I feel it my duty, Mr. Speaker, to remark, that the information which

is possessed by the members of this House, respecting the conduct of

those judges, is extremely contradictory. No gentleman has told us that

he possesses personal knowledge of the misconduct imputed to those

officers; and I possess information on the subject, derived soon after

the transaction, from a source which I considered as authentic, and which

produced so deep an impression upon my mind, that I should scarcely

abandon my belief of its authenticity, even from the general recollection

of persons who were present at the scene. I understand that the judges

did nothing more or less than decide a legal question in a legal manner.

They did not interdict the counsel for the prisoner from examining

a question of law, but they restricted them to what they considered

as their legal and constitutional limits. They told them that the

constitution of our country had clearly and explicitly defined the crime

of treason, and confined them to the plain field of the constitution,

inhibiting them from a resort to British authorities to prove that to be

treason which the constitution of our country had not made treason, or to

prove that what our constitution had made treason, was not recognized as

such by foreign precedents. This statement may be incorrect, and, if it

be correct, the conduct of the judges may have been improper and severe,

but it cannot justify an impeachment. And if the court went farther,

interrupted the counsel for the prisoner, informed them that it was the

province of the court to determine points of law, declared that their

opinion was fixed upon those points, and even forbade the counsel to

prolong their arguments upon them, it might still be questionable whether

the conduct of the court rendered its members liable to impeachment. A

venerable gentleman from Pennsylvania, (Mr. FINDLAY,) who has long been

in the service of his country, has been incorrect in stating that I had

observed that I would never go into the inquiry without evidence; that

incorrectness must have been unintentional; if I used an expression of

that description, it was a _lapsus linguæ_: but I am confident that I

said, and I am certain that I intended to say, that I thought it improper

to institute the inquiry until some fact or facts should be stated as a

ground of accusation. A gentleman from Virginia (Mr. JACKSON) has told us

that common fame is sufficient ground for impeachment in Great Britain.

That gentleman has not adduced his authorities for this proposition, and,

had he adduced them, I am confident they would not have answered his

purpose, when contemplated in all their bearings, when examined with all

their qualifications. The same gentleman also observed, if I understood

him correctly, that were he satisfied that the conduct of the judges, in

the case alluded to, was legal and correct, he would still vote for the

inquiry. To me this declaration appears extraordinary. Why vote for an

inquiry when satisfied that no criminality existed?

A gentleman from Pennsylvania, (Mr. SMILIE,) who contends that there is

no necessity for precedent in the present instance, as we are competent

to form precedents for ourselves, has yet thought proper to explore

the books for precedents, and has presented us with the result of his

labors. To guide our conduct on the present occasion, we are referred

to the case of the Earl of Strafford, over whose tomb genius and virtue

love to mourn, and will mourn in future ages! It cannot be possible

that that gentleman wishes to recommend for our imitation that flagrant

perversion of every principle of law and justice, that cruel catastrophe!

A gloomy and terrible precedent, one of the most dark and disgraceful

in the British annals, and utterly unsusceptible of application to

the principles of a Republican form of Government. The gentleman from

Maryland, (Mr. NICHOLSON,) to whom I listened with peculiar pleasure, and

who has certainly displayed ingenuity, has been equally unfortunate in

his selection of precedents, and in his application of them to the case

under consideration. He has cited cases, which, by his own statement,

militate against the principles he assumes. We are first presented

with the celebrated case of Warren Hastings. In that case, a member

rose in his place, and, after accusing Hastings of high crimes and

misdemeanors, exhibited specific charges of malconduct, in consequence

of which an inquiry was instituted. Here is a solid basis, and the very

basis which is wanting on the present occasion, upon which to erect

the superstructure of impeachment. That gentleman has also mentioned

a resolution introduced by himself in a former Congress, which was

expressed in general terms, and directed to general objects, and of

course was perfectly dissimilar to the present one.

Allusions have repeatedly been made to a remark of mine in the debate

of yesterday, that this House is the grand inquest of the nation. It

has been asked, if a grand jury were informed that a murder has been

committed, would they not send for evidence to ascertain the fact? We

are the grand inquest of the nation, and our practice ought, in many

respects, to be analogous to that of grand juries; but in becoming

that inquest, we do not entirely lose our deliberative and legislative

character. I believe it would be descending from the dignity of our

station, to listen to the murmurs of general rumor, and seek for guilt.

I have heard that one of the judges whom we are called upon to censure,

when in the exercise of his judicial functions, inquired of a jury, “Is

there no sedition here? Are there no seditious newspapers within your

jurisdiction?” I am ignorant whether this report be or be not founded on

fact. But if it be true, let me ask, shall we not pursue a similar course

by adopting the present resolution? Shall we not authorize a committee

to inquire, Is there no judicial guilt abroad in our land? Is there no

latent inquiry in some unexplored corner of our country? A grand jury

is sworn diligently to inquire, and true presentment make, of all such

offences against the laws of the land, as shall come to their knowledge.

Have we taken such an oath? Are we under such obligations? And are we not

about to attach to ourselves that character which gentlemen tell us is so

odious, the character of common informers? I am under no fears that the

stream of justice, which ought to be so pure, will become turbid, from

a want of accusers, when our judges shall be guilty of crimes. When our

courts shall become corrupt and despotic, patriotic motives will induce

our citizens to bring forward accusations. I am also sensible of the

propriety and force of the observation of the gentleman from Connecticut,

(Mr. R. GRISWOLD,) that the trial in question was a transaction of great

publicity, and all its circumstances must have been known to thousands of

our citizens. This induces me to believe that the conduct of the court

was not so oppressive and despotic as is now represented. Why has this

awful charge slumbered so long?

One or two remarks upon the allusions that have been made to my

observation, that we are about to assume censorial and inquisitorial

powers, and I will dismiss the subject. What is the language of the

resolution? Without the allegation of a single fact, it constitutes

a committee to inquire whether the judges have not so acted in their

official capacity as to render necessary the interposition of the

constitutional powers of this House. The expression is unequivocal;

the allusion to the power of impeachment is perfectly obvious. This is

what is called a _petitio principii_; it takes for granted, at least

in some degree, what remains to be proved, that the conduct of the

judges has been improper and illegal. Else why adopt a language which

implies suspicion and censure? But gentlemen are alarmed at the epithet

inquisitorial, and imagination teems with the horrors of the Spanish

Inquisition. If the creation of this committee be an unauthorized act, if

in creating it we transcend those limits which we ought, by a reasonable

construction of the constitution, to set to our own powers, it instantly

becomes inquisitorial in its nature and in its operation. We must

delegate to it more than general powers. We must authorize it to send for

persons, and probably for papers and records. The proposition is hostile

to republican principles, and, as a republican, I cannot give my vote in

its favor.

Mr. HOLLAND.--When I before addressed the House on this subject, I had no

doubt of the charge being sufficiently explicit to found an inquiry into

the conduct of the judges. My only doubt was whether it was proper to

proceed without affidavit. Since yesterday I have reflected on the course

pursued in similar cases; and I will state to the House the proceedings

adopted in two or three cases in the Legislature of which I was a member.

In the year 1796, a charge was preferred against certain judges of the

State of North Carolina for illegally extending their power. A committee

was appointed to inquire into their conduct, and the result was, that the

judges had exiled certain persons from the State. The proceedings did not

go so far as an impeachment; for the judges wrote an explanatory letter,

which gave satisfaction, and they were acquitted with honor. The other

charge, to which I have alluded, was against the board of army accounts;

that also was referred to a committee. The last case is the most recent.

A suspicion existed that the Secretary of State had been guilty of

misconduct. A letter had been received by the Governor from some citizens

to that effect; in consequence of which, and of other corroborating

circumstances, the Legislature appointed a committee of inquiry, of which

I had the honor to be a member. That committee was empowered to send for

persons and papers. There was no specific charge, but an impeachment was

contemplated, if the officer should appear to be guilty. The Secretary

was brought before the committee, who examined him on oath, and reported

the existence of frauds much more extensive than had been imagined; in

consequence of which the land office was shut up, and the Secretary

notified that articles of impeachment would be exhibited against him.

But the late period of the session not then admitting of a trial, it was

postponed to the next General Assembly. At the succeeding Assembly the

officer resigned, and superseded the necessity of an impeachment. He

was afterwards indicted at common law. These precedents, drawn from the

proceedings of the Legislature of the State which I have the honor to

represent, induce me to think that the course proposed is proper; and I

shall, accordingly, vote for the appointment of a committee of inquiry.

Mr. DENNIS said, he did not rise for the purpose of entering into an

investigation of the merits of the question, but principally for the

purpose of stating, in a few words, what appeared to be the difference

between the friends and the opponents of the resolution. He had never

experienced, on any occasion, a stronger conflict between inclination

and duty than in the present instance. On the one hand, he was confident

that, after the official conduct of the judges had been thus publicly

implicated, it must be desirable to them that an investigation of the

facts charged against them should take place, and it seemed to be a

duty due to those gentlemen, that they should have an opportunity of

being confronted with their accusers. On the other hand, we owe to the

laws and constitution, as well as to those considerations which must

always govern in the establishment of important precedents, a paramount

duty, which appeared in this case irreconcilable with the indulgence of

individual considerations. The true difference between the advocates and

the opponents of the resolution appeared to be this: That the one thought

it a proper procedure to raise an inquisitorial committee, without any

definite or assignable object, and without stating in the resolution any

specific charge. The other did not demand, as it had been supposed, the

production of all the evidence in the outset of the proceeding, which

might be necessary in the ulterior stages of the transaction, nor that

precise and technical specification of the charges which might be proper

in articles of impeachment, but only required that some fact should be

stated, or charge alleged, as the basis on which to erect a committee. He

believed, to create a committee by resolution, with general inquisitorial

powers, without specifying any charge, or stating any reason in the

resolution for the proceeding, was without precedent, and might become an

engine of oppression. In order to satisfy the friends of the resolution

on that, he did not wish to avoid that investigation which might be

founded on proper principles, and which he believed, after what has been

said, is rather courted than avoided by the judges in question. He would

beg leave to read, in his place, the form of a resolution, such as he

supposed ought to be the groundwork of a procedure like this:

“Whereas information hath been given to the House, by one of

its members, that in a certain prosecution for treason, on

the part of the United States, against a certain John Fries,

pending in the circuit court of the United States, in the State

of Pennsylvania, Samuel Chase, one of the associate justices

of the Supreme Court of the United States, and Richard Peters,

district judge for the district of Pennsylvania, by whom the

said circuit court was then holden, did inform the counsel

for the prisoner that, as the court had formed their opinion

upon the point of law, and would direct the jury thereupon,

the counsel for the prisoner must confine themselves to the

question of the fact only. And whereas, it is represented that,

in consequence of such determination of the court, the counsel

did refuse to address the jury on the question of fact, and

the said John Fries was found guilty of treason, and sentenced

by the court to the punishment in such case, by the laws of the

United States, provided, and was pardoned by the President of

the United States.”

He said he read this by way of argument, to show that the present

resolution ought to be rejected, and though he would not offer it

himself, in case the resolution before them should be rejected, yet

he would pledge himself to vote for such a one, if the gentleman from

Virginia or any other member would offer it. The resolution which

has been read, embraces all the facts stated by the gentleman from

Pennsylvania, which contains the only charge that has been exhibited. But

if any gentleman possesses a knowledge of any other facts or charges, let

him specify them, and he would be willing to vote for an extension of the

powers of the committee to them also; for he did not wish to confine the

inquiry to the specific charge stated by the gentleman from Pennsylvania,

if other gentlemen had charges to exhibit, and would state them in the

resolution. If they would specify a charge or charges of a serious

nature, and give us any reason to believe them true, although originating

from hearsay evidence, he would vote for the inquiry proposed; and he

begged that he should be understood as objecting rather on the ground

that no charge had been specified, than on the ground of incompetent

evidence. The vague charges verbally communicated by the gentleman from

Pennsylvania, and none of which are reduced to writing, give no grounds

of procedure; not only because, if true, they constitute no cause for

impeachment, but because they are not specified in the resolution.

The motion was then further amended to read as follows:

_Resolved_, That a committee be appointed to inquire into the

official conduct of Samuel Chase, one of the associate justices

of the Supreme Court of the United States, and of Richard

Peters, district judge of the district of Pennsylvania, and to

report their opinion whether the said Samuel Chase and Richard

Peters, or either of them, have so acted, in their judicial

capacity, as to require the interposition of the constitutional

power of this House.

Mr. SPEAKER stated the question, that the House do agree to the

said motion, as so amended, when an adjournment was called for and

carried--yeas 61, nays 43.

SATURDAY, January 7.

Mr. NICHOLSON, from the committee appointed on the memorial of Alexander

Moultrie, agent for the South Carolina Yazoo Company, and of William

Cowan, agent of the Virginia Yazoo Company, made a report, going

considerably into detail, and concluding with a resolution adverse to the

prayer of the memorialist. Referred to a Committee of the Whole on Monday.

_Official Conduct of Judge Chase._

The House resumed the consideration of the question depending yesterday,

at the time of adjournment, “that the House do agree to the motion of

the fifth instant, as amended by the House, for the appointment of a

committee to inquire into the official conduct of Samuel Chase, one of

the associate justices of the Supreme Court of the United States, and of

Richard Peters, district judge of the district of Pennsylvania.”

Mr. J. RANDOLPH expressed his regret that the attempt which he had

made yesterday to reply to the very personal allusions of a gentleman

from Connecticut, (Mr. GRISWOLD,) whom he was sorry not to see in his

place, had, by the adjournment, proved abortive. Such was his regard

for the opinions of the House, that he should always, when called upon

from a respectable quarter, justify any conduct which he deemed it

proper to pursue in its deliberations. He felt it due to the respect in

which he held the Chair and those around it, to reply to the remarks

of the gentleman from Connecticut, and this consideration alone could

have induced him to offer any thing in addition to what he had already

advanced in favor of the motion. He should otherwise have left the

resolution to its fate. In that fate he did not feel himself personally

implicated. If it should be rejected, he would be satisfied in having

done his duty, and the House, he supposed, would feel equally satisfied

in having discharged theirs. It was asked, where was the mover of this

resolution at the time when the alleged misconduct took place? Did it

not, said the gentleman, pass under their own eyes? Were not their

deliberations held on the very spot? and why had the motion slept until

this day? He hoped he should be permitted to say that it did not pass

under his eyes; although he knew, at the time of the condemnation in

question, he did not become acquainted with the circumstances under

which it took place until long after their occurrence. It was true that

the deliberations of Congress were then held in Philadelphia, the scene

of this alleged iniquity, but, with other members he was employed in

discharging his duties to his constituents, not in witnessing, in any

court, the triumph of his principles. He could not have been so employed.

It would be recollected, that the information given by the gentleman

from Pennsylvania formed the groundwork of his proceedings, and he asked

whether it was more the duty of the mover of the resolution to have

brought it forward than every other member of the House who was a witness

of the statement made by that gentleman? This information, of an official

nature, given by a member in his place, of a transaction in open court,

and which it was the duty of them all to have noticed, had been called

a story related on hearsay; a rumor of an affair which had happened in

a corner; and the House was asked if they would take such evidence as

ground of proceeding, on the _dictum_ of any one member, however great

their confidence in him might be? If he really felt that respect for

the House which the gentleman from Connecticut had professed, he would

not have insulted their understandings by such language. He would not

have stood up, as _amicus curiæ_, to prevent their being precipitated

into absurdity and injustice by an influential member of their body.

That, however, was the station which the gentleman had assumed, and

he hoped the duties of it would be discharged with the fidelity which

they required. After clothing himself with this character, Mr. R. said

he expected to have seen him at his post--he regretted that he did

not see him there, and that his duty did not permit him to withhold

the observations which he was compelled to make. Whilst, however, the

gentleman was engaged in discharging the new and important function

with which he stood self-invested, he seemed cautious of replying to

the masterly statement of his venerable friend from Pennsylvania, and

which he believed had remained unanswered because it was unanswerable.

It must, said Mr. R., be a subject of high gratification to us all,

and I congratulate this House upon it, that age has not yet dimmed the

lustre of those talents which have so long presided in the councils

of this country. And if the time shall come when we are to resign our

understandings, and place ourselves under the direction of an individual,

I hope to be permitted to range myself under the banners of that tried

patriot, and not under those of the gentleman from Connecticut. In the

same spirit with which he challenged the confidence of the House, as a

friend unwilling to see them led into error and absurdity, that gentleman

had endeavored to alarm their pride by representing the motion as a

demand made upon them. It was so. It was (if he might so express it)

a writ of right, not of favor--and as such he demanded it, as such he

urged it. But an objection was taken that no act of misconduct had been

alleged. With his friend from Maryland he would say, that a fact of the

first importance had been adduced, on which he was sorry his friend had

not dwelled longer. It could not receive too much attention. On a trial

for life and death, the jury, who were the constitutional judges both

of the law and fact, were deprived of the right of a discussion of the

point of law, “what constitutes treason?” The rights of the jury and

of the accused were equally invaded. It was conduct not dissimilar to

this, in a case of libel, which drew forth from the English Parliament

the famous declaratory bill of Mr. Fox. Lord Mansfield had laid down the

doctrine that the jury had a right to decide only upon the bare facts

of printing and publishing, and not upon the question of guilt, which

was compounded of the law and the fact. This produced the declaratory

act which passed a strong censure on the practices of courts--since

it did not amend or alter the law, but declared what the law was--and

established the point resisted by the court, that the jury was the judge

both of the fact and of the law. If, then, on a question of criminal

law, where the punishment was only fine and imprisonment, the conduct of

a judge was deemed highly reprehensible in encroaching upon the rights

of the jury, what shall we say of him who usurps those rights in a case

of life and death, in a case of treason? This denial to the prisoner and

the jury of the right of having the point of law discussed, seemed to be

the first step towards assuming those powers in cases of treason, the

exercise of which, in cases of libel, had drawn down upon the English

courts the censure of their Parliament. Would the gentleman say this was

nothing? Would he affirm that if a man were under trial for murder, the

court would be justified in saying to his counsel, You may, if you can,

disprove the fact with which the prisoner stands charged, but you shall

not endeavor to show that it does not amount to the crime with which he

stands charged? If you admit the killing, you shall not argue the point

that such killing does not constitute murder. Would the gentleman contend

that treason is better defined than murder? What is murder? Killing with

malice aforethought; can any definition be clearer? What is burglary?

Breaking in during the night. What is treason? The constitution defines

it as levying war against the United States; adhering to their enemies;

giving them aid and comfort. But what had definitions to do with the

case? Because murder was defined, had counsel ever been stopped in an

attempt to show that the killing with which their client stood charged

was not a killing with prepensive malice, a killing which constituted

murder? What was more common than to see the facts admitted, and the

crime not only denied, but disproved to the satisfaction of the jury;

and upon what principle shall counsel be arrested in the attempt to show

that the facts charged in an indictment for treason do not amount to

such a levying of war, or an adherence or aid to such enemies as would

constitute treason? Mr. R. said that the fact mentioned by the gentleman

from Pennsylvania was of a remarkable nature. He had never heard of a

similar proceeding, and he rejoiced that another instance of so black a

nature could not probably be furnished by any tribunal in this country.

The gentleman from Maryland, (Mr. DENNIS,) however, had entirely

abandoned the ground taken by his friend. He agrees that there is a

charge of an important nature exhibited, and if it was incorporated into

the resolution, and the inquiry confined to that subject only, he would

vote for it. The object of the one gentleman was only to confine the

inquiry, whilst that of his friend was to deny it altogether. He could

not thank the gentleman for his liberality. He would have what he asked

or nothing. He would never consent to confine the inquiry; if it could

not be full and free, let it be denied.

The gentleman from Maryland had, with very little dexterity, endeavored

to confound the resolution of inquiry with the articles of impeachment

which may follow from it, and said that if the House would consent to

confine the inquiry to any particular charge he would vote for it. It

was true that after articles of impeachment should have been exhibited

against the accused, the House would not be permitted to prefer any

new accusation, or to adduce testimony to prove any guilt other than

that which was charged in those articles. In the same manner as when

a criminal was indicted, evidence would not be suffered to be brought

forward to prove any act of criminality not contained in some one of the

counts of the indictment. But would gentlemen persist in confounding

things so entirely different, as to confine an incipient inquiry by the

same rigid rules which would govern a criminal trial? It was trifling

with the judgment of the House. The gentleman was eager for inquiring,

but the charge must be incorporated into the resolution, and the inquiry

confined to a specific point, before he could be brought to consent

to it. Whatever other misdemeanors might come to the knowledge of the

committee in the course of the investigation, he would not agree to have

them reported to the House. And at the same time he told them of the

struggle between his inclination and his sense of duty--his inclination

as a friend of the accused to grant the inquiry, his duty as a member of

the House and a friend of justice to refuse it. Mr. R. was sorry to find

the gentleman in this awkward predicament; he regretted that it was out

of his power to gratify him by narrowing the inquiry. This his duty would

not suffer him to do. He hoped, however, the strength of the gentleman’s

constitution would carry him through the arduous struggle in which he was

involved, by his wishes on the one hand, and his principles on the other.

Whilst so much was said on the subject of precedent, he hoped he might

offer a few cases to their consideration. He did not come to the House

armed with precedents. Neither his health nor leisure permitted him to

search for them. Gentlemen of greater industry, and who attached more

importance to them than himself, had furnished him with them. For his

part he thought precedents had nothing to do with the case, but for the

sake of those who thought differently, he would show the course which he

advocated was not destitute even of their support. Here Mr. R. referred

to Mr. Hatsell’s precedents. “On the 21st of April, 1626, Mr. Glanvylee,

from the select committee appointed to consider of the charges against

the Duke of Buckingham, reports that they desire the House will resolve

whether common fame is a ground for this House to proceed upon?” It is

resolved to consider this the next day. After a long debate the House

resolve that, “common fame is good ground of proceeding of this House,

either to inquire of here, or to transmit the complaint, if the House

find cause, to the King or Lords.”

Mr. R. begged to call the attention of the House to the opinion of a

gentleman, delivered during the debate, to which he must be permitted to

attach more importance than to that of the gentleman from Connecticut.

When he mentioned the name of Selden, he believed he should stand

justified in the opinion of the gentleman himself, and in that of his

warmest admirers. “These cases (said Mr. Selden) are to be ruled by the

law of Parliament and not by the common or civil law.” Mr. Littleton

says, “this is not a House for definitive judgment, but for information,

denunciation, or presentment, for which common fame is sufficient.”

Mr. Noy says, “There are two questions--first, Whether a common fame?

Second, Whether this fame be true? We will not transmit without the first

inquiry: but without the second we may; for peradventure we cannot come

by the witnesses; as if the witnesses be in the Lords’ House.”

Again, on the 16th October, 1667, the House being informed “that there

have been some innovations of late in the trials of men for their lives

and deaths, and in some particular cases restraints have been put upon

juries, the matter is referred to a committee.” This case (Mr. R. said)

was precisely in point. “On the 18th of November, this committee are

empowered ‘to receive information against the Lord Chief Justice Keeling,

for any other misdemeanors besides those concerning juries.’” Thus on a

particular fact, innovation in trials for life and death, a committee was

raised, and yet they were not confined to the examination of that single

charge, but empowered to inquire generally into the misconduct of the

judge. A stronger or more pointed precedent could not be conceived.

By the constitution, Mr. Randolph said, that House was vested with the

sole power of impeachment. How this power was to be exercised must

depend on their discretion, and on no other law or principle whatever:

for “these cases are not to be ruled by the common or civil law, but by

the law of Parliament.” That law of Parliament it remained with them

to establish. It could not be matter of surprise that he, one of the

leading principles of whose politics it was to support the weight of that

branch of the Government, and to be jealous of executive influence--it

could not surprise any one, that he should exert himself in behalf of

the constitutional rights of that House. When he saw the importance

which was attached to precedent, he was more than ever solicitous for

that which they were then about to establish. He trusted that they

would not consent to abridge the power with which the constitution had

invested them--to reduce it below the standard which the English House

of Commons had fixed as the measure of their own power in similar cases.

A time might come when a wicked President and his flagitious ministers

might so conduct themselves in office, as to make every man regret the

proceedings of that day, in case they should suffer their power to sleep.

The refusing to exercise it, then, would hereafter be adduced as a denial

of its existence. Such might be the circumstances of the times, that no

private man would dare to step forward with a specific charge against the

Executive. If they should deny an inquiry without a specific charge, they

would do all in their power to screen such a President and such ministers

at a future day. It had been remarked that, in this government, an

officer found guilty, on an impeachment, could not be punished capitally.

The sentence could only remove him from office, and disqualify him, for

ever after, from holding one under the United States. If, in a country

where the accused may be brought to the block, free, unfettered inquiry

is warranted against any rank however exalted--would it be denied here,

where the punishment was comparatively light? Should they hold the other

departments of the Government more inviolable than they were considered

even in England? Would they afford to a criminal, Executive or Judiciary,

a shelter denied by the law of that government? He hoped they would not.

He trusted that they would give an example of their readiness to bring

every offender to justice, however great might be his station.

Mr. GRIFFIN.--I had hoped that no subject would have been agitated during

this session which should have interrupted the tranquillity or disturbed

the harmony of this House, so necessary to the faithful and correct

discharge of our public duties; but, sir, I perceive, from the turn which

the debate upon the resolution now before the House has taken, that

sensations have been excited which I fear it will be difficult to allay.

The proposition now before the House, nursed with so much secrecy, and

forced on us so suddenly and unexpectedly, comes in such a questionable

shape, that I must beg the attention of the House for a few moments while

“I speak to it.”

What, sir, does the resolution demand of us? That a committee be

appointed to inquire into the official conduct of Samuel Chase and

Richard Peters, &c. But how is this inquiry to be conducted? Are there

any data by which the committee are to be guided? Is there any specific

charge to which their attention or inquiries are to be directed? None.

And who, sir, before this enlightened day ever heard of a committee of

inquiry being raised, without possession of a single subject to direct or

guide the inquiry? What, sir, erect an inquiring committee vested with

all the rights of a Star Chamber, and yet assign them no specific objects

of their duty! But, sir, the official conduct of these judges has given

offence--and are we now, sir, to probe and search the whole judicial

lives of these gentlemen, for causes of complaint and censure? Are the

records of the States of Maryland and Pennsylvania now to be ransacked,

for evidences of their guilt and cause of impeachment? I never have and

never shall deny the right of this House to inquire into the conduct of

public officers--but, sir, if the honorable mover of the resolution is

serious----

[Here Mr. RANDOLPH interrupted, and desired the gentleman to explain his

meaning by the word serious.]

Mr. GRIFFIN continued. I will answer the gentleman: my meaning is, that

if the gentleman believes there are just grounds for impeachment--if

he is in possession of information or facts, let him declare them,

and if they appear to my mind to be sufficient whereon to ground an

impeachment, let him demand it and I will join with him. Let him specify

the instances of malfeasance of which these judges have been guilty, and

I will unite with him--let him declare the malconduct of these public

functionaries, and I will cordially co-operate with him. If these judges

have travelled beyond the line of their duty, if they have wantonly

exceeded the limits of their power, I will aid in the infliction of such

punishment as they may merit; but, sir, I cannot, I will not, in this

indirect manner, wound the feelings or censure the characters of men,

holding high responsible offices under your Government. Could I induce

myself to believe that the course now proposed to be pursued is correct,

I will gladly give it my assent; but for reasons very different from

those the advocates of this measure adduce: could I deem it correct, I

would support the resolution because I believe the characters implicated

therein will safely pass the ordeal preparing for them, and that the

inquiry will redound to their honor. I would cheerfully support the

resolution, because, by the impeachment which I predict will follow,

an opportunity will be offered to remove the load of unmerited calumny

under which the Federal Judiciary of the United States have too long

labored, and with which our public prints have been long filled. But the

course is incorrect--the measure in its present shape appears to me to

be fraught with incalculable mischief to our country, and I never will

assist in the establishment of a precedent which may at some future day

be made an engine of persecution, as “wicked as intolerant.” Mr. Speaker,

let me ask of you, sir, to remember the consequences which may flow from

the adoption of this resolution--let me conjure this House to reflect

upon the dreadful effects which must arise to us, if, upon the bare

assertion of a single gentleman, unsupported by any direct allegation,

a committee of this nature shall be raised, a precedent of this kind

established, what public character will be safe? nay, sir, how soon may

not we ourselves feel its baneful influence? Far be it from me, sir, to

impute to the honorable mover of the resolution any impurity of motives.

I believe his conduct has proceeded from a consciousness of duty, and

from a similar consciousness of duty I must oppose the measure. I cannot

deny the power of this House to adopt the resolution upon your table, but

I beg of you to pause ere you take the fatal step, and do not, because

“dressed with a little brief authority, play such fantastic tricks before

high heaven as make e’en angels weep.”

Sir, I have endeavored to discharge what I conceived to be my duty upon

this occasion, and when experience shall fatally convince us of the

dreadful effects of the precedent we are now about to establish, I shall

derive consolation from the reflection, that I lent my feeble aid to

check the overwhelming torrent.

Mr. EUSTIS said, he did not view this subject in the same light with the

gentleman last up; he did not see those awful consequences which he had

pointed out. He hoped the time would never come, when an inquiry into the

conduct of an officer of the Government should be deemed a subject of

alarm in that House. It was the first principle of the constitution, that

every man was amenable to the constitution and laws of his country; and

however elevated any one might be, that he could not be raised above the

reach of inquiry. The observations of the gentleman who had last spoken,

and of others who had preceded him, were predicated on a principle that

was not correct. If the resolution on the table was to impeach the judge,

those observations would be relevant, but they were incorrect on the

preliminary motion to inquire.

In making up, said Mr. E., my judgment on this subject, I have endeavored

altogether to avoid the inquiry, whether the officer implicated in this

resolution, has so conducted himself as to require impeachment by this

House. I have not accepted the opinion of the mover of the resolution,

and I have excluded all the other information adduced in the debate;

because I consider it as alone applicable to the question of impeachment,

which is not now before the House. The question before the House is a

very different one, and, in my opinion, it is plain and simple. What

is it? It is that a committee be raised to inquire into the official

conduct of a certain public officer. When a member of this House, under

the obligations of honor, and the additional obligations of an oath,

rises and takes upon himself the responsibility of moving an inquiry into

the official conduct of a public officer, which can only be effected in

virtue of the impeaching power of this House, which power it exclusively

possesses, I view the request for an inquiry in the nature of an

information laid before the House as the grand inquest of the nation.

When this proposition was made, the mind of every gentleman was naturally

cast about for the situation of the officers in question. If it shall be

the opinion of the House that their conduct is such as to afford grounds

for an impeachment, it will be granted that it is an indispensable duty

to make the inquiry. If, on the other hand, the House are of opinion that

no testimony can be produced which will lead to an impeachment, then it

is due to the officers to institute an inquiry. The object of an inquiry

is two-fold--arising from the duty to the people, and that due to the

officer whose conduct is impeached. If gentlemen are of opinion that, in

this case, there are no grounds for impeachment, then it is clear that

the conduct and character of the officer ought to be vindicated, and

the inquiry instituted to afford him the means. If they are of opinion

that there are grounds for an impeachment, then the duty they owe to the

people urges them to the inquiry. In the constitution I find no excuse,

no justification, on which to ground a refusal to institute an inquiry

into the conduct of any public officer charged with misbehavior.

To such an inquiry, what is objected? That the power may be abused.

Indeed, the objection is, that it is abused in this instance. How abused?

To argue from abuse of the power against the use of it, is no argument at

all. If the House believe either alternative I have mentioned, and one

or the other you must believe, it is their duty to make the inquiry. But

it is said that the committee are to be clothed with power to send for

persons and papers. Granted. That power is indispensably necessary. It is

said their powers are to be inquisitorial. This is not true. Will not the

committee be accessible by every member of the House, and what are their

ulterior powers but to collect facts, and to express an opinion whether

they afford grounds for an impeachment? That opinion they will eventually

submit to the House, and, without its approbation, it will be settled.

It is further said that no specific charge is adduced, and if there

were, gentlemen say they would vote for the inquiry. But if a specific

charge were made, I ask if any member would be enabled to give a more

enlightened vote than on the present resolution? I consider the general

power to inquire as most important, and that it is the duty of the House,

on such occasions as the present, to enlarge rather than to narrow the

field of inquiry.

It is further said that this course of proceeding will discourage

respectable men from accepting the offices of Government. But certainly

every officer, from the President to the most menial, knows that he holds

his office subject to inquiry, to impeachment, and to punishment, in case

of criminality.

If the House do not pursue the present course, from what quarter are

they to expect the origination of an inquiry? Is it to be supposed that

it will come from the citizen, when his life and fortune are probably

at the disposal of particular officers charged with misconduct. This

line of inquiry ought, in my opinion, to be courted and encouraged; more

especially in this instance, after the course which the debate has taken,

and after specific charges have been adduced. The debate has given an

importance to the inquiry, which its original merits may not, perhaps,

have entitled it to.

When this subject was first introduced, it appeared to me novel, and

that there were no precedents in point under the Federal Government. It

is time that this precedent should be established. It is time that every

officer should know that this House is ready at any time to inquire

into his official conduct, if charged with misbehavior; and instead of

declining the inquiry, in this instance, from a false delicacy to the

officer, it becomes the House to embrace the resolution and make the

inquiry. If evidence shall be collected, and it appears that there are

no grounds for impeachment, the officer will be restored to the public

confidence, and will be acquitted. If, on the other hand, it appears

that he has been guilty of malfeasance in office, a duty will be imposed

upon the House, from which they cannot recede, to bring him to trial.

Mr. THATCHER.--As gentlemen seem to consider the decision of the court

in the trial of Fries as unprecedented, I beg leave to refer them to

the cases of the United States _versus_ Vigol, and the same _versus_

Mitchell, 2 Dallas’s Reports, 346 to 357. They will find that the

decision of the court, in the case of Fries, was exactly conformable to

cases adjudged in 1795. Without troubling the House with the whole of

those cases, I beg leave to read the decision of the court in the last

case. “The charge of the court, says the reporter, was delivered to the

jury in substance as follows. Patterson justice. ‘The first question

to be considered is, what was the general object of the insurrection?

If its object was to suppress the excise offices, and to prevent the

execution of an act of Congress, by force and intimidation, the offence,

in legal estimation, is high treason: it is a usurpation of the authority

of Government; it is high treason by levying of war.’” The decision,

sir, is also conformable to the English authorities. The charge then

against Judge Chase and Judge Peters, after divesting it of the coloring

which imagination has given it, amounts to this--that, in the trial of

Fries for treason, the court prevented the counsel from arguing to the

jury against a point of law long settled by that and other courts of

the United States. I have attended closely to the statement made by the

gentleman from Pennsylvania, (Mr. SMILIE,) and I believe I am correct.

The very point which the counsel of Fries would have argued to the jury,

was that which had long before been settled by the courts of the United

States. I contend, sir, that this court did no more than they had a right

to do--no more than is practised by every well regulated court. They

prevented counsel from arguing law in the face of the authorities, and of

the opinion of the court. That this is usual, I appeal to gentlemen of

the law who are present. This, sir, is the only fact stated to the House

upon which the motion is founded.

The gentleman from Virginia (Mr. RANDOLPH) has said, that he has been

informed of facts, which convince him that an inquiry ought to be made.

But that gentleman has not stated to the House what those facts are.

It has been contended, that where a member of this House shall state

that he is convinced that an inquiry ought to be made, the House ought

to institute such an inquiry. Precedents have been adduced to prove

that this has been done in the British Parliament. There certainly has

been no case cited where an inquiry has been commenced upon the motion

without stating his facts or his evidence. But whatever may have been the

practice in England I can never consent to vote upon any impressions or

convictions but my own.

If the official conduct of the judges upon the trial of Fries was such

as to require the interposition of this House why, (as the gentleman

from Connecticut, Mr. GRISWOLD, has asked,) why was not this inquiry

sooner announced? This trial, I am told, was in February, 1800. It took

place within the hearing of Congress. It was the subject of universal

attention. Why has it slept four years? Upon what ground shall we invest

a committee with power to ransack the country for charges against our

judges? Shall we, upon the motion of a member--shall we, upon the

statement of the gentleman from Pennsylvania, (Mr. SMILIE,) commence

an inquiry, troublesome and expensive--an inquiry, which must attach

suspicion to the official conduct of the judges? Sir, I respect the

conduct of the gentlemen who attempt to remove obstructions from the

stream of justice, but I must be convinced that obstructions now exist,

before I can vote for this resolution.

Mr. EARLY.--Like other gentlemen who have gone before me in this

discussion, I do not consider myself at liberty to vote against the

resolution on the table. Like them, I deem myself bound to vote for an

inquiry into the conduct of any public officer, when that inquiry is

demanded by a member of this House. After the view taken of the merits

of this measure by the gentlemen from Pennsylvania and Virginia, I did

expect that all further opposition to it would have ceased. In this

expectation I have been disappointed.

I feel constrained to vote in favor of this resolution, because I

believe that the inquiry it contemplates is an act of justice due to

the people of the United States on one hand, and to the characters of

the individuals charged, on the other. A charge of high crimes and

misdemeanors has been made on this floor against two individuals, and

two members of this House have demanded an inquiry into their official

conduct. To this demand may be added the weight of public opinion. I am

apprized of the delicacy of this ground, and when I resort to it, it is

my wish to be understood as meaning that when charges of a high nature

are instituted and reiterated from one end of the Union to the other,

so as to create a general belief, so as to destroy confidence in the

principle and integrity of those who administer justice, and to beget

a suspicion that justice cannot be obtained equally by all men; under

such circumstances the public voice demands an inquiry into the truth of

the charges. Is this a fact, or is it not, in relation to the officers

implicated in this resolution? I presume that it is the fact to a great

extent will not be denied. Every gentleman on this floor, in the habit

of reading the public prints, must have had so forcible an impression

made on his mind on this subject, as not to have lost a recollection of

the conduct charged upon one of the judges named in this resolution, in

the case of Fries, Cooper, and Callender. I cannot, therefore, refuse my

assent to the inquiry, because I believe it due to the public, as well

as to the individuals charged with the improper conduct, and who, if

they were on the spot, would undoubtedly memorialize us for an inquiry.

Indeed one of the officers referred to in the resolution, if conscious

of his innocence, ought, in my opinion, long since, to have demanded

an inquiry into his official conduct, when he witnessed the strong and

numerous charges against him in the public prints from one end of the

continent to the other.

It is objected to this resolution that no proof has been adduced to

the House of the truth of the allegations preferred. In my mind there

is all the difference that can be imagined between an inquiry and

an impeachment; and almost all the arguments urged on this occasion

apply exclusively to an impeachment. A strong proof of this has been

given by the gentleman who has just sat down. That gentleman (Mr. R.

GRISWOLD) has taken this remarkable ground, that this House ought not to

inquire without proof. I suppose he meant, by proof, the depositions of

witnesses; this is, in other words, saying that we, whose constitutional

duty it is to inquire, may omit to do it, because they whose duty it is

not to inquire, have not done it.

The present resolution is nothing more than this: A certain officer of

the Government is charged, in the face of the nation, with malfeasance

in office, and a committee appointed to inquire into the truth of the

charge. Gentlemen allege that the committee is to be appointed to inquire

what accusations can be found, and then for testimony to sustain them.

But this is not so. The accusations have been long since made, and they

are not of a day, but of a year’s standing.

The analogy between the functions of this House and a grand jury, is

correct and forcible. Before a grand jury, it is the right of any

individual to apply for and demand an inquiry into the conduct of any

person within their cognizance; and it is more especially the right of

any member of the jury to make such a demand; and it is their bounden

duty, according to their oaths, to make the inquiry when so demanded.

The official conduct of the judges I view as more delicate and

important than that of any other description of officers; for, on their

impartiality the whole people of the United States depend for obtaining

justice in ordinary cases, and individuals depend, in the last resort,

for the preservation of their lives. Their official conduct should,

therefore, not only be correct, but likewise free from suspicion. Simply

to be charged ought to produce an inquiry; and I must confess that a

recent case, in which the integrity of a judicial officer was impeached,

excited my warmest approbation. I mean the case of a judge (Judge Tucker)

in a neighboring State, who, on a suggestion believed by no man, deemed

it a duty to himself and his country to demand an inquiry into his

conduct.

Another view, by no means unimportant, which may be taken, is, that the

reputation of the Government, of which the judges are a component part,

demands the inquiry in question. Will any gentleman pretend to say that

reputation is not at stake,--that it is not affected at home or abroad

by the charges which have been so long and so loudly made? I presume not.

Whether those charges are true or not, is not the question; for, whether

true or not, so long as they are generally believed, the reputation of

the Government is affected; its reputation for impartial justice is

affected, and deeply too. To refuse this inquiry would be to give weight

to this impression abroad--to add to the suspicion, at home and abroad,

that impartial justice is not done to all men. Let us, then, make the

inquiry, and restore the reputation of the Government, by inflicting a

proper punishment upon these officers, if guilty, and, if innocent, by

proving the charges against them calumnies.

Mr. EPPES.--If, in adopting the resolution before us, we were to attach

odium to the characters in question, I should feel no surprise at

the course pursued by the gentlemen who oppose this inquiry. In this

country the official conduct of every man is, and ought to be, subject

to examination. It is not the examination, but the result of that

examination, which attaches merit or demerit to a public character. In

a Government like ours no principle ought to be cherished with greater

care than a free inquiry into the conduct of public officers. So friendly

am I to this principle in its fullest extent, so necessary do I believe

it to be to the preservation of that purity in public officers essential

to a republic, that it will always be sufficient for me to vote an

inquiry, for a member to declare he considers an inquiry necessary. A

proper regard to his own reputation will always, I am certain, prevent

any member of this House from calling on us to exercise this important

duty on light or trivial grounds. As to the extensive field of inquiry to

which this doctrine may lead, I care not; and whenever a member of this

House shall rise in his place and declare that he considers an inquiry

into the conduct of a public officer or officers necessary, I shall be

ready to pass the whole circle in review, to begin with the first and end

with the last, to vote an inquiry into the conduct of each, and even to

go further, to vote an impeachment if necessary. I shall on every such

occasion consider it a duty I owe to the individual accused, and to the

community in whose behalf the accusation is made, to vote an inquiry.

Thus much for the general principle which would induce me to vote for

this resolution, if no specific charge had been made. In the present

case, however, a specific charge of a serious kind has been made by a

member from Pennsylvania; and, however gentlemen may have attempted to

weaken the force of this charge, it does substantially amount to this:

that, by the opinion of a judge, a citizen of the United States was

deprived of his constitutional right to counsel, when arraigned for his

life. I will not, however, dwell on this charge. It has been placed by a

gentleman from Maryland (Mr. NICHOLSON) in a point of view satisfactory

to myself, and, I believe, to the House. I consider it, however, my duty

on this occasion to mention a trial which took place in the Commonwealth

of Virginia, which affords another specific charge against Judge Chase. I

was not present at this trial, and am not personally acquainted with the

circumstances. I believe, however, that in the Commonwealth of Virginia

but one sentiment prevails as to the conduct of Judge Chase on this

occasion, viz: that it was indecent and tyrannical. In the course of

the trial he refused to allow a witness on the part of the prisoner to

be examined, because the witness could prove the truth of a part only,

and not the whole of the words laid in the indictment. By a system of

conduct peculiar to himself, he deprived the prisoner of the aid of Mr.

George Hay, as counsel, a man, who, although not as generally known as

some others in our State, is inferior to none in his profession. I do not

mention these circumstances as hearsay evidence, but as facts, which I

am induced to believe can be established by legal testimony. If, on this

statement, there is any gentleman who can refuse an inquiry, I am willing

to leave him in the enjoyment of his opinion. For my own part, I shall be

always ready, on the demand of any member of this House, to exercise my

constitutional right of inquiry, and, without partiality or prejudice,

pursue the course pointed out by my duty, whether it shall lead to

impeachment or an honorable acquittal.

Mr. NICHOLSON rose for the purpose of calling the attention of the

House to precedents. When he yesterday addressed them he had thought it

unnecessary to introduce authorities from foreign nations; but as they

had been insisted on by the opponents to the resolution, he would refer

to two or three; and he was more solicitous to do so at the present

moment, as he saw a gentleman from Connecticut (Mr. DANA) about to rise,

and he wished to call the gentleman’s attention to them, in order that

he might remark on them, and show, if it was to be done, that they did

not apply to the case under consideration. If gentlemen would refer

to the powers exercised by the Commons of England, for time almost

immemorial, and to those exercised by the several State Legislatures,

he believed that precedents innumerable would be furnished. The Commons

of England were the grand inquest of the nation. As such it was their

duty to inquire into the official conduct of all those intrusted with

the powers of Government. Every officer in the realm was liable to

impeachment by them. The same principle would be found to run through the

constitutions of most of the States, and it was wisely introduced into

the Constitution of the United States. The power to impeach is admitted

to be in the House of Representatives, and the only question is, as to

the manner in which this power shall be exercised. The proposed method

is called a loose one, and we are asked to show some precedent for it.

The House of Commons at the commencement of every session appoint what

is there called a committee of grievances and courts of justice. Many

of the State Legislatures appoint a similar committee annually, and,

in the State from which he came, the House of Delegates always appoint

a committee of grievances and courts of justice. It was one of their

standing committees, and the appointment was as regular and as usual as

the appointment of a committee of claims in this House. What then he

inquired was the duty, what the authority of this committee? In England,

in Maryland, and in every other State where it exists, it is their duty

to inquire into the conduct of every officer of the Government, to call

witnesses before them to prove official misconduct, to report offences to

the House from which their powers are derived, and recommend the proper

measures to be adopted.

This House, like the Commons of England, and the most numerous branch

in the State Legislatures, is the grand inquest of the nation; they are

to inquire into crimes and bring offenders to justice. It had not, he

said, heretofore been customary for this House to appoint a committee of

grievances and courts of justice, but he believed no man would deny the

power, and when appointed they would not only have the authority proposed

to be in this committee, but one infinitely more extensive. They would

have the right to inquire into the conduct of all civil officers, and to

report such facts as might come to their knowledge. If, then, we could

with propriety, and agreeably to precedent, authorize an inquiry into

the conduct of several hundred officers, could it be denied that the

same precedent would warrant an inquiry into the conduct of two only? In

5th _Comyn’s Digest_, page 204, it would be found that a committee of

grievances and justice was one of their standing committees, and in page

205 it was declared that they might “summon any judges and examine them

in person upon complaint of any misdemeanor in office.” He presumed it

had not been thought necessary heretofore to appoint a general committee

of this kind, but at present the necessity was apparent, as a complaint

had been made to the House of the official misconduct of two judges.

Again, in the same book, page 209, it is said, “The Commons are the

general inquisitors of the realm, and therefore if a Lord, spiritual or

temporal, commit oppression, bribery, extortion, &c., the Commons shall

inquire of it, and if, by the vote of the House, the crime appears to

have been committed, they transmit it, with the evidence, to the Lords.”

This, he said, would clearly show, what indeed he thought common sense

would teach every man, that the inquiry should be made before proof was

exhibited upon which an impeachment was to be grounded. In the same page

it would be seen that “common fame is a sufficient ground of a proceeding

in the House of Commons by inquiry, or by a complaint, if need be, to

the King or Lords.” And _Rushworth’s Historical Collection_, page 217,

is cited, it is said, by some of the ablest lawyers of that day that “if

common fame were not to be admitted as public accusers, great men would

be the only safe ones, as no private man would venture to complain of

them.” Mr. N. referred to these authorities at that particular stage of

the discussion, as he was desirous of giving gentlemen an opportunity of

commenting upon them. As he had no wish to prolong the debate, he would

not multiply observations upon that point, but could not sit down without

noticing what had fallen from a gentleman from Massachusetts, in which he

had again attempted to vindicate the conduct of the judges upon the trial

of Fries.

The gentleman had referred to a case in _Dallas’s Reports_, respecting

the Western Insurrection, in which he says the point of law determined

upon the trial of Fries, had been previously settled by one of the

federal courts, and from thence infers that Mr. Chase and Mr. Peters were

justified in preventing counsel from arguing it a second time. That such

conduct might be perhaps excusable in a civil cause he was not prepared

to deny; but, in a case of criminal jurisdiction, involving the guilt or

innocence of a man whose life was to be the forfeit, he held it totally

unjustifiable.

All men, he said, were acquainted with the circumstances of what was

generally called the Western Insurrection. Some of the Western counties

of Pennsylvania were opposed to the excise law. A considerable majority

of the people had resolved to oppose its execution, and took strong

measures to prevent individuals from accepting offices under it, and

compelled some of them to resign the places to which they had been

appointed. While they professed an attachment to the Government of the

Union they resolved to resist the execution of one of its laws. Among

these was a man by the name of Mitchell, and he was charged with high

treason before the circuit of Pennsylvania in which Judge Paterson then

presided. A doubt existed whether the resistance to the execution of a

law, even by force of arms, was such a levying of war within the meaning

of the constitution, as amounted to treason. What was the conduct of the

judge on that occasion? He had no disposition to preclude inquiry. He

had no wish to keep the jury in ignorance by forbidding fair and open

argument. On the contrary, it appeared from a note on page 348 that

he called the attention of the prisoner’s counsel to the point, and

requested that they would notice it in their observations. This was done

before the defence was opened, and he said he should beg leave to read a

part of the argument made in favor of the prisoner.

“The counsel for the prisoner (E. Tilghman and Thomas) premised

that they did not conceive it to be their duty to show that the

prisoner was guiltless of any description of crime against the

United States, or the State of Pennsylvania, but they contended

that he had not committed the crime of high treason, and

ought, therefore, to be acquitted on the present indictment.

The adjudications in England upon the various descriptions of

treason, had been worked incautiously, into a system, by the

destruction of which the Government itself would be seriously

affected; but even there, the best judges and the ablest

commentators, while they acquiesce in the decisions that have

already taken place, furnish a strong caution against the too

easy admission of future cases, which seem to have a parity

of reason. Constructive and interpretive treasons must be the

dread and scourge of any nation that allows them--_1 Hale, P.

C._, 132, 259--_4 Black. Com._, 85. Take, then, the distinction

of treason by levying war, as laid down by the attorney of

the district, and it is a constructive or interpretive weapon

which is calculated to annul all distinctions heretofore

wisely established in the grades and punishments of crimes,

and by whose magic power a mob may be easily converted into a

conspiracy, and a riot aggravated into high treason.”

Such, he said, was the opinion of two gentlemen ranking high in their

profession, and who would not be charged with having any feeling toward

the offence or the offender inconsistent with the rights or interests

of the Government. The whole argument was too lengthy to be read to the

House, but he considered it well worth the perusal of every American.

Able as it was, however, it had not the wished for weight with the court.

Judge Paterson gave the following charge to the jury: “The first question

is, what was the general object of the insurrection? If its object was to

suppress the excise offices, and to prevent the execution of an act of

Congress, by force and intimidation, the offence, in legal estimation,

is high treason; it is a usurpation of the authority of Government;

it is high treason by levying of war.” Sir, said Mr. N., this opinion

of the court may have been honest; I mean not to impeach the purity

of motive which dictated it, but I mean to show that the offence with

which Mitchell was charged, the resistance to the execution of a law,

was not considered as treason by the highest existing authority of this

country. Mitchell was pardoned by the President of the United States, and

Congress, not long after, expressed their opinion on the subject in the

most ample manner.

The trial of Mitchell which I have just quoted took place in 1795, and

in 1798 the subject was taken up by Congress, who, by the act of the

14th of July, 1798, provided that the resistance to the execution of a

law should be considered a high misdemeanor only, punishable by fine and

imprisonment. The act is in these words: “If any persons shall unlawfully

combine or conspire together, with intent to oppose any measure or

measures of the Government of the United States which are, or may be

directed by proper authority, or to impede the operation of any law of

the United States, or to intimidate or prevent any person holding a

place or office in or under the Government of the United States, from

undertaking, performing, or executing his trust or duty, he or they

shall be deemed guilty of a high misdemeanor, and on conviction before

any court of the United States having jurisdiction thereof, shall be

punished by a fine not exceeding $5,000 and by imprisonment during a

term not less than six months nor exceeding five years.” Here, sir, the

resistance to the execution of a law is declared to be a high misdemeanor

only, punishable by fine and imprisonment. Fries was tried in 1800,

two years after the passage of this law. The offence of which he had

been guilty was rescuing prisoners from the marshal by force, thereby,

in the language of the act, “preventing an officer of the United States

from performing and executing his duty,” and it was to show that he was

punishable under this act by fine and imprisonment only, that his counsel

were desirous of bringing the law before the jury. This, however, the

court refused; the man was convicted of high treason, and was sentenced

to a most ignominious death. Let such conduct be vindicated where and by

whom it may, I must declare that it can never meet my approbation.

Mr. DANA.--It is to be regretted, Mr. Speaker, that a resolution so

novel and of so much importance as that on the table was not postponed,

at least for one day after it was presented to the House. Had this been

done, gentlemen might have had some opportunity deliberately to examine

the subject, before they were required to make a decision. But as the

resolution was moved without giving any previous notice, and has been

pressed upon us immediately after it was moved, I do not feel myself

prepared, as I could have wished to be on such a question, before

attempting to deliver my sentiments in this House. Unprepared, however,

as I am, I request your indulgence while I offer a few remarks.

I will first attend to some precedents mentioned by the gentleman

from Maryland, (Mr. NICHOLSON.) He has stated that it has been usual

in the English House of Commons to appoint a committee for courts of

justice, with power to inquire into the proceedings of courts, and for

this purpose to call persons before them for examination. But, sir,

is not such a committee appointed for general purposes, not directed

against any individual, and therefore not affecting the character of any

magistrate? Their powers relate to the judicial system generally, and

do not implicate any one of the judicial officers. Does the resolution

on the table propose a committee of this kind? On the contrary, it is

explicitly directed against two of the judges. If gentlemen would justify

their proceedings by the practice of the British House of Commons, let

the resolution be made to have a general reference to all the courts,

instead of being pointed, as it now is, against particular persons.

In its present form it departs essentially from the principle of the

case mentioned by the gentleman from Maryland, and therefore cannot be

warranted by that precedent.

The gentleman has also stated that a committee was appointed by

the last Congress to investigate the accounts of the officers of

Government, merely upon common report. But it should be remembered

that those officers were officers of the Executive Departments. It is

the acknowledged duty of such officers--it is made their duty by law

to give information to Congress, whenever required, upon any of their

public transactions. And it is the peculiar right of the House of

Representatives, as guardians of the Treasury, at any time, to inquire

into the expenditures of public money. But are the judges of the United

States placed in the same situation with the Executive officers? Are

they to be under the same control, and equally dependent? You may indeed

impeach the judges, if guilty of impeachable offence. But what other

power over them is given you by the constitution? It should further

be remembered, that the resolution for appointing the investigating

committee did not criminate any particular officer. At first it was

proposed to examine only the accounts of the former Secretary of

State. But upon its being suggested by a gentleman from Massachusetts,

(Mr. EUSTIS,) who has been so strenuous an advocate for the present

resolution, that it would be improper in that manner to attack the

character of a particular officer, the resolution was made general, and

extended to the accounts of all the Executive Departments.

Upon the like principle, the resolution now on the table is improper. My

objection to it is, that it points out two particular officers as objects

of suspicion, and proposes a committee for inquiring into their conduct

without assigning any cause, and without specifying any subject of

inquiry. Gentlemen have expressed a dissatisfaction that such a committee

should be compared to the Star Chamber or the Inquisition. If they do not

perfectly resemble the Star Chamber, formerly known in England, or the

Inquisition of Spain, the proposed powers of the committee are certainly

indefinite and inquisitorial. Perhaps, if a comparison was necessary,

they might more properly be compared to the State inquisitors of Venice,

who are well known to have formed one of the most detestable tyrannies

ever tolerated in a country pretending to freedom.

If charges were specified in the resolution, a member of this House on

moving it might then have a right to demand an inquiry. But are the House

bound to investigate the conduct of a particular officer, without any

charge against him? Gentlemen have said much about the general right of

this House to inquire into the conduct of public officers, as if this

were the point in dispute. But who has denied the right of inquiry as

incident to the power of impeachment? When any officer is charged with

an impeachable offence, it is admitted to be, and from the nature of the

thing it might be, the right of the House to inquire into the truth of

such charge. I trust no gentleman in opposition to the present resolution

can be found so ignorant of the true principle on which it is opposed,

as to deny the responsibility of the public officers, or the right of

the House to inquire into their conduct. But, the right being admitted,

the question is made as to the exercise of that right in the manner now

proposed. When this House is called upon to direct the whole force of its

influence against a particular judge, is it not reasonable, is it not

just, that some charge should first be stated against him? This is but a

decent respect to judicial character. It is but a decent respect to the

character which becomes the assembled Representatives of a nation. The

person implicated might then be enabled to meet the inquiry and obviate

unfounded suspicion. Our power with respect to the judges is the power of

impeachment; but we are not, therefore, justified in wantonly assailing

their characters and sporting with their sensibility to reputation. The

right of inquiry relates to impeachable offences. Shall we, then, inquire

where no offence is stated? So far is the resolution from stating what

would warrant an impeachment, that it does not mention any offence, or

refer to any transaction.

The gentleman from Virginia, who moved the resolution, (Mr. J. RANDOLPH,)

has, indeed, declared his own conviction, that the judicial officer

in question had done wrong. Might not other gentlemen also have their

opinions and exercise their own judgments in forming them? They ask for

the reasons of his conviction before they vote for his resolution. His

information, he says, was received in such a manner that he does not

choose to disclose it. If any person has communicated any thing to him

confidentially, he is not desired to name his informant. The gentleman

shall not be desired by me to make any disclosure which would offend

against the most delicate sense of honor. But can it be improper for

him to state the general nature of the offence which he believes to

have been committed? Will this violate any honorary confidence? He is

desired to make such a statement that other members of the House may

have an opportunity of judging whether the believed offence will warrant

a vote of impeachment. In cases of this kind, is any member to be

deemed infallible? When a gentleman, in his place, states a fact as of

his own knowledge, his veracity is regarded as unquestionable; but his

infallibility is not supposed to extend to matters of mere opinion. Upon

the principle of its being possible for the gentleman from Virginia to

err in opinion, and its being equally the right of the other members to

judge what conduct amounts to an impeachable offence, it might have been

reasonably thought that he would at least state to the House the nature

of the facts on which he relies as the basis of his resolution. If he, or

any other member, declaring his conviction that a judge has misdemeaned

himself in office, will exhibit to the House a statement of any fact,

or series of facts, which would warrant an impeachment, I will be ready

instantly to vote for an inquiry. But nothing of this kind is exhibited,

and therefore the resolution on the table is now opposed. Before you

agree to oppress a judge with all that weight of suspicion which may be

imposed by a vote of this House, let him be permitted to know what part

of his conduct is supposed to be exceptionable, that opportunity may be

had in the progress of any inquiry to vindicate himself against unmerited

reproaches! Instead of a course of proceeding so fair and obviously

just, the resolution on the table marks two of the judges for public

suspicion, without specifying any supposed misconduct. It marks them as

public objects of suspicion throughout the whole of their judicial life,

and, without naming any thing, invites private enemies to accuse them of

every thing.

To support such a resolution, common fame has been mentioned in the

course of debate, as a sufficient ground of proceeding; and this idea is

supposed to be authorized by English precedent. Whatever may have been

done formerly, and in a period of rudeness or violence, the more improved

system of modern jurisprudence should discard such a doctrine if it ever

prevailed. But even that doctrine, if admitted, would not justify you in

adopting the present resolution. You cannot thence infer the propriety of

proceeding against a person who is not accused of any thing punishable.

Will it be pretended that the common fame, which is to be a ground of

proceeding, does not refer to any offence or to any transaction? Common

fame, if admitted for proof, must be supposed to apply to some subject of

complaint. On the principle even of this very questionable doctrine, a

statement of some charge is requisite. What, then, in the present case,

is the accusation which could be supported by common fame? If there be

any such, let it be stated.

The gentlemen who advocate the resolution in its present form fail in

their efforts to support it, notwithstanding all the aid which they have

sought from “the leading-strings and crutches of precedents,” (to use

the language of the gentleman from Virginia.) On general principles, on

the broad basis of universal right, the resolution is condemned; and no

precedent is adduced which can justify it. I do not wish to shield any

public officers, whether judges or others, who may merit impeachment,

but I wish the House, when acting as public accusers, to proceed in

such a manner as not to do injury to any individual. Justice is due to

the individual as well as to the public. No public duty can require

this House to adopt a resolution of general reproach, yet stating no

public offence. And it but illy accords with the principles of justice

to subject the judicial officers of the Union to all the inconvenience,

vexation, and expense, of being obliged to vindicate themselves against

secret accusations, which it may be more difficult to discover than to

overthrow.

You will observe, sir, that I do not enter into any particular

examination of the case referred to by the gentleman from Pennsylvania,

(Mr. SMILIE,) whether there was a controversy as to prerogative

and privilege between the court and the bar, in which the pride of

professional rank appeared in opposition to judicial authority. Whether

the judge very properly refused to yield to the counsel, or whether the

court committed an error in pronouncing the law, these are topics which

I think it needless to examine in considering the resolution now on the

table; for the resolution itself states nothing, and there is no case

before us for examination.

On so grave a subject as the present, when we are called upon to aid in

the administration of justice, it was to be desired that the advocates of

the resolution should so far regard their own exhortations as to refrain

from attempting to enkindle the animosity of party. The gentleman from

Pennsylvania (Mr. SMILIE) seems to have thought himself at liberty to

pursue a different course. But, considering the nature of the question

on which our votes are to be given, I hope to be excused if I deem it

not proper in this debate to reply to him on the various topics of party

discussion which he has chosen to mention, although the task might be

easy indeed to repel his charges against the former Administration. A

single observation, however, may be proper on a law to which he has

alluded in the language of censure. There was at least one prominent

feature which might recommend it to the friends of truth. It expressly

declared that the truth might be given in evidence.

Mr. DENNIS observed that in the course of the remarks which he had the

honor of making yesterday, he had declared himself in favor of the

proposed investigation, provided it were made on proper principles;

and, in order the more clearly to illustrate his ideas and evince his

sincerity, he had read in his place a resolution embracing all the

facts which had been suggested to the House as the foundation of this

proceeding. He had then said he would not pledge himself to offer a

resolution such as he then read, but would vote for it if offered by

others. As the gentleman from Virginia (Mr. RANDOLPH) had not accepted

his overtures, and in the course of his observations had done him the

honor of noticing some of his ideas expressed in yesterday’s debate, he

rose principally for the purpose of offering an amendment, and partly

for the purpose of replying to one or two of the gentleman’s remarks.

He was not a little surprised at the animated strain in which that

gentleman had addressed the House in the course of this morning, nor

did any thing appear to have fallen from any gentleman, in the course

of the discussion, which appeared to him calculated to produce so much

excitement as he had manifested. But as he did not claim to set up his

own feelings or his own conduct as the standard by which the feelings

or actions of others ought to be guided, and as the gentleman had

applied his observations without implicating motives, he had not at all

interrupted the equanimity of his disposition. He had exercised a right

which he should always be disposed to accord to that gentleman, and every

other member--the right of placing the observations of his opponents in

the most ludicrous point of view of which they were susceptible. In this

right he would also indulge himself whenever the subject required it.

The gentleman from Virginia, in replying to some of his observations,

had said that he had conceived the charge exhibited was of a very serious

nature, but did not appear to comprehend in what respect he considered

it so, and therefore he wished to explain in what manner he considered

it as such. He considered it as serious, inasmuch as it was calculated

to excite suspicion and asperse the official conduct of the gentlemen in

question; but did not mean to insinuate, but on the contrary repelled

the idea of its being serious as regarded its sufficiency, if true, as

a foundation of impeachment. In order to show that the conduct of the

judges had not been so highly censurable even as the statement of the

gentleman from Pennsylvania, (Mr. SMILIE,) or his colleague and the

gentleman from Virginia, seemed to suppose, he begged leave to state

his ideas as to the rectitude of their conduct. Here he might use the

observation of the gentleman from Virginia, applied to one of his own

remarks, and say that gentleman had with no great dexterity confounded

two principles as distant from each other as the northern and the

southern pole. He seemed to assimilate the case in which the court have

arbitrarily withdrawn the question of law entirely from the jury, to

the conduct of the court in this case, which only went to restrict the

counsel from arguing before the jury a case already settled in the minds

of the court, by a train of judicial determinations in similar cases, and

in which they left both law and fact to the determination of the jury;

directing them as to the law upon the subject. He was warranted in his

opinion, because the gentleman from Virginia, in illustrating some of his

positions, had cited the case of libel as decided by Lord Mansfield, and

Mr. Fox’s celebrated declaratory bill, which grew out of that decision.

What analogy has that case to the case in question? Lord Mansfield

decided that in the case of a libel, all the jury had to do was to find

the fact of publication or not, and that whether when published it were

criminal or not, they had no right to determine, and thus withdrew

the question of law altogether from their decision. This was justly

regarded as a gross violation of that principle of the criminal law of

that country, which invests the jury with the right to decide as well

on the law as on the fact. This principle I fully acknowledge, and if

the court in the case of Fries had deprived the jury of that right, and

withdrawn the question of law from them, there might be some foundation

for this resolution. But, according to the statement of the gentleman

from Pennsylvania, the question of law and fact were both submitted to

the jury, with the instructions of the court on the legal question. He

had always been taught to believe that the court were the proper organ

through which the law was to be communicated to the jury, though he

did not deny but the jury had the right which they should cautiously

exercise, but which they would always exercise, when they discover an

inclination in the court to oppress the citizen or exculpate the guilty,

to reject the direction of the court and decide for themselves.

But the complaint is, that the court denied to the counsel the privilege

of arguing the law before the jury. Mr. DENNIS said he believed the court

possessed a power of this nature, to be regulated by a sound discretion.

If the court should believe that a question had been put at rest by a

long train of judicial decisions, such as was the case in this instance,

they not only have the right, but it becomes their duty to prevent a

useless consumption of time, and to prohibit the counsel from agitating

the question. Indeed it is indelicate in the counsel to impress on the

jury an opinion of law contrary to the known opinion of the court; nor

is there any court who will not take on themselves the right of checking

counsel, in an attempt to mislead the jury on a question of law. Such was

the practice of the courts in Maryland, and in that country from which we

derive all our notions of jurisprudence.

But though he did not conceive that there was any ground for impeachment

in the statement of the gentleman from Pennsylvania, yet he knew that

this discussion would produce a vague and undefined censure, which

he believed the judges in question ought to have an opportunity of

repelling. He therefore moved the following amendment, by way of preamble

to the resolution:

Whereas information has been given to the House by one of

its members, that, in a certain prosecution for treason on

the part of the United States against a certain John Fries,

pending in the circuit court of the United States in the State

of Pennsylvania, Samuel Chase, one of the Associate Justices

of the Supreme Court of the United States, and Richard Peters,

district judge for the district of Pennsylvania, by whom the

said circuit court was then holden, did inform the counsel for

the prisoner, that as the court had formed their opinion upon

the point of law, and would direct the jury thereupon, the

counsel for the prisoner must confine their argument before

the jury to the question of the fact only; and whereas it is

represented, that, in consequence of such determination of

the court, the counsel did refuse to address the jury on the

question of fact, and the said John Fries was found guilty

of treason, and sentenced by the court to the punishment in

such case by the laws of the United States provided, and was

pardoned by the President of the United States:

_Resolved_, That a committee be appointed to investigate the

truth of the said allegations, and to report a statement of

facts in the case aforesaid, with their opinion thereupon,

whether the said Samuel Chase and Richard Peters, or either of

them, have so conducted themselves on the trial aforesaid as to

render necessary the interposition of the constitutional powers

of this House.

This amendment embraces all the facts stated by the gentleman from

Pennsylvania, points out a specific charge as the foundation of the

proceeding, and yet, when attached to the resolution, gives to the

committee the power of general inquiry.

We are told that the facts have been stated by a member on the floor,

and there is no reason for stating them in the resolution. Will the

statement of the gentleman from Pennsylvania appear on your journals,

and how will it hereafter be known that any fact was stated as the

foundation on which to erect a committee with general inquisitorial

powers? Posterity will only see the resolution, and to them it will be a

precedent which will justify the creation of a committee of inquiry into

the official conduct of any officer, without the allegation of a single

fact, whenever a member may choose to be of opinion that a vexatious and

expensive proceeding shall be instituted. It was therefore that he wished

to resist the principle, and for that purpose moved the amendment.

Mr. HUGER said he had before stated, and he now repeated, that he was not

averse to an investigation; but he did not consider himself bound to vote

for a resolution so general and vague. If the amendment of the gentleman

from Maryland were adopted, he should vote for the resolution.

Mr. NICHOLSON moved to amend the amendment, by striking out the whole of

it after the word “Whereas,” and by inserting--

“Members of this House have stated in their places that they

have heard certain acts of official misconduct alleged against

Samuel Chase, one of the Associate Justices of the Supreme

Court of the United States, and Richard Peters, judge of the

district court of the district of Pennsylvania.”

Mr. HUGER had no objection to the insertion of the last amendment, but he

had to striking out the first. He therefore called for the yeas and nays

upon striking out.

The question was then taken by yeas and nays upon striking out, and

carried--yeas 79, nays 41, as follows:

YEAS.--Willis Alston, jun., Nathaniel Alexander, David Bard,

Geo. Michael Bedinger, Phanuel Bishop, William Blackledge,

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

Butler, George W. Campbell, Levi Casey, Joseph Clay, John

Clopton, Jacob Crowninshield, William Dickson, John B. Earle,

Peter Early, Ebenezer Elmer, John W. Eppes, Wm. Eustis,

William Findlay, John Fowler, James Gillespie, Edwin Gray,

Andrew Gregg, John A. Hanna, Josiah Hasbrouck, William Hoge,

James Holland, David Holmes, Walter Jones, William Kennedy,

Nehemiah Knight, Michael Leib, John B. C. Lucas, Matthew Lyon,

Andrew McCord, David Meriwether, Samuel L. Mitchill, Nicholas

R. Moore, Thomas Moore, Jeremiah Morrow, Anthony New, Thomas

Newton, jun., Joseph H. Nicholson, Gideon Olin, Beriah Palmer,

John Patterson, Oliver Phelps, John Randolph, jun., Thomas M.

Randolph, John Rea of Pennsylvania, John Rhea of Tennessee,

Jacob Richards, Erastus Root, Thomas Sammons, Thomas Sanford,

Ebenezer Seaver, Tompson J. Skinner, James Sloan, John Smilie,

John Smith of Virginia, Richard Stanford, Joseph Stanton, John

Stewart, David Thomas, Philip R. Thompson, Abram Trigg, John

Trigg, Philip Van Cortlandt, Isaac Van Horne, Joseph B. Varnum,

Matthew Walton, John Whitehill, Richard Wynn, Joseph Winston,

and Thomas Wynns.

NAYS.--Simeon Baldwin, Silas Betton, John Campbell, William

Chamberlin, Martin Chittenden, Clifton Claggett, Manasseh

Cutler, Samuel W. Dana, John Davenport, John Dennis, Thomas

Dwight, James Elliot, Thomas Griffin, Gaylord Griswold, Roger

Griswold, Seth Hastings, David Hough, Benjamin Huger, Samuel

Hunt, Joseph Lewis, jun., Thomas Lewis, Henry W. Livingston,

Thomas Lowndes, Nahum Mitchell, James Mott, Thomas Plater,

Samuel D. Purviance, Joshua Sands, John Cotton Smith, John

Smith of New York, William Stedman, James Stephenson, Samuel

Taggart, Samuel Taney, Samuel Thatcher, George Tibbits, Killian

K. Van Rensselaer, Daniel C. Verplanck, Peleg Wadsworth, Lemuel

Williams, and Marmaduke Williams.

The question was now taken on inserting the amendment of Mr. NICHOLSON,

and carried.

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

Mr. PURVIANCE said he could not vote for it because it did not state the

fact. It declared that members of the House had stated that they had

heard of official acts of misconduct of both the judges, when but one act

had been charged against Judge Peters.

Mr. J. RANDOLPH observed that he perceived no reason for the preamble.

He hoped therefore it would not be agreed to. General inquiry was his

object, and, as going to limit it, he was against the preamble.

Mr. ELLIOT said that, had the amendment of the gentleman from Connecticut

prevailed, he might have reconciled it to his mind to vote for the

resolution thus amended. But as it stood, he could not.

Mr. NICHOLSON remarked that when he offered the amendment, the

incorrectness suggested by the gentleman from North Carolina had not

occurred to him. To obviate this incorrectness he would move to amend the

amendment by saying “a certain act of Richard Peters.”

The SPEAKER said this amendment was not in order.

Mr. NICHOLSON said that under such circumstances he must vote against the

whole amendment.

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

division.

When the resolution for appointing a committee of inquiry was

carried--yeas 81, nays 40, as follows:

YEAS.--Willis Alston, jun., Nathaniel Alexander, David Bard,

George M. Bedinger, Phanuel Bishop, William Blackledge, Adam

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

Levi Casey, Joseph Clay, John Clopton, Jacob Crowninshield,

Richard Cutts, William Dickson, John B. Earle, Peter Early,

Ebenezer Elmer, John W. Eppes, Wm. Eustis, William Findlay,

John Fowler, James Gillespie, Edwin Gray, Andrew Gregg, John

A. Hanna, Josiah Hasbrouck, William Hoge, James Holland, David

Holmes, John G. Jackson, Walter Jones, Wm. Kennedy, Nehemiah

Knight, Michael Leib, John B. C. Lucas, Matthew Lyon, Andrew

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

Jeremiah Morrow, Anthony New, Thomas Newton, jun., Joseph

H. Nicholson, Gideon Olin, Beriah Palmer, John Patterson,

Oliver Phelps, John Randolph, jun., Thomas M. Randolph, John

Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards,

Erastus Root, Thomas Sammons, Thomas Sanford, Ebenezer Seaver,

Tompson J. Skinner, James Sloan, John Smilie, John Smith of

Virginia, Richard Stanford, Joseph Stanton, John Stewart, David

Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip

Van Cortlandt, Isaac Van Horne, Joseph B. Varnum, Daniel C.

Verplanck, Matthew Walton, John Whitehill, Marmaduke Williams,

Richard Wynn, Joseph Winston, Thomas Wynns.

NAYS.--Simeon Baldwin, Silas Betton, John Campbell, William

Chamberlin, Martin Chittenden, Clifton Claggett, Manasseh

Cutler, Samuel W. Dana, John Davenport, John Dennis, Thomas

Dwight, James Elliot, Thomas Griffin, Gaylord Griswold, Roger

Griswold, Seth Hastings, David Hough, Benjamin Huger, Samuel

Hunt, Joseph Lewis, jun., Thomas Lewis, Henry W. Livingston,

Thomas Lowndes, Nahum Mitchell, Samuel L. Mitchill, James Mott,

Thomas Plater, Samuel D. Purviance, Joshua Sands, John Cotton

Smith, John Smith of New York, Wm. Stedman, James Stephenson,

Samuel Taggart, Samuel Tenney, Samuel Thatcher, George Tibbits,

Killian K. Van Rensselaer, Peleg Wadsworth, and Lemuel Williams.

_Ordered_, That Messrs. JOHN RANDOLPH, jun., NICHOLSON, JOSEPH CLAY,

EARLY, ROGER GRISWOLD, HUGER, and BOYLE, be appointed a committee

pursuant to the said resolution.

MONDAY, January 9.

Another member, to wit, WILLIAM HELMS, from New Jersey, appeared,

produced his credentials, was qualified, and took his seat in the House.

WEDNESDAY, January 11.

_Virginia Yazoo Company._

On a motion made and seconded,

“That the agent or agents of the Virginia Yazoo Company,

‘claimants of compensation under the late cession and

convention between the State of Georgia and the United States,

and the acts lately passed by Congress thereon, as purchasers

of land in the Mississippi Territory, in the year one thousand

seven hundred and eighty-nine, from the said State of Georgia,’

be heard in person, or by counsel, at the bar of the House, on

Monday next:”

The question was taken thereupon, and resolved in the affirmative--yeas

61, nays 49.

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

resolution:

_Resolved_, That the South Carolina Yazoo Company be heard by

their agent, on Monday next, at the bar of the House:

And the said motion being twice read at the Clerk’s table, a motion was

made and seconded to amend the same, by striking out all the words from

the word “Resolved,” in the first line, to the end of the motion, and

inserting, in lieu thereof, the following words: “That this House will,

on Monday next, hear all the agents of the different companies claiming

lands south of the State of Tennessee, who may choose to speak at the bar

of this House.”

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

passed in the negative. And the main question being taken that the House

do agree to the said motion, as originally proposed, it was resolved in

the affirmative--yeas 67, nays 46.

FRIDAY, February 3.

_Georgia Militia Claims._

The House went into Committee of the Whole on the report of the Committee

of Claims, on the petition of John M. Randolph and Randolph McGillis,

which is unfavorable to the prayer of the petitioners.

The petitioners claim their pay as militiamen, called out in the State

of Georgia for the protection of that State against the Indians. They

allege, that, being called out under the authority of the Government of

the United States, the General Government is bound to compensate them and

the other men called out for their services.

The Committee of Claims report that the petitioners are to look for

compensation to the State of Georgia, who, by the articles of cession

recently concluded, had agreed to receive one million two hundred and

fifty thousand dollars, in full for all demands for military service.

[This debate, though nominally on a private claim, retains a

surviving interest from its historic details, its connection

with the Georgia cession, its references to the Yazoo

speculation, and its dependence upon the question of protection

between the Federal Government and a State.]

Mr. EARLY.--Mr. Chairman: I cannot but be sensible of the difficulty

which opposes itself to the present claim after an unfavorable report

from the committee to which it was referred. And it is impossible not

to discern that this difficulty is increased by the opinion of the

Attorney General upon the construction of the articles of cession

from Georgia to the United States. But as to that opinion, it may not

be improper to observe, that so far as it applies to the case of the

claimant, it is repelled by the positive certificates of two of the

Georgia Commissioners, gentlemen of veracity and legal talents equal

with himself. To give to the opinions, or rather the “private ideas and

recollections” of that officer, the weight and authority which have

been thereunto attached by the Committee of Claims, would be to adopt

in practice a principle at war with the maxims of all free Governments;

it would be to constitute the framer of an instrument the judge of its

construction. This is the essence of despotism. But I apprehend that

neither the principle laid down in that opinion nor the facts therein

stated do bear upon the case; but that the facts do negatively prove that

the claims now under discussion were not included in the compensation

stipulated to Georgia in the articles of cession and agreement. The

principles are, that the term “territory,” as used in the instrument,

meant not only the territory ceded, but that retained. Now, Mr.

Chairman, as I cannot possibly comprehend what bearing this has upon the

question before us, I must be excused if I leave the Attorney General in

the undisturbed enjoyment of his premises and pursue the discussion.

So early as the year 1787 the State of Georgia, being sorely distressed

by the violence of the Indians, passed a law directing the establishment

of two regiments of troops, to serve until a restoration of peace

could be secured. But the enlistments not having been completed, in

the following year a law was passed holding out additional inducement,

and in the year 1789 the present federal constitution having gone into

operation, and the rights of peace and war thereby vested exclusively

in the General Government, the Legislature of Georgia passed a law

discharging the troops which had been enlisted, and declaring the rate of

pay which they should receive. For this pay certificates were directed to

be issued, and these certificates constitute a debt unredeemed to this

day. [Mr. E. turned to the several laws above referred to, and read from

each extracts as proofs of his statement.] Here, Mr. Chairman, you have

unfolded a debt, which, without the least violence to construction, fills

up the description given in the articles of cession. Here are expenses

incurred by the State totally distinct from and unconnected with the

claims now under discussion. It is important also to observe, that every

attempt made by the State of Georgia prior to the cession to dispose

of her vacant territory, appears from the face of the acts to have

been dictated by a view of discharging the public obligations to those

troops. No less than three attempts at a disposition of her territory

were made prior to the cession. The first was an offer to cede to the

General Government, in 1788, provided Congress would pay the expenses

which had then accrued in defending the frontiers, and would yield the

wonted protection in future at their own expense. This was rejected. In

the following year a law passed for disposing of a part of the territory

to companies, notoriously with a view to raise money wherewith to meet

the same engagements. This also failed, for causes which have been amply

unfolded to the House on another occasion. The next attempt was in the

year 1795, which, in the very title of the law, is expressed to be made

to meet the particular engagements to the same soldiery. Of the result of

this transaction the House is also possessed. The last attempt was by the

articles of cession. Thus it appears that in no instance were the present

claims ever thought of as a debt to be met by the State of Georgia out of

the proceeds of her unlocated lands, but that the expenses incurred by,

and the engagements made to the troops in the years 1787, 1788, and 1789,

were uniformly the moving cause toward a disposition of her territory.

The Committee of Claims however, sir, notwithstanding they have

throughout their report endeavored to rest upon the Attorney General

the responsibility of the construction given to the cession, have at

the same time erected a pillar of their own to support it, where they

saw it must fall. They well perceived that all reasoning upon the

subject was idle, unless one principle could be established; this they

have boldly advanced to, and, instead of proving, have assumed as the

groundwork of their whole superstructure. It is, that the State was bound

in the first instance to compensate the soldiery, notwithstanding the

ulterior responsibility of the General Government. From this they infer

that the State had a right and by the cession did exercise the right

of exonerating the latter Government. Now, Mr. Chairman, grant to the

Committee their premises and there is an end to the question between us;

their consequences must result. But, sir, I must supplicate their pardon

if I refuse my assent to their position until my judgment is convinced.

And I must be pardoned for saying that the reasoning to which they have

resorted for the purpose of proving it, strikes my mind as the reverse

of sound; that it proves too much to prove any thing. It is, that the

State Government is in the first instance liable, because the troops

were called into the field by the State Executive. This reasoning, Mr.

Chairman, would go to prove that in every instance in which militia have

been called into the service of the General Government, the States from

which they were drafted were in the first instance liable for their

compensation, because, in every case which has taken place, they were

called into the field by State Executives. The truth is, sir, that in

every case the orders have issued from the Executive of the General

Government to that of the State Government, and that orders have from the

latter issued in consequence thereof, for making the requisite drafts;

so that the troops engaged in service under the immediate directions

of the State, but under the mediate directions of the United States.

This was the course pursued in both the insurrections in the State

of Pennsylvania; it was the course in the State of South Carolina in

relation to Indian invasion, at the same period at which the services

were performed in Georgia for which we are now claiming compensation.

It was the same course the other day with the troops ordered down the

Mississippi to occupy New Orleans and its dependency. In all these cases

the troops were compensated by the General Government in the first

instance. It never entered the heart of any man that the States from

which the drafts were made, were in the first instance liable, and that

resort must afterwards be had by the State Government against the United

States. I have always been taught that precedents established principles,

but it now seems that the Committee of Claims in the profoundness of

their researches have discovered that by assuming premises, principles

may be established in the face of a uniform current of precedents.

There are, Mr. Chairman, two modes marked out in the constitution in

which the militia may be called into service. The first is a case where

from necessity the war attribute of sovereignty is left in the individual

States. It is the case of invasion or such imminent danger thereof as

will not admit of delay. The other mode is that of issuing orders from

the Executive of the General, to the officers of the State Governments.

This is the usual method by which the militia of the States are drawn

into the service of the United States. And it is of importance to observe

here, that the act of Congress which was intended to give effect to

the constitutional powers of the General Government to “call forth the

militia,” authorizes the President “to issue his orders for that purpose

to such officer or officers of the militia as he shall think proper.”

For, inasmuch as there can be no other difference in a military point of

view, and for military purposes, between the Governor of a State and the

next highest military officer, than the difference of rank, the one being

first, the other second, in command, it must follow that if the militia

are to resort for pay to the State Governments because their orders have

passed through the Governor, they must also resort to the same source in

case their orders should pass through the second or third in command; the

principles upon which the committee found their reasoning apply equally

to both cases. The soundness of conclusions drawn by the committee is,

therefore, not merely questionable, but to me it appears not difficult to

prove that the conclusions themselves are at war with the most obvious

principles of justice.

I hold it, sir, accordant with the most common rules by which individuals

are regulated in a state of society, that when service is performed

the party for whom it was performed is the only one responsible for

the compensation. The rule applies with equal force to the case of

Governments, who are moral agents. Happily, Mr. Chairman, there is no

difficulty in ascertaining the party for whom the service was performed

in the case under discussion. Fortunately for the States in general, it

is made the constitutional duty of the General Government to “protect

each of them against invasion.” And fortunately for the State of Georgia

in the present instance, there is the recorded sanction of the Executive

of the Union, couched in the following words--“If the information which

you may receive, shall substantiate clearly any hostile designs of the

Creeks against the frontiers of Georgia, you will be pleased to take the

most effectual measures for the defence thereof, as may be in your power,

and which the occasion may require.” If, therefore, the principles and

reasoning of the committee be correct, it must follow that troops engaged

in performing the constitutional duty of the United States must resort

for their compensation in the first place to the States. To premises

leading to such conclusions, I will not, cannot yield assent.

Mr. Chairman: It is recollected that when this subject was under

discussion at the last session of Congress, a distinction was taken

between the situation of troops called into the field by order from the

General Government, and those called out by the State Executive in virtue

of authority given by the former. But, sir, I humbly apprehend that such

a distinction is one of words, and not of principles. And I must here

profess to the honorable Committee of Claims my profound acknowledgment,

for furnishing me with an idea, and a mode of phraseology most suited to

my purpose. They, in their report, have told the House that the “manner

of exhibiting” the demand assuredly cannot change its nature. Now, sir,

I repeat, in nearly their own words, that the manner of calling out

the troops, cannot change the nature of the service. It cannot change

the United States service into State service. And indeed the Committee

of Claims themselves have given us the strongest proofs, that with

them the distinction had no weight. For of claims which have been so

contradistinguished in the reports from the War Department, there were

committed to them both descriptions; but they draw no difference. Indeed,

their principles would admit of none.

But, sir, if a difference in principle did exist between claims of the

two kinds, it would prove nothing in the present case, because the

difference does not here appear in fact; and I cannot but consider it as

one of the unfortunate circumstances attendant upon our claims, that the

epithet _unauthorized_, has, without foundation, been attached to them,

because, as was supposed, they were founded upon services not specially

ordered. The fact is, Mr. Chairman, that they were not only _authorized_,

but they were _ordered_, by the General Government. I beg leave to

compare the tenor of the orders for drafting the militia in Georgia,

with the orders issued in other cases, about which no difficulty ever

occurred. The words used in the Georgia case are, “you will be pleased

to take the most effectual measures for the defence thereof,” &c. What

are the words used in the orders issued to the governors of four States,

to march militia to quell the insurrection in the Western counties of

Pennsylvania? “I have to request your Excellency,” &c. The words are the

same in every other instance in which militia have been ordered into

the service of the United States. They are the same which were used for

enlisting the one hundred horse and one hundred foot to serve upon the

frontiers of Georgia, about whose compensation there never has, until

the present moment, been any difficulty; they are the same under which

several corps were raised in the same quarter, whose services have long

since been remunerated.

Let us here pause for a moment, and view the extent to which we shall be

led by adopting the report. Sir, the principles of that report, and the

application therein made of those principles, lead to a conclusion from

which, if I mistake not, every gentleman upon this floor will revolt.

Sure I am, every State in the Union will reject it with horror. What,

sir! has the great, the all-important right of peace and war been yielded

up by the States to the General Government, and yet the States bound to

compensate for war services? It is no reply to this conclusion to be told

that the States are only liable in the first instance; for it is then

completely within the power of the General Government, by _withholding_,

to make them bear the burden altogether. And to that may be added, that

the expenditure might frequently be of such magnitude as to create

extreme oppression in the imposition of taxes, and, in some States, might

produce general ruin and bankruptcy.

Mr. J. C. SMITH observed that the Committee of Claims, in submitting to

the House the reports then before them, had not been influenced by the

magnitude of the sum claimed for services. The simple question considered

by them, was whether compensation had, or had not been rendered for those

services. The decision of this question depended on another question,

whether from the nature of our Government, the State of Georgia was to

be considered as, in the first instance, liable for the satisfaction

of these claims. If this should be admitted, he thought the proper

construction to be placed on the articles of cession was extremely plain.

There are two ways in which the militia of a State may be called out by

the Executive of the United States. The first is by a direct detachment

of any portion of the militia. It was not necessary, in any instance,

for the Government of the United States to call on the Executive of a

State for this purpose. It was in their power directly to call into the

public service a brigade or other division. This is one course, which

may be pursued, and in this case it is admitted that the soldiers are

soldiers of the United States, and that for their compensation they are

to look to no other Government than that of the United States, in the

first instance. The other course is that where a requisition is made by

the General Government on the Executive of a State. What is the state of

things in this case? It must be presumed that the citizens of a State,

thus called into service, are to look to their own State for compensation

in the first instance, though he admitted that the General Government was

in the last resort responsible. They are to look, in the first instance,

to the State Government, for this obvious reason: The Governor of a

State is not amenable to the General Government; and he consequently

cannot be punished for exceeding their orders. Is that Government then

bound at all events to pay the expenses incurred in consequence of the

orders of the State Executive, when they may be in direct violation of

the orders of the General Government? It is a clear position then, that

when the militia are called out by the Executive of a State they are to

look to the State in the first instance. Application may be made to the

General Government in the first instance, and if there shall have been no

disobedience to its orders it may make payment; but, put the case of the

orders of the General Government being disobeyed, will it be contended

that it will be obliged to remunerate services rendered in opposition to

its commands?

Contemplating the subject in this view, it must be admitted that the

militia are in the first instance to look to the State Government, which

may make a compromise with the General Government.

The second question is, what is the nature of the compromise made in this

case? The articles of cession purport to be [Mr. SMITH here quoted the

beginning of these articles.]

It may here be proper to premise that Georgia is the first State in the

Union that has ever received a compensation for her territory transferred

to the United States. That territory was acquired by the joint exertions

and blood of the citizens of all the States. Under such circumstances it

becomes necessary to inquire into the compensation stipulated to be given

by the United States to the State of Georgia; a compensation not given

for the land, but for expenses incurred by Georgia in relation to it.

The Attorney General tells us that these expenses were incurred for the

portion surrendered to the United States, as well as for the whole State.