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

by United States. Congress

I ask, also, how this formidable charge has rested to this day? When and where did the transaction, on which it is founded, happen? In Philadelphia, and in the winter of the year 1800, when Congress were in session within twenty rods of the place where the court was held. The gentleman from Virginia, as well as other members on this floor, were then in the House. The case being, I believe, the only one in which there was a charge of treason, excited, in a considerable degree, the attention of members, many of whom attended the trial. How comes it, then, that this charge was not then made? If it shall be said the House did not interfere at that time because the criminal was lying under sentence of death, it will be recollected that, in 1801, Fries was pardoned. Why was not the inquiry then made? If it shall be said that it would have been imprudent to make it on account of the party then in power, why was it not made in the seventh Congress, when a change of men took place? How can gentlemen reconcile this great delay with the high regard they profess for the purity of the streams of justice, and for justice itself? For such is the respect they entertain for justice, that they have determined to bring to conviction this unjust and criminal judge. Gentlemen ought to account for this culpable neglect. It is impossible that they should have been ignorant of the trial of this man. It was not a sudden or a hidden thing, done in a corner; it was done in public, in the face of the Legislature, and yet it has slept to the present day. Under such circumstances, I submit it to the House, whether much respect ought to be paid to the hearsay of the gentleman from Pennsylvania. The very delay, and other circumstances attending this transaction, show that it is not of the serious nature contended. I therefore think that, if properly brought before the House, and suffered to rest upon proof, it would constitute no ground for impeachment. As to the proposed form of proceeding, if we examine precedents, we shall find that it is not warranted by them. None mentioned compare with the case under consideration. The precedent in the case of Lord Bolingbroke does not compare with that. In that case the House of Commons raised a secret committee to examine the negotiations made for a peace. The committee was not raised to impeach Lord Bolingbroke, but to investigate the negotiations of the Ministry; and on the disclosure of facts, which took place on that occasion, the impeachment was grounded. Such, also, was the case in the instance of the Western expedition. The House appointed a committee vested with general powers to inquire into the causes of its failure, without particular reference to the conduct of any person.

If we turn our attention to British precedents, we shall find that a committee has never failed to investigate the official conduct of any person contemplated to be impeached. In the case of Hastings, Mr. Burke came forward and moved an impeachment directly. In all cases this course has been pursued in the British House of Commons. So far as we have precedents in this country, a similar course has been pursued. In the instance of Governor Blount, the Executive transmitted documents to this House, which contained, as it was supposed, evidence of his guilt; they were referred to a committee to examine them, and also to determine whether it was proper to print them. The committee reported that, in their opinion, they contained evidence of his guilt, and he was impeached. In the case of Judge Pickering, the same course has been pursued. The Executive transmitted documents to the House which contained, as it was supposed, proofs of misconduct, and the House proceeded to an impeachment. These precedents confirm the principle of those drawn from the practice of the British House of Commons. What course is now proposed? Without any charge against the judges, without any man saying they are guilty of any misconduct, we are about to appoint a secret committee, to determine whether any charges can be made, and whether any proofs to support them can be found. Although I am willing that the conduct of these gentlemen shall be investigated, for I am sure they must desire it, and although I have no objection to impeach them, if gentlemen wish it, and exhibit proper proofs on which to ground it, yet I cannot consent to pursue a course so improper as that now proposed. For this reason I am against the resolution, not because I am hostile to an investigation, but because I cannot consent to the appointment of a secret committee to search, in the first instance, for an accusation, and to look for proofs to justify it.

Mr. Findlay rose to explain. He said it was not the object of the House, in their investigation of the causes of the failure of the Western expedition, to make new arrangements, but to inquire into the conduct of certain officers who had directed it, viz: the Secretary of War, the Commander-in-chief, and the Commissary.

Mr. Nicholson said, he happened not to be in the House yesterday at the moment when the resolution under consideration was introduced; and when he entered he found the gentleman from Connecticut (Mr. R. Griswold) on the floor, who concluded his remarks by moving a postponement. Mr. N. did not think it then correct to offer remarks upon the main question, but as the resolution itself was now under consideration, and the subject of no common nature, he could not think of passing a silent vote upon it.

When he rose to-day, for a few moments, on the motion to amend, by inserting the name of Judge Peters, he had then declared, and he now begged leave to repeat it, that whenever any member of the House should rise in his place and state that any officer of the Government had been guilty of official misconduct, he had no hesitation in saying, that he would consent to an inquiry. He cared not how exalted his station, or how far he was raised above the rest of the community; the very circumstance of his superior elevation would prove an additional incitement. Such, he said, was the nature of the Government, and so important the duty in this respect devolved upon the House of Representatives, that the conduct of the Chief Magistrate himself, as far as his vote could effect it, should be subjected to an inquiry whenever it was demanded by a member. The greater responsibility, the more easy and more simple should be the means of investigation. Were he, indeed, the friend, personal or political, of the officer charged, and he believed that impeachment would be the result of inquiry, it was possible that his feelings as a man might induce him to forget his duty as a Representative, and urge him to resist the inquiry; but, were he convinced of his innocence, he would do all in his power to promote it, in order that he might stand justified to the nation and to the world.

Upon the present occasion, he begged that he might not be understood to say that the offence with which these judges were charged, was such as would warrant an impeachment. But, while he meant not to commit himself on a question of such high moment, he could not avoid expressing his astonishment that the conduct stated should not only be defended upon the floor of the House, but entirely approved; that gentlemen should venture to declare that the court acted strictly in the line of their duty, in refusing to hear counsel on a point of law which involved the guilt or the innocence of the prisoner. A man was charged with the highest offence against the Government, and, if guilty, was subject to the severest and most ignominious punishment recognized by our laws. High treason was the crime, and death the penalty. The constitution declared that treason against the United States should consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. The framers of the constitution intended to be as precise as possible in their definition of treason; they were anxious that no room should be left for doubt afterwards. They had seen to what an infinite variety of objects the crime of treason had been extended in England, and wisely confined it here to the only two offences which could be said to strike at the existence of the Government. The laws of the United States had declared that resistance to the execution of a law should only be considered as sedition, and had provided the punishment of fine and imprisonment. Fries was charged with resisting the execution of a law, and this offence the court determined to be treason, without hearing his counsel, and refused to permit them to address the jury on the subject, although the jury were the judges as well of the law as the fact. A resistance to the execution of a law, they construed to be treason, in the face of the act of Congress, which declared it to be a misdemeanor only, punishable with fine and imprisonment. These constructive treasons, he said, had been reprobated by the wise and good in all ages, and at a very early period in the history of English jurisprudence had received the pointed disapprobation of the Parliament. He adverted to what he called a wise and humane provision in the statute of Edward III., by which the judges were prohibited from declaring any thing to be treason not so expressly defined by the letter of the statute. That the court had given such an opinion, was not now, however, the point of charge against them; that they extended the doctrine of treason beyond both the letter and spirit of the constitution, was not now the foundation of the present motion. The accusation was that, in a case involving the life or death of a freeman, the party was condemned without a hearing; that he was denied the assistance of counsel, which was secured to him by the constitution of his country; that the right of the jury to decide both the law and the fact was refused; for it amounted to a refusal when the court would not permit the jury to be assisted by the arguments of counsel. He asked if gentlemen would consider it correct in a court, upon an indictment for murder, to prohibit the prisoner’s counsel from contending before the jury, that the offence charged amounted to manslaughter only? Surely not. The question, in the case of Fries was, whether the act of which he had been guilty amounted to treason, or to a misdemeanor? and this the court refused to suffer the jury to have an argument upon. He declared that, in all criminal prosecutions, the jury had a clear, undoubted right to decide, as well the law as the fact; they were not bound by the direction of the court; and that, in capital cases, it was a right which they ought always to exercise. But, in Fries’s case, the law was not permitted to be brought into the view of the jury by his counsel; the court denied to the prisoner the assistance of counsel, which was secured to him by the constitution, and he was condemned to an ignominious death, which he must have suffered but for the subsequent interference of the Executive. Mr. N. said, he had thought proper to make these remarks in answer to those gentlemen who had undertaken to pronounce the conduct of the court to be strictly correct. Although he did not mean to commit himself by declaring that this afforded sufficient ground for impeachment, yet he could not avoid saying, that the refusal to hear counsel in defence of the prisoner, did not meet his approbation.

The gentleman from Connecticut had doubted whether the present proceeding was conformable to principle. He thought that we ought to have the proof before we take any steps to procure it. Mr. N. begged leave to ask how proof was to be procured before inquiry was made? In what manner information was to be obtained before it was sought for? If a member had stated upon oath that a judge had been guilty of improper conduct, which would warrant an impeachment, the motion would not be, in the first instance, to inquire, but to impeach. If information was necessary, how was it to be procured? By sitting here, and writing for depositions to be sent in? Surely not. If a person was in the lobby, acquainted with all the facts, how were they to be communicated to the House? Was he to come to the bar, and offer a voluntary affidavit, or would it be correct to introduce him without any previous proceeding? In that case, would it not be necessary to declare, by a prior resolution, that we would commence an inquiry before testimony could be offered at the bar? If a member should state that a witness was at hand who could prove official misconduct in a judge, the correct course would be to introduce a resolution, declaring that the House would inquire, and it could not be resisted. What, he asked, was the proposed course? Instead of making the inquiry in the House, it was requested that it might be made by a committee. Instead of using our power to bring witnesses before us, it is proposed to authorize a committee to examine them. This would be more convenient and more proper. To bring them before the House would be attended with inconvenience, and unnecessary delay. He could not tell what the mode of proceeding before the House of Representatives would be, but, generally, he believed, it was the practice for a member to propound the question to the Speaker; the Speaker then to propound it to the witness; the answer to be made to the Speaker, and by him reverberated back again to the House. He asked, if the House would consent to this? If they would agree to a course of proceedings so tedious, so procrastinating, so evidently embarrassing? And yet this must be the course, unless that proposed was adopted.

It was said by a gentleman from Connecticut, (Mr. R. Griswold,) that we were about to appoint a committee to ransack the country for an accusation, and afterwards to search for proof to support it. He complains that no accusation is made. Mr. N. averred that an accusation was made; it was made during the last session, and again repeated during the present. He asked, if it was no charge to declare that a judge had condemned a man to the most ignominious death, without a hearing; without allowing him those benefits which he claimed under the constitution? Was it a trivial circumstance for a member of this House to declare that a freeman had been indicted for a high capital offence; that he appeared at the bar and pleaded not guilty; that his counsel were ready to prove the truth of the plea, but that the presiding judge had refused to hear them? If this was not a charge, and a charge, too, of a most solemn nature, he did not understand the meaning of the words. It was brought forward as boldly as the gentleman from Connecticut could wish, and the only question now was, in what manner shall we inquire into the truth of it? Shall we appoint a committee to make the inquiry by calling witnesses before them, or shall we dismiss it without investigation? Shall we give it the go-by, and suffer the character of the judges to rest under an imputation so heavy? Shall we proclaim our own dishonor, by publishing abroad that a heavy charge had been made, in the face of this House, against one of the highest judicial officers of the Government, and that we were too pusillanimous to notice it?

What the gentleman meant by comparing the proposed committee to the Spanish Inquisition, Mr. N. did not really understand. Did the gentleman wish to make a false impression upon the public mind? Was he anxious to cast an odium upon the proceeding by calling it an inquisitorial committee, and affecting to believe that it was to be clothed with the powers of the Holy Inquisition? The Inquisition had the power to seize the person of the party, to deny him all access to his friends, to confine him in a cell, and refuse him all assistance whatever; to stretch him on the wheel, and rack and torture him into confession. Does the gentleman wish to induce a belief that this committee is to be clothed with the same powers? All committees appointed to inquire, might, to be sure, be called Inquisitorial, because they were to make inquiry, but the epithet of Spanish Inquisition was intended to convey an idea totally incorrect.

The gentleman had asked why this charge had been suffered to rest so long? The facts upon which it was made were said to have taken place in 1800. Mr. N. thought it would be fair to reply to the gentleman that, possibly, he himself had, in some measure, accounted for the delay; the proper time had not before arrived. But if the act upon which the charge was grounded was criminal at that day, was it less so now? If Justice had slept so long, did it follow that she was dead? He hoped and trusted not. Though she had lain dormant till she was almost trampled to death, she was again roused to her accustomed vigilance, would pursue her victims, and drag them to punishment. The day of retribution, he hoped, was at hand.