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.
ADDRESSING OUT FEDERAL JUDGES.
Mr. J. Randolph observed that some time had elapsed since he gave notice that he should call up his resolution for amending the Constitution of the United States. The state of his health had not admitted of his taking his seat before this day. He therefore availed himself of the first opportunity to move that the House should resolve itself into a Committee of the Whole on the state of the Union, with the view of taking that resolution into consideration.
Mr. Masters moved a postponement.
The Speaker said there could be no postponement of a subject referred to a Committee of the Whole on the state of the Union, as it was in order every day to take up business so referred.
Mr. J. Randolph said, if gentlemen were unprepared, he had no objection to waive his call until to-morrow.
The Speaker remarked that there could be no debate on the priority of business.
Mr. Conrad moved to discharge the Committee of the Whole from the further consideration of the resolution. He said he would briefly assign his reasons for this motion. The session had progressed and the season was fast approaching when every man of agricultural pursuits would be anxious to attend to them, unless detained by important business. He did not believe the proposed amendment to the constitution so important as to require immediate attention. He hoped, therefore, that it would be postponed until the next session, and that the way would thereby be paved for transacting the important national business that claimed their earliest attention.
The Speaker said the first question was on the House resolving itself into a Committee of the Whole.
The question was taken on this motion, and carried—yeas 61.
Mr. Gregg was called to the Chair, and the resolution having been read, as follows:
Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, That the following article be submitted to the Legislatures of the several States, which, when ratified and confirmed by the Legislatures of three-fourths of the said States, shall be valid and binding as a part of the Constitution of the United States:
The Judges of the Supreme and all other Courts of the United States shall be removed from office by the President, on the joint address of both Houses of Congress requesting the same.
The committee divided on agreeing to it, without debate—yeas 51, nays 55.
The committee then rose, and reported their disagreement to the resolution.
The House having agreed to consider the report,
Mr. J. Randolph called for the taking the yeas and nays on the question of concurrence.
Mr. Clark moved a postponement of the consideration of the report to the third Monday of March, merely with the view of making it give place to more important business, which he said must be attended to. He said he had voted against the resolution, not because he was inimical to the principle involved in it. With a small modification, he should be in favor of it; and he hoped the period was not distant when, with such a modification, it would become a part of the constitution.
Mr. J. Randolph hoped a postponement to so distant a day would not prevail. He was himself desirous that it should be postponed for a few days, in order to give notice to the House, that there might be a full vote on what he considered a most important measure. He appeared in this instance, as in many others, to be in a state of profound error. The amendment, or deterioration of the constitution, he had always considered to be a point of the greatest importance. But now, judging by the opinions of gentlemen, it seemed to be of lesser importance than the laying a duty of one or two per cent., to continue but for two or three years. It has, said Mr. R., been a subject of extreme concern to me, though not myself able to attend to the public business, to find, on inquiring daily of my colleagues, that the House has refused to do any business, because on a future day they expected some important business to come before them. I understand that a very important resolution of a gentleman from Pennsylvania, on a business so generally denominated the Yazoo as to require no other name, was postponed on the same ground that my colleague now wishes the resolution under consideration postponed. If there is such important business to transact, in God’s name, why not progress in it? But notwithstanding this immensely important business, which serves as an excuse for doing nothing, we make no progress in it, if by it I am to understand the state of our foreign relations. I have no wish, nor do I intend to allude to any thing which passed while we were sitting in conclave. But I did hope, when one or two members, who were represented as the only hindrances to the despatch of business, were withdrawn from the House for one or two weeks, every thing would have been completed. I expected the adoption of very different measures towards Great Britain. Instead of this, I find nothing done. And now, when an amendment to the constitution is brought forward, which is allowed to be very important, and when the resolution of the gentleman from Pennsylvania is called up, we are told by gentlemen, we cannot attend to these subjects; there is important business which we expect to have at some future day before us, and therefore we are determined in the interim to do nothing.
One word as to the remark of the gentleman on my left, (Mr. Conrad.) He belongs to a class of men which I highly respect, for the plain reason that I belong to it myself. He says, the time is approaching when every man engaged in agricultural pursuits must be anxious to go home, and therefore he does not wish at present to act on the resolution I have laid on your table. True; but when men, be they agricultural, mechanical, or of any other profession, undertake any business, it is their duty to go through with it at every hazard. I do not know a man in the House who has suffered more than the individual who now addresses you by his attendance here, and if I could have found an apology in my own mind, I should long since have been gone. If the situation of affairs warranted it, I should be willing to adjourn for two or three months. But I never can agree to adjourn in the present perilous state of affairs, and leave the country to a blind and fortuitous destiny. I must first see something like land, some foot-hold, something like certainty, instead of a political chaos, without form or body. Before I consent to go home, I must see something like a safe and honorable issue to our differences with foreign powers; and I must see, I hope, another thing—something like an attempt to bring the constitution of this people back to the principles on which this Administration came into power.[33] I take this proposition, and that of the gentleman from Maryland, (Mr. Nicholson,) to be two important means of bringing that Administration back to those principles. My friend from Virginia says, he expects, at a future period, to obtain this reform. I fear, if delay be permitted, that we shall get into the situation of another deliberative assembly, of which every member agrees that reform is necessary, but that the present is not the accepted time. I am afraid that we are in this situation already. I believe it, because I see it. It is a most fortunate circumstance that we made hay while the sun shone; that we got in the harvest at the first session of the seventh Congress; that we did away the midnight judiciary and the internal taxes. If those institutions were now standing, I believe they would be as impregnable as any part of the system around which gentlemen affect to rally. I believe it, because I believe appointments would have their effect. Yes, it is but too true, that patriots, in opposition, are as apt to become courtiers in power, as courtiers in power are fond of becoming patriots in opposition. So far, then, from wishing to postpone this measure, I believe that delay will only serve to enhance the difficulty of obtaining it. It is a maxim laid down by every man that has written on national policy, that those abuses which are left untouched in the period of a revolution, are sanctified by time, and remain as the nest-eggs of future corruption, until they compel a nation, either to sweep them away, or to sink beneath them. This, without any exception, is the history of all corruptions; and those corruptions and abuses not reformed at the first session of the seventh Congress, what has become of them? Have they been suffered to sleep? If they have, is it not to be apprehended that they will rise refreshed from their slumbers with gigantic strength? Fortunate it was that, at the first session of the seventh Congress the midnight judiciary and the internal taxes were done away; and it would likewise have been fortunate, if another measure had been attended to at the same time. It would have been, in my firm persuasion, very different in its issue from that which it has been. If the great culprit, whose judicial crimes or incapacity had called for legislative punishment under the constitution, and which have given rise to the motion now before us, had been accused at the first session of the seventh Congress, that accusation would have had a very different issue. And why? Because it is perfectly immaterial what a man’s crimes are—every day that elapses between their commission and the time he is called to answer, lessens the detestation and horror felt for them, and, of course, enhances the value of his chance of an escape from punishment. I am persuaded that, in the remarks I have offered, I have been hurried into some observations that do not strictly belong to it. Yet these remarks furnish a sound reason for not deferring the proposition until the time moved by my colleague. I hope, therefore, the House will reject the postponement until the third Monday of March, and that a postponement will take place to some time when the House shall be fuller, when a decision can be made after mature reflection. For, truly, as to the provision under the constitution, can any man be so mad or foolish as to think of again trying it? I consider the decision of the last session as having established this principle—that an officer of the United States may act in as corrupt a manner as he pleases, without there being any constitutional provision to call him to an account.
Mr. Gregg.—I feel but little concerned as to the fate of this motion. I am ready at any time to give my vote on the resolution. As it now stands, I shall vote against it; but modified, as I have seen it in the hands of a gentleman from Virginia, I shall vote for it. But my principal reason for rising, is to say that a great part of the censure cast on the House by the gentleman from Virginia for not meeting the national business, is proper and applicable; and I regret that it is so. But if the gentleman reflects on the subject, he will acknowledge that a great part of the delay which has occurred, attaches to himself. I, four weeks ago, submitted a resolution to the House on some points of dispute between one of the belligerent nations and the United States; I was anxious that it should be taken up and promptly decided, one way or another. The gentleman from Virginia then called for certain statements from the Treasury, which he considered as having a bearing on the subject. Under that impression the consideration of the resolution was deferred from day to day; and the statements have not yet been received. I stated, at the time, that these statements could have no influence on my vote; but other gentlemen said, they would influence theirs. I regret that we have not been able to go on with this business. I do not know how long we are to be kept in this paralytic state. If the gentleman who has called for the statements, and other gentlemen will agree, I am prepared at once to go into an examination of the subject. But, as the gentleman from Virginia was the first to embark the House in this call, I hope he will take a part of the censure to himself.
Mr. Smilie.—I am sorry the motion of postponement has been made. I do not know any other time better than the present for the discussion of this subject. It is a subject of the last importance to the peace and happiness of the United States. I am a friend to an amendment of the constitution relative to the Judiciary Department. Whether that offered is the best that can be made, or whether it is going too far, I cannot determine until the subject shall have been investigated in this House. For my part, I am so sensible that that part of the constitution which relates to the power of impeachment is a nullity, that I see the utmost necessity for an amendment. From what we have seen, I do religiously believe that we cannot convict any man on an impeachment. The resolution before you goes to place the Judges of the United States on the same independent footing with those of Great Britain. Whether our situation requires that they should stand upon higher ground, is a proper subject for discussion. I am rather inclined to think they ought not.[34] It is contended, it is true, that, as they have, according to the opinion of some gentlemen, the right of sitting in judgment on our laws, they ought to be placed beyond the reach of a majority of Congress. This subject must, at some time or other, be considered, and some amendment in the constitution must take place. When the delays and various vexations, attendant on an impeachment, are considered, it will be evident that they will generally discourage the House from taking this step; and when it is likewise considered that a conviction can only take place on the votes of two-thirds of the Senate, let gentlemen say whether there is any chance of making the constitutional provision effectual. I despair of it. With regard to the particular modification which may be given to this resolution, that is another thing. I sincerely wish the House would take it up and consider it without any great delay.
Mr. Clark.—I hope my colleague will do me the justice to believe that I have not made this motion from hostility to his resolution. With a small modification, I am decidedly for it. I assure him it did not require the remarks he has made to-day, to show the insufficiency of the present system. Of that I had satisfactory proof the last year. But I doubt whether the resolution, in its present state, is correct. I do hope that my colleague will give it a little more consideration, and I assure him I shall be happy to harmonize with him. In the decision by a mere majority, the scales of justice are so near an equilibrium, that it is doubtful often to which side justice inclines. I, therefore, think there ought to be some modification of the principle contained in the resolution. But I principally wish the postponement to prevail, that the House may act on resolutions which I conceive all-important to the whole country, and peculiarly so to that part of the community represented by my colleague and myself. Every day’s delay increases the difficulty and urges on the ruin that menaces them. It is well known that there is not the best harmony between the merchants and planters. It is at all times the interest of the former to buy produce as cheap as they can, and never was there a better scheme for speculation to them than that furnished by the resolutions on our table. How easy it is for them to convince the planter that there will be a suppression of intercourse, and that his produce will be soon worth nothing. These are the effects that I wish to prevent. My colleague will do me the justice to believe that I have had no hand in the procrastination. I have offered no project. With regard to the proposed amendment to the constitution, I repeat it, I am in favor of it, with a small modification. Nor do I wish it postponed for any great length of time. I have no idea of leaving that to be done by our children which we ought to do ourselves.
Mr. Findlay said he was against the indefinite postponement of the subject, though in favor of its being postponed a short time. He thought it was a subject which ought to be fully investigated. He was decidedly in favor of the object of the resolution, but in a different form.
Mr. Conrad was in favor of the indefinite postponement of the resolution. He did not think the subject ought to be acted upon at this session. He was not unfriendly to the principle, but he never could consent that a bare majority of Congress should have the power to remove a judge. If the amendment was so framed as to give the President a discretionary power to remove a judge on the address of a majority of the two Houses, and to make the removal imperative on the vote of two-thirds, he might be for it. At any rate he thought it best to postpone the subject until the next session.
Mr. J. Randolph.—I am as anxious as any man for a decision of the question implicated in several of the resolutions laid on our table, and for a good reason. My tobacco is unsold. I feel the full force of the observations of my colleague. I know that these resolutions have already given rise to much nefarious speculation. When I called for information, I had no idea of the time it would take to get it; and had I been apprised of it, I do not know whether I should not have preferred acting in the dark to waiting for it.
There is another reason why I wish this subject (amendment to the constitution) taken up at this session. When I offered this resolution at the last session, it was said to be too near the close of the session to act upon it—this was acknowledged. But, it was said, print it and let it go abroad. This has been done. But the reason for which I wish it acted upon this session is, that the elections intervene between this and the next session. Gentlemen may say what they please of the principle of quamdiu bene se gesserit, but I believe if the members of this House held their seats for seven years, their conduct would not be the same as it is under the present tenure. I wish to recur to that good old principle that sends the Representative back to render an account of his actions to his constituents. After the next election gentlemen will obtain credit for two years more of good behavior. I believe my friend from Virginia will allow this to be a good reason against a postponement.
As gentlemen have stated the substance of the resolution as a reason for its postponement, I will state its substance as a reason for not postponing it. One gentleman says he will not consent that the judges shall hold their offices subject to the will of a bare majority of the two Houses. But does not every thing of importance depend on that majority? Do they not appropriate millions? Do they not hold the purse and the sword? Or do gentlemen think the woolsack more important? This is most indubitably the case; and I wish to hear any reasoning against giving efficiency to the will of a majority that does not approximate the doctrine of the Polish veto. There can be no reason for this distinction. And, so far from there being danger of this power being abused, the experience of all Governments holds me out in saying that there is greater danger that the power will not be exercised than that it will be abused. For this plain reason: it would require some overt act of notorious misconduct, or an equally notorious imbecility of mind or body, to justify any man in giving such a vote. It is a point of extreme delicacy to give it; and though some men might, I trust a majority of both branches never would give such a vote for light and frivolous reasons. But it may be thought that, as in all free Governments there are parties, a triumphant party would turn out the judges to get into their places. This would be a most humiliating effect. But on what is the probability of such an effect founded? How are the turners out to be turned in? Have they the power to appoint themselves to office? No. And from our experience heretofore, no such inference can be drawn. There is no probability of one triumphant faction putting down another to get their offices. Because a triumphant faction could not rise to power but at the will of a majority; and although they might take offices away from others, they could not bestow them upon themselves. But suppose they did? It would be for the first and last time. It would be a struggle between office-hunters and the people; and I believe all the experience we have heretofore had shows that this description of men are too prone to union for the public to sustain either profit or loss from their divisions. But if in this opinion I am in error, I would recur back to my first principle to support me. Is the power to remove a judge more important than the power of declaring war, of laying taxes, and of effecting various other national objects? This is a doctrine to me totally unintelligible.
Mr. Smilie observed that he regretted that the motion for an indefinite postponement had been made, as it was equivalent to a rejection of the resolution.
The question was then taken, by yeas and nays, on an indefinite postponement, and passed in the negative—yeas 42, nays 81, as follows:
Yeas.—Willis Alston, jun., Barnabas Bidwell, Phanuel Bishop, James M. Broom, Martin Chittenden, Frederick Conrad, Orchard Cook, Richard Cutts, Samuel W. Dana, Ezra Darby, John Davenport, jun., Peter Early, Caleb Ellis, Ebenezer Elmer, William Ely, James Fisk, Seth Hastings, William Helms, David Hough, Joseph Levis, jun., Henry W. Livingston, Josiah Masters, Jonathan O. Mosely, Gurdon S. Mumford, Jeremiah Nelson, Timothy Pitkin, jun., John Pugh, Josiah Quincy, Martin G. Schuneman, John Cotton Smith, William Stedman, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge, Samuel Tenney, Thomas W. Thompson, Killian K. Van Rensselaer, Joseph B. Varnum, Daniel C. Verplanck, Peleg Wadsworth, Eliphalet Wickes, and Nathan Williams.
Nays.—Evan Alexander, Isaac Anderson, David Bard, Joseph Barker, Burwell Bassett, George M. Bedinger, William Blackledge, John Blake, jun., Thomas Blount, Robert Brown, John Boyle, William Butler, George W. Campbell, John Campbell, Levi Casey, John Chandler, John Claiborne, Christopher Clark, Joseph Clay, Matthew Clay, George Clinton, jun., Jacob Crowninshield, John Dawson, William Dickson, Elias Earle, James Elliot, John W. Eppes, William Findlay, John Fowler, James M. Garnett, Peterson Goodwyn, Andrew Gregg, Isaiah L. Green, Silas Halsey, John Hamilton, David Holmes, John G. Jackson, Walter Jones, Thomas Kenan, Michael Leib, Matthew Lyon, Duncan McFarland, Patrick Magruder, Robert Marion, William McCreery, David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, John Morrow, Thomas Newton, jun., Joseph H. Nicholson, Gideon Olin, John Randolph, Thomas M. Randolph, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, John Russell, Peter Sailly, Thomas Sammons, Thomas Sanford, Ebenezer Seaver, James Sloan, John Smilie, John Smith, Samuel Smith, Henry Southard, Thomas Spalding, Richard Stanford, Joseph Stanton, David Thomas, Uri Tracy, Matthew Walton, John Whitehill, Robert Whitehill, David R. Williams, Marmaduke Williams, Alexander Wilson, Richard Wynn, and Thomas Wynns.
Mr. Clark then varied his motion so as to postpone the resolution to the second Monday in March—varied to next Monday, and carried.
Exclusion of Contractors from Seats in the House—Prohibition of Plurality of Offices—Disjunction of Military and Naval with Civil Appointments.
Mr. J. Randolph.—I beg leave to submit a motion to the House—a very important motion—which at present I only mean to lay on the table. The Constitution of the United States has provided that no person holding an office under the Government of the United States shall be capable of holding a seat in either House of Congress. But as the best things are liable to corruption, and as we are told the corruption of the best things is always the worst, so the Constitution of the United States has received in practice a construction which in my judgment the text never did and does not warrant, but which, if warranted by the text, is totally repugnant to the spirit of that instrument, which, composed of the jarring interests of the different States, and settled on the basis of compromise, gave birth to a Government of responsibility, without influence, without patronage, without abuse, without privileges, attached to any individual, class, or order of men. It could not have been the object of such an instrument, that while a man holding an office not exceeding the value of fifty dollars, should be excluded from a seat in this House, a contractor living on the fat of the land should be capable under the constitution of holding one. Look through the whole of the constitution, and say where such a privilege is to be found. You find there the single principle of republicanism, that he who has the influence derived from power and money shall not have a place in the council of the nation—that placemen and pensioners shall not come on this floor. While this principle scrupulously excludes men holding responsible offices—men known to the whole world—shall it be considered as permitting contractors to creep in through the crevices of the constitution, and devour the goods of the people? Such a departure from the spirit, if not from the letter of the constitution—such a gross evasion of principle—calls aloud for remedy. Can a man who holds a contract for fifty or a hundred thousand dollars give an independent vote on this floor? If so, why not admit the Chief Justice and other high officers under the Government to a seat here? Is it for any other reason, but that the constitution will not permit the influence derived from office to operate here?
The constitution may be tried by another test. It was made for the good of the people under it, and not for those who administer it. It was never intended to be made a job of, and I hope it never will be suffered by the people to be made a job of. I think it is contrary to the tenor of the constitution to hold a plurality of office. We some time since received a petition from a learned institution to exempt books imported by them from duty. What did we say on that occasion? We said, no; we cannot exempt your books from duty. All must conform to the laws. There is no man too high or too low for them. The same measure must be meted to all. To my extreme surprise, I see a practice even more repugnant to the spirit of the constitution than a contractor sitting in Congress; and that is, a union of civil and military authority in one person—a union more fatal to a free nation than the union of Executive, Legislative, and Judicial powers.
Having made these remarks, Mr. R. offered the following resolutions, which were referred to a Committee of the whole House on Tuesday next:—
“Whereas it is provided by the sixth section of the first article of the Constitution of the United States, that ‘no person holding any office under the United States shall be a member of either House of Congress during his continuance in office;’ therefore,
“1. Resolved, That a contractor under the Government of the United States is an officer within the purview and meaning of the constitution, and, as such, is incapable of holding a seat in this House.
“2. Resolved, That the union of a plurality of offices in the person of a single individual, but more especially of the military with the civil authority, is repugnant to the spirit of the Constitution of the United States, and tends to the introducing of an arbitrary government.
“3. Resolved, That provision ought to be made by law to render any officer in the Army or Navy of the United States incapable of holding any civil office under the United States.”