H. OF R.] Question of Privilege. [APRIL 26, 1832 most bound to protect. So that we have seen that while a breach of privilege to assault a member when engage. the accused was held in silent and submissive durance by on official duty. one of the officers of this House, another of its officers I need only to say that, if such is the law of contemp was daily pouring upon him all the overflowings of his and such a business is official and within the protection | wrath, and doing every thing to excite a degree of indig- privilege, it is difficult to conceive what a member ra nation against him, which should make the fair hearing of do that would not be covered by privilege. It is sur his cause impossible. It is difficult to suppose that these was necessary for him to know what was done in i efforts have been wholly without effect. House, in order to enable him to discharge his duty, The accused has been represented as a man of violence that in going to make such inquiry it was necessary and blood, conscious of superior strength, lying in wait as should be protected. So it is necessary, to enable him an assassin; in personal vigor as a Hercules. These ex-discharge his duty here, that he should take rest and aggerated descriptions of his character have been wholly freshment; and this would make privilege a shield by à unconfirmed by the proof; and whatever the appearance and night, and a member could at no time or place of his person might indicate, he is shown to be a weak from under it. I may also remind the House that and disabled man, not likely to be tempted to violence by member himself, on this occasion, (and he surely wa the assurance of success. best judge,) was of opinion that the visit he was pay when assaulted, was not an official act; for when aska he was then engaged in any official duty, his reply w the negative, though he seemed afterwards incl think that it was such an act as privilege might best ed to cover. I cannot think it necessary to say more a Hercules, too, could not be painted without his club- these charges, if indeed any such should be urged. and language could hardly be found to convey an adequate that to which I presume the House chiefly looks, 11 idea of the terrific weapon with which this assassin was which alone I shall consider, is this-an assault comm armed. I thought it proper that, instead of the picture, on a member for words spoken in debate. Has this Ho the club itself should be exhibited. The House have seen power to try and punish such an act? Are there it; and I could not help remembering, on seeing an ho- proved, to show such an_act committed? norable gentleman measuring it, and comparing it with his the law, has this House the power to try and punish z finger, the venerable judge who is said to have presented sault committed on a member, out of the House his thumb to show the dimensions of the stick with which, during its session, for words spoken in debate? Tev in those strange old times, the law allowed a man to chas-extent this House has the power of proceeding fer tise his wife. tempts, may be a question of difficulty: all I nee. Whether previous impressions have been made to the and all I mean to do, is to show that they have ** disadvantage of the accused, I will hope, have been al-power to the extent I have just stated. ready removed by the evidence, and shall proceed to consider what is the charge against him, what is the law, and what are the facts to condemn him. He had once, indeed, an arm fit to execute the strong impulses of a brave heart--but that arm he had given to his country. On the field of one of her most perilous battles it had been raised in her defence—and on that field it had fallen, crushed and mangled, to his side. And first It has been gravely questioned whether it has the p to any extent; whether it can even punish a contem mitted in its presence. This I shall not discuss, but take it for granted th that extent, it may be necessary, and therefore prec prevent interruptions to its deliberations by continę na offenders. For any distinct charge against him, I have looked in vain through all these proceedings. The warrant states no cause, and the resolution ordering it is equally indefinite. In the course of proceeding marked out by the committee, and adopted by the House, he is called to answer questions, but uninformed as to his offence. Even now, when I am called upon for his defence, I am put to conjecture what charge I am to defend him against. The principal charge, I suppose, is the violation of a member's the House. privilege by an assault for words spoken in debate. But Let it not be said that, if the power be admitted a offences committed in the presence and to the intern of the House, such admission proves the possession power, and that it can only be limited by the discre There is just reason and high authority for such I have been obliged to see, in the course of the inquiry, two tinction, for limiting it to acts of interruption, and a other charges showing occasionally their little heads un- ing it beyond those limits. der these proceedings. Of these, of course, I must say a It is obvious that there may be a necessity for the few words. in such cases, that cannot exist in others where the The complaint of the member assaulted, and some parts interruption. The House may also exercise it t of his evidence, seem to put the breach of privilege upon committed in its presence, and as to which it can the circumstance of his being prevented, by the conse-mediately with far more ease than over acts comm quences of the assault, from attending to his duties in the a distance, requiring the proof of witnesses, and s House. It may be urged, therefore, that his offence con- vestigations of disputed facts as must prevent its dis sists in his having thus obstructed a member in the dis- of the more important and urgent duties of legis charge of his duty. I will only say to this, that such a Further, some limitation of the power, it must be doctrine would be making criminal, not the act, nor the ed, is possible and proper; and if it is not confine intent with which it was committed, but the consequences mediate acts of interruption, it will be difficult, if following it: so that whether the assault was punishable possible, to prescribe any other limit. here, would depend entirely upon its violence. If it prevented the member's attendance upon the House, it would be a contempt; otherwise, not. In England, the two Houses of Parliament held unlimited, undefinable, and exclusive power, and the used it (as such power will ever be used) to oppro This doctrine also would make any other act, if it pre- people and disgrace themselves. They have for vented the member's attendance, a contempt; and this courts to sanction it, threatening, seizing, and imprst might be done by a threat--nay, by an act of courtesy. the judges, till they agreed to leave the law of Par It would also appear from one of the questions proposed to the Parliament, and determined to be utterly and one of the answers of the witness, and the correction upon the subject. By this efficacious mode of tex afterwards made of it, that it may be supposed the offence the English judges have become enlightened into s consists in the assault's being made on the member when of total darkness as to the doctrine of contempts; s on his way to make inquiries of what had been said of him victims of parliamentary persecution, who appeas in the House; that this was official business; and that it is them, were sent back to their imprisonment, the APRIL 26, 1832.] it. declining to look into the offences for which they were the words of that instrument, or by inference from a fair committed, declaring that it was unnecessary for them to construction, all its powers must be derived. It is declarinquire into the nature of the contempt, because it belong-ed by the Supreme Court, (4 Cranch, 93,) that as the ed to the lex parliamentaria, and they could not understand courts are created by a written instrument, the constituSuch was the case of Alexander Murray, in 1 Wil. tion, all their powers must be derived from that source. (p. 299,) and such the opinion of all the judges. This The same principle applies to this House. man was a close prisoner of the House of Commons, for The constitution then is the source to which the power a contempt. He was denied pen, ink, and paper, and all must be traced. intercourse with his friends. His health was suffering from his confinement, and a physician was not allowed to visit him, but upon the special order of the House. He was brought before the court by ha. cor. It was urged for him that a British subject could not be suffered to perish in imprisonment, without a trial, or inquiry into the offence for which he was committed. It was determined to be out of the power of the court to interfere, and he was sent back to his confinement. I have not referred to this case on account of its peculiar enormity. Many others, of far greater oppression, might have been adduced. But it is cited in a more recent case, that of Sir Francis Burdett, in 14th East, by Lord Ellenborough, and mentioned, "with a slight qualification of an expression from one of the judges, with approbation." In this case also it is acknowledged that there had been an English judge, (and that judge was Lord Holt,) independent enough to declare his opinion of parliamentary privilege, and to limit its power to offences committed in the presence of the House. His views of this doctrine may be also seen in 2 Ld. Ray. 938--1st ditto, 10--and a note to the latter case shows the means used to teach him to think more reverently of parliamentary privilege. There is a judicial decision of the highest court of our own country, going thus far, and no farther. The constitution of Maryland (12 sec.) also thus limits the privileges of their legislative bodies, and I have been unable to find, in any State, a prosecution like the present. It cannot, therefore, I think, be argued that there is any inconsistency in admitting the power within the limits I have stated, and denying it beyond them. I proceed then to inquire where this House got the power, whatever it may be, which it asserts in the present proceedings. If we can ascertain this, it may serve to show us, if not what the power is, yet, at least, what it is not. If I am told that it is an inherent incidental power, taken ex necessitate, at the moment of its creation, alike in origin and extent to that of the British House of Commons, I answer, first, that it is not claimed to have been so taken by the British Parliament. It is claimed there, on the ground of grant, by prescription, by immemorial usage. If we consult Blackstone, Coke, Holt's law of libel, and Lord Ellenborough in the case of Sir F. Burdett, we find various origins resorted to, but none of them say the Parliament took it, as inherent, ex necessitate. They conjecture that some old statute, now lost, gave the power. Lord Ellenborough quotes several ancient statutes which recognise, as he contends, the exercise of the power. This House, therefore, cannot borrow an origin ex necessitate from the British Parliament, for they disclaim such an origin, and labor hard to find a better. In express words it is nowhere given; many powers, and such as would be inherent, incidental, and necessary, (if any could,) are given by express words; but this is not. If it is got, therefore, from whatever part of the constitution, it must be got by a necessary and proper implication. I lay down then these four propositions: 1st. The power must appear to be necessary and proper to this House, to enable it to discharge its constitutional functions. 2d. It must not be inconsistent with other powers expressly given to other departments of the Government. 3d. It must not clash with the express prohibitions of the constitution. 4th. It must be exercised only in the way prescribed by the constitution. As to the first--is this power as now claimed a necessary and proper one for this House? I shall contend that it is neither. Is it necessary?--what does that term denote? what is the degree of necessity required? I know that in the case of Maryland against McCullough, in 4th Wheaton, it is decided by the Supreme Court that any degree of necessity gives Congress the power to legislate. This principle, however, is confined to legislative acts, done in the ordinary and necessary sphere of duty. The grant of judicial power, the power to punish, would require a more strict construction. And as the House, in assuming this judicial power, acts upon its mere discretion, and is under no obligation to assume it, and it is moreover a dangerous power, very liable to abuse, it ought to be made to show for itself a plainer and greater necessity. Such seems to have been the very just view of the nature and extent of the required necessity taken by an able and learned committee of this House in the case of Russel Jarvis; they say it is a dangerous power, liable to abuse, and that the House should only exercise it "in cases of strong necessity." The inquiry then is, is there a strong necessity, or any necessity, for such interference of this House in a case like the present--where the wrong over which it assumes jurisdiction has been committed not in its presence, nor to the interruption of its deliberations? The question is not whether it is necessary such an offence should be punished, but whether it is necessary that this House should lay aside its legislative duties, to try and punish it. It is no reason, therefore, to say that the House must be protected from an interruption that may be continued or repeated, because there is no interruption. Nor, that such offence should be punished here to prevent its repetition, if there are other tribunals whose duty it is to try I answer, secondly, that if this House could thus get an and punish such offences. Now, that our courts are comorigin for the power, they could not claim it to the extent petent to try all such offences as the present, and consider in which it is held by the British Parliament; for the ex- the causes and circumstances of every assault, and punish tent to which it could be claimed would be limited by the it accordingly, cannot be doubted--and the presumption necessity requiring them to take it, and the British Parlia- certainly is that all courts and officers will do their duty; ment, having carried it (as all must confess they have) if so, the act will receive its proper punishment without far beyond that necessity, is an abuse: and if we could the interference of this House; and it cannot, therefore, plead their example for taking the power, we surely be necessary it should interfere: on the contrary, when should not for the abuse of it. It is plain that we cannot we consider what other things this House has to do, the derive the power, as the British Parliament does. We necessity seems to be that they should not do that which can have no immemorial usage, no real or supposed ancient must prevent their doing what it is necessary they should grant, no lost records. do. This House derives its existence and all its powers, what- It may further be said, that even if the courts had not ever they may be called, from the constitution. From sufficient power, or were not sufficiently bound to try or H. OF R.] Question of Privilege. [APRIL 26, 183 punish such offences, Congress can make them so, and, ing, can impose no adequate punishment. Their imp therefore are under no necessity to assume the jurisdiction sonment can never be like that of the British Common themselves. for it must not be made more rigid than “absolutely an Neither is it proper. It can never be proper that a imperiously required" to protect the House from the o party prosecuting for offences against itself shall be the fender, it must be the exertion of "the least possib judges to try and punish. This House charges a man power" of restraint; and such (as I have seen) is the so with an offence; the members are the prosecutors; they of imprisonment applied in this case, so very differe produce the evidence, argue the cause against the prison- from that within the four walls of the court's jail, that, ex er, and then decide whether he or they are right in the cept that it may interfere with a man's business elsewhere argument. The prisoner is allowed counsel, but the pri- it would be no punishment at all. To many persons vilege of arguing with his judges, and refuting their argu- certainly would be none to spend even the whole winte ments, will generally be of little use to him. It would be in Washington, with apartments in one of its best hotel hard enough to have such fearful odds against him in num- with the further benefit of a very courteous and agreeabl bers and talents, as opposing advocates; but after such an gentleman as his companion. encounter, to have to look to the same persons for judgment, would present almost a hopeless prospect. If I am told that, notwithstanding the opinion of the con mittee in Jarvis's case, and of the Supreme Court in Dum The counsel, in such an encounter, might possibly also and Anderson, the House may, if they shall find that the meet some things still more fearful than superior numbers mitigated imprisonment will not effectually restrain suc and talents. There may hereafter be, upon a bench of offences, consider it "necessary," and will therefore hav two hundred and fifty judges, (of which this House will the power to increase its rigor: to this I answer that consist,) such a thing as a captious, impatient judge. He certainly may, and if it takes this power, very probabi may think some of the questions or arguments of the hereafter, will; and by the same reasoning, if imprisonment counsel (particularly if they bear hard upon the view he however rigid, will not restrain offenders, any of the other may wish taken of the case) "trifling," and he may be, punishments, taken upon the same principle, by the House as such judges generally are, armed with the most wither- of Commons, such as cutting off hands, or banishment, e ing powers of rebuke and invective; and he may be pro- even death, may be thought necessary for the protect voked to make the counsel feel, for such an offence, all of the House, which will still say that they are applying the thunder and lightning of judicial ire. It is true that the " least possible power" necessary for that purpose. the inferiority of the counsel, his humble and unprivileged do not think that, by admitting that it may come to this, condition, as a permitted guest in this great Hall, would will follow that the power is a proper one. generally protect him from being thus assailed and disa- I conclude, therefore, that it is a power neither neces bled; but these circumstances, effectually as they would sary nor proper. That this House may exercise preve appeal to the magnanimity of the high and the privileged, tive justice, which can only extend to protect itself fr might possibly be sometimes forgotten. interruptions, and can have no pretensions to the exerc Under these and innumerable other obvious disadvanta- of vindictive justice over cases which do not interrupt it, ges, it must appear to be of small consequence to a pri- if they leave them to be punished elsewhere. soner whether he has counsel or not, before a tribunal so I, secondly, insist that the power claimed by the House constituted. It is plainly acknowledged, even in Eng- is inconsistent with the powers expressly given by the cor land, in more modern and better times, that it is not prostitution to other departments. per that any House should redress its own wrongs. We What is the nature of the power in question? Is it le find, in Starkie on Şlander, (479,) that the House of Com- gislative, executive, or judicial? And if it be judicial, da mons has, on several occasions of contempt, declined the not the constitution expressly vest the judicial power jurisdiction, and requested the prosecution of the offend the courts of the United States? Article 3, section 2 ers before the courts. The author commends this course Does it not declare that "the trial of all crimes, except in of the House, and quotes from the address of the Attorney cases of impeachment, shall be by jury?" (The declan General to the jury, in one of the cases, an acknowledg-tion and the exception alike conclusive upon the question ment of the unfitness of the House of Commons to try of fences against itself, and his decided approbation of the determination he understood the House had made to send all such cases to be prosecuted by the courts. There is no ground upon which the exception of the particular offence from the consideration of the courts cat be claimed. The courts were intended to try, and are competent to try and punish all offences; and whateve power this House may assert over the act complained of in this case, there can be no doubt but that the court b power, and adequate power, to try and punish it. Are There are many other objections to this House as an both then to try and punish the same act, the one call appropriate tribunal for such proceedings, which will ing it a breach of the peace, and the other a breach of pr readily occur to our minds. Has the House sufficient powers, in cases of difficulty or resistance, to bring such cases to any successful result? When the party is convicted, has the House the power to inflict an appropriate punishment? It cannot be proper or necessary that this Suppose, in this case, when the warrant was issued, the House should try, if it cannot adequately punish, particu- accused had been found by the Sergeant-at-Arms in the larly when the ordinary tribunals can do both. custody of the marshal? Could he have taken him? Could he have been brought here for trial? And is there difference between an offender's being actually taken by the marshal, and his being liable to be taken? Can it be "proper" then for this House to assume a power which, from its obvious and confessed injustice, the House of Commons is commended for renouncing? The only punishment it can inflict is imprisonment, and this, according to the report in Jarvis's case, "ought never to be carried further than shall be absolutely and imperiously required by the existing emergency." In Dunn and Anderson, the Supreme Court say that the power to punish for contempts in Congress "must be the least possible power adequate to the end proposed, which is the power of imprisonment;" and further, that this "imprisonment must cease with the session." It is plain that, with a power thus restricted, there may be very atrocious cases, where the House, after convict vilege? And if so, which is to have the preference in the conflict of jurisdictions? Is it to depend upon the speed of their respective officers, and the offender be made first to answer where he is first caught. And, thirdly, the power claimed is within the prohib tions of the constitution. What are these prohibitions? The fifth article of the amendments declares that “"n person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of grand jury, &c.;" nor shall any person be subject, for the saine offence, to be twice put in jeopardy, &c., "nor be deprived of life, liberty, or property, without due process of law." What words can be more general? "No person shall be held to answer," "nor be deprived of life, liberty, or property, without due process of law." Can a man be thus held to answer here, and be here deprived of life, liberty, or property, without violating this prohibition? Is not the accused here thus "held to answer?" Is not his liberty affected by this proceeding? and is this proceeding the due course of law? [H. OF R. courts of the United States deciding it to be unconstitutional and void? And yet the assumption now is, that this House can do without a law that which the whole Congress, with the sanction of the Executive, could not accomplish. My fourth and last proposition is, that if I am wrong in all this, if it is a proper and necessary power, not inconsistent with the powers expressly granted, nor contrary to the prohibitions of the constitution, still it is to be exercised only in the way prescribed, that is, by a law. The grant in the sweeping clause of the constitution intended to confer powers not enumerated, is to the Congress, not to the Houses separately. And it is a power, not to do, without a law, what they may deem necessary and proper, &c., but to "pass all laws necessary and proper," &c. A law then must be passed, if it be deemed necessary and proper, to exercise this jurisdiction, pointing out the offence, the mode of proceeding, and the punishment. I beg this honorable House to see how his lordship an- And this, sir, is reasonable as well as constitutional. Withswers it, and to see how impossible it is for this or any out it a man may lose his liberty for an offence which he other answer to evade the force of the prohibition here. had no means of knowing was an offence, and be exposed He says that, previous to this statute, the lex parliamento a punishment of which he could never have heard till it taria, giving this power of summary proceeding, was in was pronounced. If this be not tyranny, what is? If this force, and was part of the law of the land; and that, there-be our condition, are we freemen? fore, the terms, "due process of law," applied as well to the law of Parliament as to all other law. If we wanted authority in a matter so plain, we may find it in Lord Ellenborough's opinion in the case, to which I have already referred, of Sir Francis Burdett. There it was urged that these same words, found in the statute of Edward, that “no man shall be deprived of life, liberty, or property, without due process of law," prohibited the power assumed by Parliament, as it is now assumed here, of summary proceedings for contempts. Now, with us, no such answer can be urged when this prohibition is objected, for when our constitution was adopted, there was no such previous law of the land, and the words, due process of law," could only apply, as Coke considered them in the English statute, (2d Just. 50,) to trials by indictment and jury. I know that in England there have been asserters of such a power, and judges and jurists have justified it: but it cannot be expected to hold its ground there against the spirit of reform now awakened. I have referred to cases in which it is maintained. We see it defended in Blackstone, (Bl. Com. 1st vol. 164,) who considers it necessary and proper that such offences should be punished without a law defining them, because the definition would enable Look also at the provisions of the sixth article: "In all offenders to avoid the offences defined, and commit others. criminal prosecutions, the accused shall enjoy the right to And this is the same writer who condemns the tyranny of aspeedy and public trial, by an impartial jury, &c. ;" and Caligula for having his laws hung up so high that they to be informed of the nature and cause of the accusation-- could not be read, and then punishing those who transto be confronted with the witnesses against him--to have gressed them. If it was tyranny in him to hang up his compulsory process for obtaining witnesses in his favor-laws thus high, what is it in the Parliament he was deand to have the assistance of counsel for his defence." fending not to hang them up at all? Nay, to bury them under the piles of their musty rolls, whence they could never be dug up, or to hide them still more securely in the breast of Parliament, until they were brought out, as occasion required, for use? I would ask whether any prosecution, any where, in which a man may be found guilty of an infamous crime, or in which his person may be imprisoned, is not "a criminal prosecution." If so, are not all these safeguards of the constitution to ensure him a fair trial secured to him? If not so, Sir, the modern annotators on this author understand if all or any of these safeguards are no protection to a citi- better the rights of the subject. At the page which I zen accused and tried here, if he may be tried here accord- have quoted, may be seen the opinions of Christian Archng to the discretion of the House, without jury or accusa- bold and Chitty upon this defence of the undefined and sion, or witnesses or counsel, and the constitution is no shield undefinable law of privilege--(1st Chitty's Black. p. 164.) for him here, then have the framers of the constitution of They condemn it as unjust and oppressive, contrary to which we boast, left in the hands of one of the depart- the rights of Englishmen. They declare that to punish ments of the Government, or rather in one branch of it, a thus for offences which no previous law had defined and power as boundless and dangerous as could be desired by denounced, is an arbitrary exercise of power; is punisha despot--then have they taken pains to secure the citizen ment, upon the universally reprobated principle of ex post from oppression, from every quarter but one. And our facto. boast must now be, not that we have a free Government, We have too, sir, among our prohibitions, in a constitusecuring the citizen from every violation of his rights, but tion intended certainly to guard us from every encroachthat we have a Government, of which only one department, one expressly enacted against ex post facto laws. ment has absolute power over our lives, liberties, and pro- What are ex post facto laws, within the meaning of our perty: where only one privileged order exists, which has no limits to its power over the citizen, but its discretion. It has been generally agreed that the sedition law was anconstitutional, because it conflicted with the prohibition to pass any law infringing the liberty of the press. Now, if Congress were to pass a law to punish contempts, or any other offence, by depriving the citizen of his liberty, by a trial here or elsewhere, without a jury, without due process of law, would not such a law equally conflict with that prohibition which guards these rights from infringement? And if such a law would be a violation of the constitution, is not the exercise of the power without a law equally unconstitutional? If such a law was passed, could there be a doubt of the constitution? In 3d Dal. 386, we have a case upon this subject, and I recommend the learned and able opinions of the judges of the Supreme Court to the consideration of this honorable House. They show that the power thus prohibited applies to all cases where punishment is inflicted for offences, without a previous law declaring the offences; or where the law of evidence is changed, or any material defence affected, after the commission of the offence. They quote the words of prohibition in the constitutions of many of the States, to show its meaning to be that there should be punished, nowhere, any offence without a previous law declaring it; and in common sense there can be no difference between punishing men without a law, and with a law never declared; if, indeed, there can be any such thing H. OF R.] Question of Privilege. [APRIL 26, 1833 as a law undeclared, a law locked up in the breasts of those The wisdom of the Senate thereupon determined them who claim to execute it. to resolve that William Duane, who had committed a com But, sir, upon this dark subject of privilege and con- tempt against the Senate by his libel, had, by refusing tempt, we are not wholly without the light of law. The appear as required, and extenuate his offence, committe American Congress have not thought it necessary or pro-another contempt; and a most terrifying warrant was there per that it should be undefinable or undefined. They upon issued against him, commanding the Sergeant-at-Ar passed at the last session a law defining contempts, and to arrest him, and commanding all the officers of the Uni confining them simply to acts of interruption, committed in the presence of the tribunals of justice. Shall I be told that that law is only for the courts? May I not answer that this House, as to all the judicial functions it may exercise, is a court, and therefore bound by the law Lord Coke justifies the summary proceedings and trials of the Parliament, on the ground of its judicial character and duties; and if this ground is to justify the power here, the House is within the law of Congress; but if not, is not the House within the reason of the law? Why have the courts been limited, but because the people have thought it a dangerous and improper power? and will they not think it as dangerous and improper here, or any where, as in the courts Congress and the American people have given to the courts all the power of privilege that they thought necessary or proper, and have denied to them, by this law, only what they thought not necessary and not proper. And can any reason be found satisfactory to the people, for giving to this House what is unnecessary and improper for the courts? I might easily show that such a power is more dangerous here, and less necessary and less proper, than in the courts. Such a power, if it be here, can be exercised over acts like the present, committed every where throughout the Union; and the party to be prosecuted here for such an act done in Maine or Florida, with the witnesses for and against him, may be brought here for trial and imprisonment. It is obvious that at least as large a measure of protection is necessary for the judges as for the members of this House; for they are bound, in the discharge of their duties, to give judgments awakening every feeling of interest, and every passion of man, and bringing them into immediate conflict with these passions and feelings. In the face of such objections as these, is a power confessedly most dangerous and liable to abuse, now, for the first time, in a case like the present, to be assumed? Instances have repeatedly occurred, known to us all, in which acts of aggression, far more serious than the one now complained of, have been committed upon members for words spoken in debate, and yet it has never been thought either necessary or proper to call up such a power of protection. There has been a case more resembling this in principle than any other, in which it was attempted to wield such a power--attempted in the haste and heat of party passion, and abandoned in despair and shame. ed States, and all the people of the United States, to ad him in arresting the offender. But although the who hue and cry of the nation was raised against him, and a though, as I believe, he was daily to be seen in the street of Philadelphia, he was never arrested, or, if arrested never brought before the Senate. The journal shows tha some memorials and remonstrances were presented by the people of Pennsylvania, in which the Senate was reques ed to reconsider its proceedings in the case, which it wa resolved should not be read; and, finally, on the last da of the session, it appears among the last acts of the House that a resolution was passed ordering the said William Da ane to be prosecuted for his libel under the sedition law Thus all this fire, like that of the House of Lords agains Lord Holt, when they threatened him with the Tower, f daring to understand the law of Parliament, as is said a the note in 1st Raymond, page 18, "went out in smoke." I should think this case ought to be considered as set tling all pretensions of either House of Congress, to try, a breach of privilege, a libel on the proceedings of the House, or, of course, a libel on a member for words spoke in debate. And if it be conceded that a libel on a member f words spoken in debate cannot be punished here as a c tempt, I am at a loss to conceive how an assault for the same cause can. They are both acts of wrong, and they both affect the freedom of debate: the libel certainly is the most injurious, and most deserves and requires the app cation of punishment. I have now contended that this House can have no pow ers but under a grant, express or implied, from the co stitution; That it cannot take the power in question by implication from the constitution; Because it is not either necessary or proper; And because it is against the powers expressly granted by the constitution to another department; And because it is against the prohibition of the const tution; And cannot be exercised but in the way prescribed viz. by passing a law. I have further shown a law of Congress excluding such a case as the present from punishment, as a contemp in the courts, by the spirit of which, at least, this Houses as much bound as the courts. when the offence is committed out of the House, and I allude, sir, to the proceedings of the Senate of the And I have shown that no past experience has proved United States against William Duane, appearing in the the necessity of the power, and that there has been journal for the session of '99-1800. That prosecution was usage which ought to sanction it, the only case resembling for a contempt by an alleged libel upon that body, and was it in principle, being one in which its exercise was attempt considered a breach of their privileges. He was ordered ed and abandoned. to appear at the bar of the House to answer it. He de- I think I have thus shown that in no case, at leas manded the aid of counsel, and by a resolution of the Senate was allowed the aid of counsel for the production of witnesses, who were to be heard in extenuation of his of fence. This was founded upon the practice of the British Parliament in cases of privilege, as stated by Holt, which allows the offenders not the right of defence, but only of supplication. He called upon two eminent gentlemen, who had too just a sense of the dignity of an honorable It must be a wrong done, in violation of a member's p profession, and the rights of free citizens, to submit either vilege, for words spoken in debate. I presume it will to such restrictions. Their letter, indignantly refusing to allowed that the House can have no power to try a citize appear trammelled by those humiliating conditions, was for an assault upon one of its members, committed sent to the Senate, and they were informed by the accus- the street, when the House is not sitting, upon an ordina ed, that, as he was not allowed to defend himself, he should ry quarrel. take no further concern in their proceedings, but leave it to the wisdom of the Senate to act as they might see fit. If the House has the power, what must be the case, point of fact, to be within it? To give the jurisdiction claimed here, it must be mad for words spoken in debate. |