When Mr. Marbury and others take their case to the Supreme Court, their counsel advises them that proof may be required to show that in fact their appointments were consented to by the Senate. The Senate keeps records of this sort — where it gave its advice and consent to appointments and treaties — in an Executive Journal maintained by the Secretary of the Senate (who is not to be confused with the Secretary of State, James Madison). It is called an executive journal since the Senate shares powers over treaties and appointments with the executive, i.e., the President.

Senate debates over these executive matters and the Executive Journal were held in secret. Marbury and others thus request that the Senate override its secrecy rule and provide them with an extract of the Journal showing that they have been confirmed.

A partisan debate follows and Marbury and the others are denied the extracts. This denial has no impact on the Supreme Court decision which turns on the Constitutional question of the original jurisdiction of the court. The discussion, however, is useful in showing the nature of the political warfare surrounding the affair. One should not take seriously everything that is said. The Democratic-Republicans advance a theory of presidential power that would be disavowed by Madison and Thomas Jefferson, the Democratic-Republican President. The Federalists' claim that they are not familiar with the matter should be read with skepticism. The vote at the end is party-line with Democratic-Republicans (DR) voting against and Federalists (F) for the request.

This document was scanned in by the James Madison Center and hand-corrected for errors. Errors may survive, or be multiplied by, the hand correction. If complete accuracy is desired, consult the facsimiles at the Library of Congress site. Explanatory words or phrases have been added in brackets []. Some of the words used have passed out of common usage, but have been left as is. The meaning can be inferred from context and from surviving variants of the words.

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WILLIAM MARBURY AND OTHERS

The Senate took into consideration the motion made on the 28th instant:

That the Secretary of the Senate be directed to give an attested copy of the proceedings of the Senate of the 2d and 8d of March, 1801, so far as they relate to the nomination and appointment of William Marbury, Robert T. Hooe, and Dennis Ramsay, as justices of the peace for the counties of Washington and Alexandria, in the Territory of Columbia, on the application of them or either of them."

Mr. [John Eager] HOWARD [F, Maryland] said he should not trouble the Senate with any observations upon the question; the request was so reasonable, that he concluded it would pass without objection.

Mr. [James] JACKSON [DR, Georgia] wished to have some explanation of this business. It must, he said, be recollected that an attempt was made at the last session to effect the same thing, with this only difference, that the application was then made by counsel; which now came from the men themselves. The motion on that occasion was introduced by a member from Massachusetts, who, after hearing the objections offered against it, thought proper to withdraw it. He considered it now, as he then did. an attack upon the Executive Department of Government, and as such should be prepared to oppose it, as often, and in whatever shape it might present itself.

Mr. [Jonathan] MASON [F, Massachusetts] observed it was true, as the honorable gentleman from Georgia had stated, a motion similar to the present resolution, he bad himself made at the last session, and for the same purpose. It was in consequence of a verbal application at the door of the Senate Chamber, from one of the parties; or their counsel, to whom he was a stranger. He gave to them his opinion at the time, that the application was proper and would be granted as a thing of course. He was afterwards surprised to hear objections offered — the principal ones however, were that the record was a secret record, and that by a standing rule, no copy was allowed but by special order. It was time now to consider the propriety of granting it, when the parties themselves applied in writing, stating the purposes for which they wanted it, and upon this and the motion was either withdrawn or rejected. In the present case they had applied in a respectful manner, in form of memorial. and had stated the reasons of their application, and the use they. wished to make of the copy, to establish an existing right. They were citizens and parties to the Government and to. its privileges. The principles upon which this Government was founded were freedom and equality of rights, and a protection to these rights. The petitioners now claim that protection, by a request that we would grant to them our knowledge of the existence of a fact necessary to establish one of their rights. Publicity of record was a Constitutional provision, and a check in favor of the people. It was a right belonging to the meanest citizen to inspect the records of the Government, unless the divulging of these records would be inconsistent with the public safety and interest. And when that was not the case it was our duty to grant the request — they had a right to demand it. It was upon the same ground that every citizen had a right to demand and compel the testimony of his fellow-citizens, upon peril of damages equal to the loss of his testimony; it is an implied promise, founded upon mutual protection and aid to each other in the support of their individual rights. It is one of the great reasons for which men associate. The same justice is due from public bodies, though compulsory process is not in both cases to be had.

This request is so accordant with a common sense of justice, that he had no doubt the mere exemplification of a record, or a certified copy, in itself not improper to be made public, would be granted by one enemy to another, in an enemy's country. Mr. M[ason]. was at a loss to know what possible injury could arise by giving a copy of a fact so notorious, and he hope therefore the parties would be indulged.

Mr. JOHN BRECKENRIDGE [DR, Kentucky] thought it improper to grant the prayer of the petitioners. The Executive Journal is kept only for the private use of the Senate and there is an express rule that extracts should not be given without the order of the House. He knew of no instance in which they could with propriety be claimed or given, but if there were any Such; he begged gentlemen to point them out: As to the case in question, to grant the prayer of. the petition would, he said, administer to the means of assailing the Executive Department of the Government. He considered the President as in some measure a party to the Executive Journal, end therefore an extract of it ought not to be communicated without his consent. The Senate ought to protect the dignity of that branch in which they participate. The suit is now pending on a mandamus to the Secretary of State [James Madison]. The Senate ought not to aid the Judiciary in their invasion of the rights of the Executive. There could be no use in giving such extracts, and there might be mischief.

Mr. [Gouvernour] MORRIS [F, Pennsylvania] was much in opinion with Mr. B[reckenridge]. He thought that the rule respecting the Executive Journal was wise, and that extracts ought not to be given for trivial purposes that it might be a means of embarrassing the Government, and lessening the respect due to those who administer it. That he had no apprehension of any such on the part of the Judiciary; he was persuaded they would treat with due respect the other parts of the Government. But such attempts might be made by others, and therefore it was not prudent to furnish the means, or to establish a rule of which designing men might avail themselves for bad purposes. For these reasons he was inclined to reject the proposed resolution. On the other hand he considered the application of a suitor for evidence to support his right, as of a very serious nature. A denial of that evidence might amount to a denial of justice. He was not prepared to go so far. If in possession of a deed making a link in the chain of a suitor's title, the courts might compel him to appear, and bring with him the deed; he did not feel himself justified in using the authority with which, as a Senator, he was invested, for the purpose of refusing that which another could rightfully demand; and oblige him by law, as a private citizen, to give. That in the present case, the merits of which were unknown to him, it was possible, as has been suggested, that other evidence might be produced, and though of inferior force, be validated by the refusal of the Senate. Perhaps, too, the court might issue process, compelling the Secretary to appear and bring with him the Journal. It was equally possible that they might not think it proper to issue such process, or that the Secretary [of the Senate] might refuse to answer, alleging his duty to keep the secrets of the Senate. That if from these or any other causes, the Court should declare they could not do right because the Senate withheld the evidence, he should feel himself guilty of a denial of justice. That in effect the assent of the Senate being a pre-requisite to the appointment of an officer, it might be necessary to show that assent when his authority should be legally questioned. If the Senate refuse on the present occasion, where the evidence is said to be necessary to obtain the office, how could they grant it on another occasion where it would be necessary to preserve the office? On the whole, Mr. MORRIS declared he should reluctantly give his vote in favor of the resolution, because the greater weight of reason was in favor of it, and because he could not answer to the world, or to his own conscience, the delay or denial of justice.

Mr. [Robert] WRIGHT [DR, Maryland] said he was opposed to the resolution; he could not discover that the applicants had any right to the extract prayed for. The Senate had by a specific rule declared the Executive records a secret. But he could not conceive what benefit they (the petitioners) could derive from an extract if they obtained it. They ask that the Secretary of the Senate may be allowed to certify facts from the Executive record; but the Supreme Court, nor no court; would admit such a certificate as testimony, because the Secretary had no seal. In order to get any benefit from this record, the court should allow the petitioners a subpoena to the Secretary of the Senate, with a duces tecum. He challenged all lawyers upon this subject, and all men of common sense; they must all agree with him that the thing prayed for could do the petitioners no good without a seal. But, Mr. Wright said, he had further objections against passing the resolution. It was well known why this certificate was requested. It was to aid in an audacious attempt to pry into Executive secrets, by a tribunal which had no authority to do any such thing; and to enable the Supreme Court to assume an unheard of and unbounded power, if not despotism. It was to enable the Judiciary to exercise an authority over the President, which he could never consent to. It was well known that the persons applying were enemies to the President, and that the court were not friendly to him, and, under these circumstances, to interfere in the business would be making the Senate a party. No court on earth could control the Legislature, and yet it had been held here on this floor that they could, and this was a part of the same attempt to set the court above the President, and to cast a stigma upon him. The President had a right to withhold the commissions from these justices, because they did not hold their offices de bene merito but de bene placito.

Mr. [James] HILLOUSE [F, Connecticut] remarked that he did not discern anything in the resolution under consideration that had the smallest relation to the character and conduct of the President, nor was there anything in the application that could lead to such a conclusion. It is said there is a cause pending before the Supreme Court of the United States, in which it is important to ascertain the fact, that the Senate did advise and consent to the appointment of the individuals named in this application to be justices of the peace for this territory, and a copy of the journals of the Senate is requested for that purpose — the journals of the Senate being the only evidence of the fact, can that evidence with propriety be withheld? The opinion that such copy would not be admitted as evidence cannot be correct, for it is the only mode in which many important facts in relation to appointments to office, and the ratification of treaties, can be proved. For what purpose are the journals (which are the only record of the proceedings of the Senate) kept, if they are not to be resorted to as evidence of what is done in Senate?

Suppose a question to arise in a court of justice relative to the office of the marshal or judge, and it should be claimed that there had never been a Constitutional appointment to such office; for that the nomination had been rejected by the Senate, and their advice and consent had never been obtained — or in case of a treaty with a foreign nation the President should by Proclamation declare the ratification, and promulge the same as the Supreme law of the land, where the Senate had Refused their advice and consent to such ratification — in neither case would the act of the President be valid without the previous advice and consent of the Senate, and how can it be proved that such advice and consent has been had but by a resort to the journals of the Senate? Surely the commission or proclamation of the President could not be conclusive, because the Senate are an independent body. on whom the Constitution has devolved certain Executive duties of which the President can have no personal knowledge; the performance of which duties are by the Constitution made indispensable to the validity of certain acts of the President. In all these cases the President may be deceived; the Secretary of the Senate may by mistake or fraud certify that the advice and consent of the Senate has been had to an appointment to office, or the ratification of a treaty, when the fact is otherwise; and where, but to the journals of the Senate, can we resort to correct the error? It is a possible case that a President may assume the right, in opposition to the opinion of the Senate, to make appointments to office and ratify treaties, and shall it be said his commission or proclamation is to be admitted as conclusive evidence, which cannot be questioned, and in that way evade the Constitution ? This would be giving to the President high prerogatives indeed; it would be investing him with the absolute power of appointment; and declaring that his proclamation shall be the supreme law of the land. The commission of the President is undoubtedly high evidence of the appointment to office and the proclamation of the ratification of a treaty, but cannot be conclusive, because the Constitution has made the advice and consent of the Senate a prerequisite, and indispensable to the validity of the appointment or ratification, and nothing can come in place of it. A rejection of this resolution will be a denial of right to an individual, and, under any Government, would be considered as an arbitrary, tyrannical act. Under these impressions, he should give his vote in favor of the resolution.

Mr. [Aaron] OGDEN [F, New Jersey] observed, that there was no rule in society better established, than the one which denies to an individual the right of withholding his testimony, when required to give it, in a court of law, upon the prosecution of a legal suit. That this rule had no exceptions, if the honor or interest of the witness would not be compromitted thereby. That the present was a decent application to the Senate, for the evidence of a fact. in their power to give, and upon which a suit at law had been predicated. That the petitioners by applying for a copy of the Executive Journal had pursued the only possible mode of obtaining this evidence. That parol evidence of the contents of this record could not be admitted, neither could a subpoena cause it to travel out of the office to which it belongs.

That although Executive business is done with closed doors, yet there is no rule that the Journal in question should be kept secret; that it was open to inspection, and that there was nothing to prevent the Secretary from giving the copy, but the rule of the Senate, which requires that leave should be first obtained. That no reason had been given, which was satisfactory to his mind, why this leave should not be granted. That he would not delay the Senate, by answering such arguments, as had been adduce to prove that the evidence would not be admitted, and that, if admitted, would not support the suit; because the court, before whom the evidence might come, and not the witness, is alone competent to decide such points.

That it was not true, as had been stated, that no case would arise, where such copies as are now required, ought to be allowed; such cases had been put, and the most important rights of the citizen depend upon such testimony. That, upon a quo warranto, whereby the right to officiate as a judge, although acting under a commission, might be called in question, such testimony would be allowed to go forth, if it would prove that this Senate had never advised or consented to the appointment of such judge.

That a citizen might, in a court of law, deny the proclamation of a treaty to be the supreme law of the land, and prove its nullity by such testimony, if it would show that such treaty had been negatived by more than one-third of the Senate then present. That, if such copies might be allowed for evidence in any case whatever, it followed, that it would be proper to allow it in the present case. That no distinction existed between the present case and the one which had been admitted during the discussion, when it was said, that the House of Representatives, when parties to an impeachment, had a right to demand on the Senate, before whom the cause must be tried, the testimony of this Executive Journal. That in such case the Senate would sit as a court, and such testimony could not be obtained under the rule of the Senate, unless leave should be given by the Senate in their Executive capacity; and that all parties, whose rights were interested, whether individual citizens or House of Representatives, stood upon an equal floor, when in a court of justice.

That no danger, as had been apprehended, could arise in regard to the dignity of the President, or the honor of the Government. That our judges were an independent branch, and no possible presumption could be admitted, that they would do wrong, or transcend their jurisdiction; and that he should therefore, with great clearness, vote for this resolution on the table.

Mr. [James] JACKSON [DR, Georgia] said, the Executive Journal ought not to he given to any applicants, much less to these. He considered the whole as an attempt to injure the Executive. The applicants had a process before the Supreme Court, and let them get along with it as well as they could; if they could obtain a decision of court in their favor, let them make the most of it; he hoped the Senate would not interfere in it, and become a party to an accusation which might end in an impeachment, of which the Senate were the Constitutional judges. One case, he would agree, might occur, when the Senate must give up their Executive records, and everything else, if required by the House of Representatives, as evidence to support an impeachment; their call would be omnipotent, in his opinion. But he thought the commission of the President was the only evidence of an appointment, and in all cases conclusive. And he would never lend his aid to set the Judiciary above the Executive. Let the applicants inform the House of Representatives, if any officer of the Government had injured them, and procure an impeachment, if they could; this would be the proper remedy.

Mr. BRECKENRIDGE [DR?, Kentucky] said, he had not supposed the question would have been so strongly contended. He thought sufficient reasons had been stated in the beginning, for rejecting the resolution. But arguments had been brought in support of it, which required some notice. It had been stated that extracts from the Executive Journal might be necessary to prove the right of an officer to his office. This was unfounded. The commission granted by the President was full and complete evidence of the authority granted to the officer. That it must always be presumed the commission had been granted in the manner prescribed by the Constitution. This was a confidence reposed in the President by the theory of our Constitution. That it must be presumed the President will do right. That a commission from him constitutes an officer, not only de facto, but, de jure: and is in its nature so conclusive, that no court could inquire into the validity of it. That the contrary insinuation is derogatory to his dignity, which the Senate are bound to protect. That the Senate should not countenance the Judiciary in their attack on the Executive power, which is not constitutionally amenable to the judges. That the case which had been relied on as to treaties, was, in its nature similar. The full evidence was contained in the President's proclamation. It was to be presumed that he had not ratified a treaty without the consent of the Senate, and therefore full faith was to be given to his proclamation. That it was dangerous to countenance the pretensions set up by the judges to examine into the conduct of other branches of the Government; for that, if they had a right to examine, they must have, as a necessary incident, the right to control the other departments of Government. That such right was inconsistent with every idea of good government, and must necessarily degrade those branches which the Judiciary should thus under take to direct. The present suit was therefore levelled [sic] at the dignity of the first Executive Magistrate, and as he thought the Senate bound to protect that dignity, he should vote against the resolution.

Mr. [Uriah] TRACY [F, Connecticut] said he was not sorry for this discussion, and as there had never, to his knowledge been a similar application, the decision on this would form an important precedent; he therefore thought it best that the subject should be examined in all its bearings. The first inquiry that occurred to his mind was, could there be a case which would render it proper to direct the Secretary to give an extract from the Executive records?

A case might be stated which had in fact happened; a gentleman who had been duly appointed a district judge, received, by mistake, a commission as circuit judge; there was a circuit judge already appointed, commissioned, and acting in that capacity, so that two commissions, exactly similar in point of form and substance, to two different men, were existing at the same time, authorizing both to act in a capacity where the law allowed but one to act. What can be done? Shall we resort to the President to rectify the mistake? He is out of office, or it maybe he is dead; shall we resort to the Secretary of State? He is out of office. or dead. Besides, if both were living and disposed to rectify the mistake, they could neither of them compel obedience. Shall we resort to the Senate? A mandate from them would tend only to show their imbecility, as their Executive functions extend not to commissions, but solely to advice and consent on a nomination. An application then to a court of justice by quo warranto, or some other process, was the only proper efficient remedy to prevent the conflicting operations of the two judges. Could any gentleman point out another remedy?

What course would a court pursue in such an inquiry? Upon inspection of the commissions both are equally authentic. A resort must be had to the Executive Journal of the Senate; and there, it would appear, that one judge was nominated as a district judge, and as such only the appointment received the advice and consent of the Senate, and that his commission had issued, by mistake, as circuit judge instead of district judge. A judgment of court, that such a commission was void, would be an effectual remedy. But was not an extract of the Executive records of the Senate the best evidence which the nature of the case admitted? The records of the Executive, or Secretary of State, if any such were kept, would amount to no more than that the Secretary of the Senate made a report of certain transactions of the Senate; in which report, if the Secretary should mistake the fact, either by accident or corruption the evil must remain without a remedy.

The highest evidence which could in such a case exist, he thought was to be derived from an extract of the record kept by the Senate, and under a solemn order officially given and attested by their Secretary. All other evidence which he could conceive of was of a subordinate kind. But in objection it had been stated that the Executive Journal was a secret, to which the President is a party, and without his consent no extract should be given. Mr. T[racy]. said that however this observation might be just, in respect to confidential Messages, yet the Executive Journal was as completely under the control of the Senate, and of them only, as it would be if no President existed; as a House, and a substantive branch of Government, they had a Constitutional authority to keep Journals, and to make rules regulating their conduct in that and all other official transactions; and acting in that capacity, they had made a rule that no extracts should be taken from the Executive Journal without an order of Senate; plainly indicating that if they please to give such order, neither the President nor any body else had a right to object. If the Senate chose, they might act upon all nominations of the President with open doors; but merely for their own convenience they had acted hitherto in a different manner; but no member had ever thought he violated any injunction of secrecy by informing that a nomination was made, and every circumstance attending it, after the Senate had acted upon it, nor even when it lay before them, undetermined.

He thought it was clearly proved that there was a possible case when an extract might be given. The next consideration would be, ought it to be given in this case?

The applicants say, that they are attempting to obtain before a court of justice remedy for a wrong done by the Secretary of State in withholding from them certain commissions as justices of peace, to which they claim a right. They say an extract from the Executive Journals, that the Senate advised and consented to their appointment is, as they are advised, indispensable in their cause. Now what answer can be given to this? Is it not a dictate of common sense that they should have it? Have they not a right to it, upon the plain principles of our social compact, unless some injury will arise by granting It? The grant can injure no person, and a refusal may injure the applicants. But it was said, by furnishing this extract, the President would be put in jeopardy. He could not possibly, discover the reason of all the ferment and sensibility about the President. Was he in danger, or could he be in danger from it? If an improper attack was made upon the President, he would agree that so far from assisting in it the Senate should rally in his defense.

Let us see, said he, what the facts are. The request is for an extract from the Executive Journal of the Senate, as testimony in a court of justice, and claimed to be absolutely necessary to establish the rights of individuals. He knew nothing of the cause, except what he derived from the petition, and the declarations of gentlemen in debate, by which he learnt that a mandamus was prayed for against the Secretary of State for withholding certain commissions which had been completed by the President, and left with the Secretary for delivery. The court was authorized by statute of the Federal Legislature, among other things, to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding offices under the authority of the United States.

A plain simple proceeding, before a court competent to hear and decide. What reasonable cause of alarm could this be to the friends of the President? He could see none. And the gratuitous observations of the gentleman from Maryland (Mr. WRIGHT, DR) that the court were unfriendly to the President, and that the applicants had done this to injure him, were, in his opinion, out of order, improper, and totally irrelevant. But it was said that this extract could do no good to those who request it; because it did not make out their case. Gentlemen; he thought, affected to know more about the case of these applicants than was requisite, for a just decision of the petitioner. What was it to the Senate, if the testimony is not complete? Suffice it to say, it is a part and a necessary part of their testimony. Suppose, said he for the sake of argument, that the Secretary oaf State has been bribed to reserve these commissions; or, suppose the President had committed them to me to carry them to the petitioners, and I had destroyed them corruptly; and a claim was made before a court of justice for a remedy against the wrong so done? Could damages be obtained unless the plaintiff could show that every prerequisite was complied with to make these commissions valuable; and, among the rest, that the Senate had advised and consented to the appointments ? Or, put the question the other way, could not I defend successfully against an action if I could show that no such advice and consent was had, and that therefore the commissions were of no value? He thought it clear that the testimony would be important, though perhaps not all which the case would require. But another, and, if possible, a more extraordinary objection had been made; that an impeachment was all the remedy which was applicable to the case stated. Let them obtain from the other House an impeachment, say the gentlemen, if they can, and then we will try it.

I am bound, said Mr. T[racy]., to believe this is the serious opinion of the luminaries of our nation, because it is solemnly declared in debate, otherwise he should have said that such an observation could not be serious. What will be the effect of a conviction on an impeachment? A removal from office and a disqualification from holding office. And is it not the express declaration of the Constitution, that the party thus convicted shall be liable to indictment. trial, and punishment, for the same offence ; and is he not still liable to an action for private damages. in case any have been suffered, by an individual

There could be no doubt but, in this very case, damages would be recoverable, if the commissions were withheld by the Secretary of State from any corrupt or sinister motives. It was likewise said that the commission was prima facie evidence of the holder's right, to office; and not only so, but conclusive; and as the parties complaining had not commissions, they could have no conclusive evidence of their right. This, he said, was equally extraordinary with many other assertions. It seemed to be a position laid down by the gentlemen that this petition should be opposed. and any objection on earth was pertinent and sufficient if, on a view of this subject, there was not at least a colorable right in the applicants, he was exceedingly mistaken. A right to what? to office? Yes, and a right to their commissions; which, they say, are withheld, as a proof of their right to office

He would observe one word, upon the conclusive operation of a Presidential commission, and a proclamation promulging a treaty. The gentlemen say both are conclusive, and cannot be invalidated by any possible testimony. If so, he thought the Senate should go home, being useless at the seat of Government, for it would be only requisite for a President to issue a proclamation in case of treaty, and a commission in case of office, and the advice and consent of the Senate was always to be presumed ; and the contrary could not possibly be shown. This was saying, most emphatically, that our President could do no wrong.

He was clear in the position that, in the case stated, the petitioners would stand in need of the extract requested, and that they had a right to it; that granting it would do no harm, and withholding it would bean arbitrary denial of justice. He therefore should vote for the resolution.

Mr. [Abraham] BALDWIN [DR, Georgia] had not been in the House when the debate commenced. He thought, as it related to Executive business, it ought to have been conducted as such business usually is; that, as the question then stood, he should be against the resolution. He considered it as relating to a part of our Constitution, which the sages who framed, and certainly those who adopted, it, had always considered as peculiarly delicate. That it was one of those nice theories which. in varying from established practice, ought to be carried into effect with great discretion; that he had ever thought the unity of Executive power essential to the energy of action which ought to prevail. Everything therefore which tended to divide that oneness so, desirable, ought to be avoided. That it was true the assent of the Senate was required by the Constitution before an appointment of officers could take place; that, on the nomination of the President the business was inchoate; and although while it was in transitu the Senate kept a journal for their own satisfaction, yet he thought such (their private journal) ought not to be made public — more especially as it would destroy that desirable oneness so useful in all things which concern the Executive power; that he was, however, unwilling to establish a precedent of any sort. He thought no general rule should be made, either to grant or to withhold extracts from that journal. Every application should, he thought, be considered and decided under its particular circumstances. That the present case was an application for a mandamus to the Secretary of State, by persons conceiving or, stating themselves to be justices of the peace; that, even if they could obtain the extract they ask for, it would not answer their purpose; for, although the Senate approved of an officer when nominated by the President, it did not follow that the President would make the appointment — circumstances might arise to alter his opinion. The applicant therefore for a mandamus must be defeated, if he could not produce the President's commission, and if he could, that was a sufficient evidence of his right, without the extract asked for. Mr. B[aldwin]. was therefore of opinion that the petitioners had asked for a thing which was useless; and he was convinced that the Senate, exercising a sound discretion, would not grant a thing which must be useless, and which might, perhaps, be productive of evil consequences.

Mr. [Gouvenour] MORRIS [F, Pennsylvania] .— Mr. President, when I first rose, in this debate, I felt and expressed much doubt; but the better reason appearing in favor of the resolution, had determined me to vote for it. At present, my opinion is clear and decided. The conviction has been produced by the arguments of those who opposed the resolution. These contain the most monstrous system of tyranny that ever, I believe, was brought before a national assembly. Permit me to notice a few of the strange positions which we have just heard.

It has been said by a gentleman from Georgia; on my right, (Mr. JACKSON,) that an extract from our Executive Journal should not be given to a suitor in one of our courts, because it may contain matter to support an impeachment against the President, which impeachment is to be tried before us; and therefore we, being judges, should not also become parties by furnishing evidence. And yet the same gentleman has told us that, upon the demand of the other House, (who, according to him, have a right to demand everything.) we are bound to furnish this very evidence, if they require it, for the purpose of bringing or maintaining an impeachment. Thus we must withhold from a fellow-citizen the evidence needed to support his right, because it may furnish ground for impeachment, although no ground for impeachment exist. This, too, it seems, is required by the impartiality which we should preserve as judges, before whom such possible impeachment may be tried. But when there is a question of impeachment, and when we are in effect the judges, then, on the demand of the other House, we are bound to furnish that evidence which we are now bound to withhold.

We have been told that the Executive officers are all dependent on the Chief, and act under his direction; that, therefore, his dignity is implicated in their acts; and, consequently, the conduct of these agents must not be questioned, lest his dignity be impaired. What broader shield can be interposed to shelter the agents of Executive authority? How can they be more completely guarded against all just investigation?

We are further told that a condemnation of these agents must affect the dignity of our First Magistrate. Must it, indeed! And is, therefore, no prosecution to be made, is no condemnation to take place ? This is indeed the golden chain let down from Jove, to bind the earth in vassalage. And what becomes of our President's dignity under this strange doctrine? A subordinate agent abuses his trust — violates his duty — is guilty of malpractice — he is arraigned; and because the culprit is convicted and condemned, is the dignity of Government therefore violated?

We have been told that a treaty when proclaimed by the President, is the supreme law, and that the previous assent of the Senate cannot be inquired into. Gracious God! and is it come to this, that the proclamation of our President shall he the supreme law of the land; that we must submit to it without inquiry? And how is this monstrous doctrine supported? Why we are told that because it is not proper in the case of a common statute to examine the journals of the two Houses, for the purpose of knowing whether the assent of each was given, therefore, we must not examine the Executive Journal of the Senate, to know whether two-thirds of the members present advised and consented to the ratification of a treaty. But are these cases at all similar? The law is signed by the President of the United States, the President of the Senate, and the Speaker of the House of Representatives. It contains, therefore, the best evidence in the nature of things, that the full assent required by the Constitution has been given. But is this the case with a treaty? No. The evidence of the consent of this Senate appears only by the extract from their minutes made out by their Secretary. And shall this preclude the inquiry, whether, in effect, that assent was given which your Secretary has certified?

We have been told by gentlemen. who seem to know all the merits of the case which is before the court, that the dignity of the President is involved in it. For my own part, I know nothing of the case; neither do I wish to know for I have no authority to try it. But the gentlemen say the dignity of the President is involved; and that we are in duty bound to protect his dignity. But how? What have the petitioners asked? They have asked the evidence of a fact. And how are we to protect the President's dignity? By withholding that evidence. And are gentlemen then of opinion that the disclosure of facts will impair the dignity of our First Magistrate? Sir. I have no such apprehension. I trust that our President has acted properly, and that a full inquiry into facts must redound to his honor. Those who oppose this resolution seem to think otherwise. But I ask are they prepared by their vote to declare that injurious opinion? Is there a gentleman in this Senate, who, when the yeas and nays are called, will record his opinion that the dignity of our President can only be preserved by with holding the evidence of facts?

We have been told, sir, by an honorable member froth Kentucky (Mr. BRECKENRIDGE) that a right to examine, implies a right to correct and control. This proposition has been frequently advanced on different occasions. I never noticed it, because it appeared to carry within itself the sufficient evidence of its fallacy; but, since it is now again produced, it may be well to give it one moment's notice. A right to examine whether we agreed to a certain resolution, implies, it seems, a right to control our conduct. It may be a question in an insurance cause, whether damage was sustained by a violent wind at sea; does the examination into the fact imply a right to command the winds and the seas? Does the inquiry whether a ship has perished in a storm. imply the right to correct and control the Almighty raiser of storms?

We have been told by the member last up, from Georgia [Jackson], that the evidence asked for by the petitioners, is useless; because, although the Senate may have approved of them as officers upon the President's nomination, yet it was in the discretion of the President to make or omit the appointment which alone could confer a right. That gentleman seems to be perfectly acquainted with the cause which is depending. He knows precisely what proof is needful for the prosecutor; and deeming that which he asks for to be insufficient, thinks proper to refuse it. It appears to me, sir, that this Senate is not the proper tribunal, either to examine the merits of the cause, or the validity and weight of the evidence. These are the proper subjects of inquiry elsewhere. If we adopt the gentleman's reasoning, however, we prejudge the cause; and I shall be glad to know, if this practice be adopted, what case can exist in which a like refusal may not be made. A client is advised by his counsel to apply to us for evidence in our power, as needful to support his rights. We refuse, because, in our opinion, that evidence is not alone sufficient.

But the same gentleman has told us he would not establish any general precedent. He would always judge of the particular circumstances; and under the particular circumstances of this case, he would withhold the evidence asked for. But will not this establish a general precedent? How are precedents established? Is it usual for judges to make decisions for the special purpose of becoming precedents? No such thing. They give judge in a case which comes before them, and that judgment becomes a precedent for subsequent cases turning upon the same principle. I shall be glad to know, then, how a distinction is hereafter to be made between this acid other cases. Here is a suit pending in a court of justice; and one of the parties applies for a piece of evidence which he is advised is material to establish his right. You refuse it. When in another cause, another party shall apply, on what ground will you grant that which you now refuse? Will you again prejudge the cause, and give them the proof because [sic, presumably, because] you deem it sufficient to carry the cause?

Mr. President, one word more on that unity of the Executive, which the gentleman last up is so much attached to. Although I have already spoken longer than I intended, I must pray one moment's attention. That honorable gentleman thinks there should be a perfect unity in the Executive power. The division of it is inconsistent with his ideas of good government, and therefore he would admit of no inquiry as to facts which may have happened in the course of Executive volition, but give full credit to the commissions and proclamations of the President. These ideas, sir, consist well with monarchic institutions. Our Sovereign Lord, the King, is indeed possessed of the fullness of Executive power. and may exercise it at his pleasure. But as to our Sovereign Lord the President, the case is widely different. The American Constitution has given to this Senate a wholesome check upon his sovereign will: But according to the doctrine which gentlemen now advance, this check is nugatory — neither the people nor the courts shall question his commissions nor his proclamations. His commissions, it seems, confer complete authority. His proclamations are the supreme law. He may form what leagues he pleases with foreign Powers, and when he shall proclaim them, we are held to implicit obedience. To these doctrines, sir, I take leave to enter my dissent. I hope that when the rights of American citizens are invaded, not only the Supreme Court of the United States, but the lowest county court of the most remote district will dare to examine, to judge, and to redress. I hope this Senate will never, by an admission of such base and slavish doctrines, surrender the authorities conferred on them by our Constitution. I hope they will ever be ready to aid the cause of freedom and justice. And in this hope I shall give my vote for the resolution on your table.

Mr. [DeWitt] CLINTON [DR, New York] said that everything which had been uttered in the debate confirmed the first impression of his mind against the propriety of granting the prayer of the petition. The Executive Journal from the very nature of it was always secret. This secrecy never ought to be violated unless some useful purpose was thereby to be attained. In the present case it was very evident to him that the copy prayed for could be of no real use to the petitioners. Giving them a copy of the Journal would, however, be an expression of the Senate's opinion that the testimony would be proper and useful in the suit of the petitioners. By a side-wind the Senate would thus be drawn to hive their weight to one side of the cause. He believed this was the design of the petition, and the whole proceeding was insidious and factious. He declared that he was far from imputing these or indeed any improper motives to any of the Senate who were in favor of authorizing the Secretary to give the copy as prayed for; he was persuaded that they were aware of the perfect propriety of the course they now advocated.

But we are told, said Mr. C[linton], by my colleague, that perhaps the Supreme Court may send a subpoena for our Secretary, and compel him to produce the Journal, in spite of our order forbidding him. Such a step would certainly bring things to a crisis, and for his own part he thought it desirable that measures might be taken for ascertaining the real extent of the power of the court. He was sure if they possessed the power contended for, the rule of the Senate ought to be altered, so as to forbid our Secretary from divulging the secret journal unless by order of the Senate or of the Supreme Court.

A great Constitutional question is now agitated in that court, involving a right to control the Executive. The business may not stop there. High officers of the Government of the United States might in the end be impeached and brought before this House. He as a member might be called to try, and to decide upon that impeachment, he therefore wished to remain neuter [sic]; to express no opinion beforehand, even by implication. He felt this to be his duty, and was clearly of opinion that it was the duty of the whole body, and that therefore they ought to refuse the copy of their journals.

Mr. [James] Ross [F, Pennsylvania] said that although, the Senate decided upon all Executive business with closed doors, yet Executive proceedings were never considered secret, except in two cases: when the Senate imposes an injunction of secrecy upon the members, and in cases of confidential messages from the President. In all other cases the Executive business of the body is no secret; it has never been so considered in practice, for it is communicated by Senators without reserve; and when nominations are of moment they get into the newspapers before the Senate has decided upon them. Entire lists of nominations have been published antecedent to the sanction of the Senate, and yet no complaint was ever made here that a rule of this body had been violated. It cannot therefore be pretended that there is any injunction of secrecy to forbid the copy prayed for by the petitioners. The whole difficulty arises from a rule directing our Secretary not to give certified extracts of the Journal without . express permission of the Senate. This regulation is wise and very useful. It represses idle curiosity, which, for improper purposes, might publish the votes of the Senate respecting officers to nomination, or nominations made and withdrawn by the President, before the Senate acted upon them.

But when a citizen states that he has a suit in a high court of justice; that the acts of this body and copies of our journals will be material testimony in his cause; when that part of the Journal asked for is not under any injunction of secrecy, or in its nature confidential, what pretence can there be for withholding it ? Will our giving leave to take a copy of it express an opinion of the House whether it be legal testimony? whether it will support or defeat the suit? Surely not. Much less will it by implication insinuate that one party is right and the other wrong. It is a public record, of which any person interested has a right to demand a copy.

If the gentleman from New York (Mr. CLINTON) were a recorder of deeds or of wills in the county where he resides, would he refuse a copy of a deed or a will to a suitor in court? Would he feel that by giving a copy he lessened his impartiality as a juror or a judge in that suitor's cause, although at the time of giving the copy he knew nothing of the merits of the case? How could he possibly prejudge a cause the merits of which he had never heard? And yet we, who are now in the same situation precisely, are told that we are about to give an opinion.

There would be infinitely more force in alleging that, by a refusal of the copy, we undertake to decide between the parties; for in that case the Senate must be supposed to have examined the petitioner's cause of action, and to have found it such that the testimony prayed for would not sustain. An arbitrary refusal certainly would not extinguish the petitioner's right. No court would determine that a right shall be defeated because those who are in possession of testimony to support it choose to with hold that testimony, against all rules of justice. They will either admit inferior testimony to establish the fact, if material, or direct process to bring forward what is conceived to be legally attainable. Our refusal then will not defeat the suitor, and we shall be in the awkward situation of having interfered to stop a proceeding, without having the power of accomplishing our object.

Mr. R[oss] said, that his observations would have ended here. had not new and highly dangerous doctrines been advanced by gentlemen on the other side, during this debate. against which he thought it his duty to enter his solemn protest. There was an end of all free and regular Government if a commission from the President was conclusive evidence of a right to office against the journals of the Senate. There was an end to the Constitutional power of legislation, if the President's proclamation of treaties constituted the supreme law of the land. when the journals of the Senate showed that more than one-third of the Senate had voted against the acceptance and ratification of the treaty. The commission and the proclamation were good prima facie evidence, but might be encountered and defeated in the execution by the truth of the case as established by the journals; and courts in proper cases could not refuse to admit the inquiry when it became material. Those who have advanced this extraordinary doctrine will soon find, that if realized in practice, the transcendent powers of the President will leave little if any authority or security to the other departments of Government.

The question was then taken, will the Senate agree to this resolution; and it passed in the negative — yeas 13, nays 15, as follows:

Yeas — Messrs. Dayton, Dwight Foster, Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott, Plumer, Ross, Tracy, Wells, and White.

NAYS — Messrs. Anderson, Baldwin, Bradley, Breckenridge, Brown, Clinton, Cocke, Ellery, T. Foster, Franklin, Jackson, Logan, Stone, Sumter, and Wright.

Ordered, That William Marbury, Robert T. Hooe, and Dennis Ramsay, have leave to withdraw their petition.