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.