Mr. SMILIE.--If the gentleman from Vermont had commanded a little

patience, he would have perceived the remarks which he has just made to

have been altogether unnecessary. He would have perceived the necessity

imposed upon me by the observations of the gentleman from Virginia of

stating those facts to which that gentleman alluded. It must be seen that

these proceedings contemplate the possibility of an impeachment. It will

be recollected by gentlemen who were in Congress at the last session,

that I was then led to give a statement of facts respecting the conduct

of Judge Chase on a particular occasion. That statement was not made with

a view to impeachment. A bill had been introduced to change the districts

of the circuit courts of the United States; when I discovered that Mr.

Chase was assigned to the district of Pennsylvania, I felt interested

in having him transferred to another district, considering that his

previous conduct had rendered him obnoxious to the people of that State.

These circumstances I stated to the House, and was in consequence called

upon to assign my reasons why Judge Chase was obnoxious to the people of

Pennsylvania. This is the history of the business so far. I am now called

upon to state the facts which I mentioned on that occasion. This I shall

do briefly.

A man of the name of Fries was prosecuted for treason in the State of

Pennsylvania. Two of the first counsel at that bar, Mr. Lewis and Mr.

Dallas, without fee or reward, undertook his defence. I mention their

names to show that there could have been no party prejudices that

influenced them. When the trial came on, the judge behaved in such a

manner that Mr. Lewis declared that he would not so far degrade his

profession as to plead under the circumstances imposed upon him. Mr.

Dallas declared that the rights of the bar were as well established as

those of the bench; that he considered the conduct of the judge as a

violation of those rights, and refused to plead. The facts were these:

The judge told the jury and the counsel that the court had made up their

minds on what constituted treason; that they had committed their opinion

to writing, and that the counsel must therefore confine themselves to

the facts in the case before the court. The counsel replied that they

did not dispute the facts, but that they were able to show that they

did not constitute treason. The end of the affair was, that the counsel

retired from court, and the man was tried without counsel, convicted, and

sentenced to death.

After this the Attorney General wrote a letter to Messrs. Dallas and

Lewis, requesting them to furnish their notes and opinions for the use of

the President. They drew up an answer, in which they stated that the acts

charged against Fries did not amount to treason, but were only sedition;

and that they were so considered in the British courts. This letter

was read to me by Mr. Dallas. After receiving the letter the President

pardoned the man.

Mr. J. CLAY.--This debate appears to me to arise from causes the most

extraordinary, and such as we are not accustomed to hear assigned on

this floor. The gentleman from Virginia has made a motion justified by

his own knowledge as well as that of my colleague; and this motion is

opposed in a most extraordinary manner. I believe this is the first

instance in which a motion to appoint a committee of inquiry into the

official conduct of a public officer has been opposed. We are told by the

gentleman from Vermont that this House has no right to pass a censure on

a judge, and that judges should be highly independent. I am afraid that

unless great care be taken the doctrine of judicial independence will be

carried so far as to become dangerous to the liberties of the country.

This motion does not, however, affect the character of the judge. Let it

also be recollected, that if the reputation of the judge be at stake, the

reputation of this House also is implicated. I consider this House as

the constitutional guardians of the morality of the Judiciary. Whenever

even suspicion exists as to that morality, a committee of inquiry should

be appointed. For the pure administration of justice is surely more

important than the reputation of any particular judge. I am sorry my

colleague thought it necessary to make any statement of facts to the

House. I believe that more important facts than he has mentioned will be

stated by witnesses. I believe likewise the reputation of the judge will

be better preserved by the appointment of a committee than by assertions

made on this floor by particular members, not responsible elsewhere for

what they allege.

With regard to my opinions in this case, whatever my political

impressions may be, they are entirely unbiassed. I have heard facts

stated, but I cannot say that they have been satisfactorily proved to

my mind. There are other charges equally reprehensible. Under these

circumstances, I ask if the character of the judge is not more implicated

by a discussion of his official conduct on this floor than by appointing

a committee to obtain facts. If he is guilty of the facts alleged against

him, no gentleman will say that he is not impeachable. If he is only

suspected of them, there ought to be a committee, that if guilty he may

be impeached, and if innocent, be freed from the imputation thrown upon

him.

Mr. R. GRISWOLD.--Gentlemen will acknowledge that this is a subject of

great importance and delicacy. No one will doubt but that we ought to

execute our duty so as to preserve the fountains of justice pure, and

that we ought at the same time to treat the important character of a

judge, or of any other high officer, with respect. I do not know but that

this mode of procedure is warranted by precedent. But if it is, it is

unknown to me. As the resolution now stands, I do not think it perfectly

correct. The honorable gentleman from Virginia says he is acquainted with

facts that warrant the proposed inquiry. The question is whether the

House ought to be governed by the opinions of any one member. We know not

what those facts are; the gentleman declines stating them. I do think,

as the subject now strikes me, that the conviction of any one member of

the propriety of this measure cannot warrant the interposition of the

House. Instead of taking the individual opinion of a member, it ought to

be stated that certain facts exist, which, if proved, will justify an

impeachment. I do not know whether these ideas are not incorrect, having

never before contemplated, or had a suspicion that such a motion would be

made.

As to the remarks of the gentleman from Pennsylvania, I do not consider

them as entitled to much weight. If the facts stated by him were of

his personal knowledge, they would undoubtedly merit attention. But he

merely states that which he has received from others, and which amounts

to nothing more than that the judge refused liberty to the counsel to

argue a point of law after it was decided, and confined their argument

to facts. In so doing the judge may have erred, but it was an error

of judgment, for which he cannot be impeached. No lawyer will perhaps

say that it was not the province of the judge to decide the law, and

that he has not the right to prevent counsel from arguing it after his

mind is made up. But this information is not of the knowledge of the

gentleman. Are we then to institute an inquiry into the conduct of a

high officer of the Government merely on hearsay? This has never been

done under our Government. In the late case of Judge Pickering proof was

furnished by the affidavits of witnesses testifying certain facts. I do

not therefore consider it correct to proceed to inquire on the opinion

of any gentleman. The proper course is first to have proofs which will

justify ourselves to our own consciences in making the inquiry--for we

ought not to touch the character of a judge, unless we are satisfied from

facts that there is good reason for an investigation into his conduct.

Gentlemen will not say that making an inquiry into the official conduct

of a judge does not touch his character.

Gentlemen say if this committee find the conduct of the judge to have

been correct, they will make a report to that effect; but it does not

follow that the report will contain all the evidence adduced, and

suspicion may still rest on the character of the judge, and that some

facts may not be stated, which, if stated, would show his misconduct.

Whereas, if the business be brought generally before the House, on

the exhibition of certain facts, the public will be enabled to decide

whether they warrant impeachment or even suspicion. With this view of the

subject, I am of opinion that it will be best to delay acting in this

affair until facts shall be disclosed which will justify the step now

proposed to be taken. I have as high a respect for the opinion of the

gentleman from Virginia as for that of any other member on this floor;

but I doubt whether we can justify our votes on the opinion of any single

member; facts alone ought to govern our opinions. I, therefore, for the

purpose of considering the course most proper to be pursued, move a

postponement of the further consideration of the motion until to-morrow.

Mr. J. RANDOLPH.--Were I the personal enemy of the gentleman who is the

object of this resolution, I should take precisely that course which,

on this occasion, the gentleman from Connecticut seems more than half

inclined to take. That gentleman wishes the resolution to lay until

to-morrow, in order that he may have time to consider whether he can

bring himself to refuse the inquiry altogether. He says that he cannot,

or rather (for he speaks doubtingly) he thinks he cannot see the

propriety of instituting an inquiry without evidence. What evidence?

Nothing short of legal proof--testimony on oath. And what is the object

of the resolution? To acquire that very evidence. If we had the evidence,

to what purpose make inquiry? As, however, the evidence cannot be had

without inquiry, and the gentleman will not grant the inquiry but upon

the evidence, it is plain that if we take the course which he recommends,

we must go without both. Will gentlemen offer objections against inquiry

which are applicable only to impeachment? If an impeachment were moved,

they would have a right to call for evidence. But what is the object

of the present motion? Merely to inquire whether there exists evidence

which will justify an impeachment. But this inquiry we are told cannot be

instituted on mere hearsay, although we have the declaration of a member

in his place. What would be said of a grand jury, who being informed

by one of their body that A or B could testify to the fact of a murder

being committed within their jurisdiction, should refuse an application

to the court to have them summoned, and because they could not find a

bill of indictment unsupported by evidence, should reject that evidence

which might be within their reach? I profess not that tenderness of

conscience which has been displayed by the gentleman from Connecticut. My

conscience teaches me to accuse no man wrongfully, but to deny inquiry

into the official conduct of no one, however exalted his station; and

I had supposed, from his practice, that the gentleman held the same

opinion. For it will be recollected that on the eve of the close of the

last session he had himself instituted an inquiry which went to impeach

the conduct of some of the first officers of the Government. No one on

that occasion stepped in between the demand for an inquiry and those

officers implicated in it. No inquiry was made, and it precluded any

further proceeding on the part of the House, since the charges which had

been attempted to be brought forward would not bear examination. Mr. R.

concluded by calling for the yeas and nays.

Mr. GREGG said he should vote against the postponement, and in favor

of the resolution. The case was somewhat new, but he perceived no

impropriety in giving it the same direction with all the other business

originated in the House. What is this committee to be appointed for? To

investigate facts and report them to the House. Was it not most proper

that gentlemen whose characters were implicated should have, in the first

instance, facts stated privately before a committee, than that parts

of their character should be immediately brought into view before the

House? He recollected one fact not yet alluded to in debate. In 1792,

after the army under the command of General St. Clair was defeated,

great dissatisfaction arose, and the character of the commander was

implicated. The idea was that the expedition had not been conducted with

propriety. The business was brought before Congress. It was understood at

that time, whether justly or not, Mr. G. would not pretend to say, that

the commander-in-chief could not be tried by a court martial. Congress

therefore took up the business, and appointed a committee of inquiry, who

went through a lengthy examination of the subject. Mr. G. mentioned this

precedent that gentlemen might turn their attention to it.

Mr. R. GRISWOLD said--I had hoped that the language used by me, when

I was up before, would not have led gentlemen to suppose that I was

acting as the friend or the enemy of Judge Chase. I am acting in neither

capacity. I am acting only as a member of this House, who ought to be

anxious on an occasion of such importance to take that course which is

most consistent with propriety; that course which results from the duty

this House owes the nation, and that duty which they owe the character

of a judge. It did appear to me that it was not correct to call the

character of a public officer into question unless some necessity should

first appear. No facts are presented on this occasion. The gentleman from

Virginia has said that he is in possession of facts, or of something

which makes him believe that an inquiry is proper, but he does not choose

to communicate those facts. The gentleman from Pennsylvania has given us

his information. The question is, whether it is proper on these light

suggestions to institute a solemn inquiry into the character of this

judge. It appears to me that we ought not to throw any imputation on

the character of any officer without evidence that such an inquiry is

necessary. The case mentioned by the gentleman from Pennsylvania (Mr.

GREGG) does not apply. Dissatisfaction existed in the country and in this

House on the events of a campaign; an inquiry was instituted; but what

was its object? The committee were appointed to inquire into the general

causes of the failure of the expedition; they were not instructed to

inquire into the character of a particular officer.

The gentleman from Virginia has referred to another case, when he says

that we were ready enough to institute an inquiry, and has left it to be

inferred that the inquiry was made without any previous proofs of its

necessity. But certainly on that occasion inquiry was not made without

proof. I suppose the inquiry alluded to was that which related to the

conduct of the Commissioners of the Sinking Fund. It was instituted on

a report made by them, and which we thought was not satisfactory. The

resolution offered was adopted, and inquiry was made, the result of which

is well known to every gentleman. It follows, therefore, that there are

no precedents adduced which apply to the present case.

It is my wish that the proceedings of this House may on this occasion be

perfectly correct, and that we may not be precipitated into the adoption

of this resolution without due consideration. If it is correct to vote

an inquiry in all cases where a member rises on this floor and desires

it, it is correct to vote it in this case. In this case a gentleman

rises and says that he is satisfied an inquiry ought to take place. The

question is, whether it is proper to inquire on the suggestion of a

member? If it is proper, without facts being adduced, then it will be

always proper to inquire whenever any member requires it, and it will be

also proper whenever any individual citizen requires it. This course I

have never thought correct. On the contrary, I think some facts ought to

be previously presented to establish the necessity of an inquiry before

it is voted. In the case of Judge Pickering a very different course has

been pursued. The appointment of a committee of inquiry originated from a

Message of the President. We find in February, 1803, the House received

the following Message:

“The enclosed letter and affidavits, exhibiting matter against

John Pickering, District Judge of New Hampshire, which is now

within Executive cognizance, I transmit them to the House of

Representatives, to whom the constitution has confided a power

of instituting proceedings of redress, if they shall be of

opinion that the case calls for them.”

This Message was referred to a committee, with the accompanying papers,

furnishing evidence of the necessity of an inquiry. But the course

pursued to-day is very different. A gentleman gets up and moves an

inquiry into the conduct of Judge Chase, and says that he is of the

opinion that it ought to be made. The course, I think, is incorrect.

Some facts ought first to be adduced. I repeat it, I am on this occasion

neither the friend nor the enemy of Judge Chase. I am the friend of this

House; I wish its proceedings to be correct, and I hope they will not do

hastily what they may hereafter regret.

Mr. DENNIS.--The only question now before the House is, whether they

will postpone the consideration of the motion on the table. I cannot but

express my surprise that the gentleman from Virginia should oppose this

motion, when several have declared that they are not prepared to vote

on this resolution. Gentlemen ought to recollect that, according to our

rules, on all motions which require the concurrence of the two Houses,

one day’s delay is necessary. Although this resolution is not of this

kind, yet it surely is not of inferior importance.

I believe that the gentleman alluded to by the motion would rather court

than shrink from an investigation of his official conduct. I believe,

also, that it has become necessary, from the discussion of this day, that

an investigation should take place. I am not, therefore, prepared at this

time to say whether I shall not ultimately vote for an inquiry. But it

appears to me that the course proposed is inverting the natural order of

things, inasmuch as it institutes an inquiry not growing out of facts,

but for facts. I believe also that the facts stated, if authenticated,

will furnish no ground for an impeachment. Circumstances attending this

motion show that the gentleman from Virginia does not consider them as

a sufficient ground for an impeachment. The refusal to hear the point

of law discussed was the act of the court. Mr. Chase did not sit alone

on the bench. Another judge must have been associated with and have

concurred with him. If so, why does not the resolution allude to the

other judge? Why select one judge, when both are equally implicated in

the charges?

I believe the most parliamentary way would be for a gentleman to state,

in the form of a resolution, the grounds of impeachment, and then to

refer such a resolution to a select committee for investigation. In this

mode the House may correctly institute an inquiry, and send for persons

and papers. This is the only parliamentary mode of proceeding. In every

case where impeachments have been made, the facts have been stated in

a resolution, concluding with a motion for an impeachment. The House

possesses no censorial power over the judges, except as incidental to

the power of impeachment. If gentlemen are possessed of facts, why not

state them in the form of a resolution, and move an impeachment? Then, if

the facts appeared to me to warrant an impeachment, I would not object

to their going to a select committee, though I believe the most proper

course would be for the House to send for persons and papers, and to

examine for themselves. But it is extremely novel and unprecedented for

the House, without facts, to institute an inquiry into the character of a

high officer of the Government.

May they not, in the same way, extend their inquiry into the conduct of

every judge in the United States, without stating any facts on which the

inquiry is founded? For these reasons I shall vote for postponing the

further consideration of this resolution for one day, on account of the

importance and delicacy of the subject, and the serious deliberation it

is entitled to. I do not know whether, if sufficient time is allowed for

consideration, and I shall be convinced that this course is consistent

with parliamentary usage, I shall not be in favor of an investigation.

Mr. ELLIOT.--When the yeas and nays are called, I shall on every occasion

rise in favor of taking them. I wish the votes I give in this House

entered on the Journal, and known to every citizen of America. The more I

contemplate the course pursued on this occasion, the more extraordinary

and unprecedented it appears to me. The gentleman from Virginia rose,

and, after an elegant exordium, stating that the streams of justice

should be preserved pure, and other fine things, told us that he had

received information of facts that convinced his mind that an inquiry

ought to be made into the conduct of a judge. Suppose the gentleman, on

facts known to himself, had stated his opinion, that an inquiry ought

to be made into the conduct of the President of the United States; we

have the same right to impeach the President as a judge. If the inquiry

would be improper in the one instance, without facts being adduced,

it would be equally so in the other. For we possess no censorial or

inquisitorial powers over the conduct of the judges of the Supreme Court.

If Judge Chase has been guilty of misconduct, let it be stated. If that

misconduct be of a private nature, let the House assume the character

of a grand jury, hold private sittings, receive evidence, and determine

whether the judge shall be impeached or not. The gentleman asks whether

a grand jury in the case of a charge of murder can send for persons.

Undoubtedly they can. But did gentlemen ever hear of their appointing

a committee to inquire whether a man charged with a partial offence

ought to be indicted? We are called on as the grand inquisitors of the

nation, to appoint an inquisitorial committee to get evidence; for it is

granted that as yet we have none. I believe that no committee of this

nature ought to be constituted, without previously ascertaining facts

that will warrant the delegation of such great power. No accusation,

even, is before us; but we are called upon to appoint a committee to

look one up--a committee to be invested with power to send for persons

and papers--a committee to inquire in private. I will never consent to

the appointment of such a committee, until facts that will justify the

inquiry are stated.

The facts adduced by the gentleman from Pennsylvania, if proved, could

not induce me to believe that the judge is impeachable. I may suspect

that his conduct was erroneous and improper, but I cannot conceive it

proper to impeach a single judge for the act of the court. Believing,

therefore, this conduct unprecedented, unparliamentary, and replete with

improprieties; believing it novel; believing that, in an affair of so

much consequence, we ought not to proceed with precipitation; believing

that we are entitled to demand one day to reflect upon it--I am proud,

on this occasion, to record my vote in favor of the postponement until

to-morrow; and if it were for a week, I should with equal pride and

pleasure vote for it.

Mr. HOLLAND moved an adjournment.

Mr. J. RANDOLPH said, that considering a motion to adjourn equivalent to

a postponement for a day, he moved the taking the yeas and nays upon it.

Mr. HOLLAND moved an adjournment, on which the question was taken--yeas

52, nays 62.

YEAS.--Willis Alston, jun., Nathaniel Alexander, Simeon

Baldwin, George W. Campbell, John Campbell, William Chamberlin,

Martin Chittenden, Clifton Claggett, Manasseh Cutler, Samuel

W. Dana, John Davenport, John Dennis, Thomas Dwight, James

Elliot, Edwin Gray, Gaylord Griswold, Roger Griswold, John A.

Hanna, Seth Hastings, James Holland, David Hough, Benjamin

Huger, Joseph Lewis, jun., Henry W. Livingston, Thomas Lowndes,

Matthew Lyon, Nahum Mitchell, James Mott, Thomas Plater,

Samuel D. Purviance, Erastus Root, Tompson J. Skinner, John

Cotton Smith, John Smith of Virginia, Joseph Stanton, William

Stedman, James Stephenson, Samuel Taggart, Samuel Tenney,

Samuel Thatcher, David Thomas, George Tibbits, John Trigg,

Philip Van Cortlandt, Killian K. Van Rensselaer, Daniel C.

Verplanck, Peleg Wadsworth, Matthew Walton, Lemuel Williams,

Marmaduke Williams, Joseph Winston, and Thomas Wynns.

NAYS.--David Bard, George Michael Bedinger, William Blackledge,

Adam Boyd, John Boyle, Robert Brown, Joseph Bryan, William

Butler, Joseph Clay, John Clopton, Jacob Crowninshield, Richard

Cutts, William Dickson, Peter Early, Ebenezer Elmer, John

W. Eppes, William Findlay, James Gillespie, Andrew Gregg,

Thomas Griffin, Samuel Hammond, Josiah Hasbrouck, William

Hoge, David Holmes, John G. Jackson, Walter Jones, William

Kennedy, Nehemiah Knight, Michael Leib, John B. C. Lucas,

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, Thomas Sammons, Thomas Sanford, Ebenezer

Seaver, James Sloan, John Smilie, John Smith of New York,

Richard Stanford, John Stewart, Philip R. Thompson, Abram

Trigg, Isaac Van Horne, Joseph B. Varnum, John Whitehill, and

Richard Wynn.

The question of postponement recurring,

Mr. HUGER considered the course contemplated by the resolution as

improper, unparliamentary, and unprecedented. To make up his mind on the

course proper to be pursued, he was in favor of the postponement.

Mr. HOLLAND observed that he had moved an adjournment to allow those

gentlemen time for reflection who had not yet made up their minds on

the propriety of the motion. He was himself of this number. Having been

allowed no time for reflection, he did not feel perfectly satisfied with

the appointment of a committee of inquiry before any facts had been

substantiated. Desiring further time to form his judgment, and seeing no

occasion for precipitation, he should vote in favor of a postponement.

Mr. G. W. CAMPBELL.--I will not, at this late hour, detain the House

with the expression of my ideas in detail. I am as desirous as any

member of this House that the streams of justice should flow pure and

unsullied, as on their purity depend the safety and liberties of the

people of the United States. But when we are about to enter into measures

for preserving them clear, we owe it to ourselves to preserve order in

our conduct, and to act in such a manner as we shall be able to justify

to our constituents. Every member of this House, on such an occasion,

ought to be as cautious in his proceeding as a judge in delivering his

opinions, lest, while we are condemning the conduct of the judge, we

ourselves go astray from our duty. For this reason, I am against the

adoption of a measure which may throw a censure on a character invested

by the United States with high authority, until I am convinced we have

sufficient grounds for doing so. The resolution on the table can have

but one object, to wit: the direction of an inquiry whether sufficient

evidence can be procured to authorize an impeachment. I conceive that

this House cannot proceed in any other way. I am therefore of opinion,

that, before the vote for an inquiry, there ought to be probable grounds

that facts exist that authorize an impeachment, and that evidence can

be procured of their existence. I am not prepared to say, from any

thing which has been adduced, that such evidence does exist. I conceive

that until probable grounds are shown, we ought not to authorize such a

procedure, inasmuch as it may establish a precedent that we may hereafter

regret--a precedent which will put it in the power of any member to move

and obtain an inquiry into the conduct of the President, a judge, or

any other officer under the Government. Under these circumstances, I am

not prepared to say this is the regular course of proceeding. I do not

profess to have much knowledge of parliamentary proceedings, and have

therefore waited, before I expressed my opinions, to hear such precedents

as gentlemen could adduce. Having heard none, I conclude none exist.

I conceive that the act of this House, in voting for a committee of

inquiry, is equivalent to the expression of the opinion that they have

evidence of the probable grounds of the guilt of the judge. The gentleman

from Virginia has told us that the powers of this House are, in some

degree, like those of a grand jury. I agree that they have all the

powers of a grand jury, and it is on this ground that I deny the power

now contended for. I say that a grand jury has no right to send for

testimony: they have only a right to receive testimony from any one of

their body, and to receive such witnesses as the court may send them. If,

then, there be evidence in the present case, let us act upon it, even

though it be _ex parte_, and although that might, perhaps, be going too

far.

I repeat it, I have heard no statement satisfactory to my mind that there

are probable grounds for proceeding in this business. It is true, the

gentleman from Pennsylvania has made a statement, but that statement

appears to me to depend not so much on facts as on opinions; and it

is not my wish to decide on the propriety of the conduct of the judge

until the facts are before us. It is certain that a judge has a right to

control counsel, and to say when his mind is made up, while it is also

his duty to hear the allegations that shall be made.

In addition to these reasons for a postponement, I am also in favor of

it, because, whenever a sincere desire exists to gain information, which

can only be done by allowing further time, I shall always be in favor of

it, when no material injury can result from the indulgence.

Mr. MOTT.--I am in favor of the postponement, because I wish time for

consideration, and because I am against the resolution itself. I think

it is improper to go into such an inquiry before specific charges are

laid before the House, when it will be proper for the House to consider

whether those charges are sufficient to sustain an impeachment; then it

will be proper to proceed, and not till then. No charges have yet been

laid before the House: we have only been told by one member that he is

satisfied sufficient grounds exist.

Mr. J. RANDOLPH was sorry to be obliged to trespass again on the patience

of the House, but the direct application made to him by the gentlemen

from Tennessee and South Carolina, imposed upon him the necessity of

stating his reasons for proceeding in what they were pleased to term so

precipitate a manner. They ask, why not have laid the resolution on the

table by way of notice to the House? Because, sir, I cannot in a matter

of extreme delicacy make the opinions of other gentlemen the standard of

my own actions. I should have conceived the character implicated in the

resolution as having just cause of complaint against me, had I not been

ready to decide in a moment on it, and did I not press its immediate

decision. I should have deemed it an act of cruel injustice to have

hung the inquiry over his head even for a day. I should have expected

the reproach of setting suspicions afloat whilst I avoided examination

into them; for I should have deserved it, had I pursued the course which

gentlemen wish to adopt. I can see no difference between hanging up this

motion for a day or a year but the mere difference of time. What is the

object to be obtained? Do we wait for evidence, or any information,

which will assist us in forming a correct opinion? Not at all. To-morrow

the question will recur upon us--“Is it proper, from what has already

appeared, to institute an inquiry into the conduct of this officer?” And

this we are as competent to decide at this moment as at any future day.

When, however, gentlemen consider a resolution to make inquiry the same

as an inquiry already had, I am not surprised at finding myself opposed

to them in opinion. I repeat that all their arguments are applicable

to a motion of impeachment only. But it seems that no precedents have

been adduced, and time is wanted to hunt them up. Gentlemen should

recollect that but two cases of impeachment have taken place under this

Government; one of a Senator from Tennessee, the other of a district

judge of New Hampshire. By what precedents were the proceedings in these

cases regulated? How is it possible in a Government hardly in its teens,

where new cases must daily occur, as its various functions are called

into exercise, to find precedents? It did so happen, in the case of the

Senator from Tennessee, that the information on which his impeachment

was grounded came from the Executive. But suppose that information had

not been communicated by the Executive? Would that have precluded all

inquiry? Suppose, too, in the case of Mr. Pickering, that no information

had been received from the Executive, and that a gentleman from New

Hampshire had risen and said, “However painful the task, I deem it my

duty to state that the conduct of the judge of the district in which I

reside, has been such as renders him unfit for the important station

which he holds, and I therefore move for an inquiry into his conduct.”

Would the House have denied the inquiry? Will they rely altogether on the

attorney of the district, whose interest it is to be well with the judge,

and whose patience must be worn out with his misconduct before he will

undertake to call the attention of Government to it? Are gentlemen aware

of the delicate situation in which those officers are placed? Suppose

information had been given to a member of the malfeasance of a judge by

a person who should say: “It is not pleasant to originate accusations;

those who come forward in these cases undertake an invidious task;

while therefore I wish my name not to be mentioned, I shall be ready,

when called upon by proper authority, to give my testimony.” This is a

hypothetical case, but one by no means improbable. Would it not be a

point of honor not to expose the name of the informant?

But, say gentlemen, the charge is of a general nature. While I do not

admit the force of this remark, supposing it to be correct, I deny

that it is a general charge. The inquiry is general, but it is founded

on a statement made by the gentleman from Pennsylvania. I made no

other statement. I have said that I believed there existed grounds of

impeachment. What they are I shall not state here. They may be those

exhibited by the gentleman from Pennsylvania, or they may be others. Will

gentlemen assert that the statement of facts made by the gentleman from

Pennsylvania will not, if true, warrant an impeachment? What does it

amount to? A person under a criminal prosecution, having a constitutional

right to the aid of counsel in his defence, has, by the arbitrary and

vexatious conduct of the court, been denied this right. Such is the

nature of the charge. Has it come to this, that an unrighteous judge may

condemn whom he pleases to an ignominious death, without a hearing, in

the teeth of the constitution and laws, and that such proceedings should

find advocates here? Shall we be told that judges have certain rights,

and, whatever the constitution or laws may declare to the contrary, we

must continue to travel in the go-cart of precedent, and the injured

remain unredressed? No, sir, let us throw aside these leading-strings and

crutches of precedent, and march with a firm step to the object before us.

As to the motion of postponement, Mr. R. said it was of little

consequence to him whether it prevailed or not. On a charge of specific

malfeasance, he thought it impossible to refuse an inquiry. Whatever

should be the result, he should rest satisfied with having discharged

his duty to the House and to the nation. Believing the circumstances to

demand inquiry, he had made it. Without circulating whispers of reproach,

he had given the person implicated that opportunity of vindicating

his character which he himself should require if he stood in the same

unfortunate situation.

The committee rose, and the House adjourned.

FRIDAY, January 6.

_Importation of Slaves._

Mr. BARD.--For many reasons this House must have been justly surprised

by a recent measure of one of the Southern States. The impressions,

however, which that measure gave my mind, were deep and painful. Had I

been informed that some formidable foreign power had invaded our country,

I would not, I ought not, to be more alarmed than on hearing that South

Carolina had repealed her law prohibiting the importation of slaves.

In the one case we would know what to do. The emergency itself would

inspire exertion, and suggest suitable means of repelling the attack.

But here we are nonplussed, and find ourselves without resource. Our

hands are tied, and we are obliged to stand confounded, while we see the

flood-gate opened, and pouring incalculable miseries into our country. By

the repeal of that law, fresh activity is given to the horrid traffic,

which has been long since seriously regretted by the wise and humane,

but none have been able to devise an adequate remedy to its dreadful

consequences.

Congress has but little power, or rather they have no power to prevent

the growth of the evil. To impose a tax on imported slaves is the

extent of their power; but every one must see that it is infinitely

disproportionate to what the morality, the interest, the peace, and

safety, of individuals, and of the public, at this moment, demand.

And though in regard to their present case the power of the General

Government may be insufficient to check the mischief, yet I hope they

are disposed to discourage it, as far as they are authorized by the

constitution. Therefore I beg leave to offer the House the following

resolution:

“_Resolved_, That a tax of ten dollars be imposed upon every

slave imported into the United States.”

Ordered to lie on the table.

_Official conduct of Judge Chase._

The House resumed the consideration of the motion of the fifth instant,

“for the appointment of a committee to inquire into the official conduct

of Samuel Chase, one of the Associate Justices of the Supreme Court of

the United States,” and the said motion, as originally proposed, being

again read, in the words following, to wit:

“_Resolved_, That a committee be appointed to inquire into the

official conduct of Samuel Chase, one of the Associate Justices

of the Supreme Court of the United States, and to report their

opinion whether the said Samuel Chase hath so acted in his

judicial capacity, as to require the interposition of the

constitutional power of this House:”

A motion was made and seconded to amend the same, by inserting, after

the words “one of the Associate Justices of the United States,” the

following words, “and of Richard Peters, District Judge of the district

of Pennsylvania.”

Mr. SMILIE.--When the motion now under consideration was made yesterday,

I should have felt surprised at the course which the debate took, had

I not often witnessed such things in former times. It seems to be

considered as improper that a gentleman should bring forward a motion

for an inquiry into the official conduct of a public officer, and expect

the House to comply with his request, unless he should at the same time

produce such evidence as shall prove the facts charged. If this course of

proceeding be correct, I have ever been in error. What does the gentleman

from Virginia ask? Suppose he has taken exception to the conduct of the

judge from some facts which have come to his own knowledge. Under such

circumstances it will be allowed that it is the duty of the House to make

the inquiry. When the question shall be whether an impeachment shall be

preferred, it will be proper that evidence should be produced. But now

only a committee is asked to receive evidence, and to determine whether

it be such as in their opinion will afford grounds for an impeachment.

It is impossible for me to conceive any way that can be pursued which

will be more favorable to the person whose character is implicated, than

that which is proposed. It is merely to inquire whether such facts can

be sustained as will afford grounds for an impeachment. Certainly in

this stage of the business it is not necessary to produce evidence to

the House, as the House are not competent to receive testimony, which

a committee is. It is a rule of this House that so much respect is due

to a member, that if he states that he possesses information proper to

be communicated to the House, but which in his opinion ought not to be

done but with closed doors, that, in such case, the doors shall be shut

without any vote of the House.

Surely, then, on the request of a member for a committee of inquiry, that

measure ought to be adopted. This, in my opinion, is the best course

that can be pursued for the person implicated. There is, it is true,

thereby expressed an opinion of some one member that this judge has done

wrong. So far his character is implicated; this is the only possible

way in which it is implicated. The committee are to inquire whether

there are grounds for an impeachment or not. If they report that there

are not grounds, the accusation will be dismissed; and if the report is

that there are grounds, the House will at once perceive the necessity of

taking this step to ascertain their existence.

Another ground of resistance is taken. It is said there are precedents

for this proceeding. I believe that all precedents must have an origin;

and that one person has as good a right to establish them as another.

Our Government is young, and only two cases of impeachment have occurred

under it. Most of our precedents respecting parliamentary proceedings are

borrowed from England, and, if precedents are necessary in this affair,

we must resort to that country for them. My opinion is that they are not

necessary, and that common sense and the reason of the thing are all

that are necessary to guide our decision in this case. There is, however,

in the British annals, no deficiency of precedents. The first I shall

mention is to be found in the case of the Earl of Strafford. I may be

told that this precedent was established in turbulent times: I may also

be told of the improper mode of proceeding. I do not pretend to vindicate

the whole course of procedure. I think it was wrong. But with regard to

the first stages of the business, I believe them to have been correct. It

will be seen that, in that instance, a more direct mode was pursued than

is proposed in the present case.

The precedent I allude to will be found in Hume’s History, vol. 2,

page 249. That historian says,--“A concerted attack was made upon the

Earl of Strafford in the House of Commons. It was led by Pym, who,

after expatiating on a long list of popular grievances, added, ‘we must

inquire from what fountain these waters of bitterness flow; and though,

doubtless, many evil councillors will be found to have contributed their

endeavors, yet is there one who challenges the infamous pre-eminence,

and who, by his courage, enterprise, and capacity, is entitled to the

first place among these betrayers of their country. He is the Earl of

Strafford, the Lieutenant of Ireland, and President of the Council of

York, who, in both places, and in all other provinces where he has been

intrusted with authority, has raised ample monuments of tyranny, and

will appear, from a survey of his actions, to be the chief promoter of

every arbitrary council.’ Many others entered into the same topics, and

it was moved that Strafford should be impeached. Lord Falkland alone,

though the known enemy of Strafford, entreated the House not to act with

precipitation. But Pym replied that delay would blast all their hopes;

without further debate the impeachment was voted, and Pym was chosen to

carry it up to the Lords.”

In this case it does not appear that any evidence was called for; a

member of the House of Commons got up and declared his opinion of that

officer, and the same session an impeachment was voted. This course of

proceeding is very different from that now proposed. I will now refer to

a more modern precedent which at the time does not appear to have been

objected to. It occurred in the reign of George I., and will be found

stated in Russel’s “Modern Europe,” vol. 4, page 398.

“A new Parliament was called in which the interest of the Whigs

predominated, and a secret committee, chosen by ballot, was appointed to

examine all the papers, and inquire into all the negotiations relative

to the late peace, as well as the cessation of arms by which it was

preceded. The Committee of Secrecy prosecuted their inquiry with the

greatest eagerness, and, in consequence of their report, the Commons

resolved to impeach Lord Bolingbroke, the Earl of Oxford, and the Duke of

Ormond, of high treason.”

One circumstance is worthy of attention. A cause of dissatisfaction

at the conduct of the judge has undoubtedly prevailed. Whether he is

wrongfully accused I will not say; but the dissatisfaction is manifest;

for the representatives of two respectable States lately came forward and

opposed his being assigned to circuits which embraced their States. This

single fact ought to make an impression on the House.

It is alleged that there is no proof before the House; but one thing is

notorious--is universally known. It is this, that this man (Fries) was

tried before that judge for his life, and was tried without being heard.

This fact cannot be disputed. When we consider the importance of the

life of a citizen, and know that such an event has taken place, is it

not the duty of the only body competent to inquire into the fact? With

other gentlemen, I believe that the fountains of justice ought to be kept

pure; I believe also that the judges are like other men, and that like

them they are subject to the common frailties of human nature; and I do

believe that when the frailties of human nature produce such effects, the

House cannot be justified to themselves or their country without making

an inquiry. Our duty to our country calls for it; our duty to the man

who is implicated also calls for it. If innocent, a proper regard to his

character claims it; and his friend from Maryland informs us that he will

rejoice at this opportunity of coming forward and vindicating himself.

If, then, the inquiry be equally necessary for placing the character

of the man upon its proper footing, and for preserving the purity of

justice, how can the House resist it?

Mr. DENNIS said he had only expressed an opinion that such an

investigation would be rather solicited than avoided by Judge Chase.

Mr. LEIB.--I am by no means an enemy to inquiry, but I am not a friend to

the partiality of this resolution. We are told that it is grounded on the

misconduct of the Circuit Court in Philadelphia on the trial of Fries.

If one judge of that court was guilty of misconduct, the other attending

judge must have been equally guilty. The conduct complained of was the

act of the court, and not of an individual judge. This resolution ought

therefore to embrace both the attending judges. My opinion is that both

are criminal, and ought to be brought to the bar of justice. I therefore

move an amendment of the resolution by introducing the name of Richard

Peters, so as to embrace an inquiry into the conduct of both judges, and

call for the yeas and nays on the amendment.

Mr. J. RANDOLPH.--I wish to state for the information of those gentlemen

who were not in the last Congress, that the gentleman from Pennsylvania,

whose statement, thus made, is the groundwork of the present inquiry,

did not offer any matter which tended to impeach the conduct of Mr.

Peters, while there was a specific charge of misconduct brought against

the other judge. In consequence of this charge I conceived it my duty to

make an inquiry into the official conduct of Judge Chase. I mention this

circumstance to show that however the charge of partiality may apply to

the resolution, it cannot apply to the mover.

Mr. LEIB.--I do not charge the mover with partiality, but the resolution

with embracing one judge instead of two. Judge Peters was on the bench

at the time. This outrage upon justice was the act of the court. How the

conduct, therefore, of one judge shall claim investigation, while that

of the other is passed over in silence, to me is mysterious. I think

impartial justice calls for an investigation into the conduct of both.

Mr. SMILIE said there could be no doubt that if the court was agreed,

Judge Peters had been equally guilty of misconduct. On the trial of

Fries, Mr. Chase presided, and Mr. Peters attended. If Judge Peters

concurred in the decision, he was equally culpable.

Mr. NICHOLSON.--This resolution is grounded upon a statement made

during the last session, by a member from Pennsylvania, implicating the

character of one of the justices of the Supreme Court. Upon information

thus given, my friend from Virginia has thought himself bound to bring

the business before the House, that an inquiry may be made into his

conduct. For myself I will never hesitate, I care not who the person

implicated may be, and however exalted his station, to give my vote for

inquiring into his official conduct, when a member of this House rises

in his place, and states that, in his opinion, he has been guilty of

misconduct. For this reason I shall vote for the amendment; it having

been stated by a member that Judge Peters was on the bench and did concur

with Judge Chase.

And on the question that the House do agree on the said amendment, it was

resolved in the affirmative--yeas 79, nays 37, as follows:

YEAS.--Willis Alston, jun., Nathaniel Alexander, Phanuel

Bishop, William Blackledge, John Boyle, Robert Brown, Joseph

Bryan, William Butler, John Campbell, Joseph Clay, John

Clopton, Jacob Crowninshield, Richard Cutts, John Dennis,

William Dickson, Peter Early, James Elliot, Ebenezer Elmer,

John W. Eppes, William Eustis, William Findlay, James

Gillespie, Edwin Gray, Andrew Gregg, Thomas Griffin, John A.

Hanna, Josiah Hasbrouck, Seth Hastings, William Hoge, James

Holland, David Holmes, Benjamin Huger, John G. Jackson, Walter

Jones, William Kennedy, Nehemiah Knight, Michael Leib, Joseph

Lewis, jun., Thomas Lowndes, John B. C. Lucas, Andrew McCord,

David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah

Morrow, Anthony New, Thomas Newton, jun., Joseph H. Nicholson,

Gideon Olin, 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, James Stevenson, John Stewart, David Thomas,

Philip R. Thompson, John Trigg, Philip Van Cortlandt, Isaac

Van Horne, Joseph B. Varnum, Daniel C. Verplanck, Marmaduke

Williams, Richard Wynn, Joseph Winston, and Thomas Wynns.

NAYS.--Simeon Baldwin, David Bard, George Michael Bedinger,

Silas Betton, Adam Boyd, William Chamberlin, Martin Chittenden,

Clifton Claggett, Manasseh Cutler, Samuel W. Dana, John

Davenport, Gaylord Griswold, Roger Griswold, David Hough,

Samuel Hunt, Thomas Lewis, Henry W. Livingston, William

McCreery, Nahum Mitchell, Samuel L. Mitchill, James Mott,

Beriah Palmer, Thomas Plater, Samuel D. Purviance, Joshua

Sands, John Cotton Smith, John Smith of New York, Henry

Southard, Samuel Taggart, Samuel Tenney, Samuel Thatcher,

George Tibbits, Abram Trigg, Killian K. Van Rensselaer, Peleg

Wadsworth, John Whitehill, and Lemuel Williams.

Mr. LOWNDES.--Were I to be governed by considerations other than those

resulting from a sense of duty, I should vote for this resolution, as

I believe it would afford the character implicated the readiest mode

of vindication. But I do not feel so high a respect for the opinion of

any one member as to give up my opinion to his, as to the course most

proper to be pursued on this occasion. The gentleman who has offered this

resolution says, that the facts on which it is founded are within his own

knowledge. Let the gentleman then lay them before the House. Otherwise we

shall legislate, not on the facts before us, but merely on the opinion

of a single member, on facts only known to himself. We are told that

this motion is founded on the statement of an honorable gentleman from

Pennsylvania. What is that statement? That one of the counsel in the

trial of Fries informed him that the judge declared the counsel had no

right to argue a point of law after the mind of the court was made up. I

ask if any gentleman is prepared to say that the judge was wrong? I am

not prepared to say so. While, too, I am unwilling to detract from the

respect due to the statement of the gentleman from Pennsylvania, I am

equally unwilling to subscribe to his opinions. He may have misconceived

the information communicated to him. It is said that it is necessary to

preserve pure the streams of justice. I agree in this remark, and I say

that the resolution on the table goes to destroy the independence of the

judges, and of consequence to pollute the streams of justice; to make the

judges the flexible tools of this House. It is impossible that under such

circumstances men of talents and integrity will take seats on the bench,

when their character shall be liable to be scrutinized without any facts

being previously adduced.

I think it absolutely necessary that this resolution should not pass. For

if it passes, it will establish a precedent that any member may procure

an investigating committee to inquire into the conduct of any executive

or judicial officer merely upon his opinion, unsupported by facts, that

such an inquiry is necessary. Suppose parties to be nearly equally

divided; a member has only to propose an inquiry into the conduct of any

officer to whom he may feel inimical, and thereby throw a cloud upon his

character, and render him the object of suspicion. Thus do I fear that

this precedent will furnish the instrument of vengeance of one party

against another. The price we pay for our liberties is the existence

of parties among us; but it becomes us rather to restrain than to

invigorate their passions. If we establish this precedent we shall render

impeachment so easy, as greatly to facilitate the means of oppression.

Mr. LOWNDES concluded by saying, that in this affair he threw party

considerations entirely out of view. He was personally unacquainted with

Judge Chase, and if there was a single affidavit of his misconduct, the

appointment of the committee of inquiry should have his vote; but that,

under the circumstances attending it, he considered the measure improper

in every point of view in which he could consider it.

Mr. FINDLAY observed, that though the abstract right of the members

to move for an inquiry into the conduct of public officers, in order

to find whether presumptions against their character afforded ground

for impeachment, was not expressly denied, yet the manner in which the

opposition to the present resolution was conducted was equal to denying

the right. He trusted, however, that the House would support this right,

as it was one of the most important of any with which they were vested.

It grew out of the power of impeachment, and it was necessary for the

exercise of that power, and was justified by precedents. By the rules of

the House any member has a right to have the doors shut, in order to move

such a resolution as he thinks proper. This has been usual in cases of

impeachment in Britain, from which we derive the forms of impeachment.

There it has been common to shut the doors, and for a member to move for

an impeachment of a public officer, and to procure the officer impeached

to be taken into custody before there was time or opportunity to take

any other testimony than the information stated by the member who moved

the resolution, probably supported by public fame. Taking the party into

custody was necessary to the circumstances of that country and the extent

of punishment, which might not only affect the liberty and property, but

even the life of the party found guilty. It was necessary, because of the

influence of the powerful nobility, who might have it in their power to

stand in their defence; but, as all the penalties in the power of this

Government to inflict by impeachment only affect the official trust and

character, taking into custody is unnecessary.

He observed, that the arguments in opposition to the resolution turned

chiefly on the ground of expediency and of precedent.

In his opinion, it appeared not only expedient but necessary, from the

notoriety of facts on which the resolution was founded; that they were

publicly known and had impaired confidence in these judges, could not

be denied. That it was known to Congress during the last session was

acknowledged. It was not only known, but Congress acted on it. A bill was

in progress before this House, appointing the attendance of judges to

particular districts--the members of two respectable States, in which,

by the bill, Judge Chase was appointed to attend, objected unanimously

to that appointment, because they had not confidence in him; and the

facts on which the resolution is founded were stated on the floor, upon

which the House altered the bill and appointed another judge to that

district. This was a strong testimony that Congress believed that this

open expression of want of confidence in that gentleman was justified by

the facts that had been stated. He said, that though he had not at that

time a seat in the House, he had expected an inquiry to be made into the

causes of this want of confidence at that time. Perhaps it was prevented

by the shortness of the session.

It is expedient for the character of the gentlemen and for the public

good; for the gentlemen themselves, if they are innocent or have acted

on justifiable ground; it is necessary that their characters may be

vindicated, and confidence in their public conduct restored. It is

expedient for the public good, because if the judges are guilty in the

manner stated--if they have justly lost the confidence of the people and

of Congress, as it appears, by the transaction of last session, one of

them has done, the case ought to be examined and the citizens protected;

for if he was unfit to preside on the bench for one district, he is unfit

to preside in another. It is expedient, in order to secure the confidence

of the citizens in the Government itself.

But precedents are called for by the gentlemen opposed to the resolution,

and several of them contend that such special facts should be stated as

would be unexceptionable ground of impeachment, before the inquiry is

gone into. A gentleman from Vermont, (Mr. ELLIOT,) who argued yesterday

in favor of postponement for further information on the subject, in the

same argument said that he never would agree to the appointment of a

committee of inquiry, until the charges were first stated and proved to

his satisfaction. Mr. F. said he was astonished at this inconsistency.

If the facts were first stated and established, appointing a committee

of inquiry would be an absurdity. What would they inquire after but what

they already knew? That gentleman and others, in order to defeat the

resolution, gave the object of it an odious designation: they called it

an inquisition, and spoke of it in such terms as if it was the well-known

Spanish law of that name. The character of that court was too well known

to the members of this House to require definition; it was sufficient

to say that in it witnesses were examined without the knowledge of the

party accused; that it compelled the accused to give testimony against

themselves, and had authority to pass sentence of the most dreadful

kind, without appeal. The gentlemen knew that no such thing was intended

by the resolution. The character of the judges had been impeached in

public opinion by numerous citizens of all descriptions. Congress on

that account gave a decisive testimony of want of confidence in one of

them. The object of the resolution was to inquire whether there was a

real foundation for this want of confidence and ill fame. If Congress

did not make inquiry in such cases, who was to do it? It did not by

the constitution belong to any other authority; every other method of

proceeding would be as ingeniously objected to as the one proposed, by

those who wished to prevent further proceedings in the case; denying the

means of bringing forward impeachment, had the same effect as if the

power of impeachment was renounced.

The power of this House has been asserted to be similar to that of a

grand jury; this seems to be conceded on both sides, but though it bears

a resemblance, it was not strictly so--it was more extensive. Grand

juries were authorized to present such indictments or such complaint or

information as were submitted to them by the Attorney General, or which

they knew of their own knowledge. The attorney also inquires if there

is probable ground for the complaint, and brings the witnesses before

the jury, who examine them to establish the facts alleged; but this

House has no officers authorized to make inquiry and bring forward the

business in due form; therefore the House possess both the power of the

Attorney General and the grand jury, with relation to impeachment; for

where a power of decision is given, all the powers necessary to carry

that decision into effect are implied. The making inquiry, procuring

witnesses, or other testimony, and preparing the case in due form, is the

object of the resolution; and if the House does not do it in this or some

other such method, there is no other agent authorized to do it.

With respect to precedent and parliamentary usage, Mr. F. said he had

formerly examined many, but was not prepared to state them at this

time, and did not think them necessary on this occasion. In all the

examples of impeachment by the British Parliament, from the reign of

Henry VIII., when parliamentary power was reduced to a mere shadow, till

the present time, when the parliamentary power has been amply enlarged

and established, and their proceedings become more uniform, there will

be shades of difference found in all of them, arising from various

circumstances; we have few precedents of our own, and of these few none

of them apply to the present case. It is the constitutional duty of this

House to impeach, when impeachment is necessary, and of the Senate to

decide on impeachments; but with respect to the manner in which each

House should proceed, they are not trammelled by forms nor entangled in

precedents.

There are, however, examples of proceedings both with the British

Parliament and with us, as similar to the method now proposed as the

various cases would admit. With ourselves, the case of the unfortunate

Western expedition mentioned by my colleague (Mr. GREGG) yesterday,

was much more to the purpose than the gentleman from Connecticut (Mr.

GRISWOLD) was willing to admit. Mr. F. said he had the honor to be one

of the committee of inquiry which sat on that subject a great proportion

of two sessions. The expedition was too late in setting out to the Indian

country; they were said to have been illy provided with necessaries,

and long detained for want of them; a large proportion of the army were

killed or taken by the savages, and all the stores with the army left.

The citizens were discontented, and numerous complaints were heard, but

none knew with certainty whom to blame; a committee was appointed to

examine witnesses and report the testimony to the House, in order to

discover the party who had been to blame. Some had charged it on the

commanding General, others on the Secretary of War, and others on the

Commissary of Military Stores, and these last endeavored to wrest the

blame from themselves and fix it on the General. It was certain that a

great misfortune had happened, but it was not certain that any officer

was to blame; no charge had been made to Congress against any officer,

yet Congress thought proper to make an inquiry, and it was not opposed on

account of want of form, or want of precedents, by any of the friends of

the parties. Towards the close of the first session, the committee made a

concise report, referring to a great amount of testimonies. Some of the

parties implicated by the report thought themselves injured by it, and

it was alleged that other witnesses ought to be examined. Consequently,

at the next session, the business was recommitted to the same committee,

and as it was near the close of the last session of that Congress, before

all the witnesses were procured and examined, and the parties heard by

the committee, each of the parties wrote and delivered to the committee

a large book of explanations and defence. The committee reported a large

wooden box full of testimony, of original letters and instructions,

and the three books of explanations and defence accompanied with some

observations. It was not possible for that Congress to enter on the

business, and the cause being of a transient nature, and the parties who

applied for the second inquiry not wishing a disclosure of the testimony,

the business was not afterwards entered on; but the mass of testimony,

&c., is yet in possession of Congress. This, it is presumed, applies well

in favor of the present resolution.

Gentlemen object to the resolution because of the indelicacy of

implicating the character of a judge. They seem to believe the character

of a judge to be sacred and immaculate. But are not judges men? Are they

not men subject to like passions and like feelings as other men? Judges

and other official characters voluntarily surrender a part of the rights

they enjoyed in common with other citizens, in return for the honors and

emoluments of office; others have a right to the privilege of trial by

jury, in the decision of all charges against them; but public officers,

by accepting of office, subject themselves under this Government, to

trial by impeachment. Subjecting judges to impeachment, indicates,

unequivocally, a constitutional opinion that judges would be even more

liable to transgress than other citizens, and might transgress in a more

aggravated manner than mere citizens. This mode of trial, however, in

this country, is become almost a harmless thing; it is deprived of more

than half its terrors. It does not reach life or property, but only the

official character.

Mr. F. said he was a friend to the independence of judges, but that

all independence in all Governments had its limits and restraints. It

was not provided for the aggrandizement of the judges, but for the

protection of the citizens. So far as it is applicable to this purpose,

it is necessary, but any further, it is injurious and subjected to

restraint. Under no Government with which we are acquainted are the

judges rendered so independent as that of the United States. In Britain,

from which we have derived the mode of our judiciary, the judges were

appointed during pleasure; till, little more than a century ago,

they were rendered independent by the Revolution Parliament for the

security of the people against the encroachments of the Monarch, and

the overbearing influence of a very powerful nobility; and for this

purpose it was not only salutary, but absolutely necessary. But even with

that boasted independence, that Judiciary is subjected to restraints

and modes of correction not provided in the Federal Constitution. The

judges are liable to be removed from office by the vote of both Houses

of Parliament, without trial. They are liable to be removed, or their

standing changed by act of Parliament. That Parliament, on whose act

their independence depends, can repeal the act; the two Houses of

Parliament can make and unmake their Kings. They are also liable, by an

act of attainder, not only to lose their office, but their estate, the

honor of their families, and even their lives.

The Judiciaries in all the States of the Union are rendered less or more

independent; some are appointed for shorter and some for longer periods.

In New Jersey, they are appointed for seven years; they were so in

Pennsylvania formerly; since the revision of the constitution they are

appointed during good behavior; they are, however, subjected not only

to removal by impeachment, but also by the vote of two-thirds of each

House, for any cause which the House do not think a sufficient cause of

impeachment; but in the Federal Government there is no method provided

for removing them for the most scandalous indiscretions or incapacity,

as even when they may unfortunately be under mental derangement, except

by impeachment, which is inapplicable to official crimes, and conducted

with tedious forms. The power of impeaching being the only shield

provided by the Government for the protection of the citizens from

judicial oppression, and this House being the only constitutional organ

for obtaining information of official excesses, and bringing forward

articles of impeachment, ought not to bind up their own hands from doing

their duty, and this they will do if they reject the resolution now on

the table.

But while the gentlemen consider the character of these judges so sacred

that their conduct cannot be inquired into, notwithstanding such proofs

of want of confidence in them, and that as a gentleman near me from South

Carolina (Mr. LOWNDES) has said that he is afraid of impeachment, and

grounds his fears on the incapacity or the unfitness of the members of

this House, or because the members of this House may abuse the power;

Mr. F. asked, were not the members of this House selected and qualified

for the discharge of this necessary duty? Were they not appointed by a

respectable authority as the judges? Were they not under a solemn oath

of office for the faithful discharge of this as well as every part of

their high trust? And were they not protected by special privileges and

protection during the discharge of their trust equally with the judges,

and their stations as respectable as the judges’? They are not only

protected from civil actions, but are not subjected to impeachment for

misbehavior in office as the judges are. They are, in their official

capacity, subjected only to the censure of public opinion. If this is

true, it is improper, it is impolitic, for the members of this House to

degrade their own character: it amounts to saying they are not capable

of discharging the trust they are solemnly bound to discharge, and

ought not to have been invested with. He knew, however, that this was

only introduced as an excuse for unwillingness. But the same gentleman

adds, as a reason for opposing the resolution, that he is not acquainted

with the history of the business. That is probably the case with him

and others, especially such as had not a seat in the last session of

Congress, or who resided at a great distance from the scene alluded to in

the resolution. Admitting this to be true, the best and the only regular

way to become acquainted with the history of the case, is to carry the

resolution into effect--to have a committee appointed with such power as

would enable them to procure such information as that gentleman and every

other member could depend on. The gentleman’s objection, in fact, is one

of the strongest arguments in favor of the resolution. The gentleman

from South Carolina has, however, offered one other objection to the

resolution, which merits some notice. He has said that if a committee is

appointed for the object proposed by the resolution, men of character and

talents will not accept of appointments in the Judiciary. The solidity

of this objection will be best examined by the test of observation and

experience. It has been already mentioned that several States have

appointed their supreme judges for short periods, and that others have

vested the Legislature with the power of removing judges from office

without impeachment, merely on their own opinion. Can the gentleman

from South Carolina say--can any member on this floor, where all the

States are represented, say--that these States are deficient in judges

of respectability and talents? They cannot say so--there is no such

complaint. The Judiciary of New Jersey, where the judges are chosen but

for seven years, is as respectable, and the application of her laws as

well brought home to the security and happiness of her citizens as they

are in the States where judges are appointed for life. The same may be

asserted with confidence of the State of Pennsylvania before the revision

of her constitution, as they are since. There is this difference,

however: where they have been appointed for limited periods there have

been no impeachments or removals, and generally, if not always, the

judges were reappointed, and justice was well administered; but since

they have been appointed for good behavior, there have, at least in

Pennsylvania, been both, and more complaints of inattention, expense, and

delays, in the administration of justice than had been formerly. Many

of the judges, however, are very respectable, and enjoy a high degree

of confidence, but not more confidence than they did before the change

of the constitution. There has been no attempt to remove or impeach the

judges of the Supreme Court of that State.

To inquire into the conduct of the judges when confidence is evidently

wanting, is the only true way to secure the respectability of the

Judiciary. If that necessary confidence is withdrawn without cause,

an official inquiry will restore confidence and the usefulness of the

judges. This observation is supported by precedent and parliamentary

usage. In that country from which precedents are so frequently sought,

one precedent offers itself to recollection. In the year 1730, a

committee of the British House of Commons was appointed to examine the

jails. In the course of examination, the committee discovered that

Sir Robert Eyres, Chief Justice of the Common Pleas, a judge of very

respectable character, was suspected, not of tyranny on the bench, or

of putting any man’s life in jeopardy, but of having held an improper

correspondence with a person confined for crime or misdemeanor, and this

suspicion chiefly supported by anonymous letters. A committee of the

House of Commons were appointed to make inquiry, and it was found, to the

satisfaction of the committee and of the people, that the allegations on

which the suspicion was founded were false, and the judge’s character was

vindicated and restored.

Mr. F. said this precedent applied well to the present case. If the

judges mentioned in the resolution had done their duty, their characters

would be vindicated by the inquiry, and the public confidence in their

integrity restored; if they were guilty, and not entitled to confidence,

they ought to be removed from office, and neither the one nor the other

could be done unless the inquiry proposed was authorized.

He said that the inquiry was necessary to secure the purity, honor,

and usefulness of the Judiciary Department. If that House refused

or neglected to exert the powers vested therein for securing public

confidence in the Judiciary, unprincipled men would find means of

recommending themselves to appointments, and would vitiate the streams

where justice is expected to flow, and the citizens would be oppressed

without the means or hopes of redress, and would feel the effects of

tyrannical power in the administration of a government which, in its

other departments, was the greatest and best of any in the world. Let

proper inquiries be made where they are necessary; let the character of

judges unjustly charged be vindicated, and the vicious and unworthy be

removed, and improper characters will cease to intrude themselves; their

friends will not dare to recommend, and Congress will have confidence

that the laws which they pass will be applied agreeably to their genuine

principles, to the protection and ease of the citizens; if we do not

provide for this, we had better cease to make laws.

If virtuous men are appointed and the vicious discouraged, Congress

may, from particular circumstances, be called on to make inquiries,

but very rarely indeed to be employed in impeachments, (no men of

real virtue and talents would refuse a seat on the bench for fear of

inquiry or impeachment.) He said that the judges of the Supreme Court

in the State he had the honor of representing, though they differed in

political opinions, administered justice with such purity and diligence,

that though some of them had been long in office, they enjoyed the

confidence of the citizens, were in no danger of impeachment or removal

by vote, and he believed would not shrink from inquiry if necessary.

The more extensive the confidence of the citizens that was reposed in

the Judiciary, the easier it would be to supply vacancies with men of

character and talents. He said that among several other observations

which occurred to his mind, with offering which he would not now detain

the House, he had once thought of stating other charges against the

official conduct of these judges, of which he had been well informed, but

on due reflection he declined mentioning them, and thought it most for

the public good to insist on the appointment demanded by a member on the

responsibility of his own official character, and as a matter of right,

and would do nothing that would impair the weight of the precedent that

he hoped would be set by agreeing to the resolution as it stood.

Mr. F. said that having so long engaged the attention of the House he

would conclude by observing, that as the case now stood it is proper for

all the members to vote for the resolution; those that believed as he

did, that there was a want of necessary confidence in those judges, and

that this want of confidence was occasioned by their unauthorized and

oppressive conduct, were obliged in conscience to vote for the inquiry;

and every member who believed the judges to have done their duty, and

that the public confidence is withdrawn from them without cause, are

bound in duty to vote for the resolution, in order that the judges may

have an opportunity to vindicate their character, that confidence in them

being restored they may become useful to the public; therefore, in every

light he could view it, he was convinced it was his duty to vote for the

resolution, and would act accordingly.

Mr. JACKSON.--As, Mr. Speaker, this subject is novel in its nature,

and may be important in its consequences, I presume there exists a

disposition to hear the reasoning which any gentleman may be disposed to

offer upon it. It is with this view that I rise to express my opinion

in favor of creating a committee of inquiry. I consider this House as

the grand inquest of the nation, whose duty it is to inquire, on a

proper representation, into the conduct of every official character

under the Government. Like a grand jury, we ought, in my opinion, at the

instance of any member, to send for all persons possessed of information

calculated to throw light upon the conduct of any individual inculpated.

A contrary doctrine would lead to the most unfortunate consequences.

It would lead to this, that a minority would never be able to inquire

into the conduct of a State offender, unless such inquiry were favored

by the majority. As it is now contended that the inquiry is not a

matter of right which any member may demand, but a matter of favor, to

be granted according to the pleasure of the majority, it may be said

that, if a majority favor an individual, he will always escape without

an impeachment. But I believe otherwise; and that the Senate, like a

virtuous judge, will not suffer an atom of prejudice or partiality to

fall into the scales of justice.

But, say gentlemen, though it may be the duty of the House to impeach

an officer, it is necessary that facts, warranting such an impeachment,

should be first presented. This is not the course pursued in cases where

a grand jury is called upon to act. If a murder is committed, it is their

duty to inquire, and diligently inquire, who is guilty of the act, and to

send for all persons capable of giving information respecting it. Such is

the practice. If it shall be required to furnish facts, as is urged by

gentlemen, the consequence will be that offences of the highest nature

will be committed with impunity. It has been observed that it is odious

to undertake the task of a public informer. But what the constitution

and laws make our duty, so far from being odious, is honorable; because

we thereby discharge a duty imposed upon us by our oaths, and because we

show ourselves unawed by the vicious conduct of bad men. If the character

of a public informer be odious, are we to expect that private individuals

will come forward with affidavits? In such a case, to say the least of

it, the duty would be of an unpleasant nature.

We have, in the course of this debate, been frequently called upon

for precedents, and been told, that, when found, they ought to

be adhered to. In a country from which we are accustomed to draw

precedents--England--common report has been considered as a sufficient

authority for similar inquiries. We do not, however, ask for an inquiry

in this case on common report, but on the declaration of a member of

this House, made in his place. Suppose there was no such declaration,

has not a common report, from Maine to Georgia, condemned the conduct

of the judge in the case of Fries and others, at Philadelphia, in the

case of a grand jury in Delaware, whom he directed to inquire for

seditious practices, and in the case of Callender, in Virginia? Has

not the general sentiment of the country charged him with having, in

these cases, abused his powers as a judge by tyrannizing over those who

were brought before him? If we possess the right to inquire, on common

report, surely we ought to institute this inquiry on the prevalence of

so general a sentiment. To such an inquiry I would unhesitatingly agree,

if the character of the President were implicated, the opinion of the

gentleman from Vermont to the contrary notwithstanding. I would likewise

agree to make the same inquiry in any other case; because the inquiry

would redound to the honor of the individual implicated, if innocent; and

because, if guilty, he ought to be punished.

I am sorry my friend from Pennsylvania stated any facts, as I do not

consider it necessary that the House should be acquainted with any facts

to make this inquiry; and because I think the facts, stated as grounds

of impeachment, are not such as will warrant an impeachment. I have

always understood that it was the right of a judge to expound the law,

and I have known frequent instances where the court have refused the

counsel the liberty of discussing the law on points on which they have

made up their minds. While I am free to declare that the conduct of the

court in the trial of Fries is not, in my opinion, such as to require

an impeachment, yet I am in favor of instituting the inquiry. But, say

gentlemen, by the passage of this resolution, we shall censure the judge.

I believe not. If I believed so, I would first require testimony; for I

hold it a good principle, that no man ought to be condemned until he has

been heard. In my opinion, this resolution will have no such tendency;

as, if the judge has not been guilty of misconduct, the inquiry will

redound to his honor, and as it is the duty of a virtuous man to demand

an inquiry whenever charged with an offence.

Gentlemen, in opposition to this measure, say they wish to guard against

suspicion. But suspicion has long since gone forth; has been heard and

re-echoed from every part of the Union; and the only way of defeating it,

if ill-founded, is to institute an inquiry, and if the character of the

judge be innocent, to pronounce it so. I am surprised to find gentlemen,

who profess a friendship for the character of one of the persons

implicated, opposed to this inquiry, when they believe him innocent.

I should suppose it their peculiar duty to call for the inquiry, that

the accused might have an opportunity of proving to the world that his

character has been assailed without cause.

Mr. R. GRISWOLD.--After what has passed on this floor, there can be

no doubt that the gentlemen whose characters are implicated by this

resolution will ardently desire an investigation of their conduct; and

if, on this floor, we were merely to consult our own wishes, we should

unanimously agree on an investigation. But this is not our duty; our duty

is to take on this, as well as on all other occasions, a correct course;

to take those steps only which are warranted. It is because I doubt,

after considerable deliberation, whether this course is warranted, that

I am opposed to it. What, I ask, is the nature of the resolution on the

table? It contains no charges against the judges implicated; it only

proposes to raise a committee to inquire whether their official conduct

has been such as to justify the interposition of the constitutional

power of this House. If a committee of inquiry is raised, what will be

their powers? One thing will certainly follow. They will be clothed with

a power to send for persons, and probably for papers. Is it consistent

with principle to appoint a committee, which, from its nature, must be

secret, with power to ransack the country in the first instance for

accusations against the judges, and then for proofs to support them? Is

this correct? Are gentlemen prepared to say so? to seek for accusations,

and then for proofs to support those accusations, against high officers

of the Government? For one, I believe that this course is not correct. I

believe it to be dangerous. I agree with the gentleman from Vermont, that

it operates in the nature of an inquisition. A committee will be raised

to act in secret, first to find an accusation, and next to prove it. If

there is now any accusation against the judges, let it be made; let it be

made on this floor; and, as the gentleman from New Jersey has observed,

let us ascertain, if true, whether it will be a sufficient ground for

an impeachment. This will be a correct course, and it will be the only

safe course. If, on the contrary, we proceed in the manner proposed, it

will be attended with this consequence: at the commencement of every

session we shall raise a secret committee, to compose an inquisition, to

ascertain whether there are not charges against some public officer, and

to search for proofs to justify them. Is the Government of this country

founded on this principle? I know that this secret course of procedure

is practised by the Spanish Government, and by some others, but I never

thought that it would be the practice of this Government. When a charge

is made against a public officer, it ought to be boldly made. It ought to

be made here, and should be committed to writing. Instead of this being

done, there is no charge made. The resolution contains none. It is merely

calculated to raise a secret committee. Why? Because the gentleman

from Virginia is of opinion that it is proper. Is his opinion, or the

opinion of any other gentleman, to govern this House? Are we brought to

this? I trust this is not the case. I trust that gentlemen will think it

necessary not only to consider his opinion, but to form their own. What

can gentlemen say, if they agree to this resolution? That they voted

to investigate the conduct of two judges. Why? Because the gentleman

from Virginia says it is necessary to investigate. Why investigate?

Because the gentleman demands it. This is the language of that gentleman

yesterday. Because a gentleman of this House gives his opinion of the

course proper to be pursued on this occasion, it does not follow that we

are to be governed by it. We may respect it; but we must respect our own

opinions still more, if we faithfully discharge our duty. I am sensible

that some facts have been mentioned by the gentleman from Pennsylvania,

or rather, that that gentleman has heard a story; but it is mere hearsay.

I ask, also, how this formidable charge has rested to this day? When

and where did the transaction, on which it is founded, happen? In

Philadelphia, and in the winter of the year 1800, when Congress were in

session within twenty rods of the place where the court was held. The

gentleman from Virginia, as well as other members on this floor, were

then in the House. The case being, I believe, the only one in which there

was a charge of treason, excited, in a considerable degree, the attention

of members, many of whom attended the trial. How comes it, then, that

this charge was not then made? If it shall be said the House did not

interfere at that time because the criminal was lying under sentence

of death, it will be recollected that, in 1801, Fries was pardoned.

Why was not the inquiry then made? If it shall be said that it would

have been imprudent to make it on account of the party then in power,

why was it not made in the seventh Congress, when a change of men took

place? How can gentlemen reconcile this great delay with the high regard

they profess for the purity of the streams of justice, and for justice

itself? For such is the respect they entertain for justice, that they

have determined to bring to conviction this unjust and criminal judge.

Gentlemen ought to account for this culpable neglect. It is impossible

that they should have been ignorant of the trial of this man. It was not

a sudden or a hidden thing, done in a corner; it was done in public, in

the face of the Legislature, and yet it has slept to the present day.

Under such circumstances, I submit it to the House, whether much respect

ought to be paid to the hearsay of the gentleman from Pennsylvania. The

very delay, and other circumstances attending this transaction, show

that it is not of the serious nature contended. I therefore think that,

if properly brought before the House, and suffered to rest upon proof,

it would constitute no ground for impeachment. As to the proposed

form of proceeding, if we examine precedents, we shall find that it

is not warranted by them. None mentioned compare with the case under

consideration. The precedent in the case of Lord Bolingbroke does not

compare with that. In that case the House of Commons raised a secret

committee to examine the negotiations made for a peace. The committee

was not raised to impeach Lord Bolingbroke, but to investigate the

negotiations of the Ministry; and on the disclosure of facts, which took

place on that occasion, the impeachment was grounded. Such, also, was

the case in the instance of the Western expedition. The House appointed

a committee vested with general powers to inquire into the causes of its

failure, without particular reference to the conduct of any person.

If we turn our attention to British precedents, we shall find that

a committee has never failed to investigate the official conduct of

any person contemplated to be impeached. In the case of Hastings, Mr.

Burke came forward and moved an impeachment directly. In all cases this

course has been pursued in the British House of Commons. So far as we

have precedents in this country, a similar course has been pursued. In

the instance of Governor Blount, the Executive transmitted documents

to this House, which contained, as it was supposed, evidence of his

guilt; they were referred to a committee to examine them, and also to

determine whether it was proper to print them. The committee reported

that, in their opinion, they contained evidence of his guilt, and he

was impeached. In the case of Judge Pickering, the same course has

been pursued. The Executive transmitted documents to the House which

contained, as it was supposed, proofs of misconduct, and the House

proceeded to an impeachment. These precedents confirm the principle of

those drawn from the practice of the British House of Commons. What

course is now proposed? Without any charge against the judges, without

any man saying they are guilty of any misconduct, we are about to appoint

a secret committee, to determine whether any charges can be made, and

whether any proofs to support them can be found. Although I am willing

that the conduct of these gentlemen shall be investigated, for I am sure

they must desire it, and although I have no objection to impeach them,

if gentlemen wish it, and exhibit proper proofs on which to ground it,

yet I cannot consent to pursue a course so improper as that now proposed.

For this reason I am against the resolution, not because I am hostile to

an investigation, but because I cannot consent to the appointment of a

secret committee to search, in the first instance, for an accusation, and

to look for proofs to justify it.

Mr. FINDLAY rose to explain. He said it was not the object of the House,

in their investigation of the causes of the failure of the Western

expedition, to make new arrangements, but to inquire into the conduct of

certain officers who had directed it, viz: the Secretary of War, the

Commander-in-chief, and the Commissary.

Mr. NICHOLSON said, he happened not to be in the House yesterday at the

moment when the resolution under consideration was introduced; and when

he entered he found the gentleman from Connecticut (Mr. R. GRISWOLD) on

the floor, who concluded his remarks by moving a postponement. Mr. N. did

not think it then correct to offer remarks upon the main question, but as

the resolution itself was now under consideration, and the subject of no

common nature, he could not think of passing a silent vote upon it.

When he rose to-day, for a few moments, on the motion to amend, by

inserting the name of Judge Peters, he had then declared, and he now

begged leave to repeat it, that whenever any member of the House should

rise in his place and state that any officer of the Government had been

guilty of official misconduct, he had no hesitation in saying, that he

would consent to an inquiry. He cared not how exalted his station, or how

far he was raised above the rest of the community; the very circumstance

of his superior elevation would prove an additional incitement. Such, he

said, was the nature of the Government, and so important the duty in this

respect devolved upon the House of Representatives, that the conduct of

the Chief Magistrate himself, as far as his vote could effect it, should

be subjected to an inquiry whenever it was demanded by a member. The

greater responsibility, the more easy and more simple should be the means

of investigation. Were he, indeed, the friend, personal or political, of

the officer charged, and he believed that impeachment would be the result

of inquiry, it was possible that his feelings as a man might induce

him to forget his duty as a Representative, and urge him to resist the

inquiry; but, were he convinced of his innocence, he would do all in his

power to promote it, in order that he might stand justified to the nation

and to the world.

Upon the present occasion, he begged that he might not be understood to

say that the offence with which these judges were charged, was such as

would warrant an impeachment. But, while he meant not to commit himself

on a question of such high moment, he could not avoid expressing his

astonishment that the conduct stated should not only be defended upon

the floor of the House, but entirely approved; that gentlemen should

venture to declare that the court acted strictly in the line of their

duty, in refusing to hear counsel on a point of law which involved the

guilt or the innocence of the prisoner. A man was charged with the

highest offence against the Government, and, if guilty, was subject to

the severest and most ignominious punishment recognized by our laws. High

treason was the crime, and death the penalty. The constitution declared

that treason against the United States should consist only in levying

war against them, or in adhering to their enemies, giving them aid and

comfort. The framers of the constitution intended to be as precise as

possible in their definition of treason; they were anxious that no room

should be left for doubt afterwards. They had seen to what an infinite

variety of objects the crime of treason had been extended in England,

and wisely confined it here to the only two offences which could be said

to strike at the existence of the Government. The laws of the United

States had declared that resistance to the execution of a law should only

be considered as sedition, and had provided the punishment of fine and

imprisonment. Fries was charged with resisting the execution of a law,

and this offence the court determined to be treason, without hearing his

counsel, and refused to permit them to address the jury on the subject,

although the jury were the judges as well of the law as the fact. A

resistance to the execution of a law, they construed to be treason, in

the face of the act of Congress, which declared it to be a misdemeanor

only, punishable with fine and imprisonment. These constructive treasons,

he said, had been reprobated by the wise and good in all ages, and at a

very early period in the history of English jurisprudence had received

the pointed disapprobation of the Parliament. He adverted to what he

called a wise and humane provision in the statute of Edward III., by

which the judges were prohibited from declaring any thing to be treason

not so expressly defined by the letter of the statute. That the court had

given such an opinion, was not now, however, the point of charge against

them; that they extended the doctrine of treason beyond both the letter

and spirit of the constitution, was not now the foundation of the present

motion. The accusation was that, in a case involving the life or death of

a freeman, the party was condemned without a hearing; that he was denied

the assistance of counsel, which was secured to him by the constitution

of his country; that the right of the jury to decide both the law and the

fact was refused; for it amounted to a refusal when the court would not

permit the jury to be assisted by the arguments of counsel. He asked if

gentlemen would consider it correct in a court, upon an indictment for

murder, to prohibit the prisoner’s counsel from contending before the

jury, that the offence charged amounted to manslaughter only? Surely not.

The question, in the case of Fries was, whether the act of which he had

been guilty amounted to treason, or to a misdemeanor? and this the court

refused to suffer the jury to have an argument upon. He declared that,

in all criminal prosecutions, the jury had a clear, undoubted right to

decide, as well the law as the fact; they were not bound by the direction

of the court; and that, in capital cases, it was a right which they ought

always to exercise. But, in Fries’s case, the law was not permitted to

be brought into the view of the jury by his counsel; the court denied

to the prisoner the assistance of counsel, which was secured to him by

the constitution, and he was condemned to an ignominious death, which he

must have suffered but for the subsequent interference of the Executive.

Mr. N. said, he had thought proper to make these remarks in answer to

those gentlemen who had undertaken to pronounce the conduct of the court

to be strictly correct. Although he did not mean to commit himself by

declaring that this afforded sufficient ground for impeachment, yet he

could not avoid saying, that the refusal to hear counsel in defence of

the prisoner, did not meet his approbation.

The gentleman from Connecticut had doubted whether the present proceeding

was conformable to principle. He thought that we ought to have the proof

before we take any steps to procure it. Mr. N. begged leave to ask

how proof was to be procured before inquiry was made? In what manner

information was to be obtained before it was sought for? If a member

had stated upon oath that a judge had been guilty of improper conduct,

which would warrant an impeachment, the motion would not be, in the first

instance, to inquire, but to impeach. If information was necessary, how

was it to be procured? By sitting here, and writing for depositions to be

sent in? Surely not. If a person was in the lobby, acquainted with all

the facts, how were they to be communicated to the House? Was he to come

to the bar, and offer a voluntary affidavit, or would it be correct to

introduce him without any previous proceeding? In that case, would it not

be necessary to declare, by a prior resolution, that we would commence an

inquiry before testimony could be offered at the bar? If a member should

state that a witness was at hand who could prove official misconduct

in a judge, the correct course would be to introduce a resolution,

declaring that the House would inquire, and it could not be resisted.

What, he asked, was the proposed course? Instead of making the inquiry

in the House, it was requested that it might be made by a committee.

Instead of using our power to bring witnesses before us, it is proposed

to authorize a committee to examine them. This would be more convenient

and more proper. To bring them before the House would be attended with

inconvenience, and unnecessary delay. He could not tell what the mode of

proceeding before the House of Representatives would be, but, generally,

he believed, it was the practice for a member to propound the question to

the Speaker; the Speaker then to propound it to the witness; the answer

to be made to the Speaker, and by him reverberated back again to the

House. He asked, if the House would consent to this? If they would agree

to a course of proceedings so tedious, so procrastinating, so evidently

embarrassing? And yet this must be the course, unless that proposed was

adopted.

It was said by a gentleman from Connecticut, (Mr. R. GRISWOLD,) that

we were about to appoint a committee to ransack the country for an

accusation, and afterwards to search for proof to support it. He

complains that no accusation is made. Mr. N. averred that an accusation

was made; it was made during the last session, and again repeated during

the present. He asked, if it was no charge to declare that a judge had

condemned a man to the most ignominious death, without a hearing; without

allowing him those benefits which he claimed under the constitution? Was

it a trivial circumstance for a member of this House to declare that a

freeman had been indicted for a high capital offence; that he appeared

at the bar and pleaded not guilty; that his counsel were ready to prove

the truth of the plea, but that the presiding judge had refused to hear

them? If this was not a charge, and a charge, too, of a most solemn

nature, he did not understand the meaning of the words. It was brought

forward as boldly as the gentleman from Connecticut could wish, and the

only question now was, in what manner shall we inquire into the truth of

it? Shall we appoint a committee to make the inquiry by calling witnesses

before them, or shall we dismiss it without investigation? Shall we give

it the go-by, and suffer the character of the judges to rest under an

imputation so heavy? Shall we proclaim our own dishonor, by publishing

abroad that a heavy charge had been made, in the face of this House,

against one of the highest judicial officers of the Government, and that

we were too pusillanimous to notice it?

What the gentleman meant by comparing the proposed committee to the

Spanish Inquisition, Mr. N. did not really understand. Did the gentleman

wish to make a false impression upon the public mind? Was he anxious

to cast an odium upon the proceeding by calling it an inquisitorial

committee, and affecting to believe that it was to be clothed with the

powers of the Holy Inquisition? The Inquisition had the power to seize

the person of the party, to deny him all access to his friends, to

confine him in a cell, and refuse him all assistance whatever; to stretch

him on the wheel, and rack and torture him into confession. Does the

gentleman wish to induce a belief that this committee is to be clothed

with the same powers? All committees appointed to inquire, might, to be

sure, be called Inquisitorial, because they were to make inquiry, but the

epithet of Spanish Inquisition was intended to convey an idea totally

incorrect.

The gentleman had asked why this charge had been suffered to rest so

long? The facts upon which it was made were said to have taken place in

1800. Mr. N. thought it would be fair to reply to the gentleman that,

possibly, he himself had, in some measure, accounted for the delay; the

proper time had not before arrived. But if the act upon which the charge

was grounded was criminal at that day, was it less so now? If Justice had

slept so long, did it follow that she was dead? He hoped and trusted not.

Though she had lain dormant till she was almost trampled to death, she

was again roused to her accustomed vigilance, would pursue her victims,

and drag them to punishment. The day of retribution, he hoped, was at

hand.

The gentleman from Connecticut had declared that the proposed course

was not warranted by precedent. He had noticed, but had not explained

away, the precedents introduced by the gentleman from Pennsylvania,

(Mr. FINDLAY.) His own precedent, derived from the impeachment of Mr.

Hastings, instead of being in his favor, was directly against him.

In that case it was not pretended that the proof was before the House

of Commons. Mr. Burke had derived his information from certain papers

relative to Indian affairs, which some years before had been produced and

referred to a select committee. In the year 1786, Mr. Burke rose in his

place, not as a member of that committee, and charged Warren Hastings

with high crimes and misdemeanors. About the same time he presented a

written paper containing a specification of these charges. But this was

not the impeachment. The written paper stated that as Governor General

of Bengal he had disobeyed the instructions of the court of directors;

that he had acknowledged himself perfectly acquainted with their wishes,

but instead of obeying, had used his utmost endeavors to defeat them; and

much more of an important nature. This he moved might be referred to a

Committee of the whole House, in order that an inquiry might be made; and

there was not a single dissenting voice. He did not adduce the proofs in

the first instance, but stated his opinions that Mr. Hastings’s conduct

had been criminal, and demanded an inquiry. The Commons of England did

not hesitate--they instantly resolved to inquire. No one was heard to

declare that there was no charge, because there was no proof. Witnesses

were brought to the bar and there examined by a Committee of the Whole,

in support of the charges; nor was there a motion to impeach until the

testimony was gone through. On the contrary, the facts proved were

reported by the Committee of the Whole, who likewise expressed an opinion

that Warren Hastings had been guilty of high crimes and misdemeanors,

and ought to be impeached. The impeachment therefore was not upon the

motion of Mr. Burke, but upon the report of a committee, who under the

instruction of the House had made an inquiry.

What then, Mr. N. asked, was the course now proposed? His friend from

Virginia had called the attention of the House to certain alleged

misconduct of a judge, which had been stated by a member in his place

during the last session. That statement had again been repeated in the

House yesterday, not in writing, indeed, but in language so clear and

in terms so unequivocal that none were so stupid as not to understand

it. Like Mr. Burke, he asked that a committee should be appointed to

inquire into the truth of the charge. The House of Commons had referred

the subject before them to a Committee of the Whole, and the House of

Representatives were moved to refer the subject before them to a select

committee. A select committee was proposed, because it would be more

convenient and more expeditious. If the subject might with propriety be

referred to a Committee of the Whole, with equal propriety might it be

referred to a select committee.

He had noticed this precedent, not because he thought it necessary

to cross the Atlantic for authorities, but because the gentleman had

introduced it as favoring his own doctrines. If there was already no

precedent, in his opinion the House ought to make one; but he believed

their own journals would furnish them with one. At the first session

of the seventh Congress, in a very few days after the House met, Mr.

N. said he had risen in his place, and stated that he had seen in the

public prints, during the preceding summer, charges of a serious nature

against an individual who had filled one of the highest stations under

the Government, that he had misapplied considerable sums of public money,

and was a defaulter to a very large amount. Upon this vague rumor, he had

moved that the accounts of the former Secretary of State should be laid

before the House. No gentleman then declared that it was necessary to

have proof before an inquiry took place. No one dreamt that information

as to facts was to be had, before it was sought for. Some indeed had

asked how far the motion was to extend; whether it was to embrace all the

other Secretaries of State? Others desired that the accounts from all the

departments should be called for, and finally it was determined to let

the resolution lie for a short time. In a few days after, on the 14th of

December, he modified the resolution, in conformity with the wishes of

several gentlemen, and it passed directing that “a committee should be

appointed to inquire and report, whether moneys drawn from the Treasury

had been faithfully applied to the objects for which they had been

appropriated, and whether they had been regularly accounted for,” &c. A

precedent more in point he thought could not be desired. The inquiry was

produced, not upon proof, not even upon the suggestion of a member, but

because a report as to the misapplication of public money had circulated

through the public prints of the day. He might be told perhaps that this

was an inquiry of a general nature. But general as it might be, it was

directed at the conduct of individuals, and under other circumstances

might have furnished materials for an impeachment. The gentleman from

Connecticut was a member of that committee, and Mr. N. asked him if he

would pretend to say that it was a secret committee, as he had called

that now asked for? Or was this only another attempt to impose upon the

public?

Another precedent, he thought, might be furnished from the Journal, but

he was unwilling to refer to it.

It had been said, too, that impeachments would be cheap if they were to

be made upon the suggestion of a member. It appeared to him that the

motion to inquire had been constantly mistaken for a motion to impeach.

Did gentlemen suppose that an impeachment must necessarily follow an

inquiry? It would seem as if they entertained a poor opinion of those

whose conduct was the subject of discussion. But they ought to recollect

that the impeachment could not be the act of any individual, nor of the

committee, but of the House; and this, too, after all the facts were

collected and presented, with the evidence to support them. If this

mode was not to be adopted, he did not know any other manner in which

an impeachment could be instituted, unless where the President thought

the peace of the country or the revenue were endangered, and gave

the information himself, as in the case of Governor Blount and Judge

Pickering. Nor did he think this could affect the independency of judges,

unless they were to be made independent of the laws, the constitution,

and the people.

Had it not been for the debate which had taken place on this subject, he

should have imagined that the friends to the judge would have been the

first to promote the inquiry after it was moved for. If he was innocent,

the inquiry ought to be wished for: after passing through the ordeal,

he would come out like pure gold from the crucible. If guilty, no man

ought to feel a disposition to screen him from punishment. Mr. N. could

not avoid on this occasion alluding to the recent conduct of a judge in

a neighboring State, upon whose character an imputation of the blackest

nature had been thrown by a miscreant. That judge, conscious of his own

rectitude, and disdaining to shelter himself from inquiry, demanded

an investigation of the charge, and the consequence was an entire and

honorable acquittal.

Mr. ELLIOT.--When, in the course of a late debate in this House, it was

observed that a member had advanced an anti-republican sentiment, the

supposed imputation was repelled by the remark, that the gentleman to

whom allusion had been made, had passed a political ordeal which few

had experienced, and which ought to place his character as a republican

above the reach of suspicion. I have myself suffered an ordeal of that

description, under circumstances of gloom and depression which have

fallen to the lot of but few young men of this country; and I am far

from being confident that one ordeal only will fill up the measure of

my humble fortune. A more anti-republican resolution than the one upon

your table, sir, I think I never saw. Reflection has confirmed me in

the opinion which I expressed yesterday, that it is unprecedented,

unparliamentary, and tends to the assumption, on the part of this House,

of a censorial and inquisitorial power over the Judiciary, unwarranted

by the constitution. The intention and object of the mover, however,

must have been extremely different; the motive is pure and the object

meritorious; but that honorable gentleman, with all his talents and

discernment, has, in my opinion, fallen into an error. I believe it a

sound principle, that no official measures should be taken to censure or

criminate the conduct of a public officer, until facts shall be stated

which amount to a specific and definite charge of misconduct. In the

present instance we have no written allegations, and what is the amount

of the verbal information with which we are furnished? A gentleman from

Pennsylvania has stated in his place that _he has heard_ that some one of

the judges, whose name appears in the resolution, was guilty of improper

and oppressive conduct, in the exercise of his judicial functions, on a

trial for treason some years since. And a gentleman from Virginia has

stated that he has received information which induces him to believe that

the inquiry he demands will lead to an impeachment. Is it our duty to

act upon the vague rumors of common fame, or the opinions of individual

members?

The resolution under consideration has been materially altered this

morning, and I gave my vote for the alteration, because I believed that

the misconduct of a court ought not to be attributed to a single judge.