Thus much for the general principle which would induce me to vote for this resolution, if no specific charge had been made. In the present case, however, a specific charge of a serious kind has been made by a member from Pennsylvania; and, however gentlemen may have attempted to weaken the force of this charge, it does substantially amount to this: that, by the opinion of a judge, a citizen of the United States was deprived of his constitutional right to counsel, when arraigned for his life. I will not, however, dwell on this charge. It has been placed by a gentleman from Maryland (Mr. Nicholson) in a point of view satisfactory to myself, and, I believe, to the House. I consider it, however, my duty on this occasion to mention a trial which took place in the Commonwealth of Virginia, which affords another specific charge against Judge Chase. I was not present at this trial, and am not personally acquainted with the circumstances. I believe, however, that in the Commonwealth of Virginia but one sentiment prevails as to the conduct of Judge Chase on this occasion, viz: that it was indecent and tyrannical. In the course of the trial he refused to allow a witness on the part of the prisoner to be examined, because the witness could prove the truth of a part only, and not the whole of the words laid in the indictment. By a system of conduct peculiar to himself, he deprived the prisoner of the aid of Mr. George Hay, as counsel, a man, who, although not as generally known as some others in our State, is inferior to none in his profession. I do not mention these circumstances as hearsay evidence, but as facts, which I am induced to believe can be established by legal testimony. If, on this statement, there is any gentleman who can refuse an inquiry, I am willing to leave him in the enjoyment of his opinion. For my own part, I shall be always ready, on the demand of any member of this House, to exercise my constitutional right of inquiry, and, without partiality or prejudice, pursue the course pointed out by my duty, whether it shall lead to impeachment or an honorable acquittal.
Mr. Nicholson rose for the purpose of calling the attention of the House to precedents. When he yesterday addressed them he had thought it unnecessary to introduce authorities from foreign nations; but as they had been insisted on by the opponents to the resolution, he would refer to two or three; and he was more solicitous to do so at the present moment, as he saw a gentleman from Connecticut (Mr. Dana) about to rise, and he wished to call the gentleman’s attention to them, in order that he might remark on them, and show, if it was to be done, that they did not apply to the case under consideration. If gentlemen would refer to the powers exercised by the Commons of England, for time almost immemorial, and to those exercised by the several State Legislatures, he believed that precedents innumerable would be furnished. The Commons of England were the grand inquest of the nation. As such it was their duty to inquire into the official conduct of all those intrusted with the powers of Government. Every officer in the realm was liable to impeachment by them. The same principle would be found to run through the constitutions of most of the States, and it was wisely introduced into the Constitution of the United States. The power to impeach is admitted to be in the House of Representatives, and the only question is, as to the manner in which this power shall be exercised. The proposed method is called a loose one, and we are asked to show some precedent for it. The House of Commons at the commencement of every session appoint what is there called a committee of grievances and courts of justice. Many of the State Legislatures appoint a similar committee annually, and, in the State from which he came, the House of Delegates always appoint a committee of grievances and courts of justice. It was one of their standing committees, and the appointment was as regular and as usual as the appointment of a committee of claims in this House. What then he inquired was the duty, what the authority of this committee? In England, in Maryland, and in every other State where it exists, it is their duty to inquire into the conduct of every officer of the Government, to call witnesses before them to prove official misconduct, to report offences to the House from which their powers are derived, and recommend the proper measures to be adopted.
This House, like the Commons of England, and the most numerous branch in the State Legislatures, is the grand inquest of the nation; they are to inquire into crimes and bring offenders to justice. It had not, he said, heretofore been customary for this House to appoint a committee of grievances and courts of justice, but he believed no man would deny the power, and when appointed they would not only have the authority proposed to be in this committee, but one infinitely more extensive. They would have the right to inquire into the conduct of all civil officers, and to report such facts as might come to their knowledge. If, then, we could with propriety, and agreeably to precedent, authorize an inquiry into the conduct of several hundred officers, could it be denied that the same precedent would warrant an inquiry into the conduct of two only? In 5th Comyn’s Digest, page 204, it would be found that a committee of grievances and justice was one of their standing committees, and in page 205 it was declared that they might “summon any judges and examine them in person upon complaint of any misdemeanor in office.” He presumed it had not been thought necessary heretofore to appoint a general committee of this kind, but at present the necessity was apparent, as a complaint had been made to the House of the official misconduct of two judges. Again, in the same book, page 209, it is said, “The Commons are the general inquisitors of the realm, and therefore if a Lord, spiritual or temporal, commit oppression, bribery, extortion, &c., the Commons shall inquire of it, and if, by the vote of the House, the crime appears to have been committed, they transmit it, with the evidence, to the Lords.” This, he said, would clearly show, what indeed he thought common sense would teach every man, that the inquiry should be made before proof was exhibited upon which an impeachment was to be grounded. In the same page it would be seen that “common fame is a sufficient ground of a proceeding in the House of Commons by inquiry, or by a complaint, if need be, to the King or Lords.” And Rushworth’s Historical Collection, page 217, is cited, it is said, by some of the ablest lawyers of that day that “if common fame were not to be admitted as public accusers, great men would be the only safe ones, as no private man would venture to complain of them.” Mr. N. referred to these authorities at that particular stage of the discussion, as he was desirous of giving gentlemen an opportunity of commenting upon them. As he had no wish to prolong the debate, he would not multiply observations upon that point, but could not sit down without noticing what had fallen from a gentleman from Massachusetts, in which he had again attempted to vindicate the conduct of the judges upon the trial of Fries.
The gentleman had referred to a case in Dallas’s Reports, respecting the Western Insurrection, in which he says the point of law determined upon the trial of Fries, had been previously settled by one of the federal courts, and from thence infers that Mr. Chase and Mr. Peters were justified in preventing counsel from arguing it a second time. That such conduct might be perhaps excusable in a civil cause he was not prepared to deny; but, in a case of criminal jurisdiction, involving the guilt or innocence of a man whose life was to be the forfeit, he held it totally unjustifiable.
All men, he said, were acquainted with the circumstances of what was generally called the Western Insurrection. Some of the Western counties of Pennsylvania were opposed to the excise law. A considerable majority of the people had resolved to oppose its execution, and took strong measures to prevent individuals from accepting offices under it, and compelled some of them to resign the places to which they had been appointed. While they professed an attachment to the Government of the Union they resolved to resist the execution of one of its laws. Among these was a man by the name of Mitchell, and he was charged with high treason before the circuit of Pennsylvania in which Judge Paterson then presided. A doubt existed whether the resistance to the execution of a law, even by force of arms, was such a levying of war within the meaning of the constitution, as amounted to treason. What was the conduct of the judge on that occasion? He had no disposition to preclude inquiry. He had no wish to keep the jury in ignorance by forbidding fair and open argument. On the contrary, it appeared from a note on page 348 that he called the attention of the prisoner’s counsel to the point, and requested that they would notice it in their observations. This was done before the defence was opened, and he said he should beg leave to read a part of the argument made in favor of the prisoner.
“The counsel for the prisoner (E. Tilghman and Thomas) premised that they did not conceive it to be their duty to show that the prisoner was guiltless of any description of crime against the United States, or the State of Pennsylvania, but they contended that he had not committed the crime of high treason, and ought, therefore, to be acquitted on the present indictment. The adjudications in England upon the various descriptions of treason, had been worked incautiously, into a system, by the destruction of which the Government itself would be seriously affected; but even there, the best judges and the ablest commentators, while they acquiesce in the decisions that have already taken place, furnish a strong caution against the too easy admission of future cases, which seem to have a parity of reason. Constructive and interpretive treasons must be the dread and scourge of any nation that allows them—1 Hale, P. C., 132, 259—4 Black. Com., 85. Take, then, the distinction of treason by levying war, as laid down by the attorney of the district, and it is a constructive or interpretive weapon which is calculated to annul all distinctions heretofore wisely established in the grades and punishments of crimes, and by whose magic power a mob may be easily converted into a conspiracy, and a riot aggravated into high treason.”
Such, he said, was the opinion of two gentlemen ranking high in their profession, and who would not be charged with having any feeling toward the offence or the offender inconsistent with the rights or interests of the Government. The whole argument was too lengthy to be read to the House, but he considered it well worth the perusal of every American. Able as it was, however, it had not the wished for weight with the court. Judge Paterson gave the following charge to the jury: “The first question is, what was the general object of the insurrection? If its object was to suppress the excise offices, and to prevent the execution of an act of Congress, by force and intimidation, the offence, in legal estimation, is high treason; it is a usurpation of the authority of Government; it is high treason by levying of war.” Sir, said Mr. N., this opinion of the court may have been honest; I mean not to impeach the purity of motive which dictated it, but I mean to show that the offence with which Mitchell was charged, the resistance to the execution of a law, was not considered as treason by the highest existing authority of this country. Mitchell was pardoned by the President of the United States, and Congress, not long after, expressed their opinion on the subject in the most ample manner.
The trial of Mitchell which I have just quoted took place in 1795, and in 1798 the subject was taken up by Congress, who, by the act of the 14th of July, 1798, provided that the resistance to the execution of a law should be considered a high misdemeanor only, punishable by fine and imprisonment. The act is in these words: “If any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the Government of the United States which are, or may be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the Government of the United States, from undertaking, performing, or executing his trust or duty, he or they shall be deemed guilty of a high misdemeanor, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding $5,000 and by imprisonment during a term not less than six months nor exceeding five years.” Here, sir, the resistance to the execution of a law is declared to be a high misdemeanor only, punishable by fine and imprisonment. Fries was tried in 1800, two years after the passage of this law. The offence of which he had been guilty was rescuing prisoners from the marshal by force, thereby, in the language of the act, “preventing an officer of the United States from performing and executing his duty,” and it was to show that he was punishable under this act by fine and imprisonment only, that his counsel were desirous of bringing the law before the jury. This, however, the court refused; the man was convicted of high treason, and was sentenced to a most ignominious death. Let such conduct be vindicated where and by whom it may, I must declare that it can never meet my approbation.
Mr. Dana.—It is to be regretted, Mr. Speaker, that a resolution so novel and of so much importance as that on the table was not postponed, at least for one day after it was presented to the House. Had this been done, gentlemen might have had some opportunity deliberately to examine the subject, before they were required to make a decision. But as the resolution was moved without giving any previous notice, and has been pressed upon us immediately after it was moved, I do not feel myself prepared, as I could have wished to be on such a question, before attempting to deliver my sentiments in this House. Unprepared, however, as I am, I request your indulgence while I offer a few remarks.
I will first attend to some precedents mentioned by the gentleman from Maryland, (Mr. Nicholson.) He has stated that it has been usual in the English House of Commons to appoint a committee for courts of justice, with power to inquire into the proceedings of courts, and for this purpose to call persons before them for examination. But, sir, is not such a committee appointed for general purposes, not directed against any individual, and therefore not affecting the character of any magistrate? Their powers relate to the judicial system generally, and do not implicate any one of the judicial officers. Does the resolution on the table propose a committee of this kind? On the contrary, it is explicitly directed against two of the judges. If gentlemen would justify their proceedings by the practice of the British House of Commons, let the resolution be made to have a general reference to all the courts, instead of being pointed, as it now is, against particular persons. In its present form it departs essentially from the principle of the case mentioned by the gentleman from Maryland, and therefore cannot be warranted by that precedent.