Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 2 (of 16)

by United States. Congress

Wednesday, March 5.

Breach of Privilege.

The Senate took into consideration the motion made on the 26th of February last, that an inquiry be had relative to a publication in a newspaper called the "Aurora," on the 19th of the said month; and agreed to insert after these words: "and by what authority he published the same," line 7th, the words "as having passed the Senate."

Mr. Cocke said, he would not suffer a measure of this kind to pass through the Senate, while he had the honor of a seat in that body, without manifesting the most determined opposition. What did the gentleman mean by avoiding the general principle? did he mean to get the consent of the Senate, acting in the character of an inquest, to an acknowledgment that the editor of the Aurora had been guilty of a crime, without any inquiry whether the publication in itself was criminal, or whether if it was criminal, the Senate, as an independent and a single branch of the Legislature, had of itself the power to define the crime and inflict the punishment? He could not consent to an admission of this kind; the constitution gave them no such authority; the privileges of the House and of the members did not extend beyond the walls of the Chamber in which they were sitting, in cases of comment upon their official proceedings. He had held these opinions from the time the motion was first laid before the House, and thought that the consequences which would result from pursuing the subject, would be more dangerous to the honor and dignity of the Senate, which it was meant to defend, than all the attacks which all the public newspapers could make during their existence, inasmuch as an actual assumption of power was far more detrimental to their character than any unfounded charge of tyranny could be. He believed that the more the subject was agitated the more would be the clamor against the Senate, and in the end they would be forced to abandon the measure for want of ability to carry it through; he therefore concluded it would be best to give it up in the first instance, and save both their own time and the public money. He would move to postpone the consideration of the motion till the first Monday in December next.

Mr. Tracy did not wish to hurry on the decision, but as the resolution had been several days upon the table, he believed the House might now decide on the propriety of referring the business to the Committee of Privileges, as this procedure would not be final; or, if the House was not ready to vote immediately, the discussion might proceed and time would be given for coming to the conclusion.

Mr. C. Pinckney.—This subject involves the important questions, What are the privileges of Congress, and how far are they defined by the constitution; and what is the liberty of the press, as it respects those privileges? These are subjects of great consequence, and such as I suppose the House will touch with much caution. My name having been mentioned in the body of the original motion, I feel myself particularly called upon to deliver my sentiments fully, as well with respect to the manner in which it is mentioned, as to the limitations of the constitution, and what ought, in my judgment, to be the conduct of the Senate, on this very interesting occasion.

In considering, first, what are the privileges of Congress, and how far they are defined by the constitution, I am naturally led into a repetition of arguments I have found myself too frequently obliged to use on this floor; that is, to entreat the House to recollect the nature of our federal system; that all powers not expressly and specifically delegated to Congress, are reserved to the States and people: and particularly to remember, that where any powers are so expressly defined as the privileges of Congress are, that it is our duty very carefully to consider the consequences, before we take a step that may, by subsequent or cool reflection, be found to exceed them; that the privileges of Congress, as limited by the constitution, have been very deliberately considered by men whose opinions were not swayed by party, and whose impartial situation gave the best opportunity of judging; that having before them the example of the unlimited privileges of the British Parliament, and colonial assemblies, or councils, assuming to themselves the right of such privileges; that knowing the consequences of undefined powers, and being well aware what privileges were necessary to prevent an interruption of the undisturbed situation a member should enjoy, during the time he is engaged on public affairs, after much thought they had defined them in the manner fixed by the constitution. No man, who is a friend to order, will justify what properly deserves to be termed the licentiousness of the press. When, instead of candidly reviewing the arguments or public conduct of a member of the Legislature, or officer of the Government, it meanly descends to private scandal, instead of being defended, it should be met with contempt and disdain. Abuse is the price that public men, and frequently those of the most ability, are obliged to pay; and it is seldom, in countries where the press is free, and strong political parties are known to exist, that it is much noticed. Men of elevated minds, who feel themselves strong in the powers of reasoning, will always yield to their feeble opponents the miserable resort of abuse; it is the surest test of imbecility, and the public, who generally think right, seldom hesitate to suppose it equally the proof of weakness and of malice.

I shall consider this subject from its importance, and the peculiar manner in which it has been introduced, as open to such animadversions as are within the rules of order and are consistent with decorum. I shall probably advance doctrines that will be termed as extraordinary here, but it shall be done with the good manners I have ever considered as the criterion of good breeding, and which self-respect will forbid my violating. It is the first question respecting the privileges of the Senate that I have ever been present at, and, as it involves the liberty of the press, it is only necessary for me to mention these subjects, to show the House the propriety of our well-examining every line of the resolution on your table, before we adopt it.

I feel myself particularly called upon to give my opinion fully on this subject, because my name is inserted in the body of the resolution, and, to those unacquainted with the circumstances, it might have the appearance of being done at my request; whereas it was not only done without my knowledge, but is contrary to my wish, and opinion of the power of the House, and of the mode in which such inquiries should be conducted; that even if the House had the power, the remarks and information contained in the paper are not sufficiently important to attract its notice, particularly as they had been completely silent on the abuse of the Senate in the Gazette of the United States, respecting the stopping of the enlistments for the army; that the inquiry might lead to steps not within the defined privileges of the Senate, and that, as these may involve the liberty of the press, and the right of a citizen to publish the debates and public acts of this House, those who were opposed to what they might consider unconstitutional restrictions, ought to meet the question at the threshold, and contest it in every stage. I shall therefore feel it peculiarly my duty to do so, and, after having stated to you my objections to any interference at all on this subject, to move the postponement of the resolution, or to amend it in some way that shall place on the journals my opinions of the extent of your privileges, and reasons for objecting to the mode of inquiry proposed by the gentleman from Connecticut.

In examining the constitution we find, that to prevent any attempt being made on the part of either branch of Congress to define their own privileges, and exercise the same, as occasion or circumstances may, in their opinions, require, and to remove all doubt as to the extent and exercise of the privileges they are to enjoy, the constitution has positively and expressly limited and defined the same, by declaring—

"That each House shall be the judge of the elections, returns, and qualifications of its own members; that they may compel the attendance of absent members, in such manner, and under such penalties, as each House may provide; that they may determine the rules of their proceedings, punish the members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. That the members of both Houses shall, in all cases, except treason, felony, or breach of the peace, be privileged from arrest during the attendance at their respective Houses, and in going to and returning from the same, and, for any debate or speech in either House, shall not be questioned in any other place."

This is all that is said on the subject of privilege; and surely no words can be more explicit, nor any subject more clearly defined. The powers they are to exercise, and the persons and cases they are to operate upon, are all distinctly marked and named; nor is there a word or a sentence in the whole that can by any possible construction be made to mean that for any libels or printed attack on the public conduct or opinions of either House of Congress, or of any of its members, that their privilege shall extend to ordering the persons charged with the offence before them, and imprisoning them at their will. The constitution wisely determined, that they should possess all the powers necessary to their formation, and the undisturbed order of their proceedings, and the safety of their members from arrest, during their attendance, and going to, and returning from Congress; but it at the same time recollected, that it is the nature of our Government to invite examinations of public measures, that it is the duty of our citizens to make these inquiries, to watch over the proceedings of our public bodies, and if they find them departing from the constitution, or exceeding their authority, instantly to announce it. That our constitution supposes no man, or body of men, to be infallible, but considers them all as mere men, and subject to all the passions, and frailties, and crimes, that men generally are, and accordingly provides for the trial of such as ought to be tried, and leaves the members of the Legislature, for their proceedings, to be amenable to their constituents and to public opinion; it however particularly guards the right of the citizens to investigate their measures; and in case of a false or libellous attack, it intends, if the power of collecting juries is fairly exercised, to provide a just and impartial tribunal to decide between them, to act upon oath, and who ought not to be the particular friends or enemies of either. On this subject I shall hereafter more fully remark, and at present take some little notice of an observation that has been made, and which, with the subject of privileges, should be considered as preliminary to those that are necessary on the liberty of the press. It is, that if Congress possessed the power contemplated by this resolution, it was their duty to pass some legislative act respecting it, declaring the manner in which it should be executed, and designating the officer or officers who were to do so; that the people would then know the manner in which offenders were to be summoned or apprehended, or brought before them; but this should have been done when no particular case had occurred, and was before them, and that no proceeding of privileges in any case like the present, ought to be had until such act was passed, and the mode of proceedings clearly ascertained; that if the power was given by the constitution, until Congress had legislated upon it, in the manner above mentioned, it was extremely improper for either branch to attempt to exercise it; that a judiciary department was erected by the constitution, but that Congress was obliged to legislate upon it, and detail its duties, and provide for the appointment of officers to execute them, before the powers of that department could be properly exercised: and that if Congress possessed the power some gentlemen contend for on this point, they must previously legislate on it in the same manner. On this subject there can be no doubt of the propriety of this objection, if Congress possessed the power; and their never having passed such a law is a strong proof, that whatever opinions either branches may have entertained, that both did not suppose they possessed this power, or certainly they would have legislated upon it. If they did not doubt, or were not sure they did not possess this authority, why did they not legislate on it at the time they did on all such other parts of their privileges and powers as they conceived they had authority to act on. They (that is, Congress) passed an act on the subject of the election of members of the House of Representatives, of which that House are the sole judges; each House detailed, in a particular manner, their rules and modes of proceeding—this was all that was necessary to be detailed. The remainder of the clause respecting privileges is so express on the subjects of privilege from arrest, government of members, and expulsion, that every civil officer in the United States, and every man who has the least knowledge, cannot misunderstand them. I assert, that it was the design of the constitution, and that not only its spirit, but letter, warrant me in the assertion, that it never was intended to give Congress, or either branch, any but specified, and those very limited, privileges indeed. They well knew how oppressively the power of undefined privileges had been exercised in Great Britain, and were determined no such authority should ever be exercised here. They knew that in free countries very few privileges were necessary to the undisturbed exercise of legislative duties, and those few only they determined that Congress should possess; they never meant that the body who ought to be the purest, and the least in want of shelter from the operation of laws equally affecting all their fellow-citizens, should be able to avoid them; they therefore not only intended, but did confine their privileges within the narrow limits mentioned in the constitution. And here, sir, let me ask, are not these privileges all that are necessary? They have complete authority to keep order and decorum within their own chamber, to clear the galleries if an audience are unruly, and to punish their own members, to take care that no arrests, except for treason, felony, or breach of the peace, shall keep their members from their duty, and for all libellous attacks or misrepresentations the laws are open to them; and if unjustly attacked, no doubt the juries of their countrymen, who are interested to preserve the dignity and independence of their Legislature, will give them the most ample satisfaction. But it is said, "each branch must possess this power to punish for breach of privileges, which they must judge of as circumstances may arise and require; that every legislative body, or branch of one, possesses an inherent right to protect itself, which must be exercised as their discretion directs, because it may frequently be necessary to exercise it immediately, when the public safety would make it impossible to wait for reference to other bodies, or tribunals," and, "that if a man was approaching to knock you down, it would be absurd, instead of defending yourself, to deliberate whether you were authorized to do so; that you must act instantly, as the occasion demands; and that as each individual in society possesses this inherent right to protect himself, so does each branch of the Legislature." This, as far I have been able to collect, is the sum of the reasoning on this subject; and it is said to be strengthened by the practice and proceedings of the British Parliament, and the Colonial Legislatures, before the Revolution, and most of the State Legislatures since, and is now universally received as the true doctrine on this subject.

That it is the doctrine and practice of the British Parliament, I will allow; but it was because the doctrines there held are utterly inadmissible in a free Government; and to prevent any influence from them, and their precedents, and the improper practice of the Colonial and State Legislatures, that this limitation of the privileges of Congress was here purposely introduced. Will any man undertake to say, that the privilege of the Parliament of Great Britain ought to be that of the Congress of this country? Do you suppose that all their members, and their property, and even their servants, should be protected from arrests during the whole time they are elected for, many of them for twenty years together, or during their lives? Would it be thought safe in this country that a small majority of a small body, or single branch of a Legislature, should claim and exercise the authority, whenever they please, to send and seize any man in your community, however important, and confine him in a loathsome dungeon, for six months together, merely because he has differed with them in politics, and criticised, as he had a right to do, on their legislative acts? Is it a pleasant sight to our citizens, to see sergeants-at-arms, with their rods, inquisitorially seizing freemen, and dragging them to your bar, and there exhibiting them as criminals, or spectacles to crowded audiences, merely because they thought they had a right to attack, by argument, proceedings which appeared to them unconstitutional? Can you have the most distant idea, that your constitution could have intended thus for ever to shut the door of inquiry, and make it so penal and dangerous to your citizens that none of them will dare to venture it? Is it possible for any man to read the constitution with attention, and then suppose that such could have been its design? So far from being so, I do assert that great pains were taken specially to guard against the exercise of any such power, and I have no doubt that the Congress of 1798 must have been of this opinion, or else why did they pass the 2d section of the sedition law? Why did they (improperly in my opinion, because it ought to belong to the State judicials)—why did they make the crime of writing, uttering, publishing, or printing any libel against the President, or either branch of Congress, triable, and punishable, in the federal courts, if either branch possessed this power themselves? If they have the right to punish libels, or false, or malicious attacks, why include them in this act? Their power extends over the whole of the Union, and can reach any inhabitant, in any State. Is it not therefore clear, that by giving this authority to the federal judges, to try and punish for written or printed attacks on either branch of Congress, that the Congress of 1798 did not suppose, for attacks of this kind, made in the papers, there was any other mode of punishment than by a trial, where the person charged would have the benefit of trial by jury? Surely this must have been their opinion, or they would not have had two different modes of trial and punishment for the same offence. They never would have erected a new jurisdiction to include a crime, when one sufficiently strong and energetic existed already; but to prove this still more clearly, let us inquire, why the constitution should have been so attentive to each branch of Congress, so jealous of their privileges, and have shown so little to the President of the United States in this respect. Why should the individual members of either branch, or either branch itself, have more privileges than him? He is himself, as far as his qualified negative goes, a branch of the Legislature; he is, besides, your Executive, he is the sword of the law, and does he possess any privileges like these? If a man meets him walking alone in the streets and insults him, or if one of ruffian manners should enter his house, and even abuse him there, has your President any privileges like these? Can he commit and imprison without a trial? No, sir, he must resort to the laws for satisfaction, where the person charged with the outrage will be heard, and where each party will have justice done them, by men who ought to be so impartially summoned as that no undue bias will be found, when they come to decide. No privilege of this kind was intended for your Executive, nor any except that which I have mentioned for your Legislature. The Convention which formed the constitution well knew that this was an important point, and no subject had been more abused than privilege. They therefore determined to set the example, in merely limiting privilege to what was necessary, and no more. Look into the constitutions of all the States which have been formed since the federal constitution, and see if they have not done the same. The Constitution of South Carolina is remarkably explicit and limited on this subject: It says, "that each House may punish by imprisonment, during its sitting, any person not a member, who shall be guilty of disrespect to the House, by any disorderly or contemptuous behavior in its presence, or who, during the time of its sitting, shall threaten harm to the body or estate of any member, for any thing said in either House; or who shall assault any of them therefor; or who shall assault or arrest any witness or other person, ordered to attend the House, in his going to or returning therefrom; or who shall rescue any person arrested by order of the House." These are all privileges, except privilege from arrest or seizure of estate, mentioned in that constitution; and the slightest inspection at once shows, that except for disrespect or contemptuous conduct, in its presence, or threatening or assaulting a member for his conduct in the House, that no other authority is given to punish—not a word is said about libels, or attacks by writing or printing, on their conduct. It is well known that our constitution intended the press to be free; to be the means of communicating the acts of the Government, and of commenting on them where necessary; that it supposes that majorities will sometimes exist, who may wish to overstep the boundaries they ought not to pass; and, therefore, it provides for them, in the hands of the people, this wholesome correction of the press, which those who resort to must use at their peril. If they use it properly, animadvert with propriety, and really point out defects or usurpations in the Government, the people will applaud their zeal, and the laws will support them in their exertions; but if they falsely or maliciously misrepresent, the law will become the avenger of the Government, and unprejudiced juries be the means of punishing calumniators. This is the true footing upon which legislative privilege should be put in every Government, and it is the one on which it is now placed in the United States. By this you give sufficient power to punish, for any improper thing done in their presence, which may disturb the order of either House, or violate the decorum of their proceedings; and for any supposed slanderous attack, the tenderness with which you ought to touch the constitutional right of the public to inquire into public affairs, and the delicate subject of trial by jury, will always necessarily oblige you to recur to the latter for redress and satisfaction.

If it was proper, on subjects like this, to refer to British precedents, I could mention a recent one, which is exactly in point; and shows, that even in the English House of Commons, the doctrine I contend for prevails; it is, that in all cases of libels against either House, the remedy must be by prosecution by the Attorney General, and trial by jury. In Stockdale's case, Doctor Logan published charges against the House of Commons, in which he stated, in a variety of ways, that they had been guilty of great cruelty to Mr. Hastings, Mr. Pitt and Mr. Fox, and all sides of the House agreed that it was a libel; but, instead of ordering him before the House, they entered into resolutions directing the Attorney General to prosecute. It appears to me so clear, that for all libels or attacks on either branch of the Legislature, in writing or in print, the mode must be by prosecution, that I do not know it is necessary to trouble you at this time with any further reasoning on that head; I will therefore only mention one more, and then conclude this part of my subject: it is, that from the nature of our Government, where our President is elective, and obliged to attend to public opinion, even if he wishes to do so, he will never venture on those bold measures, which hereditary Executives sometimes attempt. If, then, there should be some men, whose political talents he is afraid of, or whose inquiries into his administration give him uneasiness, an Executive, instead of venturing on any such measure himself, if he can obtain a majority in either branch, will easily discover some mode of having this man's political iniquities construed into breaches of privilege; and, under cover of his friends' influence, immure and silence, during a whole session, and for half a year, a man, whose arguments were perhaps unanswerable, and whose system may be the one which your councils may the next year adopt. I am far from supposing that we are yet so much advanced in the arts and intrigues of older Governments as to make this probable at present; it is not however impossible, and must be guarded against.

The next question is, that of the liberty of the press, as applying to these defined privileges; and as it is the first time this sacred subject has been before either House on a question of privilege, I shall expect your indulgence in making some remarks on it. I shall be very short; for however fruitful the subject is, yet so much has been said of it elsewhere, and you must be so well acquainted with it, that it will be necessary for me barely to state some general principles, as they apply to the question before you. I feel a pride in saying that in no country has the press ever been as free as in United America; however clouded or interrupted this freedom has, in my opinion, lately been, I entertain a hope that in a few months all its shackles will be removed, and that the emotions they have occasioned in the public mind will for ever forbid its being thus fettered again. To no subject have I ever more carefully applied, than what ought in a well regulated Government to be the freedom of the press. I well know that where the press is not free, liberty is but a name, and Government a mockery. I have therefore endeavored to form, in my own mind, what ought to be the true standard of the freedom of the press with us; and I have no doubt that it consists in this: That the printing press shall be free to every person who undertakes to examine the proceedings of the Legislature, or any branch of the Government, and no law shall ever be made to restrain the right thereof; that the free communication of thoughts and opinions is one of the most invaluable rights of man; and every citizen may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty; that in prosecutions for the publication of papers investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the Jury shall have a right to determine the law, and the fact, under the direction of the court, as in other cases. This is the situation in which the Constitution of Pennsylvania has placed the press; and it is the true and safe one, upon which it ought to be placed in every free Government. Here the right to investigate the conduct of the Legislature, and of official men, is not only recognized and established, but the constitution seems to require it as a duty, from the citizens. It says to them, these are men periodically delegated by you to manage your public concerns—to you, and you alone, they are accountable for their conduct; nor can you know whether it is meritorious, or otherwise, but by having the right to examine into it, and by freely and frequently exercising that right. And would it not be the strangest thing in the world, when the constitution not only establishes the right, but calls upon the citizens to exercise it with alertness, and by no means to neglect it, that if they should happen to displease a branch of the Legislature, whose conduct they have censured, that they should be delivered immediately into the power of this branch, to be dealt with as they please; that the men they had accused, and whom they had, by the constitution, a right to accuse, should become their judges? Would not this be a most extraordinary doctrine? Would it not involve an inconsistency, that ought not certainly to be chargeable upon the framers of the constitution? In private cases of slander, or defamation, would you suffer the person abused, or any near connection of his, or person interested in the event of the suit, to be on the jury? Certainly not. How much more glaringly improper then would it be, in cases of a public nature, where the acts of a legislative branch are censured, and where the charge has been openly and honorably brought forward, to commit the person who produced it, at once, to the power of the body whose acts he has condemned! Let us suppose, that in the exercise of this invaluable right, some disinterested and independent man, urged by the most honorable and patriotic motives, should conceive a branch of the Legislature overstepping the bounds of the constitution, and going into measures destructive of our rights, or injurious to our interests; that this man should be an important member of your community, of known integrity and independence of situation and character, that he should have no private ends of his own to answer, or any thing in view but the public good; that he has embarked in the investigation at the entreaty of a numerous and respectable part of the community, who wished the public mind to be so fairly and fully possessed of facts, and reasonings on them, as to be able, at the next election, to determine with precision and fairness on the conduct of their Legislature; under these circumstances would it be proper to deliver this man into the power of a body whom he has charged with misbehavior, or a departure from constitutional principles? Or would it not be more fair, would it not wear more the appearance of impartiality in case an examination was necessary into the nature of his charges, or the manner in which he has made them, and the expressions he has used, to have a distinct and unprejudiced body, a jury acting under oath, to decide between them? As far as I know any thing of the principles of natural justice, I should suppose there was no question on the subject, and no other opinion ought to be entertained, and that without it there can be no such liberty of the press, or freedom of inquiry, as the constitution intends.

And here, sir, let it be asked, why should a Government that means well, or is confident in its uprightness and ability, ever fear the press? It should be to them a source of great pleasure, in reflecting that they had so excellent a mode of diffusing a knowledge of their acts, well knowing, if they were unjustly attacked, it gave them the most ample means of defence; and that if it became immoderate and licentious, the laws were always sufficiently energetic to punish it. How many individuals when attacked or slandered, have rejoiced that such a defence has been afforded them; and how indispensable is its free investigation to the removal of doubts which sometimes crowd about the characters of public bodies, or men, and which it is necessary to remove! Public bodies are public property; and so indeed are public men; who have in any degree rendered themselves conspicuous by their exertions: few of these, if ever there was one, can expect to be without personal enemies; these will be in proportion to the talents of the man they dislike, and his consequence with the people. Men who engage in public life, or are members of legislative bodies, must expect to be exposed to anonymous, and sometimes avowed attacks, on their principles and opinions. Their best shield will be an upright and able conduct. The best informed will sometimes err; but when their intentions are pure, an enlightened nation will easily discover it, and pardon the mistake. With the shield of conscious rectitude, a Government can never dread the press. It is only in States where the happiness of the people is not the end of Government, or where an individual or a few possess the whole authority, that the press is not agreeable to them. Hence, in despotisms, it is generally odious to the sovereign, and strictly limited. We have, however, found, even among them, a latitude which proves that in the most despotic countries, where the sovereign is conscious of using his power for the good of the people, he fears not the slanders of the malicious. It is remarked of Frederic of Prussia, that few princes were more libelled by their subjects; but that in no country were libels more disregarded: that few, if any, instances ever occurred of his endeavoring to discover the authors, or to crush, by punishment, the spirit of inquiry which literary pursuits had diffused among his subjects. A more remarkable instance is, that of the Empress of Russia; in giving her directions respecting libels, she says, "great care ought to be taken how we extend this crime; representing to ourselves the danger of debasing the human mind by restraint and oppression, which can produce nothing but ignorance, and must cramp and depress the rising efforts of genius." I did not expect to have been obliged ever to have introduced on this floor, Frederic or the Empress, as examples on the subject of the press. The love of liberty, or a wish to countenance the spirit of political inquiry, was not certainly among the reasons for allowing this latitude; but they at once discovered, that if they wished to govern an enlightened people, the spirit of inquiry must be unshackled, and an extensive range given to literary productions. Among the ancients we find Tiberius, and Trajan, and Titus, allowing absolute liberty of speech and writing, suppressing the laws against seditious words and writings, and punishing informers. But the most remarkable instances we have, that freedom of speech and writing are essential to the liberty and greatness of a people, are those of Athens and Rome, when republics: in speaking of them, a celebrated writer says, "that democracy is the nurse of genius, and the greatest encourager of sublimity." The fact is evident from these republics. In Greece, Athens was most democratical, and a state of the greatest liberty; and hence it was, according to Paterculus, "that eloquence flourished in greater force and plenty in that city alone than in all Greece besides; insomuch, (says he,) although the bodies of the people were dispersed into other cities, yet you would think their souls and their genius to have been pent up within the precincts of Athens." So the city of Rome was not only the seat of liberty and empire, but of true wit and exalted genius. The Roman power outlived, it is true, for a considerable time, its liberty, but the freedom of speech and writing was gone, and wit and genius could not long survive them.

How applicable, sir, are these instances, and how incumbent on us is it, if we mean to keep this country a Republic, to cherish the freedom of the press, to remember that without it seldom any thing great or noble can be produced, that to shackle it is to chain the mind, and stifle the seeds of every thing that is generous and amiable! That, in the words of a celebrated divine, "reason and freedom are our own, and given to continue so; we are to use, but cannot resign them, without rebelling against Him who gave them; that to invade them is to encroach on the privileges we receive from God, and traverse the designs of Infinite Goodness." We should remember the danger of precedents, and be careful, as this is the first discussion we have had on this subject, not to establish improper ones, or lay a foundation for that debasement of the mind, which always follows the depression of the press.

It is important here to remind you of the anxiety of the State Legislatures in insisting upon the doors of the Senate being thrown open, and their legislative proceedings exposed, like the other branch, to public view. It was done unquestionably with the intent, that minutes of your debates should be taken, and all your proceedings subject to the inspection of such of our citizens as choose to attend; but as, from the distance, very few of the States could have citizens attending, the great object certainly must have been to have notes taken of the debates, and printed in the gazettes; that through that channel information may be transmitted to every part of the Union, and thus the States become, in the best manner they are able, judges of the talents, as well as conduct and opinions of their members. That this is of infinite importance, in a representative government, no man will deny; but if a printer is to be seized, and dragged to your bar, and perhaps imprisoned for a mistake, that a law has passed when it is only its second reading, or that a member of a committee was not summoned to attend the meeting of the committee, when he was, and did attend, or for any mistake of this kind, I ask you what printer or reporter will take your debates? Who will venture on it; because, where will you draw the line? Will you require that each reporter shall give every word and observation with exactness, and that the smallest deviation from what was said on the orders or proceedings of the House, shall subject him to the odium, and perhaps expense, of a trial at your bar, which must accrue if he has counsel? If this is the case, no reporter will certainly attempt to take your debates, and your doors may just as well be shut again. But, say gentlemen, it is not only for those assertions which you have mentioned, but for the preceding and accompanying observations respecting the views and proceedings of the Senate, and of the members of that body in their official capacity, for which we think this examination requisite. I have already said, in the commencement of my argument, that no man can justify the licentiousness of the press, and that it is perhaps to be lamented that so much invective is used in the papers on both sides of the question; but that as most of these observations are on things that did not happen in the Senate room, and many of them are stated to have occurred near two years ago, and that as much more violent abuse against the Senate was published in the Federal paper styled the Gazette of the United States, on the 13th day of February, and no notice has been taken of it, that it was best, upon this occasion, to suffer the present to pass unnoticed likewise: that it is astonishing the honorable mover from Connecticut, who seems to feel so much for the dignity and character of the Senate on this occasion, did not, on that of the abuse which was heaped on it for consenting to stop the enlistment for the army, have similar feelings; and that as he consented to suffer those animadversions to pass, it would certainly be doing no great violence to his feelings to deal with the present in the same way: that perhaps the best mode to lessen the importance of a paper was, not to treat its observations with either too much notice or severity; that in politics, as in religion, persecution seldom made converts; that if I ever had the inclination to raise the importance of a press, and bring it into celebrity and notice, I would wish it persecuted, for I never saw a press in a free Government persecuted but it rose immediately. Attack a press for its political publications, you instantly convince the people that it is dreaded, and must be of great importance, and attract their attention. We can never forget the memorable cases of Sacheveral and Wilkes, or how much the English nation was agitated by them, and we ought to be convinced, that in every country having the least semblance of freedom, the same consequences will always flow from the same measures.

I request of you again to consider the importance of the question, how far, in the case of libels, or attacks in the papers, for their political opinions, any single branch ought to possess the power, perhaps in a moment of passion and resentment, to decide on what is to affect the personal liberty of a citizen? Whether it is consistent with the nature of our Government, that a single branch, without check or control, should become judges in their own case? Whether any citizen charged with a crime, for which he may be punished by the temporary loss of liberty, is not entitled, by the constitution, to "a speedy trial by an impartial jury?" And, whether to deny it, in this instance, would not be to interfere with that provision of the constitution? For my own part, I have no doubt of it; and, feeling as I always do, most jealous for the character of this branch, I am apprehensive, should we proceed in this measure, it may occasion unpleasant observations. Some of its enemies may perhaps say, that no power is so arbitrary as that of the unlimited authority of a single branch, acting in its own cause, revenging its own affronts, and deciding, perhaps more by its own passions and feelings, than by the justice of the case: that a power of this kind is worse than a despotism; because there the despot is in some measure checked by his individual responsibility; for the act being the official act of the body, is that sort of protection under which an individual despot cannot shelter himself from the public odium—should the measure be oppressive, he must alone meet the general censure, which, thus concentrated, strikes with force; but when divided among a number, must in a great measure lose its effect. That, in every view of the subject, we must be convinced that for libels, or printed attacks, on either branch, the constitution must have intended to give the person charged the right of trial by a jury, so collected that a cool and unprejudiced examination might take place, and justice be done to all parties; that this I had shown to be the case, in the instance I had mentioned, in the House of Commons of Great Britain; and we surely would not wish the press should be more free, or the freedom of inquiry into legislative conduct, more unshackled in England than with us. Look, sir, into the abuse that is daily poured by the papers of that country upon their Parliament and Administration, and upon Mr. Pitt and Mr. Fox, and all their leading members; and yet we see no proceedings of this kind. Indeed, if we were to believe Montesquieu, and the writers since him, it is to the freedom of the press alone England owes the portion of liberty she enjoys—it is the ladder by which she rose, and that which she will struggle most to preserve. I devoutly hope she will always keep it, and that we shall likewise maintain it for ever in its utmost purity.

Mr. P. concluded by adding, that if the Senate went into a consideration of his motion, instead of that of the gentleman from Connecticut, (Mr. Tracy,) they would probably avoid that part of the discussion which would be least agreeable, as the subject would be clear from that locality and personality which attached to the first, and a decision would take place without any reference to this or that particular printer; but if the gentleman would postpone the question, Mr. P. consented to let his motion lie on the table, with a view to its being printed for the use of the members, that so both propositions might be compared and considered with more attention than could be done in any other way.

Mr. Cocke declared that the object which he had in view was nothing more nor less than to rid the House of the business altogether. He was not inclined to appoint any special time for the discussion, as the worthy gentleman from South Carolina (Mr. Pinckney) had requested. He had no idea that it was supposed he had the saving or exoneration of any printer in view; he had no such thing; but he wished to save the reputation of this body, which he thought was placed in jeopardy by the Connecticut motion. Here it is proposed to inquire and examine of and into this, that, and the other—to bring one printer here, and generally all persons and papers, who and whatever, just as your committee may think fit. Suppose this power is doubted? Suppose the persons deny your power—how are your committee to enforce their mandates? Suppose your courts of law claim cognizance as a case of libel, are you to have two prosecutions and two trials for the same offence? Surely, surely, your committee will have to retire from the untenable ground, and the defeat will recoil with disgrace upon those of us who attempt to assume powers neither constitutional in themselves, nor just, even if they were constitutional. You can call upon somebody—but who?—to inquire who is the editor of the Aurora. You are to inquire how he became possessed of a certain bill which he published; what kind of an inquiry is this? How he procured the sight of a bill, while it was pending in Senate. Why, is there any crime in printing a minute of our transactions? Your bills are printed by your own order, for your use, and for the information of the other House; two hundred copies or more are circulated without any injunction of secrecy; they are sent off into every State of the Union; and are you going to make inquiry how the editor of the Aurora got to see one of them? Why, are not your gallery doors open, and cannot a bill which has been read in public be possibly remembered, at least, cannot it be taken down in short-hand? and will you punish every man who shall repeat, print, or publish what is made public on this floor? Suppose the editor of the Aurora declines to inform your committee of the mode through which he obtains his information; he says it is convenient and useful to him, but his prior engagements do not permit him to divulge it to you; will you punish him for contempt? But suppose you possessed of the physical power necessary to procure the information you require by an application of the torture; while you are straining his muscles and dislocating his joints, what becomes of the grand palladium of American freedom? Where is the liberty of the press, which is secured to the citizens of the Union against Federal usurpation? The constitution declares that you shall not infringe upon the liberty of the press; and a power expressly denied to the whole Government, a single branch may not assume.

Here Mr. C. was called to order by

Mr. Bingham, of Pennsylvania, who inquired what the liberty of the press had to do on a question of postponement? He believed, while the motion for postponement was under consideration, all debate on the merits of the main question to be out of order.

It was contended to be in order to object on a postponement generally to the original motion, for an argument tending to defeat the original motion is reason for a general postponement.

Mr. Cocke proceeded, and said he was glad to find that the freedom of debate in this House was not to be destroyed, though it might be interrupted; and he hoped that the freedom of the press would never be subverted while the Government of the country rested upon the Republican principle of representation. He admitted there were a great many ill-natured things said by many of our American presses, but that should never induce him to run the risk of destroying the most valuable and effectual bulwark for maintaining us free and independent, by using an instrument more fit to cut down the trunk of a tree, than to prune it of its tendril luxuriances. What was the engine now brought out against this freedom—an engine possessed of all the powers necessary to ensure its success? A printer is to be charged, is to be tried, judged of, and executed, by a body he has offended. Where will you find men of nerve that will risk certain ruin? Such may arise when the press is in danger. It was under these impressions that he wished to get rid of the business altogether.

Mr. Tracy, of Connecticut, did not wish to press the business; indeed his conduct had manifested this intention, for the original motion had been suffered to lie on the table a longer term than usual before it was called up, but even now when it was called up he did not wish to hurry it through. He should not refuse a moderate delay, but he hoped the motion from Tennessee would not prevail, as it went to destroy the object without any further consideration. In answer to what fell from the gentleman from Tennessee, he would say, that the objections he had made did not all of them apply, and if there was any which did apply, amendments could be made so as to conform them to the sense of the Senate. He wished gentlemen would attend to the words of the resolution, and they would find that they did not carry them beyond what was prudent, mild, and proper. The committee are desired to inquire who is the editor of the Aurora; this will appear to be a proper inquiry, for the person is not publicly known; the imprint declares the paper to be published for the heirs of Benjamin Franklin Bache, but we do not know who are the heirs. The gentleman has told us it is no crime to publish the doings of this body; agreed, but is it nothing to publish untruths respecting the official conduct of the members of this body? is it no crime to publish a bill while before this House? But are printers at liberty to tell lies about our transactions? The Aurora says, that the bill which it published had passed the Senate; this every member knows to be contrary to the fact. The bill has not even to the present moment passed this body, it is still on your table liable to recommitment, amendment, or rejection. Asking the editor how he came to print this falsehood, does not go to examine into the private mode by which conveyance of intelligence is made to that office; there can be no real intelligence, it being a falsehood. But suppose we have no power over this editor, because the press is free; suppose we cannot punish him for his slander, calumny, and falsehood, perhaps the inquiry may lead us to discover some persons whom we can punish; will it be said that the constitution is an impediment in our way to punish one of our own members, if he should be found guilty of abusing the confidence of his situation? At least we can exercise the power of removing one of our officers, if we should convict him of a secret league to transmit intelligence which is confidentially intrusted to his care.

He did not mean to insinuate that any improper mode was used in conveying this intelligence; it might appear that the whole circumstance was a mere unintentional error; if so he should not go farther; but yet the printer could hardly have made the subsequent mistake in relation to the gentleman from South Carolina, in declaring that he had never been consulted by the committee on Mr. Ross's bill; there was something in this calculated to produce an effect upon the public mind. He insinuates that the business of the Senate is done in caucuses, into which the gentleman was not permitted to enter; for if he had, it is supposed he might have detected and defeated the mischiefs which are working against the public welfare. This is an abandoned slander, as is well known to every member of the House, for Mr. Pinckney did attend not one meeting only, as the editor of the Aurora squeezed out some days subsequent to his first licentious publication, but he did attend every meeting, as he has candidly and honorably avowed in his place.

The gentlemen had declared themselves the champions of the press; but surely gentlemen will not advocate such liberty as this—the liberty of publishing nothing but lies and falsehood. If by the liberty of the press is meant the publication of truth and just political information, it was proper to be supported; but he was desirous of maintaining, along with the liberty of the press, the liberty of the citizens, and the security of the Government; he was not for sacrificing these latter objects to the licentiousness of the press. He was not inclined to enter into a newspaper controversy to maintain the dignity and reputation of the Senate, nor did he think that gentlemen appreciated their own standing in society when they referred the individual members of this body to such a mode of defence against the shafts of calumny which a daring editor might hurl against them individually.

Mr. Bloodworth, of North Carolina, doubted the power of the Senate to take cognizance of the conduct of members in communicating with their constituents, much less to punish them for publishing circumstances respecting which no injunction of secrecy had been imposed. He, however, assured the Senate that he had not given the editor of the Aurora any information on the subject before them, or indeed on any other, for the editor was a stranger to him; nor did he know that he ever called, at that printing office more than once or twice in his life. He hoped that the business would be postponed for the present, and he should have no objection to its being taken up at a future day, when gentlemen might be better prepared to meet it.

Mr. Paine, of Vermont, declared himself against the postponement, nor did he think that the motion of Mr. Pinckney was so inconsistent with the motion before the House as to render a postponement necessary; he thought the committee might inquire, and although the gentleman would stop, by his proposition, from proceeding in case it turned out to be a fabrication of the editor of the Aurora, yet if it should be found not a fabrication of his, but that of a member or an officer of the House, it was admitted they might progress, without infringing the sacred liberty of the press. Suppose that some person in the gallery should have furnished the spurious matter—and that may possibly be the case—will the sacred liberty of the press be violated if we order the doorkeeper to turn him out, and refuse him access in future? He thought the resolutions might be amended so as to give greater satisfaction than they do at present; for his own part he was not willing to declare all at present which they contained. He thought the business would be simplified if the committee were directed to consider and report what measures would be proper to adopt in respect to a publication containing various untruths of the proceedings of the Senate, and if the question of postponement was lost he meant to move several amendments for that purpose.

Mr. Mason, of Virginia, had no objection to meet the question at the present moment, but he thought it of such importance, both to the Senate and the citizens of the United States, that it should be taken up and discussed in a solemn and serious manner; not hastily and lightly, as some gentlemen seemed to think who were opposed to the postponement for a few days; if, however, the opposition to the postponement was persisted in, he had no doubt but the subject would prove itself well worth a discussion of several days, and that the ultimate decision would not be made till a period more remote than that moved for by his friend from South Carolina. He therefore recommended to gentlemen to explore well the ground which the motion of the gentleman from Connecticut had taken, and consider seriously of the consequences to which they would be led in pursuing their object. What was to be the course of their proceeding? What were the embarrassments likely to arise therein? He called the House to view the delicacy of the situation in which they would be involved while defining their newly discovered privileges and subverting the old acknowledged privileges of the liberty of the press; he said the delicacy of their situation, because he considered it a delicate one, for he was far from believing that the privileges of the Senate were as unlimited as the gentleman from Connecticut contended they were; if so, and they proceed to touch the liberty of the press, which they may discover in the end to be secured against the invasion, they will be compelled to retrace every step they are now taking, which will neither redound to their honor nor discernment. They should be careful how they expose themselves to popular scrutiny in cases respecting their own power, for the public mind had been already considerably agitated, at what many conceived to be an unconstitutional exercise of power. If, session after session, attempts were made to fetter the freedom of the press, the people of the United States would watch with anxious regard every movement of this body. A measure which originated in the Senate, and was subsequently acceded to by the other branch of the Legislature, had been just ground of alarm. It is no wonder that they watch our bills as well as our laws, for it must be recollected by many of the gentlemen who hear me, that the bill called the Sedition Bill was first introduced here, and that, instead of being what it afterwards became, it was a bill more particularly to define treason and sedition. The good sense of the House, during the time it was upon the table and undergoing a political dissection, cut off from it many of those monstrous excrescences which at first disfigured it, and at last trimmed it into a shapely form; but after all it was removed below stairs in a condition not fit to meet the eye of our constituents—even obliged to undergo a decapitation; the head or the title of it was struck off, and instead of being a bill defining treason—which is a thing totally out of our power, the constitution having declared in what alone treason should consist—instead of being denominated a bill against sedition, it took the obnoxious head of being a bill to amend the law for punishing certain crimes against the United States.

Mr. Anderson, of Tennessee, did not rise with an intention of entering into the merits of the general question, as to the extent of the privileges of the Senate, which he conceived to be of great moment, but merely to remark, as gentlemen alleged that the public mind was already agitated on the subject, the postponement would tend to increase the degree of agitation, which he conceived it was the wish of gentlemen on both sides to have allayed as soon as possible. He therefore concluded that it would be better to go on with the business and come as soon as possible to a decision. One gentleman had said it ought to go to the judicial courts, and that the Attorney General should be directed to prosecute: well, then, that gentleman should give his consent to send the business to a committee, in order to inquire whether the case would warrant this interference.

Mr. Read, of South Carolina, would not oppose the motion of his honorable colleague for a postponement, if he had required it on his own account, or if its being negatived would prevent him from bringing forward the preamble and resolution he had read in his place, and at a proper time of having them discussed; but neither of these circumstances were urged; therefore, as his colleague neither required time for preparation nor would be prevented from offering and supporting the intended amendment, he should vote against the postponement.

Mr. Dayton had the highest confidence in the honor of the gentleman from South Carolina, (Mr. Pinckney,) and he never suffered himself to doubt of the truth of the declaration which had been made. He thought the resolutions might be varied so as to get rid of the idea which the gentleman objected to, in respect to the motion having been brought forward at his instance; and might be amended as suggested by the gentleman from Vermont, (Mr. Paine,) so as to reconcile it still more to the sentiments of the Senate. This being his view of the subject, he wished the business to proceed, and should therefore vote against the postponement.

The question on postponing till Tuesday next, was now put, and the yeas and nays being called, stood yeas 9, nays 19, as follows:

Yeas.—Messrs. Baldwin, Bloodworth, Brown, Cocke, Franklin, Langdon, Mason, Nicholas, and Pinckney.

Nays.—Messrs. Anderson, Bingham, Chipman, Dayton, Foster, Goodhue, Greene, Gunn, Hillhouse, Laurance, Livermore, Lloyd, Paine, Read, Ross, Schureman, Tracy, Watson and Wells.

So the motion was lost.

Mr. Nicholas, of Virginia, wished to ask for information. Was it intended by this resolution to charge the committee with inquiring into a breach of privilege as it respected the majority of this body? For the resolution itself furnished no correct idea on this point. He wished also to know whether it was intended that the Senate should declare that the publication was a breach of privilege?

Mr. Tracy, of Connecticut, said that if the gentleman wished for information from him, he would endeavor to give it. He conceived it would be better to pursue the mode of inquiry in the first instance, through the intervention of a committee, and not make at once a decision whether the publication was or was not a breach of privilege; and further, that the committee should report to the Senate what other matters were the proper subjects for the Senate's inquiry. He would not undertake to say at this time whether there was a breach of privilege at all, or whether that breach was in respect to a majority of the House, or of the privilege of a single member.

Mr. Marshall, of Kentucky, was of opinion that if the subject itself was a proper one to be inquired into, then the mode was well devised, and one liable to few or no objections; but there was another circumstance to which he begged permission to call the attention of the Senate. He observed that the resolution pointed only to one object, and that was the publications in the Aurora; he did not think this went far enough, if it was intended to be any thing more than a party manœuvre. If gentlemen meant to defend the honor of this body, they should avoid any thing like partiality, and direct their inquiry to all breaches of privilege, by publications in newspapers, let their publishers be whom they might. Believing that the gentlemen were serious in the present undertaking, he wished them to give it the appearance of impartiality without which it would reflect disgrace on their proceedings. Gentlemen have complained of the slander and calumny thrown upon them by the publications in the Aurora, but, however detestable they might be, he held in his hand one still more vile and flagrant. He would read it, and then move to amend the resolution before the House by adding that the committee be directed to inquire who is the editor of the United States Gazette, and by what authority he published in that paper the following paragraphs.

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

Yeas.—Messrs. Anderson, Baldwin, Bloodworth, Cocke, Franklin, Langdon, Lloyd, Marshall, Mason, Nicholas, and Pinckney.

Nays.—Messrs. Bingham, Chipman, Dayton, Foster, Greene, Gunn, Hillhouse, Laurance, Livermore, Paine, Read, Ross, Schureman, Tracy, Watson, and Wells.

The Judiciary.

Agreeably to notice given yesterday, Mr. Pinckney had leave to bring in a bill to amend the act entitled "An act to establish the Judicial Courts of the United States"; which was read and ordered to the second reading.

On introducing the above bill Mr. Pinckney addressed the chair as follows:

Mr. President: When I first had the honor of addressing you on this subject it appeared to me necessary to move an amendment to the constitution; on reflection, however, I am since convinced that the more regular and expeditious mode would be to move an amendment to the law establishing the Judicial Courts of the United States—by this means the law may be passed during the present session, and we shall the more readily obtain the limitation we contend for.

As the Judiciary is among the most important departments in our Government, as it reaches every situation in society—neither the rich, the honored, nor the humble, being without its influence or above its control—as it is the department to which not only the lives and fortunes, but the characters of our citizens are peculiarly intrusted, it becomes us to be extremely careful that the Judges should not only be able and honest men, but independent in their situation. Our constitution has in some degree secured their independence by giving them permanent salaries, and rendering them ineligible to the Legislature; but in vain will we consider them independent, in vain may we suppose their opinion beyond the control or interference of the Executive, until we have determined it shall not be in his power to give them additional offices and emoluments, while Judges; until, in short, we confine them wholly to their duties as Judges, and teach them to believe that in the execution of the laws they should consider themselves as little obliged to please the President, or to fear his disapprobation, as that of any other man in the Government. This can only be done by preventing them accepting other offices, while they continue as Judges, and thus depriving him of the power of heaping upon them additional favors and emoluments.

It is an established maxim, and I hope will for ever remain so, that the Legislature and Judiciary should be as distinct as the nature of our Government will admit; that is, that the same men shall not, in a deliberative capacity, agree to measures which they shall afterwards have a right to explain and decide upon in a judicial one. The reason is obvious; that the Judges should, in a calm and unprejudiced manner, explain what the law literally is, and not what it ought to be; that they should not be allowed to carry upon the bench those passions and prejudices which too frequently prevail in the adoption and formation of legislative acts and treaties, and which never fail to give an irresistible bias to the opinions of a Judge who has been concerned in making them. The truth of this reasoning is now so generally conceded, that there is not a man who knows any thing of government that will attempt to controvert it; the constitutions of all the States have sanctioned it, and if the opinions of the Federal Convention ought to have weight, they so strongly insisted upon it as even to refuse, after repeated trials, associating the Judges with the President in the exercise of his revisionary power; indeed a gentleman high in office, and who held both situations at the same time as Judge and Envoy, is himself decidedly of this opinion, for in his charge to the Eastern juries he has these expressions:

"Wise and virtuous men have thought and reasoned very differently respecting Government; but in this they have at length very unanimously agreed, viz: "that its powers should be divided into three distinct independent departments, the Executive, Legislative, and Judicial. But how to constitute and balance them so as best to guard against abuse and fluctuation, and preserve the constitution from encroachments, are points on which there continues to be a great diversity of opinions, and on which we all have as yet much to learn. The Constitution of the United States has therefore instituted these departments, and much pains have been taken so to form and define them, as that they may operate as checks one upon the other, and keep each within its proper limits: it being universally agreed to be of the last importance to a free people, that those who are vested with Legislative, Executive, and Judicial powers should rest satisfied with their respective portions of power; and neither encroach on the provinces of each other, nor suffer themselves or the others to intermeddle with the rights reserved by the constitution to the people.""

If, then, there can be no doubt of its propriety when applied to a Judge, in ordinary cases, how much more forcibly does it apply to an Envoy who concludes a treaty, which when ratified is to become the supreme law of the land; how strongly must the negotiation of so important and in many instances so difficult a business, be impressed on his mind! He will no doubt retain the journals of his proceedings and opinions, and perfectly recollect the progress and termination of every proposal which was compromised or rejected. It must be difficult for him to forget the attempts to which ministers are sometimes liable in condescending where their object is honorable; he will remember what his opinions were upon particular points; and, whether they were successful or not, his general character may be that of not very easily yielding them. In short, it is impossible for him to be that cool and unbiased interpreter of the treaty which he otherwise might have been, had he not been concerned in concluding it.

The constitution contemplates an independent Judiciary. The public, therefore, will expect and have a right to demand, upon a questions, a fair and impartial trial by Judges, whose minds are open to conviction, and unprejudiced by party opinions; by men who have not been concerned in forming a law or treaty, but who are totally unfettered by the recollection of what passed at the negotiation, or what might have been wished or expected by either party, as judges, candidly and impartially to determine upon every question that may come before them.

These reasons are certainly sufficient to convince any one that this provision is necessary to the independence of the Judges, and the pure and unbiased exposition of the laws: that unless it is done, their independence is a visionary and unfounded thing. That if the President can hold out to the Judges the temptation of being Envoys, or of giving them other offices, and that he still can continue them as Judges, that on any question in which the President or his friends, or the Government may be concerned, it might have a tendency to influence them in opinion; that it was not frequently to be expected they would be unmindful from whom they received the present appointments, or so entirely indifferent to their own, or the advancement of their families as not sometimes to recollect that from the same source other and greater emoluments might in future be derived; that ingratitude was not often the vice of public officers while their patron continued in power; that on subjects where his character, his feelings, or the public opinion of his acts were in question, our Judges might reasonably be expected not to be charged with apathy or inattention; and that the true way to assert the dignity of the President and the honor and independence of the Judges, was to place it out of the power of the one to offer, and the other to accept additional favors.

That a Judge ought never to be absent from the United States, or be drawn from his official situation and leave an undue proportion of its duties to be performed by the remainder of the bench; that the number of Judges were exactly proportioned to the duties they were to perform; that to withdraw one and be incapable of supplying the vacancy, was not only to require the inexecution of the laws in some parts of the Union, but to invidiously harass the other, while a favorite or possibly too complying a Judge was sent to gratify his curiosity or indulge his taste on some agreeable or easy mission.

That no man ought to hold two offices under the same Government, particularly where they were important; that most of the States had regulations to prevent this, and that nothing more contributed to the extravagance of a Government or the corruption and immorality of its citizens, than the power to heap many lucrative and perhaps useless offices on the same person; that it had a tendency to make them servile, to render them the tools and sycophants of men in power, and to degrade the character of office.

That in case of the impeachment of the President of the United States, the Chief Justice was to preside, and there was no provision in the constitution to supply the vacancy; therefore, if an impeachment was to take place in his absence, it must remain undecided until the Chief Justice could be sent for; that this, if recollected by the Executive, should of itself have been an insuperable objection—in point of propriety, it always is so, but in point of delicacy it ought most strongly to have been so, because, here the President, is the officer, and indeed the only one, who is implicated in the possibility of its inconvenience arising from absence of the Chief Justice. It is true it is to be presumed that the man who is elected by his countrymen to administer the important office of President, will be always so wise and virtuous as to make it very unlikely an impeachment of him should take place—the thing, however, is possible. In times of difficulty where opinions run high, and where those opinions are strongly divided between numerous and powerful parties, it is impossible to foretell what may happen. No man is said to be wise at all times, and our own experience and intercourse with the world must convince us that there are moments of enthusiasm, or of heat, or surprise, when the most cautious men are not quite so prudent as others. I will therefore ask, and do it with great deference, as the President is the only officer on whose trial the Chief Justice is to preside, or on whose impeachment his absence would be a public inconvenience, is it not perhaps presuming too far on his own infallibility or incapacity to err, to send the only officer to a distant country, without whose presence, in case of an impeachment, a court could not be formed to try him? I ask it with deference, and am sure these observations must have escaped the Executive, or the Chief Justice never would have been sent.

To evince the absolute necessity of some provision being made, it is to be observed that, as the law stands now, a Judge might not only accept any other appointment from the Executive of the Union, but he may accept them from the individual States, or, what is still more dangerous, from a foreign power, and thus become the minion of the one or the tool of the other, as circumstances or his own interest may prompt him. Few men will deny the necessity of some provision here, and that the present is an unwise and degrading situation for a national Judiciary. Most of the States have carefully guarded their tribunals against a danger of this kind. The State of South Carolina, to which I belong, is remarkably express on this subject. Aware of the necessity of an independent judiciary, her constitution, in speaking of that department, has these words: "nor shall the Judges, hold any other office of profit or trust under this State, the United States, or any other power," a prohibition not more complete or full than ought to exist in the case of the Federal Judges.

A strange doctrine has lately been circulated, which it is my duty to remark on—it is, that this bill is to be considered as a reflection on the President for nominating a Chief Justice, and the Senate for having confirmed it, and that the Senate, by agreeing to it, will join in the censure.[46] Being always ready to approve, and to praise what is meritorious, it is with great reluctance I can ever be brought to censure—I have no such intention at present. I can readily believe that many of the inconveniences I have mentioned may have escaped the President in the recent nomination. It is here I have always disliked it. I believe the general sentiment to be against it; but, be that as it may, no such reason ought ever to have weight in this House. If the thing is right, if it is now considered as proper for us to say, that the Judges must stay at home, and be confined to their judicial duties, and hold no other offices while Judges, we should do it, and not consider whether it is pleasing or otherwise to the President; he must understand public business too well to consider it in the nature of a reflection. We every day alter existing laws and regulations, without considering such changes as reflections on a preceding Legislature or President, and I should be sorry to suppose, that, while a bill was under discussion, the fear of displeasing the Executive should ever be used as a reason for its rejection. He has always a right to give his opinion in the exercise of his revisionary authority, and when he does, we will deliberately and respectfully attend to it. One remark more, and I shall no longer trespass on the patience of the House: it is, that a reason has been given for leaving the President at liberty to send a Judge on any delicate or difficult mission, which I do not conceive reputable either to the political or literary character of our country—it is said the Judges may be the most able and qualified men the President can find, and that being prevented from sending one of them, he may sometimes be obliged to send inferior and less important characters, and that the public interest might suffer. How far the present or any former supreme bench may justify the observation it is not for us to say, but never will I suppose that among a people so numerous and enlightened, so alive to their country's welfare, and hundreds, perhaps thousands of whom are so devoted to public business, can only six men be found capable of discharging any political duties that Government might require; the idea is too degrading to our national character to be entertained for a moment. For these reasons I have thought it my duty to introduce this bill, and I trust it will pass and become a law.