Here Mr. C. was called to order by

Mr. BINGHAM, of Pennsylvania, who inquired what the liberty of the press

had to do on a question of postponement? He believed, while the motion

for postponement was under consideration, all debate on the merits of

the main question to be out of order.

It was contended to be in order to object on a postponement generally to

the original motion, for an argument tending to defeat the original

motion is reason for a general postponement.

Mr. COCKE proceeded, and said he was glad to find that the freedom of

debate in this House was not to be destroyed, though it might be

interrupted; and he hoped that the freedom of the press would never be

subverted while the Government of the country rested upon the Republican

principle of representation. He admitted there were a great many

ill-natured things said by many of our American presses, but that should

never induce him to run the risk of destroying the most valuable and

effectual bulwark for maintaining us free and independent, by using an

instrument more fit to cut down the trunk of a tree, than to prune it of

its tendril luxuriances. What was the engine now brought out against

this freedom--an engine possessed of all the powers necessary to ensure

its success? A printer is to be charged, is to be tried, judged of, and

executed, by a body he has offended. Where will you find men of nerve

that will risk certain ruin? Such may arise when the press is in danger.

It was under these impressions that he wished to get rid of the business

altogether.

Mr. TRACY, of Connecticut, did not wish to press the business; indeed

his conduct had manifested this intention, for the original motion had

been suffered to lie on the table a longer term than usual before it was

called up, but even now when it was called up he did not wish to hurry

it through. He should not refuse a moderate delay, but he hoped the

motion from Tennessee would not prevail, as it went to destroy the

object without any further consideration. In answer to what fell from

the gentleman from Tennessee, he would say, that the objections he had

made did not all of them apply, and if there was any which did apply,

amendments could be made so as to conform them to the sense of the

Senate. He wished gentlemen would attend to the words of the

resolution, and they would find that they did not carry them beyond

what was prudent, mild, and proper. The committee are desired to inquire

who is the editor of the Aurora; this will appear to be a proper

inquiry, for the person is not publicly known; the imprint declares the

paper to be published for the heirs of Benjamin Franklin Bache, but we

do not know who are the heirs. The gentleman has told us it is no crime

to publish the doings of this body; agreed, but is it nothing to publish

untruths respecting the official conduct of the members of this body? is

it no crime to publish a bill while before this House? But are printers

at liberty to tell lies about our transactions? The Aurora says, that

the bill which it published had passed the Senate; this every member

knows to be contrary to the fact. The bill has not even to the present

moment passed this body, it is still on your table liable to

recommitment, amendment, or rejection. Asking the editor how he came to

print this falsehood, does not go to examine into the private mode by

which conveyance of intelligence is made to that office; there can be no

real intelligence, it being a falsehood. But suppose we have no power

over this editor, because the press is free; suppose we cannot punish

him for his slander, calumny, and falsehood, perhaps the inquiry may

lead us to discover some persons whom we can punish; will it be said

that the constitution is an impediment in our way to punish one of our

own members, if he should be found guilty of abusing the confidence of

his situation? At least we can exercise the power of removing one of our

officers, if we should convict him of a secret league to transmit

intelligence which is confidentially intrusted to his care.

He did not mean to insinuate that any improper mode was used in

conveying this intelligence; it might appear that the whole circumstance

was a mere unintentional error; if so he should not go farther; but yet

the printer could hardly have made the subsequent mistake in relation to

the gentleman from South Carolina, in declaring that he had never been

consulted by the committee on Mr. Ross's bill; there was something in

this calculated to produce an effect upon the public mind. He insinuates

that the business of the Senate is done in caucuses, into which the

gentleman was not permitted to enter; for if he had, it is supposed he

might have detected and defeated the mischiefs which are working against

the public welfare. This is an abandoned slander, as is well known to

every member of the House, for Mr. PINCKNEY did attend not one meeting

only, as the editor of the Aurora squeezed out some days subsequent to

his first licentious publication, but he did attend every meeting, as he

has candidly and honorably avowed in his place.

The gentlemen had declared themselves the champions of the press; but

surely gentlemen will not advocate such liberty as this--the liberty of

publishing nothing but lies and falsehood. If by the liberty of the

press is meant the publication of truth and just political information,

it was proper to be supported; but he was desirous of maintaining, along

with the liberty of the press, the liberty of the citizens, and the

security of the Government; he was not for sacrificing these latter

objects to the licentiousness of the press. He was not inclined to enter

into a newspaper controversy to maintain the dignity and reputation of

the Senate, nor did he think that gentlemen appreciated their own

standing in society when they referred the individual members of this

body to such a mode of defence against the shafts of calumny which a

daring editor might hurl against them individually.

Mr. BLOODWORTH, of North Carolina, doubted the power of the Senate to

take cognizance of the conduct of members in communicating with their

constituents, much less to punish them for publishing circumstances

respecting which no injunction of secrecy had been imposed. He, however,

assured the Senate that he had not given the editor of the Aurora any

information on the subject before them, or indeed on any other, for the

editor was a stranger to him; nor did he know that he ever called, at

that printing office more than once or twice in his life. He hoped that

the business would be postponed for the present, and he should have no

objection to its being taken up at a future day, when gentlemen might be

better prepared to meet it.

Mr. PAINE, of Vermont, declared himself against the postponement, nor

did he think that the motion of Mr. PINCKNEY was so inconsistent with

the motion before the House as to render a postponement necessary; he

thought the committee might inquire, and although the gentleman would

stop, by his proposition, from proceeding in case it turned out to be a

fabrication of the editor of the Aurora, yet if it should be found not a

fabrication of his, but that of a member or an officer of the House, it

was admitted they might progress, without infringing the sacred liberty

of the press. Suppose that some person in the gallery should have

furnished the spurious matter--and that may possibly be the case--will

the sacred liberty of the press be violated if we order the doorkeeper

to turn him out, and refuse him access in future? He thought the

resolutions might be amended so as to give greater satisfaction than

they do at present; for his own part he was not willing to declare all

at present which they contained. He thought the business would be

simplified if the committee were directed to consider and report what

measures would be proper to adopt in respect to a publication containing

various untruths of the proceedings of the Senate, and if the question

of postponement was lost he meant to move several amendments for that

purpose.

Mr. MASON, of Virginia, had no objection to meet the question at the

present moment, but he thought it of such importance, both to the Senate

and the citizens of the United States, that it should be taken up and

discussed in a solemn and serious manner; not hastily and lightly, as

some gentlemen seemed to think who were opposed to the postponement for

a few days; if, however, the opposition to the postponement was

persisted in, he had no doubt but the subject would prove itself well

worth a discussion of several days, and that the ultimate decision would

not be made till a period more remote than that moved for by his friend

from South Carolina. He therefore recommended to gentlemen to explore

well the ground which the motion of the gentleman from Connecticut had

taken, and consider seriously of the consequences to which they would be

led in pursuing their object. What was to be the course of their

proceeding? What were the embarrassments likely to arise therein? He

called the House to view the delicacy of the situation in which they

would be involved while defining their newly discovered privileges and

subverting the old acknowledged privileges of the liberty of the press;

he said the delicacy of their situation, because he considered it a

delicate one, for he was far from believing that the privileges of the

Senate were as unlimited as the gentleman from Connecticut contended

they were; if so, and they proceed to touch the liberty of the press,

which they may discover in the end to be secured against the invasion,

they will be compelled to retrace every step they are now taking, which

will neither redound to their honor nor discernment. They should be

careful how they expose themselves to popular scrutiny in cases

respecting their own power, for the public mind had been already

considerably agitated, at what many conceived to be an unconstitutional

exercise of power. If, session after session, attempts were made to

fetter the freedom of the press, the people of the United States would

watch with anxious regard every movement of this body. A measure which

originated in the Senate, and was subsequently acceded to by the other

branch of the Legislature, had been just ground of alarm. It is no

wonder that they watch our bills as well as our laws, for it must be

recollected by many of the gentlemen who hear me, that the bill called

the Sedition Bill was first introduced here, and that, instead of being

what it afterwards became, it was a bill more particularly to define

treason and sedition. The good sense of the House, during the time it

was upon the table and undergoing a political dissection, cut off from

it many of those monstrous excrescences which at first disfigured it,

and at last trimmed it into a shapely form; but after all it was removed

below stairs in a condition not fit to meet the eye of our

constituents--even obliged to undergo a decapitation; the head or the

title of it was struck off, and instead of being a bill defining

treason--which is a thing totally out of our power, the constitution

having declared in what alone treason should consist--instead of being

denominated a bill against sedition, it took the obnoxious head of being

a bill to amend the law for punishing certain crimes against the United

States.

Mr. ANDERSON, of Tennessee, did not rise with an intention of entering

into the merits of the general question, as to the extent of the

privileges of the Senate, which he conceived to be of great moment, but

merely to remark, as gentlemen alleged that the public mind was already

agitated on the subject, the postponement would tend to increase the

degree of agitation, which he conceived it was the wish of gentlemen on

both sides to have allayed as soon as possible. He therefore concluded

that it would be better to go on with the business and come as soon as

possible to a decision. One gentleman had said it ought to go to the

judicial courts, and that the Attorney General should be directed to

prosecute: well, then, that gentleman should give his consent to send

the business to a committee, in order to inquire whether the case would

warrant this interference.

Mr. READ, of South Carolina, would not oppose the motion of his

honorable colleague for a postponement, if he had required it on his own

account, or if its being negatived would prevent him from bringing

forward the preamble and resolution he had read in his place, and at a

proper time of having them discussed; but neither of these circumstances

were urged; therefore, as his colleague neither required time for

preparation nor would be prevented from offering and supporting the

intended amendment, he should vote against the postponement.

Mr. DAYTON had the highest confidence in the honor of the gentleman from

South Carolina, (Mr. PINCKNEY,) and he never suffered himself to doubt

of the truth of the declaration which had been made. He thought the

resolutions might be varied so as to get rid of the idea which the

gentleman objected to, in respect to the motion having been brought

forward at his instance; and might be amended as suggested by the

gentleman from Vermont, (Mr. PAINE,) so as to reconcile it still more to

the sentiments of the Senate. This being his view of the subject, he

wished the business to proceed, and should therefore vote against the

postponement.

The question on postponing till Tuesday next, was now put, and the yeas

and nays being called, stood yeas 9, nays 19, as follows:

YEAS.--Messrs. Baldwin, Bloodworth, Brown, Cocke, Franklin,

Langdon, Mason, Nicholas, and Pinckney.

NAYS.--Messrs. Anderson, Bingham, Chipman, Dayton, Foster,

Goodhue, Greene, Gunn, Hillhouse, Laurance, Livermore,

Lloyd, Paine, Read, Ross, Schureman, Tracy, Watson and

Wells.

So the motion was lost.

Mr. NICHOLAS, of Virginia, wished to ask for information. Was it

intended by this resolution to charge the committee with inquiring into

a breach of privilege as it respected the majority of this body? For the

resolution itself furnished no correct idea on this point. He wished

also to know whether it was intended that the Senate should declare that

the publication was a breach of privilege?

Mr. TRACY, of Connecticut, said that if the gentleman wished for

information from him, he would endeavor to give it. He conceived it

would be better to pursue the mode of inquiry in the first instance,

through the intervention of a committee, and not make at once a decision

whether the publication was or was not a breach of privilege; and

further, that the committee should report to the Senate what other

matters were the proper subjects for the Senate's inquiry. He would not

undertake to say at this time whether there was a breach of privilege at

all, or whether that breach was in respect to a majority of the House,

or of the privilege of a single member.

Mr. MARSHALL, of Kentucky, was of opinion that if the subject itself was

a proper one to be inquired into, then the mode was well devised, and

one liable to few or no objections; but there was another circumstance

to which he begged permission to call the attention of the Senate. He

observed that the resolution pointed only to one object, and that was

the publications in the Aurora; he did not think this went far enough,

if it was intended to be any thing more than a party manoeuvre. If

gentlemen meant to defend the honor of this body, they should avoid any

thing like partiality, and direct their inquiry to all breaches of

privilege, by publications in newspapers, let their publishers be whom

they might. Believing that the gentlemen were serious in the present

undertaking, he wished them to give it the appearance of impartiality

without which it would reflect disgrace on their proceedings. Gentlemen

have complained of the slander and calumny thrown upon them by the

publications in the Aurora, but, however detestable they might be, he

held in his hand one still more vile and flagrant. He would read it, and

then move to amend the resolution before the House by adding that the

committee be directed to inquire who is the editor of the United States

Gazette, and by what authority he published in that paper the following

paragraphs.

It passed in the negative--yeas 11, nays 16, as follows:

YEAS.--Messrs. Anderson, Baldwin, Bloodworth, Cocke,

Franklin, Langdon, Lloyd, Marshall, Mason, Nicholas, and

Pinckney.

NAYS.--Messrs. Bingham, Chipman, Dayton, Foster, Greene,

Gunn, Hillhouse, Laurance, Livermore, Paine, Read, Ross,

Schureman, Tracy, Watson, and Wells.

_The Judiciary._

Agreeably to notice given yesterday, Mr. PINCKNEY had leave to bring in

a bill to amend the act entitled "An act to establish the Judicial

Courts of the United States"; which was read and ordered to the second

reading.

On introducing the above bill Mr. PINCKNEY addressed the chair as

follows:

Mr. PRESIDENT: When I first had the honor of addressing you on this

subject it appeared to me necessary to move an amendment to the

constitution; on reflection, however, I am since convinced that the more

regular and expeditious mode would be to move an amendment to the law

establishing the Judicial Courts of the United States--by this means the

law may be passed during the present session, and we shall the more

readily obtain the limitation we contend for.

As the Judiciary is among the most important departments in our

Government, as it reaches every situation in society--neither the rich,

the honored, nor the humble, being without its influence or above its

control--as it is the department to which not only the lives and

fortunes, but the characters of our citizens are peculiarly intrusted,

it becomes us to be extremely careful that the Judges should not only be

able and honest men, but independent in their situation. Our

constitution has in some degree secured their independence by giving

them permanent salaries, and rendering them ineligible to the

Legislature; but in vain will we consider them independent, in vain may

we suppose their opinion beyond the control or interference of the

Executive, until we have determined it shall not be in his power to give

them additional offices and emoluments, while Judges; until, in short,

we confine them wholly to their duties as Judges, and teach them to

believe that in the execution of the laws they should consider

themselves as little obliged to please the President, or to fear his

disapprobation, as that of any other man in the Government. This can

only be done by preventing them accepting other offices, while they

continue as Judges, and thus depriving him of the power of heaping upon

them additional favors and emoluments.

It is an established maxim, and I hope will for ever remain so, that the

Legislature and Judiciary should be as distinct as the nature of our

Government will admit; that is, that the same men shall not, in a

deliberative capacity, agree to measures which they shall afterwards

have a right to explain and decide upon in a judicial one. The reason is

obvious; that the Judges should, in a calm and unprejudiced manner,

explain what the law literally is, and not what it ought to be; that

they should not be allowed to carry upon the bench those passions and

prejudices which too frequently prevail in the adoption and formation of

legislative acts and treaties, and which never fail to give an

irresistible bias to the opinions of a Judge who has been concerned in

making them. The truth of this reasoning is now so generally conceded,

that there is not a man who knows any thing of government that will

attempt to controvert it; the constitutions of all the States have

sanctioned it, and if the opinions of the Federal Convention ought to

have weight, they so strongly insisted upon it as even to refuse, after

repeated trials, associating the Judges with the President in the

exercise of his revisionary power; indeed a gentleman high in office,

and who held both situations at the same time as Judge and Envoy, is

himself decidedly of this opinion, for in his charge to the Eastern

juries he has these expressions:

"Wise and virtuous men have thought and reasoned very

differently respecting Government; but in this they have at

length very unanimously agreed, viz: "that its powers

should be divided into three distinct independent

departments, the Executive, Legislative, and Judicial. But

how to constitute and balance them so as best to guard

against abuse and fluctuation, and preserve the

constitution from encroachments, are points on which there

continues to be a great diversity of opinions, and on which

we all have as yet much to learn. The Constitution of the

United States has therefore instituted these departments,

and much pains have been taken so to form and define them,

as that they may operate as checks one upon the other, and

keep each within its proper limits: it being universally

agreed to be of the last importance to a free people, that

those who are vested with Legislative, Executive, and

Judicial powers should rest satisfied with their respective

portions of power; and neither encroach on the provinces of

each other, nor suffer themselves or the others to

intermeddle with the rights reserved by the constitution to

the people.""

If, then, there can be no doubt of its propriety when applied to a

Judge, in ordinary cases, how much more forcibly does it apply to an

Envoy who concludes a treaty, which when ratified is to become the

supreme law of the land; how strongly must the negotiation of so

important and in many instances so difficult a business, be impressed on

his mind! He will no doubt retain the journals of his proceedings and

opinions, and perfectly recollect the progress and termination of every

proposal which was compromised or rejected. It must be difficult for him

to forget the attempts to which ministers are sometimes liable in

condescending where their object is honorable; he will remember what his

opinions were upon particular points; and, whether they were successful

or not, his general character may be that of not very easily yielding

them. In short, it is impossible for him to be that cool and unbiased

interpreter of the treaty which he otherwise might have been, had he not

been concerned in concluding it.

The constitution contemplates an independent Judiciary. The public,

therefore, will expect and have a right to demand, upon a questions, a

fair and impartial trial by Judges, whose minds are open to conviction,

and unprejudiced by party opinions; by men who have not been concerned

in forming a law or treaty, but who are totally unfettered by the

recollection of what passed at the negotiation, or what might have been

wished or expected by either party, as judges, candidly and impartially

to determine upon every question that may come before them.

These reasons are certainly sufficient to convince any one that this

provision is necessary to the independence of the Judges, and the pure

and unbiased exposition of the laws: that unless it is done, their

independence is a visionary and unfounded thing. That if the President

can hold out to the Judges the temptation of being Envoys, or of giving

them other offices, and that he still can continue them as Judges, that

on any question in which the President or his friends, or the

Government may be concerned, it might have a tendency to influence them

in opinion; that it was not frequently to be expected they would be

unmindful from whom they received the present appointments, or so

entirely indifferent to their own, or the advancement of their families

as not sometimes to recollect that from the same source other and

greater emoluments might in future be derived; that ingratitude was not

often the vice of public officers while their patron continued in power;

that on subjects where his character, his feelings, or the public

opinion of his acts were in question, our Judges might reasonably be

expected not to be charged with apathy or inattention; and that the true

way to assert the dignity of the President and the honor and

independence of the Judges, was to place it out of the power of the one

to offer, and the other to accept additional favors.

That a Judge ought never to be absent from the United States, or be

drawn from his official situation and leave an undue proportion of its

duties to be performed by the remainder of the bench; that the number of

Judges were exactly proportioned to the duties they were to perform;

that to withdraw one and be incapable of supplying the vacancy, was not

only to require the inexecution of the laws in some parts of the Union,

but to invidiously harass the other, while a favorite or possibly too

complying a Judge was sent to gratify his curiosity or indulge his taste

on some agreeable or easy mission.

That no man ought to hold two offices under the same Government,

particularly where they were important; that most of the States had

regulations to prevent this, and that nothing more contributed to the

extravagance of a Government or the corruption and immorality of its

citizens, than the power to heap many lucrative and perhaps useless

offices on the same person; that it had a tendency to make them servile,

to render them the tools and sycophants of men in power, and to degrade

the character of office.

That in case of the impeachment of the President of the United States,

the Chief Justice was to preside, and there was no provision in the

constitution to supply the vacancy; therefore, if an impeachment was to

take place in his absence, it must remain undecided until the Chief

Justice could be sent for; that this, if recollected by the Executive,

should of itself have been an insuperable objection--in point of

propriety, it always is so, but in point of delicacy it ought most

strongly to have been so, because, here the President, is the officer,

and indeed the only one, who is implicated in the possibility of its

inconvenience arising from absence of the Chief Justice. It is true it

is to be presumed that the man who is elected by his countrymen to

administer the important office of President, will be always so wise and

virtuous as to make it very unlikely an impeachment of him should take

place--the thing, however, is possible. In times of difficulty where

opinions run high, and where those opinions are strongly divided between

numerous and powerful parties, it is impossible to foretell what may

happen. No man is said to be wise at all times, and our own experience

and intercourse with the world must convince us that there are moments

of enthusiasm, or of heat, or surprise, when the most cautious men are

not quite so prudent as others. I will therefore ask, and do it with

great deference, as the President is the only officer on whose trial the

Chief Justice is to preside, or on whose impeachment his absence would

be a public inconvenience, is it not perhaps presuming too far on his

own infallibility or incapacity to err, to send the only officer to a

distant country, without whose presence, in case of an impeachment, a

court could not be formed to try him? I ask it with deference, and am

sure these observations must have escaped the Executive, or the Chief

Justice never would have been sent.

To evince the absolute necessity of some provision being made, it is to

be observed that, as the law stands now, a Judge might not only accept

any other appointment from the Executive of the Union, but he may accept

them from the individual States, or, what is still more dangerous, from

a foreign power, and thus become the minion of the one or the tool of

the other, as circumstances or his own interest may prompt him. Few men

will deny the necessity of some provision here, and that the present is

an unwise and degrading situation for a national Judiciary. Most of the

States have carefully guarded their tribunals against a danger of this

kind. The State of South Carolina, to which I belong, is remarkably

express on this subject. Aware of the necessity of an independent

judiciary, her constitution, in speaking of that department, has these

words: "nor shall the Judges, hold any other office of profit or trust

under this State, the United States, or any other power," a prohibition

not more complete or full than ought to exist in the case of the Federal

Judges.

A strange doctrine has lately been circulated, which it is my duty to

remark on--it is, that this bill is to be considered as a reflection on

the President for nominating a Chief Justice, and the Senate for having

confirmed it, and that the Senate, by agreeing to it, will join in the

censure.[46] Being always ready to approve, and to praise what is

meritorious, it is with great reluctance I can ever be brought to

censure--I have no such intention at present. I can readily believe that

many of the inconveniences I have mentioned may have escaped the

President in the recent nomination. It is here I have always disliked

it. I believe the general sentiment to be against it; but, be that as it

may, no such reason ought ever to have weight in this House. If the

thing is right, if it is now considered as proper for us to say, that

the Judges must stay at home, and be confined to their judicial duties,

and hold no other offices while Judges, we should do it, and not

consider whether it is pleasing or otherwise to the President; he must

understand public business too well to consider it in the nature of a

reflection. We every day alter existing laws and regulations, without

considering such changes as reflections on a preceding Legislature or

President, and I should be sorry to suppose, that, while a bill was

under discussion, the fear of displeasing the Executive should ever be

used as a reason for its rejection. He has always a right to give his

opinion in the exercise of his revisionary authority, and when he does,

we will deliberately and respectfully attend to it. One remark more, and

I shall no longer trespass on the patience of the House: it is, that a

reason has been given for leaving the President at liberty to send a

Judge on any delicate or difficult mission, which I do not conceive

reputable either to the political or literary character of our

country--it is said the Judges may be the most able and qualified men

the President can find, and that being prevented from sending one of

them, he may sometimes be obliged to send inferior and less important

characters, and that the public interest might suffer. How far the

present or any former supreme bench may justify the observation it is

not for us to say, but never will I suppose that among a people so

numerous and enlightened, so alive to their country's welfare, and

hundreds, perhaps thousands of whom are so devoted to public business,

can only six men be found capable of discharging any political duties

that Government might require; the idea is too degrading to our national

character to be entertained for a moment. For these reasons I have

thought it my duty to introduce this bill, and I trust it will pass and

become a law.

SATURDAY, March 8.

_Breach of Privilege._

And, on motion to agree to the original motion as amended, it passed in

the affirmative--yeas 19, nays 8, as follows:

YEAS.--Messrs. Anderson, Chipman, Dayton, Foster, Goodhue,

Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd,

Marshall, Paine, Read, Ross, Schureman, Tracy, Watson, and

Wells.

NAYS.--Messrs. Baldwin, Bloodworth, Cocke, Franklin,

Langdon, Mason, Nicholas, and Pinckney.

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