Mr. JACKSON observed that the facts detailed in the report were
conceded. It was probable that there would never be a vessel entered at
Charlestown from a foreign country. With regard to the success of the
prayer of the petitioners, Mr. J. said he should not have been sanguine,
but for a constitutional provision which he considered imperative. No
port of entry existed in the western part of Virginia, in consequence of
which, vessels sailing from Charlestown were obliged to pay duties at New
Orleans. The constitutional provision, to which he alluded, was this: “No
preference shall be given by any regulation of commerce or revenue to
the ports of one State over those of another; nor shall vessels bound to
or from one State be obliged to enter, clear, or pay duties in another.”
Was it not obvious that a preference was given to the ports of one State
over those of another by requiring the vessels of the one, to enter and
clear in the ports of the other; and was it not also obvious that the
latter part of the provision was equally violated? It would be a great
convenience to the petitioners to give bonds and take out clearances in
the neighborhood of the place where their vessels are built, instead of
being obliged to go to a distance of 2,000 miles, where they would find
themselves among strangers.
Mr. CROWNINSHIELD observed that there were several ports of entry already
in Virginia from which vessels might clear without paying duties at
New Orleans. He further observed that New Orleans and Natchez were not
within the limits of a State, and therefore were not embraced by the
constitutional provision referred to; and added that duties were only
paid on the entry of vessels from a foreign country.
Mr. J. C. SMITH thought there was sufficient plausibility in the remarks
of the gentleman from Virginia, to give the subject a full discussion.
He therefore moved a reference of the report to a Committee of the whole
House on Monday, which was agreed to--yeas 59.
FRIDAY, February 21.
_Payment of Witnesses._
The House resolved itself into a Committee of the Whole on the bill from
the Senate, providing for the payment of the witnesses on the trial of
Samuel Chase.
Mr. J. C. SMITH said, at the close of the last session, a bill providing
for the payment of the witnesses on the part of the United States, had
gone from the House to the Senate, and been disagreed to by them. The
Senate on their part, had passed a bill providing for the payment of all
the witnesses, to which the House had disagreed. A conference had taken
place on the disagreeing votes of the Houses, and the bill had been lost
from a want of concurrence. The consequence was, the witnesses still
remained uncompensated; some of whom have sustained heavy expenses.
Petitions received this session from several witnesses on the part of
the prosecution, had been referred to the Committee of Claims, who had
reported a bill which was the same in substance with that adopted by
the House the last session; the committee not considering themselves at
liberty to depart from the principle then established by the House.
It was for the House to decide how long this unprofitable contest (for
unprofitable it surely was to the witnesses) should be kept up. Mr. S.
said he was not disposed to go into a consideration of the question,
whether the expenses of an impeachment should in all cases be incurred
by the Government. He would barely observe that the Senate had been
unanimous; and if the House should adhere to the ground they had taken,
no compensation would be allowed to the witnesses. He submitted it,
whether, under these circumstances, it were proper to keep up such a
conflict? It had so happened that many of the witnesses, summoned by the
accused, had been used by the managers, and the process of summoning
them had been similar on both sides. In the bill there was an omission
to provide for the expenses incurred by the managers. If no other
gentleman proposed an amendment, he should think it his duty to offer
one, providing for these expenses. He hoped the committee would agree to
the bill. Some gentlemen might think, by agreeing to it, they evinced an
opinion of the guilt or innocence of the accused. But such a vote could
not be viewed in this light. The House had exercised their constitutional
right by voting an impeachment, while the Senate had exercised the
same right in acquitting the accused. The same body who had acquitted,
had sent down this bill, involving their opinion that the proposed
compensation to witnesses was right. Indeed he considered the bill from
the Senate as a taxation of costs by the court who sat on this occasion.
Mr. MACON, with a view to try the question, whether the House would agree
to pay all the witnesses, moved to insert after the word _witnesses_
the words--“on behalf of the United States.” He said the history of
this business given by the gentleman from Connecticut was correct. The
accused had been acquitted by a constitutional majority, consisting of
a minority of the Senate. It was not, he believed, the practice in any
criminal court, of any State in the Union, for witnesses summoned by
the defendant, to be paid by the State. The States, in many instances,
pay their own witnesses, where the person accused is not convicted, but
with respect to the conflict between the two Houses, he was convinced
the decision of this House was correct; and that it accorded with the
general usage throughout the United States. If there was an exception,
he did not recollect it. It was true that one or the other House must
give way, or the bill would be lost. He would much rather that it should
be rejected by the disagreeing votes of the two Houses, than that it
should pass as it then stood. If the Senate had offered this bill, it is
equally true that the grand jury, who make a bill, have refused it. The
two Houses stood on the same ground. One are the triers and the other the
hearers. If Congress agree to pay all the expenses of an impeachment, the
impeached may run the expenses to such an amount as to prevent a trial.
Why pay the expenses in this case, if not in any other? Shall they be
paid because this man is a judge, and not a man arraigned before a judge?
When a judge is tried he deserves no more indulgence than a private
individual, and though he is acquitted, the acquittal is not such as to
convince the nation, or any other body of men, that he is innocent. It
was not that kind of acquittal which an honest man would wish. It was
constitutional, but not by a majority of the Senate. Are we, under these
circumstances, obliged to pay the witnesses he has chosen to summon?
Believing, as he did, the man guilty, and the charges in many instances
supported, the payment of his witnesses appeared to him a very strange
thing. In this, as in every other case, he was willing to yield to a
constitutional decision, but he could never consent to pay the witnesses
of the accused.
Mr. ALSTON said the amendment went to try the question, whether the House
would agree to pay all the witnesses summoned on the trial of Judge
Chase. Before it was made, the honorable Speaker ought to have told the
House whether they could determine which witnesses were summoned on the
part of the United States, and which on the part of Judge Chase. From
every thing which he had seen, (and he had examined all the documents on
the subject,) he had found no data upon which to determine what witnesses
had been summoned on one side or the other, unless from the recollection
of gentlemen, by which he supposed the House would not consent to be
governed. When the question was before the House the last session, he
had expressed his doubts whether they ought to pay the witnesses of
an accused man, whether he was acquitted or convicted; but he was now
convinced that, until Congress passed a law, prescribing how witnesses
are to be paid, they were bound to pay them. No such law had been passed.
He would ask gentlemen learned in the law, whether a witness on the part
of Judge Chase could demand compensation from him? Have we passed any
law, prescribing how much shall be paid, or how it shall be done? No such
law has been passed. Mr. A. said he thought gentlemen were carrying their
prejudices too far in this instance. He had voted for five out of eight
of the articles, but the Senate had acquitted him of all of them. He was
contented with this decision, and so far as he was acquainted with the
sentiments of those he represented, he believed they too were satisfied.
It was not now a question how this principle should be settled. If a
general law were brought before them, there was no doubt, but that, if a
man so conducted himself as to bring himself to a trial, he should pay
his own witnesses, provided such law declared how much they should be
paid. The honorable Speaker had said there was not a State in the Union
in which the witnesses of a person indicted and acquitted were paid by
the State. Mr. A. said he believed, in Virginia, when a man was indicted
and acquitted, he was not subject to the payment of costs. If this were
true, one State at least, and that the largest in the Union, had set a
different example; and if precedent was entitled to any influence, it was
against the Speaker. Mr. A. said this, however, had no weight with him.
The great objection with him was, that they could not discriminate the
witnesses of the United States from those of the accused; and if they
could ascertain them, there was no law prescribing how the latter should
be paid by the accused.
Mr. JACKSON believed Congress bound to render compensation to the
witnesses on the trial of Judge Chase, on the abstract principle of
justice and right, as well as from precedent and practice. The argument
of the honorable Speaker militated against the inference drawn by him.
He says the accused may multiply witnesses to such an extent as to
defeat a prosecution. If the proposition, however, be examined in all
its bearings, it will be found to operate most severely, and almost
exclusively, on the man impeached by the House of Representatives, no
matter for what cause, or whether he is guilty or innocent. If the
House are determined to destroy him, it is only necessary to vote an
impeachment, which will impose upon him a ruinous burden. Mr. J. said
he did not apply these remarks exclusively to the impeachment of Judge
Chase. The Journal of the House would show that he was in favor of
his impeachment. But as he had been acquitted by the constitutional
tribunal, clothed with authority to pronounce him guilty or innocent--the
dernier tribunal constituted for such cases--he did not consider himself
justified to say, after their decision, that he was guilty. He held
himself bound by the judicial decisions and laws of the country, though
as an individual he might dissent from some of them. The United States
might, in case a person acquitted on an impeachment is compelled to
pay his witnesses, multiply charges embracing the whole life of the
accused, and tracing him from the district of Maine to Georgia, so as
to compel him, in order to refute the charges, to adduce ten times as
many witnesses as would otherwise be necessary. The true rule is, that
the court shall decide what witnesses are proper to be taxed in the
costs, and what are not. The Senate, who in this instance are the court,
have decided that all shall be taxed. They were perfectly competent to
decide whether any witnesses of the accused were brought forward without
sufficient cause, or whether they were essential to the defence. It
is manifest, by the bill under consideration, that they have made the
latter decision. The gentleman from North Carolina is correct in his
statement of precedent. The uniform course in Virginia, is to tax the
attendance of witnesses, who are paid out of the public treasury; and
those on the part of the defendant in the same way as those on the part
of the prosecution. This practice has been extended so far as to embrace
the payment of witnesses from another State. In a late case, although
as far as the opinion of the court could go, a man was declared guilty
of the crime with which he was charged, yet, the jury having pronounced
him innocent, a witness on his part, brought from Kentucky, was paid out
of the public treasury. This is not the case where the individual is
convicted. If he possess sufficient property, that is answerable for the
expenses.
The Senate, undoubtedly, possess the right to say whether the witnesses
adduced are necessary; and if, in any future case, improper witnesses
shall be brought forward, they may refuse to tax them. This bill does
not provide for all cases of impeachment, but is confined to the case of
Samuel Chase. Mr. J. said he would submit whether it was proper or just
to compel men at a great expense to attend at the seat of Government in
an inclement season of the year without giving them a compensation. If
a law had been previously passed prescribing that the witnesses of the
accused should be paid by him, they would have required some assurance
from him. But as no discrimination had been made between the witnesses,
they came forward in full faith that the Government would allow them a
liberal compensation.
Mr. NICHOLSON said he had but a few observations to make on this subject:
indeed, indisposition disabled him from making many. He considered this
bill as calculated to establish a great principle--a principle whether,
in all cases of impeachment, the United States are to bear the burden.
It was not in reference to an individual that he was induced to advocate
the amendment of his honorable friend, the Speaker, but because its
effect would be to establish a principle that would hereafter govern in
similar cases. If the principle were established that in all cases of
impeachment the Government is to bear the expense, it will put it in the
power of the individual impeached to increase the burden to any extent
he pleases. And whenever a man shall be impeached, base enough to hate
the Government under which he lives and holds an office, in a case which
requires but two witnesses, he may summon two hundred. This bill will
establish such a principle, and we shall in all future cases be told that
the witnesses of the accused were paid in the case of Chase. It was for
this reason, Mr. N. said, he advocated the amendment, and to convince the
individual that subjected himself to an impeachment that he must suffer
some pains and penalties. For it was not to be presumed that the House
of Representatives would impeach any man unless there was some color for
it--some reason to induce the nation at large to believe him guilty. An
impeachment speaks the language of the nation, expressed through their
representatives; and whenever a man in office conducts himself so as to
make the nation believe him guilty, it was not desirable to offer the
protection held out in the bill, particularly when a majority in the
other branch also believed him guilty.
But, gentlemen say, this is not the practice in the State courts; and we
are told in Virginia, when a man is acquitted, the State pays the expense
of his witnesses. Mr. N. said this might be so, though he did not know
that it was; it was not so, however, in the courts of the United States.
Any gentleman who doubted this, had only to refer to the treasurer’s
accounts since the Government had been in operation, and he called upon
any such gentleman to show a single charge for witnesses in cases of
acquittal. It is not the practice in England, nor could it be made to
appear by any document, that the witnesses summoned by Warren Hastings,
though he was acquitted, had been paid by the Government. But admitting,
for argument’s sake, the practice to be such in the United States as
it is represented to be in the courts of Virginia, would that meet the
present case? No. In Virginia there was a reciprocity. There, if a man
was convicted, he paid all the costs, and if acquitted, the State pays
them. But, in the United States, do we make the convicted pay the costs?
Had the accused judge been convicted, would gentlemen advocate his paying
all the costs? No. In that case he would have been scot free as to the
payment of money, though he might have sunk in reputation. In Virginia
there is a reciprocity; the convicted either pays the expenses of the
prosecution or goes to jail; whereas, in this case, the United States are
called upon to bear the whole burden. When Judge Pickering was convicted,
was he called on to pay the costs? Such a thing was not then dreamed of.
It was then considered proper that the United States should pay their
own witnesses. The argument, therefore, fails. The only objection of
any weight is that raised by the gentleman from North Carolina. It is
said to be impossible to discriminate the witnesses. The gentleman says
that he has examined the Journals of the Senate, and cannot find any
discrimination. But has he looked at the Journals of impeachment, where
it appears that such witnesses were sworn on the part of the United
States, and such on the part of the accused? Besides, if this evidence
were not on the journal, it could be got from the parties themselves, who
could swear they were summoned on the part of the United States or the
defendant. This was a common thing in the courts of Maryland, and Mr. N.
supposed it was likewise so in other courts. He concluded his remarks by
expressing a hope that the amendment would be adopted.
Mr. EARLY said it was his misfortune the last session to differ with a
majority of the House, and his present opinion was what it then was. His
opinion was not founded either on general principles, or on the practice
of the several States, or United States courts. It was founded on the
peculiar circumstances of this case. Some of these circumstances had
already been stated by gentlemen; but there were some important points
of view in which they might be considered, which had not been noticed.
It was true, as had been stated by the gentleman from North Carolina,
that it could not be distinguished which witnesses were summoned on the
part of the prosecution, and which on the part of the respondent, from an
omission by the Senate, when they prescribed the form of the subpœna, to
distinguish, as it is usual, for which party it was issued. This fact was
abundantly proved by the form of the subpœna. How, then, were witnesses
to know that they were summoned on the part of the United States, or the
respondent? They could not know. There were no circumstances by which
they could acquire such knowledge. The party did not serve his subpœnas
in person, but they were all sent to the marshal of a given State. A
number of them were taken out in blank, and sent to the marshals by
post. The gentleman from Maryland has endeavored to obviate the force
of this fact, by informing us that a discrimination may be made, by the
circumstance of the fact on which side the witnesses were sworn. True;
but no gentleman knows better than himself that the witnesses summoned on
one side were, in some instances, sworn on the other; and he would call
his recollection to the testimony given by Messrs. Tilghman and Rawle.
[Mr. NICHOLSON here explained, and contested the fact. Mr. EARLY agreed
that these two witnesses had been summoned both on the part of the
prosecution and the respondent.]
Mr. EARLY said, whether he was correct or not as to the particular
cases he had alluded to, he was not mistaken as to the general fact.
The gentleman from Maryland had endeavored to obviate the force of this
argument in another way, by representing that the witnesses might be
called on to swear on which side they were sworn. But this could not
be done, but by the passage of some law on the subject. There was no
authority which would justify the Secretary of the Senate in demanding
such an oath, and if the circumstance could be proved, there was no
power, under any existing law, by which the witnesses could recover a
compensation for their attendance. They were compelled to attend--by
whom? By a branch of this Legislature, on pain of imprisonment in case
of disobedience. Whence shall they be indemnified? Will any gentleman
say they can recover from the respondent? If so, let them point to the
law which authorizes such a recovery. Will they say it can be had under
the common law? A majority of this House will not bear them out in the
argument. For it is a standing principle with us, that the common law is
not in force in the courts of the United States. But put this objection
aside--how much shall they recover? Where is the law fixing their per
diem allowance? There is a perfect chasm in the subject.
Mr. E. repeated that his opinion was governed by the peculiar
circumstances of the case; by the omission of the Senate to insert in
the subpœna, on whose side the witnesses were summoned, or to provide
for making any recovery from the accused; or how much, and where the
recovery should be made. He considered the witnesses summoned, owing
to this omission, as being without a remedy, from which resulted the
obligation on the part of the Government, as they made the omission,
to provide a remedy. The gentleman from Maryland, in noticing the
observations relative to the practice of Virginia, stated, that if a
similar reciprocity existed on impeachments, his objection to this bill
in whole or in part would be done away. Mr. E. said, that in his opinion,
this observation fortified the ground he had taken. If there were no
reciprocity in this case, it was for want of a general provision. Let us
then pass a law making this provision, and let it operate in all future
cases. This would be equitable. But the want of reciprocity which arose
with themselves, was no ground for omitting to make the only provision
for the witnesses which the case allowed. When at the last session, in
consequence of the disagreeing votes of the two Houses, a committee
of conference had been appointed, he recollected that a distinguished
member of the other branch, now absent in consequence of an unfortunate
accident, took this ground--that the subpœna did not distinguish on
which side the witnesses were summoned, and made a proposition that
the bill should be so modified as to place the allowance made to the
witnesses of the respondent on this peculiar ground. This proposition
did not then obtain, but Mr. E. was still for taking such a course. He
hoped the amendment of the honorable Speaker would not prevail; in which
case he would move, by way of preamble to the bill, what would place
the allowance on the peculiar ground he had stated, and thus remove the
objections of the Speaker.
Mr. NICHOLSON made some explanation of what he had previously stated in
regard to the practice of courts, and observed that a witness summoned
on one side was not permitted to be sworn on the other, until he had
been previously examined by the party summoning him. He also passed over
the journal of impeachment, to show that the witnesses on the part of
the prosecution had all been examined in the first instance, with a few
exceptions, which were specially noted, before those on the part of the
respondent were called.
Mr. SMILIE, being of opinion that the question was not ripe for decision,
moved that the committee should rise and ask leave to sit again.
This motion having prevailed, the committee rose, and the House adjourned.
MONDAY, February 24.
A new member, to wit, EVAN ALEXANDER, returned to serve as a member of
this House, for the State of North Carolina, in the place of Nathaniel
Alexander, appointed governor of the said State, appeared, produced his
credentials, was qualified, and took his seat in the House.
_Amendment of the Constitution._