or, if a sufficient supply should be obtained by some States and not by others, the deficient States might complain; and to put an end to all further difficulty Congress, without assuming any new principle, need go but one step further and put the salaries of all the State governors, judges, and other officers, with a sufficient sum for other expenses, in their general appropriation bill.

It appears to me that a more direct road to consolidation can not be devised. Money is power, and in that Government which pays all the public officers of the States will all political power be substantially concentrated. The State governments, if governments they might be called, would lose all their independence and dignity; the economy which now distinguishes them would be converted into a profusion, limited only by the extent of the supply. Being the dependents of the General Government, and looking to its Treasury as the source of all their emoluments, the State officers, under whatever names they might pass and by whatever forms their duties might be prescribed, would in effect be the mere stipendiaries and instruments of the central power.

I am quite sure that the intelligent people of our several States will be satisfied on a little reflection that it is neither wise nor safe to release the members of their local legislatures from the responsibility of levying the taxes necessary to support their State governments and vest it in Congress, over most of whose members they have no control. They will not think it expedient that Congress shall be the taxgatherer and paymaster of all their State governments, thus amalgamating all their officers into one mass of common interest and common feeling. It is too obvious that such a course would subvert our well-balanced system of government, and ultimately deprive us of all the blessings now derived from our happy Union.

However willing I might be that any unavoidable surplus in the Treasury should be returned to the people through their State governments, I can not assent to the principle that a surplus may be created for the purpose of distribution. Viewing this bill as in effect assuming the right not only to create a surplus for that purpose, but to divide the contents of the Treasury among the States without limitation, from whatever source they may be derived, and asserting the power to raise and appropriate money for the support of every State government and institution, as well as for making every local improvement, however trivial, I can not give it my assent.

It is difficult to perceive what advantages would accrue to the old States or the new from the system of distribution which this bill proposes if it were otherwise unobjectionable. It requires no argument to prove that if $3,000,000 a year, or any other sum, shall be taken out of the Treasury by this bill for distribution it must be replaced by the same sum collected from the people through some other means. The old States will receive annually a sum of money from the Treasury, but they will pay in a larger sum, together with the expenses of collection and distribution. It is only their proportion of _seven-eighths_ of the proceeds of land sales which they are _to receive_, but they must _pay_ their due proportion of the _whole_. Disguise it as we may, the bill proposes to them a dead loss in the ratio of _eight_ to _seven_, in addition to expenses and other incidental losses. This assertion is not the less true because it may not at first be palpable. Their receipts will be in large sums, but their payments in small ones. The _governments_ of the States will receive _seven_ dollars, for which the _people_ of the States will pay _eight_. The large sums received will be palpable to the senses; the small sums paid it requires thought to identify. But a little consideration will satisfy the people that the effect is the same as if _seven hundred dollars_ were given them from the public Treasury, for which they were at the same time required to pay in taxes, direct or indirect, _eight hundred_.

I deceive myself greatly if the new States would find their interests promoted by such a system as this bill proposes. Their true policy consists in the rapid settling and improvement of the waste lands within their limits. As a means of hastening those events, they have long been looking to a reduction in the price of public lands upon the final payment of the national debt. The effect of the proposed system would be to prevent that reduction. It is true the bill reserves to Congress the power to reduce the price, but the effect of its details as now arranged would probably be forever to prevent its exercise.

With the just men who inhabit the new States it is a sufficient reason to reject this system that it is in violation of the fundamental laws of the Republic and its Constitution. But if it were a mere question of interest or expediency they would still reject it. They would not sell their bright prospect of increasing wealth and growing power at such a price. They would not place a sum of money to be paid into their treasuries in competition with the settlement of their waste lands and the increase of their population. They would not consider a small or a large annual sum to be paid to their governments and immediately expended as an equivalent for that enduring wealth which is composed of flocks and herds and cultivated farms. No temptation will allure them from that object of abiding interest, the settlement of their waste lands, and the increase of a hardy race of free citizens, their glory in peace and their defense in war.

On the whole, I adhere to the opinion, expressed by me in my annual message of 1832, that it is our true policy that the public lands shall cease as soon as practicable to be a source of revenue, except for the payment of those general charges which grow out of the acquisition of the lands, their survey and sale. Although these expenses have not been met by the proceeds of sales heretofore, it is quite certain they will be hereafter, even after a considerable reduction in the price. By meeting in the Treasury so much of the general charge as arises from that source they will hereafter, as they have been heretofore, be disposed of for the common benefit of the United States, according to the compacts of cession. I do not doubt that it is the real interest of each and all the States in the Union, and particularly of the new States, that the price of these lands shall be reduced and graduated, and that after they have been offered for a certain number of years the refuse remaining unsold shall be abandoned to the States and the machinery of our land system entirely withdrawn. It can not be supposed the compacts intended that the United States should retain forever a title to lands within the States which are of no value, and no doubt is entertained that the general interest would be best promoted by surrendering such lands to the States.

This plan for disposing of the public lands impairs no principle, violates no compact, and deranges no system. Already has the price of those lands been reduced from $2 per acre to $1.25, and upon the will of Congress it depends whether there shall be a further reduction. While the burdens of the East are diminishing by the reduction of the duties upon imports, it seems but equal justice that the chief burden of the West should be lightened in an equal degree at least. It would be just to the old States and the new, conciliate every interest, disarm the subject of all its dangers, and add another guaranty to the perpetuity of our happy Union.

Sensible, however, of the difficulties which surround this important subject, I can only add to my regrets at finding myself again compelled to disagree with the legislative power the sincere declaration that any plan which shall promise a final and satisfactory disposition of the question and be compatible with the Constitution and public faith shall have my hearty concurrence.

ANDREW JACKSON.

[NOTE.--For reasons for the pocket veto of "An act to improve the navigation of the Wabash River," see Sixth Annual Message, dated December 1, 1834, pp. 118-123.]

PROTEST.[9]

[Footnote 9: The Senate ordered that it be not entered on the Journal.]

APRIL 15, 1834.

_To the Senate of the United States_:

It appears by the published Journal of the Senate that on the 26th of December last a resolution was offered by a member of the Senate, which after a protracted debate was on the 28th day of March last modified by the mover and passed by the votes of twenty-six Senators out of forty-six who were present and voted, in the following words, viz:

_Resolved_, That the President, in the late Executive proceedings in
relation to the public revenue, has assumed upon himself authority and
power not conferred by the Constitution and laws, but in derogation of
both.

Having had the honor, through the voluntary suffrages of the American people, to fill the office of President of the United States during the period which may be presumed to have been referred to in this resolution, it is sufficiently evident that the censure it inflicts was intended for myself. Without notice, unheard and untried, I thus find myself charged on the records of the Senate, and in a form hitherto unknown in our history, with the high crime of violating the laws and Constitution of my country.

It can seldom be necessary for any department of the Government, when assailed in conversation or debate or by the strictures of the press or of popular assemblies, to step out of its ordinary path for the purpose of vindicating its conduct or of pointing out any irregularity or injustice in the manner of the attack; but when the Chief Executive Magistrate is, by one of the most important branches of the Government in its official capacity, in a public manner, and by its recorded sentence, but without precedent, competent authority, or just cause, declared guilty of a breach of the laws and Constitution, it is due to his station, to public opinion, and to a proper self-respect that the officer thus denounced should promptly expose the wrong which has been done.

In the present case, moreover, there is even a stronger necessity for such a vindication. By an express provision of the Constitution, before the President of the United States can enter on the execution of his office he is required to take an oath or affirmation in the following words:

I do solemnly swear (or affirm) that I will faithfully execute the
office of President of the United States and will to the best of my
ability preserve, protect, and defend the Constitution of the United
States.

The duty of defending so far as in him lies the integrity of the Constitution would indeed have resulted from the very nature of his office, but by thus expressing it in the official oath or affirmation, which in this respect differs from that of any other functionary, the founders of our Republic have attested their sense of its importance and have given to it a peculiar solemnity and force. Bound to the performance of this duty by the oath I have taken, by the strongest obligations of gratitude to the American people, and by the ties which unite my every earthly interest with the welfare and glory of my country, and perfectly convinced that the discussion and passage of the above-mentioned resolution were not only unauthorized by the Constitution, but in many respects repugnant to its provisions and subversive of the rights secured by it to other coordinate departments, I deem it an imperative duty to maintain the supremacy of that sacred instrument and the immunities of the department intrusted to my care by all means consistent with my own lawful powers, with the rights of others, and with the genius of our civil institutions. To this end I have caused this my _solemn protest_ against the aforesaid proceedings to be placed on the files of the executive department and to be transmitted to the Senate.

It is alike due to the subject, the Senate, and the people that the views which I have taken of the proceedings referred to, and which compel me to regard them in the light that has been mentioned, should be exhibited at length, and with the freedom and firmness which are required by an occasion so unprecedented and peculiar.

Under the Constitution of the United States the powers and functions of the various departments of the Federal Government and their responsibilities for violation or neglect of duty are clearly defined or result by necessary inference. The legislative power is, subject to the qualified negative of the President, vested in the Congress of the United States, composed of the Senate and House of Representatives; the executive power is vested exclusively in the President, except that in the conclusion of treaties and in certain appointments to office he is to act with the advice and consent of the Senate; the judicial power is vested exclusively in the Supreme and other courts of the United States, except in cases of impeachment, for which purpose the accusatory power is vested in the House of Representatives and that of hearing and determining in the Senate. But although for the special purposes which have been mentioned there is an occasional intermixture of the powers of the different departments, yet with these exceptions each of the three great departments is independent of the others in its sphere of action, and when it deviates from that sphere is not responsible to the others further than it is expressly made so in the Constitution. In every other respect each of them is the coequal of the other two, and all are the servants of the American people, without power or right to control or censure each other in the service of their common superior, save only in the manner and to the degree which that superior has prescribed.

The responsibilities of the President are numerous and weighty. He is liable to impeachment for high crimes and misdemeanors, and on due conviction to removal from office and perpetual disqualification; and notwithstanding such conviction, he may also be indicted and punished according to law. He is also liable to the private action of any party who may have been injured by his illegal mandates or instructions in the same manner and to the same extent as the humblest functionary. In addition to the responsibilities which may thus be enforced by impeachment, criminal prosecution, or suit at law, he is also accountable at the bar of public opinion for every act of his Administration. Subject only to the restraints of truth and justice, the free people of the United States have the undoubted right, as individuals or collectively, orally or in writing, at such times and in such language and form as they may think proper, to discuss his official conduct and to express and promulgate their opinions concerning it. Indirectly also his conduct may come under review in either branch of the Legislature, or in the Senate when acting in its executive capacity, and so far as the executive or legislative proceedings of these bodies may require it, it may be exercised by them. These are believed to be the proper and only modes in which the President of the United States is to be held accountable for his official conduct.

Tested by these principles, the resolution of the Senate is wholly unauthorized by the Constitution, and in derogation of its entire spirit. It assumes that a single branch of the legislative department may for the purposes of a public censure, and without any view to legislation or impeachment, take up, consider, and decide upon the official acts of the Executive. But in no part of the Constitution is the President subjected to any such responsibility, and in no part of that instrument is any such power conferred on either branch of the Legislature.

The justice of these conclusions will be illustrated and confirmed by a brief analysis of the powers of the Senate and a comparison of their recent proceedings with those powers.

The high functions assigned by the Constitution to the Senate are in their nature either legislative, executive, or judicial. It is only in the exercise of its judicial powers, when sitting as a court for the trial of impeachments, that the Senate is expressly authorized and necessarily required to consider and decide upon the conduct of the President or any other public officer. Indirectly, however, as has already been suggested, it may frequently be called on to perform that office. Cases may occur in the course of its legislative or executive proceedings in which it may be indispensable to the proper exercise of its powers that it should inquire into and decide upon the conduct of the President or other public officers, and in every such case its constitutional right to do so is cheerfully conceded. But to authorize the Senate to enter on such a task in its legislative or executive capacity the inquiry must actually grow out of and tend to some legislative or executive action, and the decision, when expressed, must take the form of some appropriate legislative or executive act.

The resolution in question was introduced, discussed, and passed not as a joint but as a separate resolution. It asserts no legislative power, proposes no legislative action, and neither possesses the form nor any of the attributes of a legislative measure. It does not appear to have been entertained or passed with any view or expectation of its issuing in a law or joint resolution, or in the repeal of any law or joint resolution, or in any other legislative action.

Whilst wanting both the form and substance of a legislative measure, it is equally manifest that the resolution was not justified by any of the executive powers conferred on the Senate. These powers relate exclusively to the consideration of treaties and nominations to office, and they are exercised in secret session and with closed doors. This resolution does not apply to any treaty or nomination, and was passed in a public session.

Nor does this proceeding in any way belong to that class of incidental resolutions which relate to the officers of the Senate, to their Chamber and other appurtenances, or to subjects of order and other matters of the like nature, in all which either House may lawfully proceed without any cooperation with the other or with the President.

On the contrary, the whole phraseology and sense of the resolution seem to be judicial. Its essence, true character, and only practical effect are to be found in the conduct which it charges upon the President and in the judgment which it pronounces on that conduct. The resolution, therefore, though discussed and adopted by the Senate in its legislative capacity, is in its office and in all its characteristics essentially judicial.

That the Senate 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, or other high crimes and misdemeanors;" 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," and that "judgment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States."

The resolution above quoted 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 and to the complete and immutable disfranchisement prescribed by the Constitution. The resolution, then, was in substance an impeachment of the President, and in its passage amounts to a declaration by a majority of the Senate that he is guilty of an impeachable offense. As such it is spread upon the journals of the Senate, published to the nation and to the world, made part of our enduring archives, and incorporated in the history of the age. The punishment of removal from office and future disqualification does not, it is true, follow this decision, nor would it have followed the like decision if the regular forms of proceeding had been pursued, because the requisite number did not concur in the result. But the moral influence of a solemn declaration by a majority of the Senate that the accused is guilty of the offense charged upon him has been as effectually secured as if the like declaration had been made upon an impeachment expressed in the same terms. Indeed, a greater practical effect has been gained, because the votes given for the resolution, though not sufficient to authorize a judgment of guilty on an impeachment, were numerous enough to carry that resolution.