Abridgment of the Debates of Congress, from 1789 to 1856.

DEBATES OF CONGRESS. 537 ArRIL, 1826.] Executive Powers. [SENATE. duction and reasoning by analogy. Let it be accordance with the principles of our instituonce granted that the practice of one President tions. gives a legitimate authority to his successor, and Again, sir, let it not be forgotten, that it is that this authority may be enlarged by analo- not the practice of the Government, but the long gies, and it must be obvious to all, that the and quiet acquiescence of the people, under that power granted by the people to the Executive, practice, which gives a tacit assent to the power although made by the constitution but a school- exerted, in a doubtful case. It is their tacit asboy's snowball, in a few turns would become a sent, to be inferred from such acquiescence, that monstrous avalanche, that must one day crush sanctifies the claims, and approves the constructhemselves. Under a Government founded upon tion of the doubtful grant, from which the powa written constitution, by which none other er asserted is directly deduced. Therefore, bethan limited power is granted, and in which all fore any case furnished can be considered as enpowers not granted are expressly reserved; in titled to the slightest respect as a precedent of the nature of things there can be no other le- rightful power, it must be shown to be one of gitimate source of authority, than the written sufficient importance to have attracted general constitution itself. Any department of such a observation, and of sufficient publicity to have government, therefore, which exerts a power been generally known and understood: for that cannot be deduced directly from this con- none can be supposed to approve that which stitution, is guilty of usurpation. they never observed, or observing, did not un It is true, that where the language of the con- derstand. stitution in its grants of power is doubtful, the And this, sir, cuts up the argument of analogy constant practice under it, regularly and inva- at once, by the roots; for, as nothing can be riably pursued, whenever a case has arisen with- approved, but that which is observed and unin the scope of the doubtful grant, and in which derstood, to contend that, because the fact of practice all have acquiesced, and for a long time, power exerted, has been understood, and acquiis entitled to very high respect; and perhaps I esced in, that therefore all the inductions which might even go further, and say, ought to be even fair analogy may deduce from this fact are considered as conclusive, to show that such a also approved, would be as absurd as to contend practice was of right. And why is this? It is that all had approved of the Newtonian theory, because, in a doubtful case, such constant and who had ever seen a pear fall. All men were regular practices, so uniformly and invariably capable of noticing and understanding this fact, acquiesced in, amount to the highest evidence, to and most men would see the first and obvious prove the correctness of the original construction consequences resulting from it; yet, none but a of the grant, from which grant the power is di- Newton could have traced their analogies, and rectly deduced. But where the constitution is by the aid of induction, have inferred from not doubtful, or where cases are found of mere thence the law of the Universe. So, too, when Occasional departure from the principles on a fact of power exerted is shown to have ocwhich the constitution itself is founded, although curred, under circumstances inviting general ob the parchment rolls should reach high as Pelion servation, and permitting general knowledge of piled on Ossa, and Olympus upon Pelion, the its existence, if it has been acquiesced in quietly, precedents they may furnish ought not to weigh it may be fair to argue that the power exerted even as "the dust in the balance." in that particular case, has Seen tacitly apIf this be so, it follows necessarily, that be- proved; and so conclude that the same power fore any case furnished by our archives can be may be properly again exerted in the same considered as entitled to the slightest respect, as mode, and under the same circumstances. But a precedent of rightful power, it must be clearly the inference must go no further; because nothshown to be in accordance with the principles ing beyond this can be then known, is then genof our institutions, not contrarient to the ex- erally understood, or can be fairly supposed to pressed precepts of the constitution, and to have be approved. been adopted as a rule regularly and invariably Whosoever, then, seeks to derive power from, observed in all other cases of the same kind, or to sustain it by precedent merely, must show which preceded or followed it. I say regularly a precedent agreeing, not in some, but in all esand invariably observed: for liberty can have sentials, with the case before him. There must be none but negative precedents in its favor. It no abstractions in the argument. Principles must exists only in the exemption from the op- not be inferred from one case, by the process of pression and usurpation of power. And as induction, and enlarged and extended- by the even the successful resistance of attempted process of analogy to other cases of a like kind, usurpation merely dams up the stream, leaving from whence again new principles are to be no trace of its intended course but in the dry deduced, and these again enlarged by new and vacant channel, which, if unobstructed, it analogies. This may be permitted in physics, mimght nerhaps have occupied-se the want of because there experiment may be perpetually precedent, in cases where precedents of power resorted to, in order to test the truth of the might be found, if it had been supposed to exist, reasoning. But it must not be endured in the is the highest authority to show that it has never politics of a free country, where a written conbeen granted, even where the words of the stitution exists, the sole object of which is to grant are doubtful, and the power claimed is in prevent such experiments from being made.

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Title: Abridgment of the Debates of Congress, from 1789 to 1856.
Author: United States. Congress.
Canvas: Page 537
Publication: New York, [etc.]: D. Appleton and company [etc.]; 1857-61.
Subject terms: United States -- Politics and government

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Abridgment of the Debates of Congress, from 1789 to 1856.

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