the present moment. As I have been so fortunate as to find my own views of the expediency of ratifying the late treaty with England, confirmed by a vote of somewhat more than four fifths of the senators present, I have hitherto flattered myself that the motives which influenced my conduct had been fully appreciated by those who advised and approved it; and that if a necessity should ever arise for any special explanation or defence in regard to those motives, it could scarcely be in that assembly itself.

SPECIAL MESSAGE.

JANUARY 31, 1843.

To the House of Representatives of the United States :

Ar the last session of Congress, a resolution was passed by the house of representatives, requesting me to cause to be communicated to the house "the several reports made to the department of war by Lieutenant-Colonel Hitchcock, relative to the affairs of the Cherokee Indians, together with all information communicated by him concerning the frauds he was charged to investigate; also, all facts in the possession of the executive relating to the subject."

A resolution of the same import has been passed by the house of representatives on the 18th of May last, requiring the secretary of war to communicate to the house the same reports and matters. After consultation with me, and under my direction, the secretary of war informed the house that the reports referred to, relative to the affairs of the Cherokees, contained information and suggestions in reference to the matters which it was supposed would become the subject of negotiation between that department and the delegates of the Cherokee nation. It was stated by him that the nature and subject of the report, in the opinion of the president and the department, rendered its publication at that time inconsistent with the public interest.

The negotiation referred to subsequently took place, and embraced the matters upon which Lieutenant-Colonel Hitchcock had communicated his views. That negotiation terminated without the conclusion of an arrangement. All the information communicated by Lieutenant-Colonel Hitchcock, respecting the Cherokees, their condition as a nation, and their relations to other tribes, is here with transmitted. But his suggestions and projects respecting the anticipated propositions of the delegates, and hist views of their personal characters, can not, in any event, aid the legislation of Congress; and, in my opinion, the promulgation of them would be unfair and unjust to him, and inconsistent with the public interest, and they are therefore not transmitted.

The secretary of war further stated, in his answer to the resolution, that the other report referred to in it, relating to alleged frauds which Lieutenant-Colonel Hitchcock was charged to investigate, contained such information as he (Colonel Hitchcock) was enabled to obtain by exparte inquiries of various persons whose statements were necessarily without the sanction of an oath, and which the persons implicated had had no opportunity to contradict or explain. He expressed the opinion that to promulgate those statements at that time would be grossly unjust to those per

sons, and would be calculated to defeat rather than promote the objects of the inquiry; and he remarked that sufficient opportunity had not been given to the department to pursue the investigation, or to call upon the parties affected for explanations, or to determine on the measures proper to be adopted. And he hoped these reasons would be satisfactory for not transmitting to the house at that time the reports referred to in its resolution.

It would appear, from the report of the committee on Indian affairs, to whom the communication of the secretary of war was referred, and which report has been transmitted to me, together with the resolutions of the house adopted on the recommendation of the committee, and from those resolutions, that the reasons given by the secretary were not deemed satisfactory, and that the house of representatives claims the right to demand from the executive and heads of departments such information as may be in their possession relating to " subjects of the deliberations of the house, and within the sphere of its legitimate powers;" and that, in the opinion of the house, the reports and facts called for by its resolution of the 18th of May related to subjects of its deliberations, and were within the sphere of its legitimate powers, and should have been communicated.

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

Nor can it be a sound position, that all papers, documents, and information of every description, which may happen by any means to come into the possession of the president or of the heads of the departments, must necessarily be subject to the call of the house of representatives, merely because they relate to a subject of the deliberations of the house, although

that subject may be within the sphere of its legitimate powers. It can not be that the only test is, whether the information relates to a legitimate subject of deliberation. The executive department and the citizens of this country have their rights and duties, as well as the house of representatives; and the maxim that the rights of one person or body are to be so exercised as not to impair those of others, is applicable, in its fullest extent, to this question. Impertinence or malignity may seek to make the executive departments the means of incalculable and irremediable injury to innocent parties by throwing into them libels most foul and atrocious. Shall there be no discretionary authority permitted to refuse to become the instruments of such malevolence?

And although information comes through a proper channel to an executive officer, it may often be of a character to forbid its being made public. The officer charged with a confidential inquiry, and who reports its results, under the pledge of confidence which his appointment implies, ought not to be exposed individually to the resentment of those whose conduct may be impugned by the information he collects. The knowledge that such is to be the consequence, will inevitably prevent the performance of duties of that character, and thus the government will be deprived of an important means of investigating the conduct of its agents.

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

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

The authority was claimed and exercised by General Washington, in 1796. In 1825, President Monroe declined compliance with a resolution of the house of representatives calling for the correspondence between the executive departments of this government and the officers of the United States navy and others, at or near the ports of South America, on the Pacific ocean. In a communication made by the secretary of war, in 1832, to the committee of the house on the public lands, by direction of President Jackson, he denies the obligation of the executive to furnish the information called for, and maintains the authority of the president to exercise a sound discretion in complying with calls of that description by the

house of representatives or its committees. Without multiplying other instances, it is not deemed improper to refer to the refusal of the president, at the last session of the present Congress, to comply with a resolution of the house of representatives calling for the names of the members of Congress who had applied for offices. As no further notice was taken in any form of this refusal, it would seem to be a fair inference that the house itself admitted that there were cases in which the president had a discretionary authority in respect to the transmission of information in the possession of any of the executive departments.

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

Many of the reasons which existed at the date of the report of the secretary of war, of June 1, 1842, for then declining to transmit the report of Lieutenant-Colonel Hitchcock concerning the frauds which he was charged to investigate, have ceased to operate. It has been found wholly impracticable to pursue the investigation, in consequence of the death and removal out of the country of those who would be called on to testify, and in consequence of the want of adequate authority or means to render it effectual. It could not be conducted without expense. Congress, at its last session, prohibited the payment of any account or charge whatever, growing out of, or in any way connected with, any commission or inquiry, except military and naval courts-martial and courts of inquiry, unless special appropriations should be made for the payment of such accounts and charges. Of the policy of that provision of law it does not become me to speak, except to say that the institution of inquiries into the conduct of public agents, however urgent the necessity for such inquiry may be, is thereby virtually denied to the executive, and that if evils of magnitude shall arise in consequence of the law, I take to myself no portion of the responsibility.

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

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

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

The resolution of the house also calls for "all facts in the possession of the executive, from any source, relating to the subject." There are two subjects specified in the resolution: one "relative to the affairs of the Cherokee Indians," and another "concerning the frauds which he (Lieutenant-Colonel Hitchcock) was charged to investigate."

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

All the papers in the war office or its bureaus, known or supposed to have any relation to the alleged frauds which Lieutenant-Colonel Hitchcock was charged to investigate, are here with transmitted.

SPECIAL MESSAGE.

FEBRUARY 13, 1843.

To the House of Representatives of the United States:

I HEREWITH transmit to the house of representatives a report made to me on the 9th instant, by the secretary of the treasury, on the subject of the present and prospective condition of the finances.

You will perceive from it that even if the receipts from the various sources of revenue, for the current year, shall prove not to have been overrated, and the expenditures be restrained within the estimates, the treasury will be exhausted before the close of the year; and that this will be the case, although authority should be given to the proper department to reissue treasury-notes. But the state of facts existing at the present moment can not fail to awaken a doubt whether the amount of the revenue for the respective quarters of the year will come up to the estimates; nor is it entirely certain that the expenditures which will be authorized by Congress may not exceed the aggregate sum which has hitherto been assumed as the basis of the treasury calculations.

Of all the duties of the government, none is more sacred and imperative than that of making adequate and ample provision for fulfilling with punctuality its pecuniary engagements, and maintaining the public credit inviolate. Any failure in this respect, not produced by unforeseen causes, could only be regarded by our common constituents as a serious neglect of the public interests.

I feel it, therefore, to be an indispensable obligation, while so much of the session yet remains unexpired as to enable Congress to give to the subject the consideration which its great importance demands, most earnestly to call its attention to the propriety of making further provision for the public service of the year.