PJ7 
 
 

 
 
A PROTEST 
 
 BY THE 
 
 DEMOCRATIC SENATORS 
 
 OF THE 
 
 LEGISLATURE OF CALIFORNIA, 
 
 ON THE 
 
 ^SOLUTIONS CONDEMNING THE PRESIDENT 
 
 AND 
 
 INDORSING CONGRESS. 
 
 
 SAC R AM E N T () : 
 
 D . W . G E L W I C K S , S T A T K I' R I N T E R. . 
 
 1868. 
 
A PROTEST 
 
 // 
 
 BY THE 
 
 DEMOCRATIC SENATORS 
 
 OP THE 
 
 LEGISLATURE OF CALIFORNIA, 
 
 ON THE 
 
 RESOLUTIONS CONDEMNING THE PRESIDENT 
 
 AND 
 
 INDORSING CONGRESS. 
 
PROTEST. 
 
 In the Senate of California, when the resolutions were under discussion 
 condemning the President and indorsing Congress, Senator Maclay, of 
 Santa Clara, presented the following protest, which he desired to have 
 spread upon the Journals: 
 
 WHEREAS, an attempt is being made to impeach the President of the 
 United States for an alleged violation of the " Tenure of Office Act," 
 Congress asserting and the President denying the validity of said Act; 
 
 And whereas, THE PEOPLE, in their wisdom, have " provided a suitable 
 mode and tribunal for settling questions of constitutional law," by 
 declaring, in the Constitution, that the judicial power of the Govern- 
 ment " shall extend to all cases arising under the Constitution and 
 Laws of the United States;" 
 
 And whereas, in pursuance of the clear and express provisions of that 
 instrument, "Congress, at its very first session, by the 'Judicial Act/ 
 provided a mode for carrying the fundamental law into eifect and for 
 bringing all questions of constitutional authority to a final decision at 
 the bar of the Supreme Court ;" 
 
 In view of these facts, it is our opinion that Congress has no right to 
 usurp the functions of the Judiciary by passing on the constitutionality of 
 their own enactments and enforcing their construction thereof on the 
 other departments of Government. That the President, in the dis- 
 charge of his sworn duty to " defend the Constitution," has the right, 
 and that it is his duty, if he believes an Act of Congress unconstitutional, 
 to resist its enforcement until a judicial decision is had. That Congress, 
 in the passage of an Act, believing it to be warranted by the Constitution, 
 commits no wrong should the Act prove unconstitutional. And, on the 
 other hand, that the President does no wrong in resisting the execution 
 of an Act of Congress, believing it to be in violation of the fundamental law 
 should it prove to be valid. For both discharge the duties imposed upon 
 them and the trust committed to them under the dictates of conscience, 
 the acts of each lacking that intention which must be coupled with every 
 act t6 constitute criminality. That when such a case does arise it is 
 beneath the dignity of the Executive or of Congress, and dangerous to 
 
the stability of our Government and the liberties of our free people, for 
 the one to impute criminality to the other; but much less right has the 
 Executive Department to attempt the destruction of the Legislative 
 Department for the passage of such an Act, or the Legislative the right 
 to attempt the destruction of the Executive Department for refusing to 
 enforce such an Act. That the remedy for the mischief done by either 
 lies in an appeal to the Judiciary; that when their decision is made it is 
 final and binding on the other departments. Submission then becomes a 
 duty and resistance a crime. 
 
 For these reasons we believe the impeachment, conviction and 
 removal of the President from office on the charge of having violated, 
 or attempted to violate, the provisions of the " Tenure of Office Act," 
 before the Supreme Court shall have first decided that Congress had the 
 authority to pass said Act, would be a measure not only of folly and of 
 injustice to the President, for which no adequate atonement could be 
 oifered, but would entail great reproach and odium on Congress and the 
 country. - -rfsew 
 
 Therefore, influenced solely by a sincere desire to preserve the peace, 
 the honor and the dignity of our common country, believing that all 
 proceedings touching the matter of impeachment should be arrested, at 
 least until the Supreme Court shall have decided whether, in point of 
 fact and of law, the "Tenure of Office Act" be constitutional we, the 
 representatives in the Senate of principles which we believe to be domi- 
 nant in this State, do hereby solemnly protest against the resolutions on 
 the question of impeachment, passed by this body. 
 
 JOHN H. SAUNDERS, 
 JOHN S. HAGER, 
 G. W. HUNTER, 
 CHARLES MACLAY, 
 A. H. ROSE, 
 J. W. MANDEVILLE, 
 N. GREENE CURTIS, 
 WM. WIRT PENDEGAST, 
 JAMES JOHNSON, 
 WM. A. CONN, 
 
 F. A. MACDOUGALL, 
 J. W. FREEMAN", 
 D. L. MORRILL, 
 
 WM. J. SHAW, 
 E. J. LEWIS, 
 P. W. MURPHY, 
 JAMES H. LAWRENCE, 
 GEORGE PEARCE, 
 H. K1NCAID. 
 
_ 
 
tithomount 
 
 pamphlet 
 
 Binder 
 
 Gaylord Bros., Inc. 
 
 Makers 
 Stockton, Calit. 
 
 PAT. ]ffi 21, 1908 
 
 
 
 
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