forms prescribed by the
Constitution. The suggestion that the charges a copy of which is
requested by the Senate "may contain information necessary to their
action" on a nomination now before them can not vary the principle.
There is no necessary connection between the two subjects, and even if
there were the Senate have no right to call for that portion of these
matters which appertains to the separate and independent action of the
Executive. The intimation that these charges may also be necessary
"to the investigation now in progress respecting frauds in the sales of
public lands" is still more insufficient to authorize the present call.
Those investigations were instituted and have thus far been conducted
by the Senate in their legislative capacity, and with the view, it
is presumed, to some legislative action. If the President has in his
possession any information on the subject of such frauds, it is his duty
to communicate it to Congress, and it may undoubtedly be called for by
either House sitting in its legislative capacity, though even from such
a call all matters properly belonging to the exclusive duties of the
President must of necessity be exempted.

The resolution now before me purports to have been passed in executive
session, and I am bound to presume that if the information requested
therein should be communicated it would be applied in secret session to
"the investigation of frauds in the sales of the public lands." But,
if so applied, the distinction between the executive and legislative
functions of the Senate would not only be destroyed, but the citizen
whose conduct is impeached would lose one of his valuable securities,
that which is afforded by a public investigation in the presence of his
accusers and of the witnesses against him. Besides, a compliance with
the present resolution would in all probability subject the conduct and
motives of the President in the case of Mr. Fitz to the review of the
Senate when not sitting as judges on an impeachment, and even if this
consequence should not occur in the present case the compliance of the
Executive might hereafter be quoted as a precedent for similar and
repeated applications,

Such a result, if acquiesced in, would ultimately subject the
independent constitutional action of the Executive in a matter of great
national concernment to the domination and control of the Senate; if not
acquiesced in, it would lead to collisions between coordinate branch