Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 3 (of 16)

by United States. Congress

It is expedient for the character of the gentlemen and for the public good; for the gentlemen themselves, if they are innocent or have acted on justifiable ground; it is necessary that their characters may be vindicated, and confidence in their public conduct restored. It is expedient for the public good, because if the judges are guilty in the manner stated—if they have justly lost the confidence of the people and of Congress, as it appears, by the transaction of last session, one of them has done, the case ought to be examined and the citizens protected; for if he was unfit to preside on the bench for one district, he is unfit to preside in another. It is expedient, in order to secure the confidence of the citizens in the Government itself.

But precedents are called for by the gentlemen opposed to the resolution, and several of them contend that such special facts should be stated as would be unexceptionable ground of impeachment, before the inquiry is gone into. A gentleman from Vermont, (Mr. Elliot,) who argued yesterday in favor of postponement for further information on the subject, in the same argument said that he never would agree to the appointment of a committee of inquiry, until the charges were first stated and proved to his satisfaction. Mr. F. said he was astonished at this inconsistency. If the facts were first stated and established, appointing a committee of inquiry would be an absurdity. What would they inquire after but what they already knew? That gentleman and others, in order to defeat the resolution, gave the object of it an odious designation: they called it an inquisition, and spoke of it in such terms as if it was the well-known Spanish law of that name. The character of that court was too well known to the members of this House to require definition; it was sufficient to say that in it witnesses were examined without the knowledge of the party accused; that it compelled the accused to give testimony against themselves, and had authority to pass sentence of the most dreadful kind, without appeal. The gentlemen knew that no such thing was intended by the resolution. The character of the judges had been impeached in public opinion by numerous citizens of all descriptions. Congress on that account gave a decisive testimony of want of confidence in one of them. The object of the resolution was to inquire whether there was a real foundation for this want of confidence and ill fame. If Congress did not make inquiry in such cases, who was to do it? It did not by the constitution belong to any other authority; every other method of proceeding would be as ingeniously objected to as the one proposed, by those who wished to prevent further proceedings in the case; denying the means of bringing forward impeachment, had the same effect as if the power of impeachment was renounced.

The power of this House has been asserted to be similar to that of a grand jury; this seems to be conceded on both sides, but though it bears a resemblance, it was not strictly so—it was more extensive. Grand juries were authorized to present such indictments or such complaint or information as were submitted to them by the Attorney General, or which they knew of their own knowledge. The attorney also inquires if there is probable ground for the complaint, and brings the witnesses before the jury, who examine them to establish the facts alleged; but this House has no officers authorized to make inquiry and bring forward the business in due form; therefore the House possess both the power of the Attorney General and the grand jury, with relation to impeachment; for where a power of decision is given, all the powers necessary to carry that decision into effect are implied. The making inquiry, procuring witnesses, or other testimony, and preparing the case in due form, is the object of the resolution; and if the House does not do it in this or some other such method, there is no other agent authorized to do it.

With respect to precedent and parliamentary usage, Mr. F. said he had formerly examined many, but was not prepared to state them at this time, and did not think them necessary on this occasion. In all the examples of impeachment by the British Parliament, from the reign of Henry VIII., when parliamentary power was reduced to a mere shadow, till the present time, when the parliamentary power has been amply enlarged and established, and their proceedings become more uniform, there will be shades of difference found in all of them, arising from various circumstances; we have few precedents of our own, and of these few none of them apply to the present case. It is the constitutional duty of this House to impeach, when impeachment is necessary, and of the Senate to decide on impeachments; but with respect to the manner in which each House should proceed, they are not trammelled by forms nor entangled in precedents.

There are, however, examples of proceedings both with the British Parliament and with us, as similar to the method now proposed as the various cases would admit. With ourselves, the case of the unfortunate Western expedition mentioned by my colleague (Mr. Gregg) yesterday, was much more to the purpose than the gentleman from Connecticut (Mr. Griswold) was willing to admit. Mr. F. said he had the honor to be one of the committee of inquiry which sat on that subject a great proportion of two sessions. The expedition was too late in setting out to the Indian country; they were said to have been illy provided with necessaries, and long detained for want of them; a large proportion of the army were killed or taken by the savages, and all the stores with the army left. The citizens were discontented, and numerous complaints were heard, but none knew with certainty whom to blame; a committee was appointed to examine witnesses and report the testimony to the House, in order to discover the party who had been to blame. Some had charged it on the commanding General, others on the Secretary of War, and others on the Commissary of Military Stores, and these last endeavored to wrest the blame from themselves and fix it on the General. It was certain that a great misfortune had happened, but it was not certain that any officer was to blame; no charge had been made to Congress against any officer, yet Congress thought proper to make an inquiry, and it was not opposed on account of want of form, or want of precedents, by any of the friends of the parties. Towards the close of the first session, the committee made a concise report, referring to a great amount of testimonies. Some of the parties implicated by the report thought themselves injured by it, and it was alleged that other witnesses ought to be examined. Consequently, at the next session, the business was recommitted to the same committee, and as it was near the close of the last session of that Congress, before all the witnesses were procured and examined, and the parties heard by the committee, each of the parties wrote and delivered to the committee a large book of explanations and defence. The committee reported a large wooden box full of testimony, of original letters and instructions, and the three books of explanations and defence accompanied with some observations. It was not possible for that Congress to enter on the business, and the cause being of a transient nature, and the parties who applied for the second inquiry not wishing a disclosure of the testimony, the business was not afterwards entered on; but the mass of testimony, &c., is yet in possession of Congress. This, it is presumed, applies well in favor of the present resolution.

Gentlemen object to the resolution because of the indelicacy of implicating the character of a judge. They seem to believe the character of a judge to be sacred and immaculate. But are not judges men? Are they not men subject to like passions and like feelings as other men? Judges and other official characters voluntarily surrender a part of the rights they enjoyed in common with other citizens, in return for the honors and emoluments of office; others have a right to the privilege of trial by jury, in the decision of all charges against them; but public officers, by accepting of office, subject themselves under this Government, to trial by impeachment. Subjecting judges to impeachment, indicates, unequivocally, a constitutional opinion that judges would be even more liable to transgress than other citizens, and might transgress in a more aggravated manner than mere citizens. This mode of trial, however, in this country, is become almost a harmless thing; it is deprived of more than half its terrors. It does not reach life or property, but only the official character.

Mr. F. said he was a friend to the independence of judges, but that all independence in all Governments had its limits and restraints. It was not provided for the aggrandizement of the judges, but for the protection of the citizens. So far as it is applicable to this purpose, it is necessary, but any further, it is injurious and subjected to restraint. Under no Government with which we are acquainted are the judges rendered so independent as that of the United States. In Britain, from which we have derived the mode of our judiciary, the judges were appointed during pleasure; till, little more than a century ago, they were rendered independent by the Revolution Parliament for the security of the people against the encroachments of the Monarch, and the overbearing influence of a very powerful nobility; and for this purpose it was not only salutary, but absolutely necessary. But even with that boasted independence, that Judiciary is subjected to restraints and modes of correction not provided in the Federal Constitution. The judges are liable to be removed from office by the vote of both Houses of Parliament, without trial. They are liable to be removed, or their standing changed by act of Parliament. That Parliament, on whose act their independence depends, can repeal the act; the two Houses of Parliament can make and unmake their Kings. They are also liable, by an act of attainder, not only to lose their office, but their estate, the honor of their families, and even their lives.

The Judiciaries in all the States of the Union are rendered less or more independent; some are appointed for shorter and some for longer periods. In New Jersey, they are appointed for seven years; they were so in Pennsylvania formerly; since the revision of the constitution they are appointed during good behavior; they are, however, subjected not only to removal by impeachment, but also by the vote of two-thirds of each House, for any cause which the House do not think a sufficient cause of impeachment; but in the Federal Government there is no method provided for removing them for the most scandalous indiscretions or incapacity, as even when they may unfortunately be under mental derangement, except by impeachment, which is inapplicable to official crimes, and conducted with tedious forms. The power of impeaching being the only shield provided by the Government for the protection of the citizens from judicial oppression, and this House being the only constitutional organ for obtaining information of official excesses, and bringing forward articles of impeachment, ought not to bind up their own hands from doing their duty, and this they will do if they reject the resolution now on the table.

But while the gentlemen consider the character of these judges so sacred that their conduct cannot be inquired into, notwithstanding such proofs of want of confidence in them, and that as a gentleman near me from South Carolina (Mr. Lowndes) has said that he is afraid of impeachment, and grounds his fears on the incapacity or the unfitness of the members of this House, or because the members of this House may abuse the power; Mr. F. asked, were not the members of this House selected and qualified for the discharge of this necessary duty? Were they not appointed by a respectable authority as the judges? Were they not under a solemn oath of office for the faithful discharge of this as well as every part of their high trust? And were they not protected by special privileges and protection during the discharge of their trust equally with the judges, and their stations as respectable as the judges’? They are not only protected from civil actions, but are not subjected to impeachment for misbehavior in office as the judges are. They are, in their official capacity, subjected only to the censure of public opinion. If this is true, it is improper, it is impolitic, for the members of this House to degrade their own character: it amounts to saying they are not capable of discharging the trust they are solemnly bound to discharge, and ought not to have been invested with. He knew, however, that this was only introduced as an excuse for unwillingness. But the same gentleman adds, as a reason for opposing the resolution, that he is not acquainted with the history of the business. That is probably the case with him and others, especially such as had not a seat in the last session of Congress, or who resided at a great distance from the scene alluded to in the resolution. Admitting this to be true, the best and the only regular way to become acquainted with the history of the case, is to carry the resolution into effect—to have a committee appointed with such power as would enable them to procure such information as that gentleman and every other member could depend on. The gentleman’s objection, in fact, is one of the strongest arguments in favor of the resolution. The gentleman from South Carolina has, however, offered one other objection to the resolution, which merits some notice. He has said that if a committee is appointed for the object proposed by the resolution, men of character and talents will not accept of appointments in the Judiciary. The solidity of this objection will be best examined by the test of observation and experience. It has been already mentioned that several States have appointed their supreme judges for short periods, and that others have vested the Legislature with the power of removing judges from office without impeachment, merely on their own opinion. Can the gentleman from South Carolina say—can any member on this floor, where all the States are represented, say—that these States are deficient in judges of respectability and talents? They cannot say so—there is no such complaint. The Judiciary of New Jersey, where the judges are chosen but for seven years, is as respectable, and the application of her laws as well brought home to the security and happiness of her citizens as they are in the States where judges are appointed for life. The same may be asserted with confidence of the State of Pennsylvania before the revision of her constitution, as they are since. There is this difference, however: where they have been appointed for limited periods there have been no impeachments or removals, and generally, if not always, the judges were reappointed, and justice was well administered; but since they have been appointed for good behavior, there have, at least in Pennsylvania, been both, and more complaints of inattention, expense, and delays, in the administration of justice than had been formerly. Many of the judges, however, are very respectable, and enjoy a high degree of confidence, but not more confidence than they did before the change of the constitution. There has been no attempt to remove or impeach the judges of the Supreme Court of that State.

To inquire into the conduct of the judges when confidence is evidently wanting, is the only true way to secure the respectability of the Judiciary. If that necessary confidence is withdrawn without cause, an official inquiry will restore confidence and the usefulness of the judges. This observation is supported by precedent and parliamentary usage. In that country from which precedents are so frequently sought, one precedent offers itself to recollection. In the year 1730, a committee of the British House of Commons was appointed to examine the jails. In the course of examination, the committee discovered that Sir Robert Eyres, Chief Justice of the Common Pleas, a judge of very respectable character, was suspected, not of tyranny on the bench, or of putting any man’s life in jeopardy, but of having held an improper correspondence with a person confined for crime or misdemeanor, and this suspicion chiefly supported by anonymous letters. A committee of the House of Commons were appointed to make inquiry, and it was found, to the satisfaction of the committee and of the people, that the allegations on which the suspicion was founded were false, and the judge’s character was vindicated and restored.