EIGHTH CONGRESS.—FIRST SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. (continued 5)

Mr. R. begged to call the attention of the House to the opinion of a gentleman, delivered during the debate, to which he must be permitted to attach more importance than to that of the gentleman from Connecticut. When he mentioned the name of Selden, he believed he should stand justified in the opinion of the gentleman himself, and in that of his warmest admirers. “These cases (said Mr. Selden) are to be ruled by the law of Parliament and not by the common or civil law.” Mr. Littleton says, “this is not a House for definitive judgment, but for information, denunciation, or presentment, for which common fame is sufficient.” Mr. Noy says, “There are two questions—first, Whether a common fame? Second, Whether this fame be true? We will not transmit without the first inquiry: but without the second we may; for peradventure we cannot come by the witnesses; as if the witnesses be in the Lords’ House.”

Again, on the 16th October, 1667, the House being informed “that there have been some innovations of late in the trials of men for their lives and deaths, and in some particular cases restraints have been put upon juries, the matter is referred to a committee.” This case (Mr. R. said) was precisely in point. “On the 18th of November, this committee are empowered ‘to receive information against the Lord Chief Justice Keeling, for any other misdemeanors besides those concerning juries.’” Thus on a particular fact, innovation in trials for life and death, a committee was raised, and yet they were not confined to the examination of that single charge, but empowered to inquire generally into the misconduct of the judge. A stronger or more pointed precedent could not be conceived.

By the constitution, Mr. Randolph said, that House was vested with the sole power of impeachment. How this power was to be exercised must depend on their discretion, and on no other law or principle whatever: for “these cases are not to be ruled by the common or civil law, but by the law of Parliament.” That law of Parliament it remained with them to establish. It could not be matter of surprise that he, one of the leading principles of whose politics it was to support the weight of that branch of the Government, and to be jealous of executive influence—it could not surprise any one, that he should exert himself in behalf of the constitutional rights of that House. When he saw the importance which was attached to precedent, he was more than ever solicitous for that which they were then about to establish. He trusted that they would not consent to abridge the power with which the constitution had invested them—to reduce it below the standard which the English House of Commons had fixed as the measure of their own power in similar cases. A time might come when a wicked President and his flagitious ministers might so conduct themselves in office, as to make every man regret the proceedings of that day, in case they should suffer their power to sleep. The refusing to exercise it, then, would hereafter be adduced as a denial of its existence. Such might be the circumstances of the times, that no private man would dare to step forward with a specific charge against the Executive. If they should deny an inquiry without a specific charge, they would do all in their power to screen such a President and such ministers at a future day. It had been remarked that, in this government, an officer found guilty, on an impeachment, could not be punished capitally. The sentence could only remove him from office, and disqualify him, for ever after, from holding one under the United States. If, in a country where the accused may be brought to the block, free, unfettered inquiry is warranted against any rank however exalted—would it be denied here, where the punishment was comparatively light? Should they hold the other departments of the Government more inviolable than they were considered even in England? Would they afford to a criminal, Executive or Judiciary, a shelter denied by the law of that government? He hoped they would not. He trusted that they would give an example of their readiness to bring every offender to justice, however great might be his station.

Mr. Griffin.—I had hoped that no subject would have been agitated during this session which should have interrupted the tranquillity or disturbed the harmony of this House, so necessary to the faithful and correct discharge of our public duties; but, sir, I perceive, from the turn which the debate upon the resolution now before the House has taken, that sensations have been excited which I fear it will be difficult to allay.

The proposition now before the House, nursed with so much secrecy, and forced on us so suddenly and unexpectedly, comes in such a questionable shape, that I must beg the attention of the House for a few moments while “I speak to it.”

What, sir, does the resolution demand of us? That a committee be appointed to inquire into the official conduct of Samuel Chase and Richard Peters, &c. But how is this inquiry to be conducted? Are there any data by which the committee are to be guided? Is there any specific charge to which their attention or inquiries are to be directed? None. And who, sir, before this enlightened day ever heard of a committee of inquiry being raised, without possession of a single subject to direct or guide the inquiry? What, sir, erect an inquiring committee vested with all the rights of a Star Chamber, and yet assign them no specific objects of their duty! But, sir, the official conduct of these judges has given offence—and are we now, sir, to probe and search the whole judicial lives of these gentlemen, for causes of complaint and censure? Are the records of the States of Maryland and Pennsylvania now to be ransacked, for evidences of their guilt and cause of impeachment? I never have and never shall deny the right of this House to inquire into the conduct of public officers—but, sir, if the honorable mover of the resolution is serious——

[Here Mr. Randolph interrupted, and desired the gentleman to explain his meaning by the word serious.]

Mr. Griffin continued. I will answer the gentleman: my meaning is, that if the gentleman believes there are just grounds for impeachment—if he is in possession of information or facts, let him declare them, and if they appear to my mind to be sufficient whereon to ground an impeachment, let him demand it and I will join with him. Let him specify the instances of malfeasance of which these judges have been guilty, and I will unite with him—let him declare the malconduct of these public functionaries, and I will cordially co-operate with him. If these judges have travelled beyond the line of their duty, if they have wantonly exceeded the limits of their power, I will aid in the infliction of such punishment as they may merit; but, sir, I cannot, I will not, in this indirect manner, wound the feelings or censure the characters of men, holding high responsible offices under your Government. Could I induce myself to believe that the course now proposed to be pursued is correct, I will gladly give it my assent; but for reasons very different from those the advocates of this measure adduce: could I deem it correct, I would support the resolution because I believe the characters implicated therein will safely pass the ordeal preparing for them, and that the inquiry will redound to their honor. I would cheerfully support the resolution, because, by the impeachment which I predict will follow, an opportunity will be offered to remove the load of unmerited calumny under which the Federal Judiciary of the United States have too long labored, and with which our public prints have been long filled. But the course is incorrect—the measure in its present shape appears to me to be fraught with incalculable mischief to our country, and I never will assist in the establishment of a precedent which may at some future day be made an engine of persecution, as “wicked as intolerant.” Mr. Speaker, let me ask of you, sir, to remember the consequences which may flow from the adoption of this resolution—let me conjure this House to reflect upon the dreadful effects which must arise to us, if, upon the bare assertion of a single gentleman, unsupported by any direct allegation, a committee of this nature shall be raised, a precedent of this kind established, what public character will be safe? nay, sir, how soon may not we ourselves feel its baneful influence? Far be it from me, sir, to impute to the honorable mover of the resolution any impurity of motives. I believe his conduct has proceeded from a consciousness of duty, and from a similar consciousness of duty I must oppose the measure. I cannot deny the power of this House to adopt the resolution upon your table, but I beg of you to pause ere you take the fatal step, and do not, because “dressed with a little brief authority, play such fantastic tricks before high heaven as make e’en angels weep.”

Sir, I have endeavored to discharge what I conceived to be my duty upon this occasion, and when experience shall fatally convince us of the dreadful effects of the precedent we are now about to establish, I shall derive consolation from the reflection, that I lent my feeble aid to check the overwhelming torrent.

Mr. Eustis said, he did not view this subject in the same light with the gentleman last up; he did not see those awful consequences which he had pointed out. He hoped the time would never come, when an inquiry into the conduct of an officer of the Government should be deemed a subject of alarm in that House. It was the first principle of the constitution, that every man was amenable to the constitution and laws of his country; and however elevated any one might be, that he could not be raised above the reach of inquiry. The observations of the gentleman who had last spoken, and of others who had preceded him, were predicated on a principle that was not correct. If the resolution on the table was to impeach the judge, those observations would be relevant, but they were incorrect on the preliminary motion to inquire.

In making up, said Mr. E., my judgment on this subject, I have endeavored altogether to avoid the inquiry, whether the officer implicated in this resolution, has so conducted himself as to require impeachment by this House. I have not accepted the opinion of the mover of the resolution, and I have excluded all the other information adduced in the debate; because I consider it as alone applicable to the question of impeachment, which is not now before the House. The question before the House is a very different one, and, in my opinion, it is plain and simple. What is it? It is that a committee be raised to inquire into the official conduct of a certain public officer. When a member of this House, under the obligations of honor, and the additional obligations of an oath, rises and takes upon himself the responsibility of moving an inquiry into the official conduct of a public officer, which can only be effected in virtue of the impeaching power of this House, which power it exclusively possesses, I view the request for an inquiry in the nature of an information laid before the House as the grand inquest of the nation.

When this proposition was made, the mind of every gentleman was naturally cast about for the situation of the officers in question. If it shall be the opinion of the House that their conduct is such as to afford grounds for an impeachment, it will be granted that it is an indispensable duty to make the inquiry. If, on the other hand, the House are of opinion that no testimony can be produced which will lead to an impeachment, then it is due to the officers to institute an inquiry. The object of an inquiry is two-fold—arising from the duty to the people, and that due to the officer whose conduct is impeached. If gentlemen are of opinion that, in this case, there are no grounds for impeachment, then it is clear that the conduct and character of the officer ought to be vindicated, and the inquiry instituted to afford him the means. If they are of opinion that there are grounds for an impeachment, then the duty they owe to the people urges them to the inquiry. In the constitution I find no excuse, no justification, on which to ground a refusal to institute an inquiry into the conduct of any public officer charged with misbehavior.

To such an inquiry, what is objected? That the power may be abused. Indeed, the objection is, that it is abused in this instance. How abused? To argue from abuse of the power against the use of it, is no argument at all. If the House believe either alternative I have mentioned, and one or the other you must believe, it is their duty to make the inquiry. But it is said that the committee are to be clothed with power to send for persons and papers. Granted. That power is indispensably necessary. It is said their powers are to be inquisitorial. This is not true. Will not the committee be accessible by every member of the House, and what are their ulterior powers but to collect facts, and to express an opinion whether they afford grounds for an impeachment? That opinion they will eventually submit to the House, and, without its approbation, it will be settled.

It is further said that no specific charge is adduced, and if there were, gentlemen say they would vote for the inquiry. But if a specific charge were made, I ask if any member would be enabled to give a more enlightened vote than on the present resolution? I consider the general power to inquire as most important, and that it is the duty of the House, on such occasions as the present, to enlarge rather than to narrow the field of inquiry.

It is further said that this course of proceeding will discourage respectable men from accepting the offices of Government. But certainly every officer, from the President to the most menial, knows that he holds his office subject to inquiry, to impeachment, and to punishment, in case of criminality.

If the House do not pursue the present course, from what quarter are they to expect the origination of an inquiry? Is it to be supposed that it will come from the citizen, when his life and fortune are probably at the disposal of particular officers charged with misconduct. This line of inquiry ought, in my opinion, to be courted and encouraged; more especially in this instance, after the course which the debate has taken, and after specific charges have been adduced. The debate has given an importance to the inquiry, which its original merits may not, perhaps, have entitled it to.

When this subject was first introduced, it appeared to me novel, and that there were no precedents in point under the Federal Government. It is time that this precedent should be established. It is time that every officer should know that this House is ready at any time to inquire into his official conduct, if charged with misbehavior; and instead of declining the inquiry, in this instance, from a false delicacy to the officer, it becomes the House to embrace the resolution and make the inquiry. If evidence shall be collected, and it appears that there are no grounds for impeachment, the officer will be restored to the public confidence, and will be acquitted. If, on the other hand, it appears that he has been guilty of malfeasance in office, a duty will be imposed upon the House, from which they cannot recede, to bring him to trial.

Mr. Thatcher.—As gentlemen seem to consider the decision of the court in the trial of Fries as unprecedented, I beg leave to refer them to the cases of the United States versus Vigol, and the same versus Mitchell, 2 Dallas’s Reports, 346 to 357. They will find that the decision of the court, in the case of Fries, was exactly conformable to cases adjudged in 1795. Without troubling the House with the whole of those cases, I beg leave to read the decision of the court in the last case. “The charge of the court, says the reporter, was delivered to the jury in substance as follows. Patterson justice. ‘The first question to be considered is, what was the general object of the insurrection? If its object was to suppress the excise offices, and to prevent the execution of an act of Congress, by force and intimidation, the offence, in legal estimation, is high treason: it is a usurpation of the authority of Government; it is high treason by levying of war.’” The decision, sir, is also conformable to the English authorities. The charge then against Judge Chase and Judge Peters, after divesting it of the coloring which imagination has given it, amounts to this—that, in the trial of Fries for treason, the court prevented the counsel from arguing to the jury against a point of law long settled by that and other courts of the United States. I have attended closely to the statement made by the gentleman from Pennsylvania, (Mr. Smilie,) and I believe I am correct.

The very point which the counsel of Fries would have argued to the jury, was that which had long before been settled by the courts of the United States. I contend, sir, that this court did no more than they had a right to do—no more than is practised by every well regulated court. They prevented counsel from arguing law in the face of the authorities, and of the opinion of the court. That this is usual, I appeal to gentlemen of the law who are present. This, sir, is the only fact stated to the House upon which the motion is founded.

The gentleman from Virginia (Mr. Randolph) has said, that he has been informed of facts, which convince him that an inquiry ought to be made. But that gentleman has not stated to the House what those facts are.

It has been contended, that where a member of this House shall state that he is convinced that an inquiry ought to be made, the House ought to institute such an inquiry. Precedents have been adduced to prove that this has been done in the British Parliament. There certainly has been no case cited where an inquiry has been commenced upon the motion without stating his facts or his evidence. But whatever may have been the practice in England I can never consent to vote upon any impressions or convictions but my own.

If the official conduct of the judges upon the trial of Fries was such as to require the interposition of this House why, (as the gentleman from Connecticut, Mr. Griswold, has asked,) why was not this inquiry sooner announced? This trial, I am told, was in February, 1800. It took place within the hearing of Congress. It was the subject of universal attention. Why has it slept four years? Upon what ground shall we invest a committee with power to ransack the country for charges against our judges? Shall we, upon the motion of a member—shall we, upon the statement of the gentleman from Pennsylvania, (Mr. Smilie,) commence an inquiry, troublesome and expensive—an inquiry, which must attach suspicion to the official conduct of the judges? Sir, I respect the conduct of the gentlemen who attempt to remove obstructions from the stream of justice, but I must be convinced that obstructions now exist, before I can vote for this resolution.

Mr. Early.—Like other gentlemen who have gone before me in this discussion, I do not consider myself at liberty to vote against the resolution on the table. Like them, I deem myself bound to vote for an inquiry into the conduct of any public officer, when that inquiry is demanded by a member of this House. After the view taken of the merits of this measure by the gentlemen from Pennsylvania and Virginia, I did expect that all further opposition to it would have ceased. In this expectation I have been disappointed.

I feel constrained to vote in favor of this resolution, because I believe that the inquiry it contemplates is an act of justice due to the people of the United States on one hand, and to the characters of the individuals charged, on the other. A charge of high crimes and misdemeanors has been made on this floor against two individuals, and two members of this House have demanded an inquiry into their official conduct. To this demand may be added the weight of public opinion. I am apprized of the delicacy of this ground, and when I resort to it, it is my wish to be understood as meaning that when charges of a high nature are instituted and reiterated from one end of the Union to the other, so as to create a general belief, so as to destroy confidence in the principle and integrity of those who administer justice, and to beget a suspicion that justice cannot be obtained equally by all men; under such circumstances the public voice demands an inquiry into the truth of the charges. Is this a fact, or is it not, in relation to the officers implicated in this resolution? I presume that it is the fact to a great extent will not be denied. Every gentleman on this floor, in the habit of reading the public prints, must have had so forcible an impression made on his mind on this subject, as not to have lost a recollection of the conduct charged upon one of the judges named in this resolution, in the case of Fries, Cooper, and Callender. I cannot, therefore, refuse my assent to the inquiry, because I believe it due to the public, as well as to the individuals charged with the improper conduct, and who, if they were on the spot, would undoubtedly memorialize us for an inquiry. Indeed one of the officers referred to in the resolution, if conscious of his innocence, ought, in my opinion, long since, to have demanded an inquiry into his official conduct, when he witnessed the strong and numerous charges against him in the public prints from one end of the continent to the other.

It is objected to this resolution that no proof has been adduced to the House of the truth of the allegations preferred. In my mind there is all the difference that can be imagined between an inquiry and an impeachment; and almost all the arguments urged on this occasion apply exclusively to an impeachment. A strong proof of this has been given by the gentleman who has just sat down. That gentleman (Mr. R. Griswold) has taken this remarkable ground, that this House ought not to inquire without proof. I suppose he meant, by proof, the depositions of witnesses; this is, in other words, saying that we, whose constitutional duty it is to inquire, may omit to do it, because they whose duty it is not to inquire, have not done it.

The present resolution is nothing more than this: A certain officer of the Government is charged, in the face of the nation, with malfeasance in office, and a committee appointed to inquire into the truth of the charge. Gentlemen allege that the committee is to be appointed to inquire what accusations can be found, and then for testimony to sustain them. But this is not so. The accusations have been long since made, and they are not of a day, but of a year’s standing.

The analogy between the functions of this House and a grand jury, is correct and forcible. Before a grand jury, it is the right of any individual to apply for and demand an inquiry into the conduct of any person within their cognizance; and it is more especially the right of any member of the jury to make such a demand; and it is their bounden duty, according to their oaths, to make the inquiry when so demanded.

The official conduct of the judges I view as more delicate and important than that of any other description of officers; for, on their impartiality the whole people of the United States depend for obtaining justice in ordinary cases, and individuals depend, in the last resort, for the preservation of their lives. Their official conduct should, therefore, not only be correct, but likewise free from suspicion. Simply to be charged ought to produce an inquiry; and I must confess that a recent case, in which the integrity of a judicial officer was impeached, excited my warmest approbation. I mean the case of a judge (Judge Tucker) in a neighboring State, who, on a suggestion believed by no man, deemed it a duty to himself and his country to demand an inquiry into his conduct.

Another view, by no means unimportant, which may be taken, is, that the reputation of the Government, of which the judges are a component part, demands the inquiry in question. Will any gentleman pretend to say that reputation is not at stake,—that it is not affected at home or abroad by the charges which have been so long and so loudly made? I presume not. Whether those charges are true or not, is not the question; for, whether true or not, so long as they are generally believed, the reputation of the Government is affected; its reputation for impartial justice is affected, and deeply too. To refuse this inquiry would be to give weight to this impression abroad—to add to the suspicion, at home and abroad, that impartial justice is not done to all men. Let us, then, make the inquiry, and restore the reputation of the Government, by inflicting a proper punishment upon these officers, if guilty, and, if innocent, by proving the charges against them calumnies.

Mr. Eppes.—If, in adopting the resolution before us, we were to attach odium to the characters in question, I should feel no surprise at the course pursued by the gentlemen who oppose this inquiry. In this country the official conduct of every man is, and ought to be, subject to examination. It is not the examination, but the result of that examination, which attaches merit or demerit to a public character. In a Government like ours no principle ought to be cherished with greater care than a free inquiry into the conduct of public officers. So friendly am I to this principle in its fullest extent, so necessary do I believe it to be to the preservation of that purity in public officers essential to a republic, that it will always be sufficient for me to vote an inquiry, for a member to declare he considers an inquiry necessary. A proper regard to his own reputation will always, I am certain, prevent any member of this House from calling on us to exercise this important duty on light or trivial grounds. As to the extensive field of inquiry to which this doctrine may lead, I care not; and whenever a member of this House shall rise in his place and declare that he considers an inquiry into the conduct of a public officer or officers necessary, I shall be ready to pass the whole circle in review, to begin with the first and end with the last, to vote an inquiry into the conduct of each, and even to go further, to vote an impeachment if necessary. I shall on every such occasion consider it a duty I owe to the individual accused, and to the community in whose behalf the accusation is made, to vote an inquiry.

Thus much for the general principle which would induce me to vote for this resolution, if no specific charge had been made. In the present case, however, a specific charge of a serious kind has been made by a member from Pennsylvania; and, however gentlemen may have attempted to weaken the force of this charge, it does substantially amount to this: that, by the opinion of a judge, a citizen of the United States was deprived of his constitutional right to counsel, when arraigned for his life. I will not, however, dwell on this charge. It has been placed by a gentleman from Maryland (Mr. Nicholson) in a point of view satisfactory to myself, and, I believe, to the House. I consider it, however, my duty on this occasion to mention a trial which took place in the Commonwealth of Virginia, which affords another specific charge against Judge Chase. I was not present at this trial, and am not personally acquainted with the circumstances. I believe, however, that in the Commonwealth of Virginia but one sentiment prevails as to the conduct of Judge Chase on this occasion, viz: that it was indecent and tyrannical. In the course of the trial he refused to allow a witness on the part of the prisoner to be examined, because the witness could prove the truth of a part only, and not the whole of the words laid in the indictment. By a system of conduct peculiar to himself, he deprived the prisoner of the aid of Mr. George Hay, as counsel, a man, who, although not as generally known as some others in our State, is inferior to none in his profession. I do not mention these circumstances as hearsay evidence, but as facts, which I am induced to believe can be established by legal testimony. If, on this statement, there is any gentleman who can refuse an inquiry, I am willing to leave him in the enjoyment of his opinion. For my own part, I shall be always ready, on the demand of any member of this House, to exercise my constitutional right of inquiry, and, without partiality or prejudice, pursue the course pointed out by my duty, whether it shall lead to impeachment or an honorable acquittal.

Mr. Nicholson rose for the purpose of calling the attention of the House to precedents. When he yesterday addressed them he had thought it unnecessary to introduce authorities from foreign nations; but as they had been insisted on by the opponents to the resolution, he would refer to two or three; and he was more solicitous to do so at the present moment, as he saw a gentleman from Connecticut (Mr. Dana) about to rise, and he wished to call the gentleman’s attention to them, in order that he might remark on them, and show, if it was to be done, that they did not apply to the case under consideration. If gentlemen would refer to the powers exercised by the Commons of England, for time almost immemorial, and to those exercised by the several State Legislatures, he believed that precedents innumerable would be furnished. The Commons of England were the grand inquest of the nation. As such it was their duty to inquire into the official conduct of all those intrusted with the powers of Government. Every officer in the realm was liable to impeachment by them. The same principle would be found to run through the constitutions of most of the States, and it was wisely introduced into the Constitution of the United States. The power to impeach is admitted to be in the House of Representatives, and the only question is, as to the manner in which this power shall be exercised. The proposed method is called a loose one, and we are asked to show some precedent for it. The House of Commons at the commencement of every session appoint what is there called a committee of grievances and courts of justice. Many of the State Legislatures appoint a similar committee annually, and, in the State from which he came, the House of Delegates always appoint a committee of grievances and courts of justice. It was one of their standing committees, and the appointment was as regular and as usual as the appointment of a committee of claims in this House. What then he inquired was the duty, what the authority of this committee? In England, in Maryland, and in every other State where it exists, it is their duty to inquire into the conduct of every officer of the Government, to call witnesses before them to prove official misconduct, to report offences to the House from which their powers are derived, and recommend the proper measures to be adopted.

This House, like the Commons of England, and the most numerous branch in the State Legislatures, is the grand inquest of the nation; they are to inquire into crimes and bring offenders to justice. It had not, he said, heretofore been customary for this House to appoint a committee of grievances and courts of justice, but he believed no man would deny the power, and when appointed they would not only have the authority proposed to be in this committee, but one infinitely more extensive. They would have the right to inquire into the conduct of all civil officers, and to report such facts as might come to their knowledge. If, then, we could with propriety, and agreeably to precedent, authorize an inquiry into the conduct of several hundred officers, could it be denied that the same precedent would warrant an inquiry into the conduct of two only? In 5th Comyn’s Digest, page 204, it would be found that a committee of grievances and justice was one of their standing committees, and in page 205 it was declared that they might “summon any judges and examine them in person upon complaint of any misdemeanor in office.” He presumed it had not been thought necessary heretofore to appoint a general committee of this kind, but at present the necessity was apparent, as a complaint had been made to the House of the official misconduct of two judges. Again, in the same book, page 209, it is said, “The Commons are the general inquisitors of the realm, and therefore if a Lord, spiritual or temporal, commit oppression, bribery, extortion, &c., the Commons shall inquire of it, and if, by the vote of the House, the crime appears to have been committed, they transmit it, with the evidence, to the Lords.” This, he said, would clearly show, what indeed he thought common sense would teach every man, that the inquiry should be made before proof was exhibited upon which an impeachment was to be grounded. In the same page it would be seen that “common fame is a sufficient ground of a proceeding in the House of Commons by inquiry, or by a complaint, if need be, to the King or Lords.” And Rushworth’s Historical Collection, page 217, is cited, it is said, by some of the ablest lawyers of that day that “if common fame were not to be admitted as public accusers, great men would be the only safe ones, as no private man would venture to complain of them.” Mr. N. referred to these authorities at that particular stage of the discussion, as he was desirous of giving gentlemen an opportunity of commenting upon them. As he had no wish to prolong the debate, he would not multiply observations upon that point, but could not sit down without noticing what had fallen from a gentleman from Massachusetts, in which he had again attempted to vindicate the conduct of the judges upon the trial of Fries.

The gentleman had referred to a case in Dallas’s Reports, respecting the Western Insurrection, in which he says the point of law determined upon the trial of Fries, had been previously settled by one of the federal courts, and from thence infers that Mr. Chase and Mr. Peters were justified in preventing counsel from arguing it a second time. That such conduct might be perhaps excusable in a civil cause he was not prepared to deny; but, in a case of criminal jurisdiction, involving the guilt or innocence of a man whose life was to be the forfeit, he held it totally unjustifiable.

All men, he said, were acquainted with the circumstances of what was generally called the Western Insurrection. Some of the Western counties of Pennsylvania were opposed to the excise law. A considerable majority of the people had resolved to oppose its execution, and took strong measures to prevent individuals from accepting offices under it, and compelled some of them to resign the places to which they had been appointed. While they professed an attachment to the Government of the Union they resolved to resist the execution of one of its laws. Among these was a man by the name of Mitchell, and he was charged with high treason before the circuit of Pennsylvania in which Judge Paterson then presided. A doubt existed whether the resistance to the execution of a law, even by force of arms, was such a levying of war within the meaning of the constitution, as amounted to treason. What was the conduct of the judge on that occasion? He had no disposition to preclude inquiry. He had no wish to keep the jury in ignorance by forbidding fair and open argument. On the contrary, it appeared from a note on page 348 that he called the attention of the prisoner’s counsel to the point, and requested that they would notice it in their observations. This was done before the defence was opened, and he said he should beg leave to read a part of the argument made in favor of the prisoner.

“The counsel for the prisoner (E. Tilghman and Thomas) premised that they did not conceive it to be their duty to show that the prisoner was guiltless of any description of crime against the United States, or the State of Pennsylvania, but they contended that he had not committed the crime of high treason, and ought, therefore, to be acquitted on the present indictment. The adjudications in England upon the various descriptions of treason, had been worked incautiously, into a system, by the destruction of which the Government itself would be seriously affected; but even there, the best judges and the ablest commentators, while they acquiesce in the decisions that have already taken place, furnish a strong caution against the too easy admission of future cases, which seem to have a parity of reason. Constructive and interpretive treasons must be the dread and scourge of any nation that allows them—1 Hale, P. C., 132, 259—4 Black. Com., 85. Take, then, the distinction of treason by levying war, as laid down by the attorney of the district, and it is a constructive or interpretive weapon which is calculated to annul all distinctions heretofore wisely established in the grades and punishments of crimes, and by whose magic power a mob may be easily converted into a conspiracy, and a riot aggravated into high treason.”

Such, he said, was the opinion of two gentlemen ranking high in their profession, and who would not be charged with having any feeling toward the offence or the offender inconsistent with the rights or interests of the Government. The whole argument was too lengthy to be read to the House, but he considered it well worth the perusal of every American. Able as it was, however, it had not the wished for weight with the court. Judge Paterson gave the following charge to the jury: “The first question is, what was the general object of the insurrection? If its object was to suppress the excise offices, and to prevent the execution of an act of Congress, by force and intimidation, the offence, in legal estimation, is high treason; it is a usurpation of the authority of Government; it is high treason by levying of war.” Sir, said Mr. N., this opinion of the court may have been honest; I mean not to impeach the purity of motive which dictated it, but I mean to show that the offence with which Mitchell was charged, the resistance to the execution of a law, was not considered as treason by the highest existing authority of this country. Mitchell was pardoned by the President of the United States, and Congress, not long after, expressed their opinion on the subject in the most ample manner.

The trial of Mitchell which I have just quoted took place in 1795, and in 1798 the subject was taken up by Congress, who, by the act of the 14th of July, 1798, provided that the resistance to the execution of a law should be considered a high misdemeanor only, punishable by fine and imprisonment. The act is in these words: “If any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the Government of the United States which are, or may be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the Government of the United States, from undertaking, performing, or executing his trust or duty, he or they shall be deemed guilty of a high misdemeanor, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding $5,000 and by imprisonment during a term not less than six months nor exceeding five years.” Here, sir, the resistance to the execution of a law is declared to be a high misdemeanor only, punishable by fine and imprisonment. Fries was tried in 1800, two years after the passage of this law. The offence of which he had been guilty was rescuing prisoners from the marshal by force, thereby, in the language of the act, “preventing an officer of the United States from performing and executing his duty,” and it was to show that he was punishable under this act by fine and imprisonment only, that his counsel were desirous of bringing the law before the jury. This, however, the court refused; the man was convicted of high treason, and was sentenced to a most ignominious death. Let such conduct be vindicated where and by whom it may, I must declare that it can never meet my approbation.

Mr. Dana.—It is to be regretted, Mr. Speaker, that a resolution so novel and of so much importance as that on the table was not postponed, at least for one day after it was presented to the House. Had this been done, gentlemen might have had some opportunity deliberately to examine the subject, before they were required to make a decision. But as the resolution was moved without giving any previous notice, and has been pressed upon us immediately after it was moved, I do not feel myself prepared, as I could have wished to be on such a question, before attempting to deliver my sentiments in this House. Unprepared, however, as I am, I request your indulgence while I offer a few remarks.

I will first attend to some precedents mentioned by the gentleman from Maryland, (Mr. Nicholson.) He has stated that it has been usual in the English House of Commons to appoint a committee for courts of justice, with power to inquire into the proceedings of courts, and for this purpose to call persons before them for examination. But, sir, is not such a committee appointed for general purposes, not directed against any individual, and therefore not affecting the character of any magistrate? Their powers relate to the judicial system generally, and do not implicate any one of the judicial officers. Does the resolution on the table propose a committee of this kind? On the contrary, it is explicitly directed against two of the judges. If gentlemen would justify their proceedings by the practice of the British House of Commons, let the resolution be made to have a general reference to all the courts, instead of being pointed, as it now is, against particular persons. In its present form it departs essentially from the principle of the case mentioned by the gentleman from Maryland, and therefore cannot be warranted by that precedent.

The gentleman has also stated that a committee was appointed by the last Congress to investigate the accounts of the officers of Government, merely upon common report. But it should be remembered that those officers were officers of the Executive Departments. It is the acknowledged duty of such officers—it is made their duty by law to give information to Congress, whenever required, upon any of their public transactions. And it is the peculiar right of the House of Representatives, as guardians of the Treasury, at any time, to inquire into the expenditures of public money. But are the judges of the United States placed in the same situation with the Executive officers? Are they to be under the same control, and equally dependent? You may indeed impeach the judges, if guilty of impeachable offence. But what other power over them is given you by the constitution? It should further be remembered, that the resolution for appointing the investigating committee did not criminate any particular officer. At first it was proposed to examine only the accounts of the former Secretary of State. But upon its being suggested by a gentleman from Massachusetts, (Mr. Eustis,) who has been so strenuous an advocate for the present resolution, that it would be improper in that manner to attack the character of a particular officer, the resolution was made general, and extended to the accounts of all the Executive Departments.

Upon the like principle, the resolution now on the table is improper. My objection to it is, that it points out two particular officers as objects of suspicion, and proposes a committee for inquiring into their conduct without assigning any cause, and without specifying any subject of inquiry. Gentlemen have expressed a dissatisfaction that such a committee should be compared to the Star Chamber or the Inquisition. If they do not perfectly resemble the Star Chamber, formerly known in England, or the Inquisition of Spain, the proposed powers of the committee are certainly indefinite and inquisitorial. Perhaps, if a comparison was necessary, they might more properly be compared to the State inquisitors of Venice, who are well known to have formed one of the most detestable tyrannies ever tolerated in a country pretending to freedom.

If charges were specified in the resolution, a member of this House on moving it might then have a right to demand an inquiry. But are the House bound to investigate the conduct of a particular officer, without any charge against him? Gentlemen have said much about the general right of this House to inquire into the conduct of public officers, as if this were the point in dispute. But who has denied the right of inquiry as incident to the power of impeachment? When any officer is charged with an impeachable offence, it is admitted to be, and from the nature of the thing it might be, the right of the House to inquire into the truth of such charge. I trust no gentleman in opposition to the present resolution can be found so ignorant of the true principle on which it is opposed, as to deny the responsibility of the public officers, or the right of the House to inquire into their conduct. But, the right being admitted, the question is made as to the exercise of that right in the manner now proposed. When this House is called upon to direct the whole force of its influence against a particular judge, is it not reasonable, is it not just, that some charge should first be stated against him? This is but a decent respect to judicial character. It is but a decent respect to the character which becomes the assembled Representatives of a nation. The person implicated might then be enabled to meet the inquiry and obviate unfounded suspicion. Our power with respect to the judges is the power of impeachment; but we are not, therefore, justified in wantonly assailing their characters and sporting with their sensibility to reputation. The right of inquiry relates to impeachable offences. Shall we, then, inquire where no offence is stated? So far is the resolution from stating what would warrant an impeachment, that it does not mention any offence, or refer to any transaction.

The gentleman from Virginia, who moved the resolution, (Mr. J. Randolph,) has, indeed, declared his own conviction, that the judicial officer in question had done wrong. Might not other gentlemen also have their opinions and exercise their own judgments in forming them? They ask for the reasons of his conviction before they vote for his resolution. His information, he says, was received in such a manner that he does not choose to disclose it. If any person has communicated any thing to him confidentially, he is not desired to name his informant. The gentleman shall not be desired by me to make any disclosure which would offend against the most delicate sense of honor. But can it be improper for him to state the general nature of the offence which he believes to have been committed? Will this violate any honorary confidence? He is desired to make such a statement that other members of the House may have an opportunity of judging whether the believed offence will warrant a vote of impeachment. In cases of this kind, is any member to be deemed infallible? When a gentleman, in his place, states a fact as of his own knowledge, his veracity is regarded as unquestionable; but his infallibility is not supposed to extend to matters of mere opinion. Upon the principle of its being possible for the gentleman from Virginia to err in opinion, and its being equally the right of the other members to judge what conduct amounts to an impeachable offence, it might have been reasonably thought that he would at least state to the House the nature of the facts on which he relies as the basis of his resolution. If he, or any other member, declaring his conviction that a judge has misdemeaned himself in office, will exhibit to the House a statement of any fact, or series of facts, which would warrant an impeachment, I will be ready instantly to vote for an inquiry. But nothing of this kind is exhibited, and therefore the resolution on the table is now opposed. Before you agree to oppress a judge with all that weight of suspicion which may be imposed by a vote of this House, let him be permitted to know what part of his conduct is supposed to be exceptionable, that opportunity may be had in the progress of any inquiry to vindicate himself against unmerited reproaches! Instead of a course of proceeding so fair and obviously just, the resolution on the table marks two of the judges for public suspicion, without specifying any supposed misconduct. It marks them as public objects of suspicion throughout the whole of their judicial life, and, without naming any thing, invites private enemies to accuse them of every thing.

To support such a resolution, common fame has been mentioned in the course of debate, as a sufficient ground of proceeding; and this idea is supposed to be authorized by English precedent. Whatever may have been done formerly, and in a period of rudeness or violence, the more improved system of modern jurisprudence should discard such a doctrine if it ever prevailed. But even that doctrine, if admitted, would not justify you in adopting the present resolution. You cannot thence infer the propriety of proceeding against a person who is not accused of any thing punishable. Will it be pretended that the common fame, which is to be a ground of proceeding, does not refer to any offence or to any transaction? Common fame, if admitted for proof, must be supposed to apply to some subject of complaint. On the principle even of this very questionable doctrine, a statement of some charge is requisite. What, then, in the present case, is the accusation which could be supported by common fame? If there be any such, let it be stated.

The gentlemen who advocate the resolution in its present form fail in their efforts to support it, notwithstanding all the aid which they have sought from “the leading-strings and crutches of precedents,” (to use the language of the gentleman from Virginia.) On general principles, on the broad basis of universal right, the resolution is condemned; and no precedent is adduced which can justify it. I do not wish to shield any public officers, whether judges or others, who may merit impeachment, but I wish the House, when acting as public accusers, to proceed in such a manner as not to do injury to any individual. Justice is due to the individual as well as to the public. No public duty can require this House to adopt a resolution of general reproach, yet stating no public offence. And it but illy accords with the principles of justice to subject the judicial officers of the Union to all the inconvenience, vexation, and expense, of being obliged to vindicate themselves against secret accusations, which it may be more difficult to discover than to overthrow.

You will observe, sir, that I do not enter into any particular examination of the case referred to by the gentleman from Pennsylvania, (Mr. Smilie,) whether there was a controversy as to prerogative and privilege between the court and the bar, in which the pride of professional rank appeared in opposition to judicial authority. Whether the judge very properly refused to yield to the counsel, or whether the court committed an error in pronouncing the law, these are topics which I think it needless to examine in considering the resolution now on the table; for the resolution itself states nothing, and there is no case before us for examination.

On so grave a subject as the present, when we are called upon to aid in the administration of justice, it was to be desired that the advocates of the resolution should so far regard their own exhortations as to refrain from attempting to enkindle the animosity of party. The gentleman from Pennsylvania (Mr. Smilie) seems to have thought himself at liberty to pursue a different course. But, considering the nature of the question on which our votes are to be given, I hope to be excused if I deem it not proper in this debate to reply to him on the various topics of party discussion which he has chosen to mention, although the task might be easy indeed to repel his charges against the former Administration. A single observation, however, may be proper on a law to which he has alluded in the language of censure. There was at least one prominent feature which might recommend it to the friends of truth. It expressly declared that the truth might be given in evidence.

Mr. Dennis observed that in the course of the remarks which he had the honor of making yesterday, he had declared himself in favor of the proposed investigation, provided it were made on proper principles; and, in order the more clearly to illustrate his ideas and evince his sincerity, he had read in his place a resolution embracing all the facts which had been suggested to the House as the foundation of this proceeding. He had then said he would not pledge himself to offer a resolution such as he then read, but would vote for it if offered by others. As the gentleman from Virginia (Mr. Randolph) had not accepted his overtures, and in the course of his observations had done him the honor of noticing some of his ideas expressed in yesterday’s debate, he rose principally for the purpose of offering an amendment, and partly for the purpose of replying to one or two of the gentleman’s remarks. He was not a little surprised at the animated strain in which that gentleman had addressed the House in the course of this morning, nor did any thing appear to have fallen from any gentleman, in the course of the discussion, which appeared to him calculated to produce so much excitement as he had manifested. But as he did not claim to set up his own feelings or his own conduct as the standard by which the feelings or actions of others ought to be guided, and as the gentleman had applied his observations without implicating motives, he had not at all interrupted the equanimity of his disposition. He had exercised a right which he should always be disposed to accord to that gentleman, and every other member—the right of placing the observations of his opponents in the most ludicrous point of view of which they were susceptible. In this right he would also indulge himself whenever the subject required it.

The gentleman from Virginia, in replying to some of his observations, had said that he had conceived the charge exhibited was of a very serious nature, but did not appear to comprehend in what respect he considered it so, and therefore he wished to explain in what manner he considered it as such. He considered it as serious, inasmuch as it was calculated to excite suspicion and asperse the official conduct of the gentlemen in question; but did not mean to insinuate, but on the contrary repelled the idea of its being serious as regarded its sufficiency, if true, as a foundation of impeachment. In order to show that the conduct of the judges had not been so highly censurable even as the statement of the gentleman from Pennsylvania, (Mr. Smilie,) or his colleague and the gentleman from Virginia, seemed to suppose, he begged leave to state his ideas as to the rectitude of their conduct. Here he might use the observation of the gentleman from Virginia, applied to one of his own remarks, and say that gentleman had with no great dexterity confounded two principles as distant from each other as the northern and the southern pole. He seemed to assimilate the case in which the court have arbitrarily withdrawn the question of law entirely from the jury, to the conduct of the court in this case, which only went to restrict the counsel from arguing before the jury a case already settled in the minds of the court, by a train of judicial determinations in similar cases, and in which they left both law and fact to the determination of the jury; directing them as to the law upon the subject. He was warranted in his opinion, because the gentleman from Virginia, in illustrating some of his positions, had cited the case of libel as decided by Lord Mansfield, and Mr. Fox’s celebrated declaratory bill, which grew out of that decision. What analogy has that case to the case in question? Lord Mansfield decided that in the case of a libel, all the jury had to do was to find the fact of publication or not, and that whether when published it were criminal or not, they had no right to determine, and thus withdrew the question of law altogether from their decision. This was justly regarded as a gross violation of that principle of the criminal law of that country, which invests the jury with the right to decide as well on the law as on the fact. This principle I fully acknowledge, and if the court in the case of Fries had deprived the jury of that right, and withdrawn the question of law from them, there might be some foundation for this resolution. But, according to the statement of the gentleman from Pennsylvania, the question of law and fact were both submitted to the jury, with the instructions of the court on the legal question. He had always been taught to believe that the court were the proper organ through which the law was to be communicated to the jury, though he did not deny but the jury had the right which they should cautiously exercise, but which they would always exercise, when they discover an inclination in the court to oppress the citizen or exculpate the guilty, to reject the direction of the court and decide for themselves.

But the complaint is, that the court denied to the counsel the privilege of arguing the law before the jury. Mr. Dennis said he believed the court possessed a power of this nature, to be regulated by a sound discretion. If the court should believe that a question had been put at rest by a long train of judicial decisions, such as was the case in this instance, they not only have the right, but it becomes their duty to prevent a useless consumption of time, and to prohibit the counsel from agitating the question. Indeed it is indelicate in the counsel to impress on the jury an opinion of law contrary to the known opinion of the court; nor is there any court who will not take on themselves the right of checking counsel, in an attempt to mislead the jury on a question of law. Such was the practice of the courts in Maryland, and in that country from which we derive all our notions of jurisprudence.

But though he did not conceive that there was any ground for impeachment in the statement of the gentleman from Pennsylvania, yet he knew that this discussion would produce a vague and undefined censure, which he believed the judges in question ought to have an opportunity of repelling. He therefore moved the following amendment, by way of preamble to the resolution:

Whereas information has 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 their argument before the jury 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:

Resolved, That a committee be appointed to investigate the truth of the said allegations, and to report a statement of facts in the case aforesaid, with their opinion thereupon, whether the said Samuel Chase and Richard Peters, or either of them, have so conducted themselves on the trial aforesaid as to render necessary the interposition of the constitutional powers of this House.

This amendment embraces all the facts stated by the gentleman from Pennsylvania, points out a specific charge as the foundation of the proceeding, and yet, when attached to the resolution, gives to the committee the power of general inquiry.

We are told that the facts have been stated by a member on the floor, and there is no reason for stating them in the resolution. Will the statement of the gentleman from Pennsylvania appear on your journals, and how will it hereafter be known that any fact was stated as the foundation on which to erect a committee with general inquisitorial powers? Posterity will only see the resolution, and to them it will be a precedent which will justify the creation of a committee of inquiry into the official conduct of any officer, without the allegation of a single fact, whenever a member may choose to be of opinion that a vexatious and expensive proceeding shall be instituted. It was therefore that he wished to resist the principle, and for that purpose moved the amendment.

Mr. Huger said he had before stated, and he now repeated, that he was not averse to an investigation; but he did not consider himself bound to vote for a resolution so general and vague. If the amendment of the gentleman from Maryland were adopted, he should vote for the resolution.

Mr. Nicholson moved to amend the amendment, by striking out the whole of it after the word “Whereas,” and by inserting—

“Members of this House have stated in their places that they have heard certain acts of official misconduct alleged against Samuel Chase, one of the Associate Justices of the Supreme Court of the United States, and Richard Peters, judge of the district court of the district of Pennsylvania.”

Mr. Huger had no objection to the insertion of the last amendment, but he had to striking out the first. He therefore called for the yeas and nays upon striking out.

The question was then taken by yeas and nays upon striking out, and carried—yeas 79, nays 41, as follows:

Yeas.—Willis Alston, jun., Nathaniel Alexander, David Bard, Geo. Michael Bedinger, Phanuel Bishop, William Blackledge, Adam Boyd, John Boyle, Robert Brown, Joseph Bryan, William Butler, George W. Campbell, Levi Casey, Joseph Clay, John Clopton, Jacob Crowninshield, William Dickson, John B. Earle, Peter Early, Ebenezer Elmer, John W. Eppes, Wm. Eustis, William Findlay, John Fowler, James Gillespie, Edwin Gray, Andrew Gregg, John A. Hanna, Josiah Hasbrouck, William Hoge, James Holland, David Holmes, Walter Jones, William Kennedy, Nehemiah Knight, Michael Leib, John B. C. Lucas, Matthew Lyon, Andrew McCord, David Meriwether, Samuel L. Mitchill, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, Anthony New, Thomas Newton, jun., Joseph H. Nicholson, Gideon Olin, Beriah Palmer, John Patterson, Oliver Phelps, John Randolph, jun., Thomas M. Randolph, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, Erastus Root, Thomas Sammons, Thomas Sanford, Ebenezer Seaver, Tompson J. Skinner, James Sloan, John Smilie, John Smith of Virginia, Richard Stanford, Joseph Stanton, John Stewart, David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Isaac Van Horne, Joseph B. Varnum, Matthew Walton, John Whitehill, Richard Wynn, Joseph Winston, and Thomas Wynns.

Nays.—Simeon Baldwin, Silas Betton, John Campbell, William Chamberlin, Martin Chittenden, Clifton Claggett, Manasseh Cutler, Samuel W. Dana, John Davenport, John Dennis, Thomas Dwight, James Elliot, Thomas Griffin, Gaylord Griswold, Roger Griswold, Seth Hastings, David Hough, Benjamin Huger, Samuel Hunt, Joseph Lewis, jun., Thomas Lewis, Henry W. Livingston, Thomas Lowndes, Nahum Mitchell, James Mott, Thomas Plater, Samuel D. Purviance, Joshua Sands, John Cotton Smith, John Smith of New York, William Stedman, James Stephenson, Samuel Taggart, Samuel Taney, Samuel Thatcher, George Tibbits, Killian K. Van Rensselaer, Daniel C. Verplanck, Peleg Wadsworth, Lemuel Williams, and Marmaduke Williams.

The question was now taken on inserting the amendment of Mr. Nicholson, and carried.

The question was then put upon agreeing to the amendment thus amended.

Mr. Purviance said he could not vote for it because it did not state the fact. It declared that members of the House had stated that they had heard of official acts of misconduct of both the judges, when but one act had been charged against Judge Peters.

Mr. J. Randolph observed that he perceived no reason for the preamble. He hoped therefore it would not be agreed to. General inquiry was his object, and, as going to limit it, he was against the preamble.

Mr. Elliot said that, had the amendment of the gentleman from Connecticut prevailed, he might have reconciled it to his mind to vote for the resolution thus amended. But as it stood, he could not.

Mr. Nicholson remarked that when he offered the amendment, the incorrectness suggested by the gentleman from North Carolina had not occurred to him. To obviate this incorrectness he would move to amend the amendment by saying “a certain act of Richard Peters.”

The Speaker said this amendment was not in order.

Mr. Nicholson said that under such circumstances he must vote against the whole amendment.

The question being taken, the amendment as amended was lost without a division.

When the resolution for appointing a committee of inquiry was carried—yeas 81, nays 40, as follows:

Yeas.—Willis Alston, jun., Nathaniel Alexander, David Bard, George M. Bedinger, Phanuel Bishop, William Blackledge, Adam Boyd, John Boyle, Robert Brown, Joseph Bryan, William Butler, Levi Casey, Joseph Clay, John Clopton, Jacob Crowninshield, Richard Cutts, William Dickson, John B. Earle, Peter Early, Ebenezer Elmer, John W. Eppes, Wm. Eustis, William Findlay, John Fowler, James Gillespie, Edwin Gray, Andrew Gregg, John A. Hanna, Josiah Hasbrouck, William Hoge, James Holland, David Holmes, John G. Jackson, Walter Jones, Wm. Kennedy, Nehemiah Knight, Michael Leib, John B. C. Lucas, Matthew Lyon, Andrew McCord, David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, Anthony New, Thomas Newton, jun., Joseph H. Nicholson, Gideon Olin, Beriah Palmer, John Patterson, Oliver Phelps, John Randolph, jun., Thomas M. Randolph, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, Erastus Root, Thomas Sammons, Thomas Sanford, Ebenezer Seaver, Tompson J. Skinner, James Sloan, John Smilie, John Smith of Virginia, Richard Stanford, Joseph Stanton, John Stewart, David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Isaac Van Horne, Joseph B. Varnum, Daniel C. Verplanck, Matthew Walton, John Whitehill, Marmaduke Williams, Richard Wynn, Joseph Winston, Thomas Wynns.

Nays.—Simeon Baldwin, Silas Betton, John Campbell, William Chamberlin, Martin Chittenden, Clifton Claggett, Manasseh Cutler, Samuel W. Dana, John Davenport, John Dennis, Thomas Dwight, James Elliot, Thomas Griffin, Gaylord Griswold, Roger Griswold, Seth Hastings, David Hough, Benjamin Huger, Samuel Hunt, Joseph Lewis, jun., Thomas Lewis, Henry W. Livingston, Thomas Lowndes, Nahum Mitchell, Samuel L. Mitchill, James Mott, Thomas Plater, Samuel D. Purviance, Joshua Sands, John Cotton Smith, John Smith of New York, Wm. Stedman, James Stephenson, Samuel Taggart, Samuel Tenney, Samuel Thatcher, George Tibbits, Killian K. Van Rensselaer, Peleg Wadsworth, and Lemuel Williams.

Ordered, That Messrs. John Randolph, jun., Nicholson, Joseph Clay, Early, Roger Griswold, Huger, and Boyle, be appointed a committee pursuant to the said resolution.

Monday, January 9.

Another member, to wit, William Helms, from New Jersey, appeared, produced his credentials, was qualified, and took his seat in the House.

Wednesday, January 11.

Virginia Yazoo Company.

On a motion made and seconded,

“That the agent or agents of the Virginia Yazoo Company, ‘claimants of compensation under the late cession and convention between the State of Georgia and the United States, and the acts lately passed by Congress thereon, as purchasers of land in the Mississippi Territory, in the year one thousand seven hundred and eighty-nine, from the said State of Georgia,’ be heard in person, or by counsel, at the bar of the House, on Monday next:”

The question was taken thereupon, and resolved in the affirmative—yeas 61, nays 49.

On a motion made and seconded that the House do come to the following resolution:

Resolved, That the South Carolina Yazoo Company be heard by their agent, on Monday next, at the bar of the House:

And the said motion being twice read at the Clerk’s table, a motion was made and seconded to amend the same, by striking out all the words from the word “Resolved,” in the first line, to the end of the motion, and inserting, in lieu thereof, the following words: “That this House will, on Monday next, hear all the agents of the different companies claiming lands south of the State of Tennessee, who may choose to speak at the bar of this House.”

And on the question that the House do agree to the said amendment, it passed in the negative. And the main question being taken that the House do agree to the said motion, as originally proposed, it was resolved in the affirmative—yeas 67, nays 46.

Friday, February 3.

Georgia Militia Claims.

The House went into Committee of the Whole on the report of the Committee of Claims, on the petition of John M. Randolph and Randolph McGillis, which is unfavorable to the prayer of the petitioners.

The petitioners claim their pay as militiamen, called out in the State of Georgia for the protection of that State against the Indians. They allege, that, being called out under the authority of the Government of the United States, the General Government is bound to compensate them and the other men called out for their services.

The Committee of Claims report that the petitioners are to look for compensation to the State of Georgia, who, by the articles of cession recently concluded, had agreed to receive one million two hundred and fifty thousand dollars, in full for all demands for military service.

Mr. Early.—Mr. Chairman: I cannot but be sensible of the difficulty which opposes itself to the present claim after an unfavorable report from the committee to which it was referred. And it is impossible not to discern that this difficulty is increased by the opinion of the Attorney General upon the construction of the articles of cession from Georgia to the United States. But as to that opinion, it may not be improper to observe, that so far as it applies to the case of the claimant, it is repelled by the positive certificates of two of the Georgia Commissioners, gentlemen of veracity and legal talents equal with himself. To give to the opinions, or rather the “private ideas and recollections” of that officer, the weight and authority which have been thereunto attached by the Committee of Claims, would be to adopt in practice a principle at war with the maxims of all free Governments; it would be to constitute the framer of an instrument the judge of its construction. This is the essence of despotism. But I apprehend that neither the principle laid down in that opinion nor the facts therein stated do bear upon the case; but that the facts do negatively prove that the claims now under discussion were not included in the compensation stipulated to Georgia in the articles of cession and agreement. The principles are, that the term “territory,” as used in the instrument, meant not only the territory ceded, but that retained. Now, Mr. Chairman, as I cannot possibly comprehend what bearing this has upon the question before us, I must be excused if I leave the Attorney General in the undisturbed enjoyment of his premises and pursue the discussion.

So early as the year 1787 the State of Georgia, being sorely distressed by the violence of the Indians, passed a law directing the establishment of two regiments of troops, to serve until a restoration of peace could be secured. But the enlistments not having been completed, in the following year a law was passed holding out additional inducement, and in the year 1789 the present federal constitution having gone into operation, and the rights of peace and war thereby vested exclusively in the General Government, the Legislature of Georgia passed a law discharging the troops which had been enlisted, and declaring the rate of pay which they should receive. For this pay certificates were directed to be issued, and these certificates constitute a debt unredeemed to this day. [Mr. E. turned to the several laws above referred to, and read from each extracts as proofs of his statement.] Here, Mr. Chairman, you have unfolded a debt, which, without the least violence to construction, fills up the description given in the articles of cession. Here are expenses incurred by the State totally distinct from and unconnected with the claims now under discussion. It is important also to observe, that every attempt made by the State of Georgia prior to the cession to dispose of her vacant territory, appears from the face of the acts to have been dictated by a view of discharging the public obligations to those troops. No less than three attempts at a disposition of her territory were made prior to the cession. The first was an offer to cede to the General Government, in 1788, provided Congress would pay the expenses which had then accrued in defending the frontiers, and would yield the wonted protection in future at their own expense. This was rejected. In the following year a law passed for disposing of a part of the territory to companies, notoriously with a view to raise money wherewith to meet the same engagements. This also failed, for causes which have been amply unfolded to the House on another occasion. The next attempt was in the year 1795, which, in the very title of the law, is expressed to be made to meet the particular engagements to the same soldiery. Of the result of this transaction the House is also possessed. The last attempt was by the articles of cession. Thus it appears that in no instance were the present claims ever thought of as a debt to be met by the State of Georgia out of the proceeds of her unlocated lands, but that the expenses incurred by, and the engagements made to the troops in the years 1787, 1788, and 1789, were uniformly the moving cause toward a disposition of her territory.

The Committee of Claims however, sir, notwithstanding they have throughout their report endeavored to rest upon the Attorney General the responsibility of the construction given to the cession, have at the same time erected a pillar of their own to support it, where they saw it must fall. They well perceived that all reasoning upon the subject was idle, unless one principle could be established; this they have boldly advanced to, and, instead of proving, have assumed as the groundwork of their whole superstructure. It is, that the State was bound in the first instance to compensate the soldiery, notwithstanding the ulterior responsibility of the General Government. From this they infer that the State had a right and by the cession did exercise the right of exonerating the latter Government. Now, Mr. Chairman, grant to the Committee their premises and there is an end to the question between us; their consequences must result. But, sir, I must supplicate their pardon if I refuse my assent to their position until my judgment is convinced. And I must be pardoned for saying that the reasoning to which they have resorted for the purpose of proving it, strikes my mind as the reverse of sound; that it proves too much to prove any thing. It is, that the State Government is in the first instance liable, because the troops were called into the field by the State Executive. This reasoning, Mr. Chairman, would go to prove that in every instance in which militia have been called into the service of the General Government, the States from which they were drafted were in the first instance liable for their compensation, because, in every case which has taken place, they were called into the field by State Executives. The truth is, sir, that in every case the orders have issued from the Executive of the General Government to that of the State Government, and that orders have from the latter issued in consequence thereof, for making the requisite drafts; so that the troops engaged in service under the immediate directions of the State, but under the mediate directions of the United States. This was the course pursued in both the insurrections in the State of Pennsylvania; it was the course in the State of South Carolina in relation to Indian invasion, at the same period at which the services were performed in Georgia for which we are now claiming compensation. It was the same course the other day with the troops ordered down the Mississippi to occupy New Orleans and its dependency. In all these cases the troops were compensated by the General Government in the first instance. It never entered the heart of any man that the States from which the drafts were made, were in the first instance liable, and that resort must afterwards be had by the State Government against the United States. I have always been taught that precedents established principles, but it now seems that the Committee of Claims in the profoundness of their researches have discovered that by assuming premises, principles may be established in the face of a uniform current of precedents.

There are, Mr. Chairman, two modes marked out in the constitution in which the militia may be called into service. The first is a case where from necessity the war attribute of sovereignty is left in the individual States. It is the case of invasion or such imminent danger thereof as will not admit of delay. The other mode is that of issuing orders from the Executive of the General, to the officers of the State Governments. This is the usual method by which the militia of the States are drawn into the service of the United States. And it is of importance to observe here, that the act of Congress which was intended to give effect to the constitutional powers of the General Government to “call forth the militia,” authorizes the President “to issue his orders for that purpose to such officer or officers of the militia as he shall think proper.” For, inasmuch as there can be no other difference in a military point of view, and for military purposes, between the Governor of a State and the next highest military officer, than the difference of rank, the one being first, the other second, in command, it must follow that if the militia are to resort for pay to the State Governments because their orders have passed through the Governor, they must also resort to the same source in case their orders should pass through the second or third in command; the principles upon which the committee found their reasoning apply equally to both cases. The soundness of conclusions drawn by the committee is, therefore, not merely questionable, but to me it appears not difficult to prove that the conclusions themselves are at war with the most obvious principles of justice.

I hold it, sir, accordant with the most common rules by which individuals are regulated in a state of society, that when service is performed the party for whom it was performed is the only one responsible for the compensation. The rule applies with equal force to the case of Governments, who are moral agents. Happily, Mr. Chairman, there is no difficulty in ascertaining the party for whom the service was performed in the case under discussion. Fortunately for the States in general, it is made the constitutional duty of the General Government to “protect each of them against invasion.” And fortunately for the State of Georgia in the present instance, there is the recorded sanction of the Executive of the Union, couched in the following words—“If the information which you may receive, shall substantiate clearly any hostile designs of the Creeks against the frontiers of Georgia, you will be pleased to take the most effectual measures for the defence thereof, as may be in your power, and which the occasion may require.” If, therefore, the principles and reasoning of the committee be correct, it must follow that troops engaged in performing the constitutional duty of the United States must resort for their compensation in the first place to the States. To premises leading to such conclusions, I will not, cannot yield assent.

Mr. Chairman: It is recollected that when this subject was under discussion at the last session of Congress, a distinction was taken between the situation of troops called into the field by order from the General Government, and those called out by the State Executive in virtue of authority given by the former. But, sir, I humbly apprehend that such a distinction is one of words, and not of principles. And I must here profess to the honorable Committee of Claims my profound acknowledgment, for furnishing me with an idea, and a mode of phraseology most suited to my purpose. They, in their report, have told the House that the “manner of exhibiting” the demand assuredly cannot change its nature. Now, sir, I repeat, in nearly their own words, that the manner of calling out the troops, cannot change the nature of the service. It cannot change the United States service into State service. And indeed the Committee of Claims themselves have given us the strongest proofs, that with them the distinction had no weight. For of claims which have been so contradistinguished in the reports from the War Department, there were committed to them both descriptions; but they draw no difference. Indeed, their principles would admit of none.

But, sir, if a difference in principle did exist between claims of the two kinds, it would prove nothing in the present case, because the difference does not here appear in fact; and I cannot but consider it as one of the unfortunate circumstances attendant upon our claims, that the epithet unauthorized, has, without foundation, been attached to them, because, as was supposed, they were founded upon services not specially ordered. The fact is, Mr. Chairman, that they were not only authorized, but they were ordered, by the General Government. I beg leave to compare the tenor of the orders for drafting the militia in Georgia, with the orders issued in other cases, about which no difficulty ever occurred. The words used in the Georgia case are, “you will be pleased to take the most effectual measures for the defence thereof,” &c. What are the words used in the orders issued to the governors of four States, to march militia to quell the insurrection in the Western counties of Pennsylvania? “I have to request your Excellency,” &c. The words are the same in every other instance in which militia have been ordered into the service of the United States. They are the same which were used for enlisting the one hundred horse and one hundred foot to serve upon the frontiers of Georgia, about whose compensation there never has, until the present moment, been any difficulty; they are the same under which several corps were raised in the same quarter, whose services have long since been remunerated.

Let us here pause for a moment, and view the extent to which we shall be led by adopting the report. Sir, the principles of that report, and the application therein made of those principles, lead to a conclusion from which, if I mistake not, every gentleman upon this floor will revolt. Sure I am, every State in the Union will reject it with horror. What, sir! has the great, the all-important right of peace and war been yielded up by the States to the General Government, and yet the States bound to compensate for war services? It is no reply to this conclusion to be told that the States are only liable in the first instance; for it is then completely within the power of the General Government, by withholding, to make them bear the burden altogether. And to that may be added, that the expenditure might frequently be of such magnitude as to create extreme oppression in the imposition of taxes, and, in some States, might produce general ruin and bankruptcy.

Mr. J. C. Smith observed that the Committee of Claims, in submitting to the House the reports then before them, had not been influenced by the magnitude of the sum claimed for services. The simple question considered by them, was whether compensation had, or had not been rendered for those services. The decision of this question depended on another question, whether from the nature of our Government, the State of Georgia was to be considered as, in the first instance, liable for the satisfaction of these claims. If this should be admitted, he thought the proper construction to be placed on the articles of cession was extremely plain. There are two ways in which the militia of a State may be called out by the Executive of the United States. The first is by a direct detachment of any portion of the militia. It was not necessary, in any instance, for the Government of the United States to call on the Executive of a State for this purpose. It was in their power directly to call into the public service a brigade or other division. This is one course, which may be pursued, and in this case it is admitted that the soldiers are soldiers of the United States, and that for their compensation they are to look to no other Government than that of the United States, in the first instance. The other course is that where a requisition is made by the General Government on the Executive of a State. What is the state of things in this case? It must be presumed that the citizens of a State, thus called into service, are to look to their own State for compensation in the first instance, though he admitted that the General Government was in the last resort responsible. They are to look, in the first instance, to the State Government, for this obvious reason: The Governor of a State is not amenable to the General Government; and he consequently cannot be punished for exceeding their orders. Is that Government then bound at all events to pay the expenses incurred in consequence of the orders of the State Executive, when they may be in direct violation of the orders of the General Government? It is a clear position then, that when the militia are called out by the Executive of a State they are to look to the State in the first instance. Application may be made to the General Government in the first instance, and if there shall have been no disobedience to its orders it may make payment; but, put the case of the orders of the General Government being disobeyed, will it be contended that it will be obliged to remunerate services rendered in opposition to its commands?

Contemplating the subject in this view, it must be admitted that the militia are in the first instance to look to the State Government, which may make a compromise with the General Government.

The second question is, what is the nature of the compromise made in this case? The articles of cession purport to be [Mr. Smith here quoted the beginning of these articles.]

It may here be proper to premise that Georgia is the first State in the Union that has ever received a compensation for her territory transferred to the United States. That territory was acquired by the joint exertions and blood of the citizens of all the States. Under such circumstances it becomes necessary to inquire into the compensation stipulated to be given by the United States to the State of Georgia; a compensation not given for the land, but for expenses incurred by Georgia in relation to it. The Attorney General tells us that these expenses were incurred for the portion surrendered to the United States, as well as for the whole State.

It behooves the gentleman from Georgia to show the precise expenses incurred. Were this once proved it would remove all doubt. The Commissioners who formed the articles of cession, it may be presumed, had before them the whole materials; and it must be inferred that the claims now made were fully considered by them, and were, so far as they are just, included in the settlement. Mr. S. concluded his remarks by saying he felt no uncommon tenacity or zeal against the claims; but that he would be very willing to allow them in case it should be satisfactorily shown that they were not already compensated.

Mr. Meriwether and Mr. Holland opposed the report, when a vote was passed against the claims—yeas 73, nays 28; when the House, on the motion of Mr. J. Clay, postponed the further consideration of the subject till Monday next.

Monday, February 13.

Public Roads.

On motion of Mr. Jackson, the House took up the bill making provision for the application of the money heretofore appropriated to the laying out and making public roads leading from the navigable waters emptying into the Atlantic to the Ohio river.

Mr. J. Clay moved to postpone the bill to the 1st Monday of December. Lost—yeas 41, nays 40.

Mr. R. Griswold moved so to amend the first section, as to vest the President with a general power to appoint three Commissioners to designate a route, to be reported to Congress for their ultimate decision; which motion, after a short conversation, was agreed to by a considerable majority.

Mr. Lyon offered a motion for empowering the President to designate the routes. Lost, without a division.

The committee rose and reported the bill with several amendments, in which the House concurred, and ordered the bill to a third reading on Wednesday.

Tuesday, February 14.

Importation of Slaves.

The following motion, offered by Mr. Bard, was taken into consideration in Committee of the Whole:

“Resolved, That a tax of ten dollars be imposed on every slave imported into any part of the United States.”

On motion of Mr. Jackson, it was agreed to add after the words United States, “or their territories.”

Mr. Lowndes.—I will trespass but a very short time upon the attention of the House at this stage of the business, but as I have objections to the resolution, it may be proper that I should state them now. I will do so briefly, reserving to myself the privilege of giving my opinion more at length when the bill is before the House, should the resolution be adopted, and a bill brought in. I am sorry, Mr. Speaker, to find that the conduct of the Legislature of the State of South Carolina, in repealing its law prohibitory of the importation of negroes, has excited so much dissatisfaction and resentment as I find it has done with the far greater part of this House. If gentlemen will take a dispassionate review of the circumstances under which this repeal was made, I think this dissatisfaction and resentment will be removed, and I should indulge the hope that this contemplated tax will not be imposed. Antecedent to the adoption of the constitution under which we now act, the Legislature of South Carolina passed an act prohibiting the importation of negroes from Africa, sanctioned by severe penalties. I speak from recollection, but I believe not less than the forfeiture of the negro and a hundred pounds sterling for each brought into the State; and this act has been continued in force until it was repealed by the Legislature at its last session. This long interdiction, I think, manifests, on the part of the government of the State, a disinclination to the trade, and, had we received the aid from Congress which was necessary to enforce the act, the repeal which is now complained of would never, in my opinion, have taken place. But, Mr. Speaker, the State was unable to enforce its laws. It had given up to the Government of the United States all revenues derived from foreign imposts, and was, therefore, necessarily divested of the means of preventing the introduction into the country from sea of whatever the excitements to gain might allure it into. The geographical situation of our country is not unknown. With navigable rivers running into the heart of it, it was impossible, with our means, to prevent our Eastern brethren, who, in some parts of the Union, in defiance of the authority of the General Government, have been engaged in this trade, from introducing them into the country. The law was completely evaded, and for the last year or two, Africans were introduced into the country in numbers little short, I believe, of what they would have been had the trade been a legal one. Under these circumstances, sir, it appears to me to have been the duty of the Legislature to repeal the law, and remove from the eyes of the people the spectacle of its authority being daily violated.