EIGHTH CONGRESS.—FIRST SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. (continued 4)

Nays.—Simeon Baldwin, David Bard, George Michael Bedinger, Silas Betton, Adam Boyd, William Chamberlin, Martin Chittenden, Clifton Claggett, Manasseh Cutler, Samuel W. Dana, John Davenport, Gaylord Griswold, Roger Griswold, David Hough, Samuel Hunt, Thomas Lewis, Henry W. Livingston, William McCreery, Nahum Mitchell, Samuel L. Mitchill, James Mott, Beriah Palmer, Thomas Plater, Samuel D. Purviance, Joshua Sands, John Cotton Smith, John Smith of New York, Henry Southard, Samuel Taggart, Samuel Tenney, Samuel Thatcher, George Tibbits, Abram Trigg, Killian K. Van Rensselaer, Peleg Wadsworth, John Whitehill, and Lemuel Williams.

Mr. Lowndes.—Were I to be governed by considerations other than those resulting from a sense of duty, I should vote for this resolution, as I believe it would afford the character implicated the readiest mode of vindication. But I do not feel so high a respect for the opinion of any one member as to give up my opinion to his, as to the course most proper to be pursued on this occasion. The gentleman who has offered this resolution says, that the facts on which it is founded are within his own knowledge. Let the gentleman then lay them before the House. Otherwise we shall legislate, not on the facts before us, but merely on the opinion of a single member, on facts only known to himself. We are told that this motion is founded on the statement of an honorable gentleman from Pennsylvania. What is that statement? That one of the counsel in the trial of Fries informed him that the judge declared the counsel had no right to argue a point of law after the mind of the court was made up. I ask if any gentleman is prepared to say that the judge was wrong? I am not prepared to say so. While, too, I am unwilling to detract from the respect due to the statement of the gentleman from Pennsylvania, I am equally unwilling to subscribe to his opinions. He may have misconceived the information communicated to him. It is said that it is necessary to preserve pure the streams of justice. I agree in this remark, and I say that the resolution on the table goes to destroy the independence of the judges, and of consequence to pollute the streams of justice; to make the judges the flexible tools of this House. It is impossible that under such circumstances men of talents and integrity will take seats on the bench, when their character shall be liable to be scrutinized without any facts being previously adduced.

I think it absolutely necessary that this resolution should not pass. For if it passes, it will establish a precedent that any member may procure an investigating committee to inquire into the conduct of any executive or judicial officer merely upon his opinion, unsupported by facts, that such an inquiry is necessary. Suppose parties to be nearly equally divided; a member has only to propose an inquiry into the conduct of any officer to whom he may feel inimical, and thereby throw a cloud upon his character, and render him the object of suspicion. Thus do I fear that this precedent will furnish the instrument of vengeance of one party against another. The price we pay for our liberties is the existence of parties among us; but it becomes us rather to restrain than to invigorate their passions. If we establish this precedent we shall render impeachment so easy, as greatly to facilitate the means of oppression.

Mr. Lowndes concluded by saying, that in this affair he threw party considerations entirely out of view. He was personally unacquainted with Judge Chase, and if there was a single affidavit of his misconduct, the appointment of the committee of inquiry should have his vote; but that, under the circumstances attending it, he considered the measure improper in every point of view in which he could consider it.

Mr. Findlay observed, that though the abstract right of the members to move for an inquiry into the conduct of public officers, in order to find whether presumptions against their character afforded ground for impeachment, was not expressly denied, yet the manner in which the opposition to the present resolution was conducted was equal to denying the right. He trusted, however, that the House would support this right, as it was one of the most important of any with which they were vested. It grew out of the power of impeachment, and it was necessary for the exercise of that power, and was justified by precedents. By the rules of the House any member has a right to have the doors shut, in order to move such a resolution as he thinks proper. This has been usual in cases of impeachment in Britain, from which we derive the forms of impeachment. There it has been common to shut the doors, and for a member to move for an impeachment of a public officer, and to procure the officer impeached to be taken into custody before there was time or opportunity to take any other testimony than the information stated by the member who moved the resolution, probably supported by public fame. Taking the party into custody was necessary to the circumstances of that country and the extent of punishment, which might not only affect the liberty and property, but even the life of the party found guilty. It was necessary, because of the influence of the powerful nobility, who might have it in their power to stand in their defence; but, as all the penalties in the power of this Government to inflict by impeachment only affect the official trust and character, taking into custody is unnecessary.

He observed, that the arguments in opposition to the resolution turned chiefly on the ground of expediency and of precedent.

In his opinion, it appeared not only expedient but necessary, from the notoriety of facts on which the resolution was founded; that they were publicly known and had impaired confidence in these judges, could not be denied. That it was known to Congress during the last session was acknowledged. It was not only known, but Congress acted on it. A bill was in progress before this House, appointing the attendance of judges to particular districts—the members of two respectable States, in which, by the bill, Judge Chase was appointed to attend, objected unanimously to that appointment, because they had not confidence in him; and the facts on which the resolution is founded were stated on the floor, upon which the House altered the bill and appointed another judge to that district. This was a strong testimony that Congress believed that this open expression of want of confidence in that gentleman was justified by the facts that had been stated. He said, that though he had not at that time a seat in the House, he had expected an inquiry to be made into the causes of this want of confidence at that time. Perhaps it was prevented by the shortness of the session.

It is expedient for the character of the gentlemen and for the public good; for the gentlemen themselves, if they are innocent or have acted on justifiable ground; it is necessary that their characters may be vindicated, and confidence in their public conduct restored. It is expedient for the public good, because if the judges are guilty in the manner stated—if they have justly lost the confidence of the people and of Congress, as it appears, by the transaction of last session, one of them has done, the case ought to be examined and the citizens protected; for if he was unfit to preside on the bench for one district, he is unfit to preside in another. It is expedient, in order to secure the confidence of the citizens in the Government itself.

But precedents are called for by the gentlemen opposed to the resolution, and several of them contend that such special facts should be stated as would be unexceptionable ground of impeachment, before the inquiry is gone into. A gentleman from Vermont, (Mr. Elliot,) who argued yesterday in favor of postponement for further information on the subject, in the same argument said that he never would agree to the appointment of a committee of inquiry, until the charges were first stated and proved to his satisfaction. Mr. F. said he was astonished at this inconsistency. If the facts were first stated and established, appointing a committee of inquiry would be an absurdity. What would they inquire after but what they already knew? That gentleman and others, in order to defeat the resolution, gave the object of it an odious designation: they called it an inquisition, and spoke of it in such terms as if it was the well-known Spanish law of that name. The character of that court was too well known to the members of this House to require definition; it was sufficient to say that in it witnesses were examined without the knowledge of the party accused; that it compelled the accused to give testimony against themselves, and had authority to pass sentence of the most dreadful kind, without appeal. The gentlemen knew that no such thing was intended by the resolution. The character of the judges had been impeached in public opinion by numerous citizens of all descriptions. Congress on that account gave a decisive testimony of want of confidence in one of them. The object of the resolution was to inquire whether there was a real foundation for this want of confidence and ill fame. If Congress did not make inquiry in such cases, who was to do it? It did not by the constitution belong to any other authority; every other method of proceeding would be as ingeniously objected to as the one proposed, by those who wished to prevent further proceedings in the case; denying the means of bringing forward impeachment, had the same effect as if the power of impeachment was renounced.

The power of this House has been asserted to be similar to that of a grand jury; this seems to be conceded on both sides, but though it bears a resemblance, it was not strictly so—it was more extensive. Grand juries were authorized to present such indictments or such complaint or information as were submitted to them by the Attorney General, or which they knew of their own knowledge. The attorney also inquires if there is probable ground for the complaint, and brings the witnesses before the jury, who examine them to establish the facts alleged; but this House has no officers authorized to make inquiry and bring forward the business in due form; therefore the House possess both the power of the Attorney General and the grand jury, with relation to impeachment; for where a power of decision is given, all the powers necessary to carry that decision into effect are implied. The making inquiry, procuring witnesses, or other testimony, and preparing the case in due form, is the object of the resolution; and if the House does not do it in this or some other such method, there is no other agent authorized to do it.

With respect to precedent and parliamentary usage, Mr. F. said he had formerly examined many, but was not prepared to state them at this time, and did not think them necessary on this occasion. In all the examples of impeachment by the British Parliament, from the reign of Henry VIII., when parliamentary power was reduced to a mere shadow, till the present time, when the parliamentary power has been amply enlarged and established, and their proceedings become more uniform, there will be shades of difference found in all of them, arising from various circumstances; we have few precedents of our own, and of these few none of them apply to the present case. It is the constitutional duty of this House to impeach, when impeachment is necessary, and of the Senate to decide on impeachments; but with respect to the manner in which each House should proceed, they are not trammelled by forms nor entangled in precedents.

There are, however, examples of proceedings both with the British Parliament and with us, as similar to the method now proposed as the various cases would admit. With ourselves, the case of the unfortunate Western expedition mentioned by my colleague (Mr. Gregg) yesterday, was much more to the purpose than the gentleman from Connecticut (Mr. Griswold) was willing to admit. Mr. F. said he had the honor to be one of the committee of inquiry which sat on that subject a great proportion of two sessions. The expedition was too late in setting out to the Indian country; they were said to have been illy provided with necessaries, and long detained for want of them; a large proportion of the army were killed or taken by the savages, and all the stores with the army left. The citizens were discontented, and numerous complaints were heard, but none knew with certainty whom to blame; a committee was appointed to examine witnesses and report the testimony to the House, in order to discover the party who had been to blame. Some had charged it on the commanding General, others on the Secretary of War, and others on the Commissary of Military Stores, and these last endeavored to wrest the blame from themselves and fix it on the General. It was certain that a great misfortune had happened, but it was not certain that any officer was to blame; no charge had been made to Congress against any officer, yet Congress thought proper to make an inquiry, and it was not opposed on account of want of form, or want of precedents, by any of the friends of the parties. Towards the close of the first session, the committee made a concise report, referring to a great amount of testimonies. Some of the parties implicated by the report thought themselves injured by it, and it was alleged that other witnesses ought to be examined. Consequently, at the next session, the business was recommitted to the same committee, and as it was near the close of the last session of that Congress, before all the witnesses were procured and examined, and the parties heard by the committee, each of the parties wrote and delivered to the committee a large book of explanations and defence. The committee reported a large wooden box full of testimony, of original letters and instructions, and the three books of explanations and defence accompanied with some observations. It was not possible for that Congress to enter on the business, and the cause being of a transient nature, and the parties who applied for the second inquiry not wishing a disclosure of the testimony, the business was not afterwards entered on; but the mass of testimony, &c., is yet in possession of Congress. This, it is presumed, applies well in favor of the present resolution.

Gentlemen object to the resolution because of the indelicacy of implicating the character of a judge. They seem to believe the character of a judge to be sacred and immaculate. But are not judges men? Are they not men subject to like passions and like feelings as other men? Judges and other official characters voluntarily surrender a part of the rights they enjoyed in common with other citizens, in return for the honors and emoluments of office; others have a right to the privilege of trial by jury, in the decision of all charges against them; but public officers, by accepting of office, subject themselves under this Government, to trial by impeachment. Subjecting judges to impeachment, indicates, unequivocally, a constitutional opinion that judges would be even more liable to transgress than other citizens, and might transgress in a more aggravated manner than mere citizens. This mode of trial, however, in this country, is become almost a harmless thing; it is deprived of more than half its terrors. It does not reach life or property, but only the official character.

Mr. F. said he was a friend to the independence of judges, but that all independence in all Governments had its limits and restraints. It was not provided for the aggrandizement of the judges, but for the protection of the citizens. So far as it is applicable to this purpose, it is necessary, but any further, it is injurious and subjected to restraint. Under no Government with which we are acquainted are the judges rendered so independent as that of the United States. In Britain, from which we have derived the mode of our judiciary, the judges were appointed during pleasure; till, little more than a century ago, they were rendered independent by the Revolution Parliament for the security of the people against the encroachments of the Monarch, and the overbearing influence of a very powerful nobility; and for this purpose it was not only salutary, but absolutely necessary. But even with that boasted independence, that Judiciary is subjected to restraints and modes of correction not provided in the Federal Constitution. The judges are liable to be removed from office by the vote of both Houses of Parliament, without trial. They are liable to be removed, or their standing changed by act of Parliament. That Parliament, on whose act their independence depends, can repeal the act; the two Houses of Parliament can make and unmake their Kings. They are also liable, by an act of attainder, not only to lose their office, but their estate, the honor of their families, and even their lives.

The Judiciaries in all the States of the Union are rendered less or more independent; some are appointed for shorter and some for longer periods. In New Jersey, they are appointed for seven years; they were so in Pennsylvania formerly; since the revision of the constitution they are appointed during good behavior; they are, however, subjected not only to removal by impeachment, but also by the vote of two-thirds of each House, for any cause which the House do not think a sufficient cause of impeachment; but in the Federal Government there is no method provided for removing them for the most scandalous indiscretions or incapacity, as even when they may unfortunately be under mental derangement, except by impeachment, which is inapplicable to official crimes, and conducted with tedious forms. The power of impeaching being the only shield provided by the Government for the protection of the citizens from judicial oppression, and this House being the only constitutional organ for obtaining information of official excesses, and bringing forward articles of impeachment, ought not to bind up their own hands from doing their duty, and this they will do if they reject the resolution now on the table.

But while the gentlemen consider the character of these judges so sacred that their conduct cannot be inquired into, notwithstanding such proofs of want of confidence in them, and that as a gentleman near me from South Carolina (Mr. Lowndes) has said that he is afraid of impeachment, and grounds his fears on the incapacity or the unfitness of the members of this House, or because the members of this House may abuse the power; Mr. F. asked, were not the members of this House selected and qualified for the discharge of this necessary duty? Were they not appointed by a respectable authority as the judges? Were they not under a solemn oath of office for the faithful discharge of this as well as every part of their high trust? And were they not protected by special privileges and protection during the discharge of their trust equally with the judges, and their stations as respectable as the judges’? They are not only protected from civil actions, but are not subjected to impeachment for misbehavior in office as the judges are. They are, in their official capacity, subjected only to the censure of public opinion. If this is true, it is improper, it is impolitic, for the members of this House to degrade their own character: it amounts to saying they are not capable of discharging the trust they are solemnly bound to discharge, and ought not to have been invested with. He knew, however, that this was only introduced as an excuse for unwillingness. But the same gentleman adds, as a reason for opposing the resolution, that he is not acquainted with the history of the business. That is probably the case with him and others, especially such as had not a seat in the last session of Congress, or who resided at a great distance from the scene alluded to in the resolution. Admitting this to be true, the best and the only regular way to become acquainted with the history of the case, is to carry the resolution into effect—to have a committee appointed with such power as would enable them to procure such information as that gentleman and every other member could depend on. The gentleman’s objection, in fact, is one of the strongest arguments in favor of the resolution. The gentleman from South Carolina has, however, offered one other objection to the resolution, which merits some notice. He has said that if a committee is appointed for the object proposed by the resolution, men of character and talents will not accept of appointments in the Judiciary. The solidity of this objection will be best examined by the test of observation and experience. It has been already mentioned that several States have appointed their supreme judges for short periods, and that others have vested the Legislature with the power of removing judges from office without impeachment, merely on their own opinion. Can the gentleman from South Carolina say—can any member on this floor, where all the States are represented, say—that these States are deficient in judges of respectability and talents? They cannot say so—there is no such complaint. The Judiciary of New Jersey, where the judges are chosen but for seven years, is as respectable, and the application of her laws as well brought home to the security and happiness of her citizens as they are in the States where judges are appointed for life. The same may be asserted with confidence of the State of Pennsylvania before the revision of her constitution, as they are since. There is this difference, however: where they have been appointed for limited periods there have been no impeachments or removals, and generally, if not always, the judges were reappointed, and justice was well administered; but since they have been appointed for good behavior, there have, at least in Pennsylvania, been both, and more complaints of inattention, expense, and delays, in the administration of justice than had been formerly. Many of the judges, however, are very respectable, and enjoy a high degree of confidence, but not more confidence than they did before the change of the constitution. There has been no attempt to remove or impeach the judges of the Supreme Court of that State.

To inquire into the conduct of the judges when confidence is evidently wanting, is the only true way to secure the respectability of the Judiciary. If that necessary confidence is withdrawn without cause, an official inquiry will restore confidence and the usefulness of the judges. This observation is supported by precedent and parliamentary usage. In that country from which precedents are so frequently sought, one precedent offers itself to recollection. In the year 1730, a committee of the British House of Commons was appointed to examine the jails. In the course of examination, the committee discovered that Sir Robert Eyres, Chief Justice of the Common Pleas, a judge of very respectable character, was suspected, not of tyranny on the bench, or of putting any man’s life in jeopardy, but of having held an improper correspondence with a person confined for crime or misdemeanor, and this suspicion chiefly supported by anonymous letters. A committee of the House of Commons were appointed to make inquiry, and it was found, to the satisfaction of the committee and of the people, that the allegations on which the suspicion was founded were false, and the judge’s character was vindicated and restored.

Mr. F. said this precedent applied well to the present case. If the judges mentioned in the resolution had done their duty, their characters would be vindicated by the inquiry, and the public confidence in their integrity restored; if they were guilty, and not entitled to confidence, they ought to be removed from office, and neither the one nor the other could be done unless the inquiry proposed was authorized.

He said that the inquiry was necessary to secure the purity, honor, and usefulness of the Judiciary Department. If that House refused or neglected to exert the powers vested therein for securing public confidence in the Judiciary, unprincipled men would find means of recommending themselves to appointments, and would vitiate the streams where justice is expected to flow, and the citizens would be oppressed without the means or hopes of redress, and would feel the effects of tyrannical power in the administration of a government which, in its other departments, was the greatest and best of any in the world. Let proper inquiries be made where they are necessary; let the character of judges unjustly charged be vindicated, and the vicious and unworthy be removed, and improper characters will cease to intrude themselves; their friends will not dare to recommend, and Congress will have confidence that the laws which they pass will be applied agreeably to their genuine principles, to the protection and ease of the citizens; if we do not provide for this, we had better cease to make laws.

If virtuous men are appointed and the vicious discouraged, Congress may, from particular circumstances, be called on to make inquiries, but very rarely indeed to be employed in impeachments, (no men of real virtue and talents would refuse a seat on the bench for fear of inquiry or impeachment.) He said that the judges of the Supreme Court in the State he had the honor of representing, though they differed in political opinions, administered justice with such purity and diligence, that though some of them had been long in office, they enjoyed the confidence of the citizens, were in no danger of impeachment or removal by vote, and he believed would not shrink from inquiry if necessary. The more extensive the confidence of the citizens that was reposed in the Judiciary, the easier it would be to supply vacancies with men of character and talents. He said that among several other observations which occurred to his mind, with offering which he would not now detain the House, he had once thought of stating other charges against the official conduct of these judges, of which he had been well informed, but on due reflection he declined mentioning them, and thought it most for the public good to insist on the appointment demanded by a member on the responsibility of his own official character, and as a matter of right, and would do nothing that would impair the weight of the precedent that he hoped would be set by agreeing to the resolution as it stood.

Mr. F. said that having so long engaged the attention of the House he would conclude by observing, that as the case now stood it is proper for all the members to vote for the resolution; those that believed as he did, that there was a want of necessary confidence in those judges, and that this want of confidence was occasioned by their unauthorized and oppressive conduct, were obliged in conscience to vote for the inquiry; and every member who believed the judges to have done their duty, and that the public confidence is withdrawn from them without cause, are bound in duty to vote for the resolution, in order that the judges may have an opportunity to vindicate their character, that confidence in them being restored they may become useful to the public; therefore, in every light he could view it, he was convinced it was his duty to vote for the resolution, and would act accordingly.

Mr. Jackson.—As, Mr. Speaker, this subject is novel in its nature, and may be important in its consequences, I presume there exists a disposition to hear the reasoning which any gentleman may be disposed to offer upon it. It is with this view that I rise to express my opinion in favor of creating a committee of inquiry. I consider this House as the grand inquest of the nation, whose duty it is to inquire, on a proper representation, into the conduct of every official character under the Government. Like a grand jury, we ought, in my opinion, at the instance of any member, to send for all persons possessed of information calculated to throw light upon the conduct of any individual inculpated. A contrary doctrine would lead to the most unfortunate consequences. It would lead to this, that a minority would never be able to inquire into the conduct of a State offender, unless such inquiry were favored by the majority. As it is now contended that the inquiry is not a matter of right which any member may demand, but a matter of favor, to be granted according to the pleasure of the majority, it may be said that, if a majority favor an individual, he will always escape without an impeachment. But I believe otherwise; and that the Senate, like a virtuous judge, will not suffer an atom of prejudice or partiality to fall into the scales of justice.

But, say gentlemen, though it may be the duty of the House to impeach an officer, it is necessary that facts, warranting such an impeachment, should be first presented. This is not the course pursued in cases where a grand jury is called upon to act. If a murder is committed, it is their duty to inquire, and diligently inquire, who is guilty of the act, and to send for all persons capable of giving information respecting it. Such is the practice. If it shall be required to furnish facts, as is urged by gentlemen, the consequence will be that offences of the highest nature will be committed with impunity. It has been observed that it is odious to undertake the task of a public informer. But what the constitution and laws make our duty, so far from being odious, is honorable; because we thereby discharge a duty imposed upon us by our oaths, and because we show ourselves unawed by the vicious conduct of bad men. If the character of a public informer be odious, are we to expect that private individuals will come forward with affidavits? In such a case, to say the least of it, the duty would be of an unpleasant nature.

We have, in the course of this debate, been frequently called upon for precedents, and been told, that, when found, they ought to be adhered to. In a country from which we are accustomed to draw precedents—England—common report has been considered as a sufficient authority for similar inquiries. We do not, however, ask for an inquiry in this case on common report, but on the declaration of a member of this House, made in his place. Suppose there was no such declaration, has not a common report, from Maine to Georgia, condemned the conduct of the judge in the case of Fries and others, at Philadelphia, in the case of a grand jury in Delaware, whom he directed to inquire for seditious practices, and in the case of Callender, in Virginia? Has not the general sentiment of the country charged him with having, in these cases, abused his powers as a judge by tyrannizing over those who were brought before him? If we possess the right to inquire, on common report, surely we ought to institute this inquiry on the prevalence of so general a sentiment. To such an inquiry I would unhesitatingly agree, if the character of the President were implicated, the opinion of the gentleman from Vermont to the contrary notwithstanding. I would likewise agree to make the same inquiry in any other case; because the inquiry would redound to the honor of the individual implicated, if innocent; and because, if guilty, he ought to be punished.

I am sorry my friend from Pennsylvania stated any facts, as I do not consider it necessary that the House should be acquainted with any facts to make this inquiry; and because I think the facts, stated as grounds of impeachment, are not such as will warrant an impeachment. I have always understood that it was the right of a judge to expound the law, and I have known frequent instances where the court have refused the counsel the liberty of discussing the law on points on which they have made up their minds. While I am free to declare that the conduct of the court in the trial of Fries is not, in my opinion, such as to require an impeachment, yet I am in favor of instituting the inquiry. But, say gentlemen, by the passage of this resolution, we shall censure the judge. I believe not. If I believed so, I would first require testimony; for I hold it a good principle, that no man ought to be condemned until he has been heard. In my opinion, this resolution will have no such tendency; as, if the judge has not been guilty of misconduct, the inquiry will redound to his honor, and as it is the duty of a virtuous man to demand an inquiry whenever charged with an offence.

Gentlemen, in opposition to this measure, say they wish to guard against suspicion. But suspicion has long since gone forth; has been heard and re-echoed from every part of the Union; and the only way of defeating it, if ill-founded, is to institute an inquiry, and if the character of the judge be innocent, to pronounce it so. I am surprised to find gentlemen, who profess a friendship for the character of one of the persons implicated, opposed to this inquiry, when they believe him innocent. I should suppose it their peculiar duty to call for the inquiry, that the accused might have an opportunity of proving to the world that his character has been assailed without cause.

Mr. R. Griswold.—After what has passed on this floor, there can be no doubt that the gentlemen whose characters are implicated by this resolution will ardently desire an investigation of their conduct; and if, on this floor, we were merely to consult our own wishes, we should unanimously agree on an investigation. But this is not our duty; our duty is to take on this, as well as on all other occasions, a correct course; to take those steps only which are warranted. It is because I doubt, after considerable deliberation, whether this course is warranted, that I am opposed to it. What, I ask, is the nature of the resolution on the table? It contains no charges against the judges implicated; it only proposes to raise a committee to inquire whether their official conduct has been such as to justify the interposition of the constitutional power of this House. If a committee of inquiry is raised, what will be their powers? One thing will certainly follow. They will be clothed with a power to send for persons, and probably for papers. Is it consistent with principle to appoint a committee, which, from its nature, must be secret, with power to ransack the country in the first instance for accusations against the judges, and then for proofs to support them? Is this correct? Are gentlemen prepared to say so? to seek for accusations, and then for proofs to support those accusations, against high officers of the Government? For one, I believe that this course is not correct. I believe it to be dangerous. I agree with the gentleman from Vermont, that it operates in the nature of an inquisition. A committee will be raised to act in secret, first to find an accusation, and next to prove it. If there is now any accusation against the judges, let it be made; let it be made on this floor; and, as the gentleman from New Jersey has observed, let us ascertain, if true, whether it will be a sufficient ground for an impeachment. This will be a correct course, and it will be the only safe course. If, on the contrary, we proceed in the manner proposed, it will be attended with this consequence: at the commencement of every session we shall raise a secret committee, to compose an inquisition, to ascertain whether there are not charges against some public officer, and to search for proofs to justify them. Is the Government of this country founded on this principle? I know that this secret course of procedure is practised by the Spanish Government, and by some others, but I never thought that it would be the practice of this Government. When a charge is made against a public officer, it ought to be boldly made. It ought to be made here, and should be committed to writing. Instead of this being done, there is no charge made. The resolution contains none. It is merely calculated to raise a secret committee. Why? Because the gentleman from Virginia is of opinion that it is proper. Is his opinion, or the opinion of any other gentleman, to govern this House? Are we brought to this? I trust this is not the case. I trust that gentlemen will think it necessary not only to consider his opinion, but to form their own. What can gentlemen say, if they agree to this resolution? That they voted to investigate the conduct of two judges. Why? Because the gentleman from Virginia says it is necessary to investigate. Why investigate? Because the gentleman demands it. This is the language of that gentleman yesterday. Because a gentleman of this House gives his opinion of the course proper to be pursued on this occasion, it does not follow that we are to be governed by it. We may respect it; but we must respect our own opinions still more, if we faithfully discharge our duty. I am sensible that some facts have been mentioned by the gentleman from Pennsylvania, or rather, that that gentleman has heard a story; but it is mere hearsay.

I ask, also, how this formidable charge has rested to this day? When and where did the transaction, on which it is founded, happen? In Philadelphia, and in the winter of the year 1800, when Congress were in session within twenty rods of the place where the court was held. The gentleman from Virginia, as well as other members on this floor, were then in the House. The case being, I believe, the only one in which there was a charge of treason, excited, in a considerable degree, the attention of members, many of whom attended the trial. How comes it, then, that this charge was not then made? If it shall be said the House did not interfere at that time because the criminal was lying under sentence of death, it will be recollected that, in 1801, Fries was pardoned. Why was not the inquiry then made? If it shall be said that it would have been imprudent to make it on account of the party then in power, why was it not made in the seventh Congress, when a change of men took place? How can gentlemen reconcile this great delay with the high regard they profess for the purity of the streams of justice, and for justice itself? For such is the respect they entertain for justice, that they have determined to bring to conviction this unjust and criminal judge. Gentlemen ought to account for this culpable neglect. It is impossible that they should have been ignorant of the trial of this man. It was not a sudden or a hidden thing, done in a corner; it was done in public, in the face of the Legislature, and yet it has slept to the present day. Under such circumstances, I submit it to the House, whether much respect ought to be paid to the hearsay of the gentleman from Pennsylvania. The very delay, and other circumstances attending this transaction, show that it is not of the serious nature contended. I therefore think that, if properly brought before the House, and suffered to rest upon proof, it would constitute no ground for impeachment. As to the proposed form of proceeding, if we examine precedents, we shall find that it is not warranted by them. None mentioned compare with the case under consideration. The precedent in the case of Lord Bolingbroke does not compare with that. In that case the House of Commons raised a secret committee to examine the negotiations made for a peace. The committee was not raised to impeach Lord Bolingbroke, but to investigate the negotiations of the Ministry; and on the disclosure of facts, which took place on that occasion, the impeachment was grounded. Such, also, was the case in the instance of the Western expedition. The House appointed a committee vested with general powers to inquire into the causes of its failure, without particular reference to the conduct of any person.

If we turn our attention to British precedents, we shall find that a committee has never failed to investigate the official conduct of any person contemplated to be impeached. In the case of Hastings, Mr. Burke came forward and moved an impeachment directly. In all cases this course has been pursued in the British House of Commons. So far as we have precedents in this country, a similar course has been pursued. In the instance of Governor Blount, the Executive transmitted documents to this House, which contained, as it was supposed, evidence of his guilt; they were referred to a committee to examine them, and also to determine whether it was proper to print them. The committee reported that, in their opinion, they contained evidence of his guilt, and he was impeached. In the case of Judge Pickering, the same course has been pursued. The Executive transmitted documents to the House which contained, as it was supposed, proofs of misconduct, and the House proceeded to an impeachment. These precedents confirm the principle of those drawn from the practice of the British House of Commons. What course is now proposed? Without any charge against the judges, without any man saying they are guilty of any misconduct, we are about to appoint a secret committee, to determine whether any charges can be made, and whether any proofs to support them can be found. Although I am willing that the conduct of these gentlemen shall be investigated, for I am sure they must desire it, and although I have no objection to impeach them, if gentlemen wish it, and exhibit proper proofs on which to ground it, yet I cannot consent to pursue a course so improper as that now proposed. For this reason I am against the resolution, not because I am hostile to an investigation, but because I cannot consent to the appointment of a secret committee to search, in the first instance, for an accusation, and to look for proofs to justify it.

Mr. Findlay rose to explain. He said it was not the object of the House, in their investigation of the causes of the failure of the Western expedition, to make new arrangements, but to inquire into the conduct of certain officers who had directed it, viz: the Secretary of War, the Commander-in-chief, and the Commissary.

Mr. Nicholson said, he happened not to be in the House yesterday at the moment when the resolution under consideration was introduced; and when he entered he found the gentleman from Connecticut (Mr. R. Griswold) on the floor, who concluded his remarks by moving a postponement. Mr. N. did not think it then correct to offer remarks upon the main question, but as the resolution itself was now under consideration, and the subject of no common nature, he could not think of passing a silent vote upon it.

When he rose to-day, for a few moments, on the motion to amend, by inserting the name of Judge Peters, he had then declared, and he now begged leave to repeat it, that whenever any member of the House should rise in his place and state that any officer of the Government had been guilty of official misconduct, he had no hesitation in saying, that he would consent to an inquiry. He cared not how exalted his station, or how far he was raised above the rest of the community; the very circumstance of his superior elevation would prove an additional incitement. Such, he said, was the nature of the Government, and so important the duty in this respect devolved upon the House of Representatives, that the conduct of the Chief Magistrate himself, as far as his vote could effect it, should be subjected to an inquiry whenever it was demanded by a member. The greater responsibility, the more easy and more simple should be the means of investigation. Were he, indeed, the friend, personal or political, of the officer charged, and he believed that impeachment would be the result of inquiry, it was possible that his feelings as a man might induce him to forget his duty as a Representative, and urge him to resist the inquiry; but, were he convinced of his innocence, he would do all in his power to promote it, in order that he might stand justified to the nation and to the world.

Upon the present occasion, he begged that he might not be understood to say that the offence with which these judges were charged, was such as would warrant an impeachment. But, while he meant not to commit himself on a question of such high moment, he could not avoid expressing his astonishment that the conduct stated should not only be defended upon the floor of the House, but entirely approved; that gentlemen should venture to declare that the court acted strictly in the line of their duty, in refusing to hear counsel on a point of law which involved the guilt or the innocence of the prisoner. A man was charged with the highest offence against the Government, and, if guilty, was subject to the severest and most ignominious punishment recognized by our laws. High treason was the crime, and death the penalty. The constitution declared that treason against the United States should consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. The framers of the constitution intended to be as precise as possible in their definition of treason; they were anxious that no room should be left for doubt afterwards. They had seen to what an infinite variety of objects the crime of treason had been extended in England, and wisely confined it here to the only two offences which could be said to strike at the existence of the Government. The laws of the United States had declared that resistance to the execution of a law should only be considered as sedition, and had provided the punishment of fine and imprisonment. Fries was charged with resisting the execution of a law, and this offence the court determined to be treason, without hearing his counsel, and refused to permit them to address the jury on the subject, although the jury were the judges as well of the law as the fact. A resistance to the execution of a law, they construed to be treason, in the face of the act of Congress, which declared it to be a misdemeanor only, punishable with fine and imprisonment. These constructive treasons, he said, had been reprobated by the wise and good in all ages, and at a very early period in the history of English jurisprudence had received the pointed disapprobation of the Parliament. He adverted to what he called a wise and humane provision in the statute of Edward III., by which the judges were prohibited from declaring any thing to be treason not so expressly defined by the letter of the statute. That the court had given such an opinion, was not now, however, the point of charge against them; that they extended the doctrine of treason beyond both the letter and spirit of the constitution, was not now the foundation of the present motion. The accusation was that, in a case involving the life or death of a freeman, the party was condemned without a hearing; that he was denied the assistance of counsel, which was secured to him by the constitution of his country; that the right of the jury to decide both the law and the fact was refused; for it amounted to a refusal when the court would not permit the jury to be assisted by the arguments of counsel. He asked if gentlemen would consider it correct in a court, upon an indictment for murder, to prohibit the prisoner’s counsel from contending before the jury, that the offence charged amounted to manslaughter only? Surely not. The question, in the case of Fries was, whether the act of which he had been guilty amounted to treason, or to a misdemeanor? and this the court refused to suffer the jury to have an argument upon. He declared that, in all criminal prosecutions, the jury had a clear, undoubted right to decide, as well the law as the fact; they were not bound by the direction of the court; and that, in capital cases, it was a right which they ought always to exercise. But, in Fries’s case, the law was not permitted to be brought into the view of the jury by his counsel; the court denied to the prisoner the assistance of counsel, which was secured to him by the constitution, and he was condemned to an ignominious death, which he must have suffered but for the subsequent interference of the Executive. Mr. N. said, he had thought proper to make these remarks in answer to those gentlemen who had undertaken to pronounce the conduct of the court to be strictly correct. Although he did not mean to commit himself by declaring that this afforded sufficient ground for impeachment, yet he could not avoid saying, that the refusal to hear counsel in defence of the prisoner, did not meet his approbation.

The gentleman from Connecticut had doubted whether the present proceeding was conformable to principle. He thought that we ought to have the proof before we take any steps to procure it. Mr. N. begged leave to ask how proof was to be procured before inquiry was made? In what manner information was to be obtained before it was sought for? If a member had stated upon oath that a judge had been guilty of improper conduct, which would warrant an impeachment, the motion would not be, in the first instance, to inquire, but to impeach. If information was necessary, how was it to be procured? By sitting here, and writing for depositions to be sent in? Surely not. If a person was in the lobby, acquainted with all the facts, how were they to be communicated to the House? Was he to come to the bar, and offer a voluntary affidavit, or would it be correct to introduce him without any previous proceeding? In that case, would it not be necessary to declare, by a prior resolution, that we would commence an inquiry before testimony could be offered at the bar? If a member should state that a witness was at hand who could prove official misconduct in a judge, the correct course would be to introduce a resolution, declaring that the House would inquire, and it could not be resisted. What, he asked, was the proposed course? Instead of making the inquiry in the House, it was requested that it might be made by a committee. Instead of using our power to bring witnesses before us, it is proposed to authorize a committee to examine them. This would be more convenient and more proper. To bring them before the House would be attended with inconvenience, and unnecessary delay. He could not tell what the mode of proceeding before the House of Representatives would be, but, generally, he believed, it was the practice for a member to propound the question to the Speaker; the Speaker then to propound it to the witness; the answer to be made to the Speaker, and by him reverberated back again to the House. He asked, if the House would consent to this? If they would agree to a course of proceedings so tedious, so procrastinating, so evidently embarrassing? And yet this must be the course, unless that proposed was adopted.

It was said by a gentleman from Connecticut, (Mr. R. Griswold,) that we were about to appoint a committee to ransack the country for an accusation, and afterwards to search for proof to support it. He complains that no accusation is made. Mr. N. averred that an accusation was made; it was made during the last session, and again repeated during the present. He asked, if it was no charge to declare that a judge had condemned a man to the most ignominious death, without a hearing; without allowing him those benefits which he claimed under the constitution? Was it a trivial circumstance for a member of this House to declare that a freeman had been indicted for a high capital offence; that he appeared at the bar and pleaded not guilty; that his counsel were ready to prove the truth of the plea, but that the presiding judge had refused to hear them? If this was not a charge, and a charge, too, of a most solemn nature, he did not understand the meaning of the words. It was brought forward as boldly as the gentleman from Connecticut could wish, and the only question now was, in what manner shall we inquire into the truth of it? Shall we appoint a committee to make the inquiry by calling witnesses before them, or shall we dismiss it without investigation? Shall we give it the go-by, and suffer the character of the judges to rest under an imputation so heavy? Shall we proclaim our own dishonor, by publishing abroad that a heavy charge had been made, in the face of this House, against one of the highest judicial officers of the Government, and that we were too pusillanimous to notice it?

What the gentleman meant by comparing the proposed committee to the Spanish Inquisition, Mr. N. did not really understand. Did the gentleman wish to make a false impression upon the public mind? Was he anxious to cast an odium upon the proceeding by calling it an inquisitorial committee, and affecting to believe that it was to be clothed with the powers of the Holy Inquisition? The Inquisition had the power to seize the person of the party, to deny him all access to his friends, to confine him in a cell, and refuse him all assistance whatever; to stretch him on the wheel, and rack and torture him into confession. Does the gentleman wish to induce a belief that this committee is to be clothed with the same powers? All committees appointed to inquire, might, to be sure, be called Inquisitorial, because they were to make inquiry, but the epithet of Spanish Inquisition was intended to convey an idea totally incorrect.

The gentleman had asked why this charge had been suffered to rest so long? The facts upon which it was made were said to have taken place in 1800. Mr. N. thought it would be fair to reply to the gentleman that, possibly, he himself had, in some measure, accounted for the delay; the proper time had not before arrived. But if the act upon which the charge was grounded was criminal at that day, was it less so now? If Justice had slept so long, did it follow that she was dead? He hoped and trusted not. Though she had lain dormant till she was almost trampled to death, she was again roused to her accustomed vigilance, would pursue her victims, and drag them to punishment. The day of retribution, he hoped, was at hand.

The gentleman from Connecticut had declared that the proposed course was not warranted by precedent. He had noticed, but had not explained away, the precedents introduced by the gentleman from Pennsylvania, (Mr. Findlay.) His own precedent, derived from the impeachment of Mr. Hastings, instead of being in his favor, was directly against him.

In that case it was not pretended that the proof was before the House of Commons. Mr. Burke had derived his information from certain papers relative to Indian affairs, which some years before had been produced and referred to a select committee. In the year 1786, Mr. Burke rose in his place, not as a member of that committee, and charged Warren Hastings with high crimes and misdemeanors. About the same time he presented a written paper containing a specification of these charges. But this was not the impeachment. The written paper stated that as Governor General of Bengal he had disobeyed the instructions of the court of directors; that he had acknowledged himself perfectly acquainted with their wishes, but instead of obeying, had used his utmost endeavors to defeat them; and much more of an important nature. This he moved might be referred to a Committee of the whole House, in order that an inquiry might be made; and there was not a single dissenting voice. He did not adduce the proofs in the first instance, but stated his opinions that Mr. Hastings’s conduct had been criminal, and demanded an inquiry. The Commons of England did not hesitate—they instantly resolved to inquire. No one was heard to declare that there was no charge, because there was no proof. Witnesses were brought to the bar and there examined by a Committee of the Whole, in support of the charges; nor was there a motion to impeach until the testimony was gone through. On the contrary, the facts proved were reported by the Committee of the Whole, who likewise expressed an opinion that Warren Hastings had been guilty of high crimes and misdemeanors, and ought to be impeached. The impeachment therefore was not upon the motion of Mr. Burke, but upon the report of a committee, who under the instruction of the House had made an inquiry.

What then, Mr. N. asked, was the course now proposed? His friend from Virginia had called the attention of the House to certain alleged misconduct of a judge, which had been stated by a member in his place during the last session. That statement had again been repeated in the House yesterday, not in writing, indeed, but in language so clear and in terms so unequivocal that none were so stupid as not to understand it. Like Mr. Burke, he asked that a committee should be appointed to inquire into the truth of the charge. The House of Commons had referred the subject before them to a Committee of the Whole, and the House of Representatives were moved to refer the subject before them to a select committee. A select committee was proposed, because it would be more convenient and more expeditious. If the subject might with propriety be referred to a Committee of the Whole, with equal propriety might it be referred to a select committee.

He had noticed this precedent, not because he thought it necessary to cross the Atlantic for authorities, but because the gentleman had introduced it as favoring his own doctrines. If there was already no precedent, in his opinion the House ought to make one; but he believed their own journals would furnish them with one. At the first session of the seventh Congress, in a very few days after the House met, Mr. N. said he had risen in his place, and stated that he had seen in the public prints, during the preceding summer, charges of a serious nature against an individual who had filled one of the highest stations under the Government, that he had misapplied considerable sums of public money, and was a defaulter to a very large amount. Upon this vague rumor, he had moved that the accounts of the former Secretary of State should be laid before the House. No gentleman then declared that it was necessary to have proof before an inquiry took place. No one dreamt that information as to facts was to be had, before it was sought for. Some indeed had asked how far the motion was to extend; whether it was to embrace all the other Secretaries of State? Others desired that the accounts from all the departments should be called for, and finally it was determined to let the resolution lie for a short time. In a few days after, on the 14th of December, he modified the resolution, in conformity with the wishes of several gentlemen, and it passed directing that “a committee should be appointed to inquire and report, whether moneys drawn from the Treasury had been faithfully applied to the objects for which they had been appropriated, and whether they had been regularly accounted for,” &c. A precedent more in point he thought could not be desired. The inquiry was produced, not upon proof, not even upon the suggestion of a member, but because a report as to the misapplication of public money had circulated through the public prints of the day. He might be told perhaps that this was an inquiry of a general nature. But general as it might be, it was directed at the conduct of individuals, and under other circumstances might have furnished materials for an impeachment. The gentleman from Connecticut was a member of that committee, and Mr. N. asked him if he would pretend to say that it was a secret committee, as he had called that now asked for? Or was this only another attempt to impose upon the public?

Another precedent, he thought, might be furnished from the Journal, but he was unwilling to refer to it.

It had been said, too, that impeachments would be cheap if they were to be made upon the suggestion of a member. It appeared to him that the motion to inquire had been constantly mistaken for a motion to impeach. Did gentlemen suppose that an impeachment must necessarily follow an inquiry? It would seem as if they entertained a poor opinion of those whose conduct was the subject of discussion. But they ought to recollect that the impeachment could not be the act of any individual, nor of the committee, but of the House; and this, too, after all the facts were collected and presented, with the evidence to support them. If this mode was not to be adopted, he did not know any other manner in which an impeachment could be instituted, unless where the President thought the peace of the country or the revenue were endangered, and gave the information himself, as in the case of Governor Blount and Judge Pickering. Nor did he think this could affect the independency of judges, unless they were to be made independent of the laws, the constitution, and the people.

Had it not been for the debate which had taken place on this subject, he should have imagined that the friends to the judge would have been the first to promote the inquiry after it was moved for. If he was innocent, the inquiry ought to be wished for: after passing through the ordeal, he would come out like pure gold from the crucible. If guilty, no man ought to feel a disposition to screen him from punishment. Mr. N. could not avoid on this occasion alluding to the recent conduct of a judge in a neighboring State, upon whose character an imputation of the blackest nature had been thrown by a miscreant. That judge, conscious of his own rectitude, and disdaining to shelter himself from inquiry, demanded an investigation of the charge, and the consequence was an entire and honorable acquittal.

Mr. Elliot.—When, in the course of a late debate in this House, it was observed that a member had advanced an anti-republican sentiment, the supposed imputation was repelled by the remark, that the gentleman to whom allusion had been made, had passed a political ordeal which few had experienced, and which ought to place his character as a republican above the reach of suspicion. I have myself suffered an ordeal of that description, under circumstances of gloom and depression which have fallen to the lot of but few young men of this country; and I am far from being confident that one ordeal only will fill up the measure of my humble fortune. A more anti-republican resolution than the one upon your table, sir, I think I never saw. Reflection has confirmed me in the opinion which I expressed yesterday, that it is unprecedented, unparliamentary, and tends to the assumption, on the part of this House, of a censorial and inquisitorial power over the Judiciary, unwarranted by the constitution. The intention and object of the mover, however, must have been extremely different; the motive is pure and the object meritorious; but that honorable gentleman, with all his talents and discernment, has, in my opinion, fallen into an error. I believe it a sound principle, that no official measures should be taken to censure or criminate the conduct of a public officer, until facts shall be stated which amount to a specific and definite charge of misconduct. In the present instance we have no written allegations, and what is the amount of the verbal information with which we are furnished? A gentleman from Pennsylvania has stated in his place that he has heard that some one of the judges, whose name appears in the resolution, was guilty of improper and oppressive conduct, in the exercise of his judicial functions, on a trial for treason some years since. And a gentleman from Virginia has stated that he has received information which induces him to believe that the inquiry he demands will lead to an impeachment. Is it our duty to act upon the vague rumors of common fame, or the opinions of individual members?

The resolution under consideration has been materially altered this morning, and I gave my vote for the alteration, because I believed that the misconduct of a court ought not to be attributed to a single judge.

I feel it my duty, Mr. Speaker, to remark, that the information which is possessed by the members of this House, respecting the conduct of those judges, is extremely contradictory. No gentleman has told us that he possesses personal knowledge of the misconduct imputed to those officers; and I possess information on the subject, derived soon after the transaction, from a source which I considered as authentic, and which produced so deep an impression upon my mind, that I should scarcely abandon my belief of its authenticity, even from the general recollection of persons who were present at the scene. I understand that the judges did nothing more or less than decide a legal question in a legal manner. They did not interdict the counsel for the prisoner from examining a question of law, but they restricted them to what they considered as their legal and constitutional limits. They told them that the constitution of our country had clearly and explicitly defined the crime of treason, and confined them to the plain field of the constitution, inhibiting them from a resort to British authorities to prove that to be treason which the constitution of our country had not made treason, or to prove that what our constitution had made treason, was not recognized as such by foreign precedents. This statement may be incorrect, and, if it be correct, the conduct of the judges may have been improper and severe, but it cannot justify an impeachment. And if the court went farther, interrupted the counsel for the prisoner, informed them that it was the province of the court to determine points of law, declared that their opinion was fixed upon those points, and even forbade the counsel to prolong their arguments upon them, it might still be questionable whether the conduct of the court rendered its members liable to impeachment. A venerable gentleman from Pennsylvania, (Mr. Findlay,) who has long been in the service of his country, has been incorrect in stating that I had observed that I would never go into the inquiry without evidence; that incorrectness must have been unintentional; if I used an expression of that description, it was a lapsus linguæ: but I am confident that I said, and I am certain that I intended to say, that I thought it improper to institute the inquiry until some fact or facts should be stated as a ground of accusation. A gentleman from Virginia (Mr. Jackson) has told us that common fame is sufficient ground for impeachment in Great Britain. That gentleman has not adduced his authorities for this proposition, and, had he adduced them, I am confident they would not have answered his purpose, when contemplated in all their bearings, when examined with all their qualifications. The same gentleman also observed, if I understood him correctly, that were he satisfied that the conduct of the judges, in the case alluded to, was legal and correct, he would still vote for the inquiry. To me this declaration appears extraordinary. Why vote for an inquiry when satisfied that no criminality existed?

A gentleman from Pennsylvania, (Mr. Smilie,) who contends that there is no necessity for precedent in the present instance, as we are competent to form precedents for ourselves, has yet thought proper to explore the books for precedents, and has presented us with the result of his labors. To guide our conduct on the present occasion, we are referred to the case of the Earl of Strafford, over whose tomb genius and virtue love to mourn, and will mourn in future ages! It cannot be possible that that gentleman wishes to recommend for our imitation that flagrant perversion of every principle of law and justice, that cruel catastrophe! A gloomy and terrible precedent, one of the most dark and disgraceful in the British annals, and utterly unsusceptible of application to the principles of a Republican form of Government. The gentleman from Maryland, (Mr. Nicholson,) to whom I listened with peculiar pleasure, and who has certainly displayed ingenuity, has been equally unfortunate in his selection of precedents, and in his application of them to the case under consideration. He has cited cases, which, by his own statement, militate against the principles he assumes. We are first presented with the celebrated case of Warren Hastings. In that case, a member rose in his place, and, after accusing Hastings of high crimes and misdemeanors, exhibited specific charges of malconduct, in consequence of which an inquiry was instituted. Here is a solid basis, and the very basis which is wanting on the present occasion, upon which to erect the superstructure of impeachment. That gentleman has also mentioned a resolution introduced by himself in a former Congress, which was expressed in general terms, and directed to general objects, and of course was perfectly dissimilar to the present one.

Allusions have repeatedly been made to a remark of mine in the debate of yesterday, that this House is the grand inquest of the nation. It has been asked, if a grand jury were informed that a murder has been committed, would they not send for evidence to ascertain the fact? We are the grand inquest of the nation, and our practice ought, in many respects, to be analogous to that of grand juries; but in becoming that inquest, we do not entirely lose our deliberative and legislative character. I believe it would be descending from the dignity of our station, to listen to the murmurs of general rumor, and seek for guilt. I have heard that one of the judges whom we are called upon to censure, when in the exercise of his judicial functions, inquired of a jury, “Is there no sedition here? Are there no seditious newspapers within your jurisdiction?” I am ignorant whether this report be or be not founded on fact. But if it be true, let me ask, shall we not pursue a similar course by adopting the present resolution? Shall we not authorize a committee to inquire, Is there no judicial guilt abroad in our land? Is there no latent inquiry in some unexplored corner of our country? A grand jury is sworn diligently to inquire, and true presentment make, of all such offences against the laws of the land, as shall come to their knowledge. Have we taken such an oath? Are we under such obligations? And are we not about to attach to ourselves that character which gentlemen tell us is so odious, the character of common informers? I am under no fears that the stream of justice, which ought to be so pure, will become turbid, from a want of accusers, when our judges shall be guilty of crimes. When our courts shall become corrupt and despotic, patriotic motives will induce our citizens to bring forward accusations. I am also sensible of the propriety and force of the observation of the gentleman from Connecticut, (Mr. R. Griswold,) that the trial in question was a transaction of great publicity, and all its circumstances must have been known to thousands of our citizens. This induces me to believe that the conduct of the court was not so oppressive and despotic as is now represented. Why has this awful charge slumbered so long?

One or two remarks upon the allusions that have been made to my observation, that we are about to assume censorial and inquisitorial powers, and I will dismiss the subject. What is the language of the resolution? Without the allegation of a single fact, it constitutes a committee to inquire whether the judges have not so acted in their official capacity as to render necessary the interposition of the constitutional powers of this House. The expression is unequivocal; the allusion to the power of impeachment is perfectly obvious. This is what is called a petitio principii; it takes for granted, at least in some degree, what remains to be proved, that the conduct of the judges has been improper and illegal. Else why adopt a language which implies suspicion and censure? But gentlemen are alarmed at the epithet inquisitorial, and imagination teems with the horrors of the Spanish Inquisition. If the creation of this committee be an unauthorized act, if in creating it we transcend those limits which we ought, by a reasonable construction of the constitution, to set to our own powers, it instantly becomes inquisitorial in its nature and in its operation. We must delegate to it more than general powers. We must authorize it to send for persons, and probably for papers and records. The proposition is hostile to republican principles, and, as a republican, I cannot give my vote in its favor.

Mr. Holland.—When I before addressed the House on this subject, I had no doubt of the charge being sufficiently explicit to found an inquiry into the conduct of the judges. My only doubt was whether it was proper to proceed without affidavit. Since yesterday I have reflected on the course pursued in similar cases; and I will state to the House the proceedings adopted in two or three cases in the Legislature of which I was a member. In the year 1796, a charge was preferred against certain judges of the State of North Carolina for illegally extending their power. A committee was appointed to inquire into their conduct, and the result was, that the judges had exiled certain persons from the State. The proceedings did not go so far as an impeachment; for the judges wrote an explanatory letter, which gave satisfaction, and they were acquitted with honor. The other charge, to which I have alluded, was against the board of army accounts; that also was referred to a committee. The last case is the most recent. A suspicion existed that the Secretary of State had been guilty of misconduct. A letter had been received by the Governor from some citizens to that effect; in consequence of which, and of other corroborating circumstances, the Legislature appointed a committee of inquiry, of which I had the honor to be a member. That committee was empowered to send for persons and papers. There was no specific charge, but an impeachment was contemplated, if the officer should appear to be guilty. The Secretary was brought before the committee, who examined him on oath, and reported the existence of frauds much more extensive than had been imagined; in consequence of which the land office was shut up, and the Secretary notified that articles of impeachment would be exhibited against him. But the late period of the session not then admitting of a trial, it was postponed to the next General Assembly. At the succeeding Assembly the officer resigned, and superseded the necessity of an impeachment. He was afterwards indicted at common law. These precedents, drawn from the proceedings of the Legislature of the State which I have the honor to represent, induce me to think that the course proposed is proper; and I shall, accordingly, vote for the appointment of a committee of inquiry.

Mr. Dennis said, he did not rise for the purpose of entering into an investigation of the merits of the question, but principally for the purpose of stating, in a few words, what appeared to be the difference between the friends and the opponents of the resolution. He had never experienced, on any occasion, a stronger conflict between inclination and duty than in the present instance. On the one hand, he was confident that, after the official conduct of the judges had been thus publicly implicated, it must be desirable to them that an investigation of the facts charged against them should take place, and it seemed to be a duty due to those gentlemen, that they should have an opportunity of being confronted with their accusers. On the other hand, we owe to the laws and constitution, as well as to those considerations which must always govern in the establishment of important precedents, a paramount duty, which appeared in this case irreconcilable with the indulgence of individual considerations. The true difference between the advocates and the opponents of the resolution appeared to be this: That the one thought it a proper procedure to raise an inquisitorial committee, without any definite or assignable object, and without stating in the resolution any specific charge. The other did not demand, as it had been supposed, the production of all the evidence in the outset of the proceeding, which might be necessary in the ulterior stages of the transaction, nor that precise and technical specification of the charges which might be proper in articles of impeachment, but only required that some fact should be stated, or charge alleged, as the basis on which to erect a committee. He believed, to create a committee by resolution, with general inquisitorial powers, without specifying any charge, or stating any reason in the resolution for the proceeding, was without precedent, and might become an engine of oppression. In order to satisfy the friends of the resolution on that, he did not wish to avoid that investigation which might be founded on proper principles, and which he believed, after what has been said, is rather courted than avoided by the judges in question. He would beg leave to read, in his place, the form of a resolution, such as he supposed ought to be the groundwork of a procedure like this:

“Whereas information hath been given to the House, by one of its members, that in a certain prosecution for treason, on the part of the United States, against a certain John Fries, pending in the circuit court of the United States, in the State of Pennsylvania, Samuel Chase, one of the associate justices of the Supreme Court of the United States, and Richard Peters, district judge for the district of Pennsylvania, by whom the said circuit court was then holden, did inform the counsel for the prisoner that, as the court had formed their opinion upon the point of law, and would direct the jury thereupon, the counsel for the prisoner must confine themselves to the question of the fact only. And whereas, it is represented that, in consequence of such determination of the court, the counsel did refuse to address the jury on the question of fact, and the said John Fries was found guilty of treason, and sentenced by the court to the punishment in such case, by the laws of the United States, provided, and was pardoned by the President of the United States.”

He said he read this by way of argument, to show that the present resolution ought to be rejected, and though he would not offer it himself, in case the resolution before them should be rejected, yet he would pledge himself to vote for such a one, if the gentleman from Virginia or any other member would offer it. The resolution which has been read, embraces all the facts stated by the gentleman from Pennsylvania, which contains the only charge that has been exhibited. But if any gentleman possesses a knowledge of any other facts or charges, let him specify them, and he would be willing to vote for an extension of the powers of the committee to them also; for he did not wish to confine the inquiry to the specific charge stated by the gentleman from Pennsylvania, if other gentlemen had charges to exhibit, and would state them in the resolution. If they would specify a charge or charges of a serious nature, and give us any reason to believe them true, although originating from hearsay evidence, he would vote for the inquiry proposed; and he begged that he should be understood as objecting rather on the ground that no charge had been specified, than on the ground of incompetent evidence. The vague charges verbally communicated by the gentleman from Pennsylvania, and none of which are reduced to writing, give no grounds of procedure; not only because, if true, they constitute no cause for impeachment, but because they are not specified in the resolution.

The motion was then further amended to read as follows:

Resolved, That a committee be appointed to inquire into the official conduct of Samuel Chase, one of the associate justices of the Supreme Court of the United States, and of Richard Peters, district judge of the district of Pennsylvania, and to report their opinion whether the said Samuel Chase and Richard Peters, or either of them, have so acted, in their judicial capacity, as to require the interposition of the constitutional power of this House.

Mr. Speaker stated the question, that the House do agree to the said motion, as so amended, when an adjournment was called for and carried—yeas 61, nays 43.

Saturday, January 7.

Mr. Nicholson, from the committee appointed on the memorial of Alexander Moultrie, agent for the South Carolina Yazoo Company, and of William Cowan, agent of the Virginia Yazoo Company, made a report, going considerably into detail, and concluding with a resolution adverse to the prayer of the memorialist. Referred to a Committee of the Whole on Monday.

Official Conduct of Judge Chase.

The House resumed the consideration of the question depending yesterday, at the time of adjournment, “that the House do agree to the motion of the fifth instant, as amended by the House, for the appointment of a committee to inquire into the official conduct of Samuel Chase, one of the associate justices of the Supreme Court of the United States, and of Richard Peters, district judge of the district of Pennsylvania.”

Mr. J. Randolph expressed his regret that the attempt which he had made yesterday to reply to the very personal allusions of a gentleman from Connecticut, (Mr. Griswold,) whom he was sorry not to see in his place, had, by the adjournment, proved abortive. Such was his regard for the opinions of the House, that he should always, when called upon from a respectable quarter, justify any conduct which he deemed it proper to pursue in its deliberations. He felt it due to the respect in which he held the Chair and those around it, to reply to the remarks of the gentleman from Connecticut, and this consideration alone could have induced him to offer any thing in addition to what he had already advanced in favor of the motion. He should otherwise have left the resolution to its fate. In that fate he did not feel himself personally implicated. If it should be rejected, he would be satisfied in having done his duty, and the House, he supposed, would feel equally satisfied in having discharged theirs. It was asked, where was the mover of this resolution at the time when the alleged misconduct took place? Did it not, said the gentleman, pass under their own eyes? Were not their deliberations held on the very spot? and why had the motion slept until this day? He hoped he should be permitted to say that it did not pass under his eyes; although he knew, at the time of the condemnation in question, he did not become acquainted with the circumstances under which it took place until long after their occurrence. It was true that the deliberations of Congress were then held in Philadelphia, the scene of this alleged iniquity, but, with other members he was employed in discharging his duties to his constituents, not in witnessing, in any court, the triumph of his principles. He could not have been so employed. It would be recollected, that the information given by the gentleman from Pennsylvania formed the groundwork of his proceedings, and he asked whether it was more the duty of the mover of the resolution to have brought it forward than every other member of the House who was a witness of the statement made by that gentleman? This information, of an official nature, given by a member in his place, of a transaction in open court, and which it was the duty of them all to have noticed, had been called a story related on hearsay; a rumor of an affair which had happened in a corner; and the House was asked if they would take such evidence as ground of proceeding, on the dictum of any one member, however great their confidence in him might be? If he really felt that respect for the House which the gentleman from Connecticut had professed, he would not have insulted their understandings by such language. He would not have stood up, as amicus curiæ, to prevent their being precipitated into absurdity and injustice by an influential member of their body. That, however, was the station which the gentleman had assumed, and he hoped the duties of it would be discharged with the fidelity which they required. After clothing himself with this character, Mr. R. said he expected to have seen him at his post—he regretted that he did not see him there, and that his duty did not permit him to withhold the observations which he was compelled to make. Whilst, however, the gentleman was engaged in discharging the new and important function with which he stood self-invested, he seemed cautious of replying to the masterly statement of his venerable friend from Pennsylvania, and which he believed had remained unanswered because it was unanswerable. It must, said Mr. R., be a subject of high gratification to us all, and I congratulate this House upon it, that age has not yet dimmed the lustre of those talents which have so long presided in the councils of this country. And if the time shall come when we are to resign our understandings, and place ourselves under the direction of an individual, I hope to be permitted to range myself under the banners of that tried patriot, and not under those of the gentleman from Connecticut. In the same spirit with which he challenged the confidence of the House, as a friend unwilling to see them led into error and absurdity, that gentleman had endeavored to alarm their pride by representing the motion as a demand made upon them. It was so. It was (if he might so express it) a writ of right, not of favor—and as such he demanded it, as such he urged it. But an objection was taken that no act of misconduct had been alleged. With his friend from Maryland he would say, that a fact of the first importance had been adduced, on which he was sorry his friend had not dwelled longer. It could not receive too much attention. On a trial for life and death, the jury, who were the constitutional judges both of the law and fact, were deprived of the right of a discussion of the point of law, “what constitutes treason?” The rights of the jury and of the accused were equally invaded. It was conduct not dissimilar to this, in a case of libel, which drew forth from the English Parliament the famous declaratory bill of Mr. Fox. Lord Mansfield had laid down the doctrine that the jury had a right to decide only upon the bare facts of printing and publishing, and not upon the question of guilt, which was compounded of the law and the fact. This produced the declaratory act which passed a strong censure on the practices of courts—since it did not amend or alter the law, but declared what the law was—and established the point resisted by the court, that the jury was the judge both of the fact and of the law. If, then, on a question of criminal law, where the punishment was only fine and imprisonment, the conduct of a judge was deemed highly reprehensible in encroaching upon the rights of the jury, what shall we say of him who usurps those rights in a case of life and death, in a case of treason? This denial to the prisoner and the jury of the right of having the point of law discussed, seemed to be the first step towards assuming those powers in cases of treason, the exercise of which, in cases of libel, had drawn down upon the English courts the censure of their Parliament. Would the gentleman say this was nothing? Would he affirm that if a man were under trial for murder, the court would be justified in saying to his counsel, You may, if you can, disprove the fact with which the prisoner stands charged, but you shall not endeavor to show that it does not amount to the crime with which he stands charged? If you admit the killing, you shall not argue the point that such killing does not constitute murder. Would the gentleman contend that treason is better defined than murder? What is murder? Killing with malice aforethought; can any definition be clearer? What is burglary? Breaking in during the night. What is treason? The constitution defines it as levying war against the United States; adhering to their enemies; giving them aid and comfort. But what had definitions to do with the case? Because murder was defined, had counsel ever been stopped in an attempt to show that the killing with which their client stood charged was not a killing with prepensive malice, a killing which constituted murder? What was more common than to see the facts admitted, and the crime not only denied, but disproved to the satisfaction of the jury; and upon what principle shall counsel be arrested in the attempt to show that the facts charged in an indictment for treason do not amount to such a levying of war, or an adherence or aid to such enemies as would constitute treason? Mr. R. said that the fact mentioned by the gentleman from Pennsylvania was of a remarkable nature. He had never heard of a similar proceeding, and he rejoiced that another instance of so black a nature could not probably be furnished by any tribunal in this country.

The gentleman from Maryland, (Mr. Dennis,) however, had entirely abandoned the ground taken by his friend. He agrees that there is a charge of an important nature exhibited, and if it was incorporated into the resolution, and the inquiry confined to that subject only, he would vote for it. The object of the one gentleman was only to confine the inquiry, whilst that of his friend was to deny it altogether. He could not thank the gentleman for his liberality. He would have what he asked or nothing. He would never consent to confine the inquiry; if it could not be full and free, let it be denied.

The gentleman from Maryland had, with very little dexterity, endeavored to confound the resolution of inquiry with the articles of impeachment which may follow from it, and said that if the House would consent to confine the inquiry to any particular charge he would vote for it. It was true that after articles of impeachment should have been exhibited against the accused, the House would not be permitted to prefer any new accusation, or to adduce testimony to prove any guilt other than that which was charged in those articles. In the same manner as when a criminal was indicted, evidence would not be suffered to be brought forward to prove any act of criminality not contained in some one of the counts of the indictment. But would gentlemen persist in confounding things so entirely different, as to confine an incipient inquiry by the same rigid rules which would govern a criminal trial? It was trifling with the judgment of the House. The gentleman was eager for inquiring, but the charge must be incorporated into the resolution, and the inquiry confined to a specific point, before he could be brought to consent to it. Whatever other misdemeanors might come to the knowledge of the committee in the course of the investigation, he would not agree to have them reported to the House. And at the same time he told them of the struggle between his inclination and his sense of duty—his inclination as a friend of the accused to grant the inquiry, his duty as a member of the House and a friend of justice to refuse it. Mr. R. was sorry to find the gentleman in this awkward predicament; he regretted that it was out of his power to gratify him by narrowing the inquiry. This his duty would not suffer him to do. He hoped, however, the strength of the gentleman’s constitution would carry him through the arduous struggle in which he was involved, by his wishes on the one hand, and his principles on the other.

Whilst so much was said on the subject of precedent, he hoped he might offer a few cases to their consideration. He did not come to the House armed with precedents. Neither his health nor leisure permitted him to search for them. Gentlemen of greater industry, and who attached more importance to them than himself, had furnished him with them. For his part he thought precedents had nothing to do with the case, but for the sake of those who thought differently, he would show the course which he advocated was not destitute even of their support. Here Mr. R. referred to Mr. Hatsell’s precedents. “On the 21st of April, 1626, Mr. Glanvylee, from the select committee appointed to consider of the charges against the Duke of Buckingham, reports that they desire the House will resolve whether common fame is a ground for this House to proceed upon?” It is resolved to consider this the next day. After a long debate the House resolve that, “common fame is good ground of proceeding of this House, either to inquire of here, or to transmit the complaint, if the House find cause, to the King or Lords.”