APRIL, 1832.] Question of Privilege. [H. OF R. that this House should try, if it cannot adequate- | it be judicial, does not the constitution expressly ly punish, particularly when the ordinary tribunals can do both. vest the judicial power in the courts of the United States? Article 3, section 2. Does it not declare that "the trial of all crimes, except in cases of impeachment, shall be by jury?" (The declaration and the exception alike conclusive upon the question.) 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 "imprison-House may assert over the act complained of in ment must cease with the session." It is plain that, with a power thus restricted, there may be very atrocious cases, where the House, after convicting, can impose no adequate punishment. Their imprisonment can never be like that of the British Commons, for it must not be made more rigid than "absolutely and imperiously required" to protect the House from the offender, it must be the exertion of "the least possible power " of restraint; and such (as I have seen) is the sort of imprisonment applied in this case, so very different from that within the four walls of the court's gaol, that, except that it may interfere with a man's business elsewhere, it would be no punishment at all. To many persons it certainly would be none to spend even the whole winter in Washington, with apartments in one of its best hotels, with the further benefit of a very courteous and agreeable gentleman as his companion. If I am told that, notwithstanding the opinion of the committee in Jarvis's case, and of the Supreme Court in Dunn and Anderson, the House may, if they shall find that this mitigated imprisonment will not effectually restrain such offences, consider it " necessary," and will therefore have the power to increase its rigor: to this I answer that it certainly may, and if it takes this power, very probably, hereafter, will; and by the same reasoning, if imprisonment, however rigid, will not restrain offenders, any of the other punishments, taken upon the same principle, by the House of Commons, such as cutting off hands, or banishment, or even death, may be thought necessary for the protection of the House, which will still say that they are applying the "least possible power necessary for that purpose. I do not think that, by admitting that it may come to this, it will follow that the power is a proper one. I conclude, therefore, that it is a power neither necessary nor proper. That this House may exercise preventive justice, which can only extend to protect itself from interruptions, and can have no pretensions to the exercise of vindictive justice over cases which do not interrupt it, if they leave them to be punished elsewhere. I, secondly, insist that the power claimed by the House is inconsistent with the powers expressly given by the constitution to other departments. What is the nature of the power in question? Is it legislative, executive, or judicial? And if There is no ground upon which the exception of this particular offence from the consideration of the courts can be claimed. The courts were intended to try, and are competent to try and punish all offences; and whatever power this this case, there can be no doubt but that the court has power, and adequate power, to try and punish it. Are both then to try and punish the same act, the one calling it a breach of the peace, and the other a breach of privilege? And if so, which is to have the preference in this 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? Suppose, in this case, when the warrant was issued, the accused had been found by the Seargeant-at-Arms in the custody of the marshal? Could he have taken him? Could he have been brought here for trial? And is there any difference between an offender's being actually taken by the marshal, and his being liable to be taken? And, thirdly, the power claimed is within the prohibitions of the constitution. What are these prohibitions? The fifth article of the amendments declares that "no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury, &c. ;" nor shall any person be subject, for the same offence, to be twice put in jeopardy, &c., “nor be deprived of life, liberty, or property, without due process of law." 99.66 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? 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. I beg this honorable House to see how his lordship answers it, and to see how impossible it is for this or any other answer to evade the force of the prohibition here. H. OF R.] Question of Privilege. [APRIL, 1832. He says that, previous to this statute, the lex | yet the assumption now is, that this House can parliamentaria, giving this power of summary do without a law that which the whole Conproceeding, was in force, and was part of the gress, with the sanction of the Executive, could law of the land; and that, therefore, the terms, not accomplish. "due process of law," applied as well to the law of Parliament as to all other law. 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. 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. And this, sir, is reasonable as well as constitutional. Without which he had no means of knowing was an offence, and be exposed to a punishment of which he could never have heard till it was pronounced. If this be not tyranny, what is? If this be our condition, are we freemen? Look also at the provisions of the sixth article: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, &c. ;"" and to be informed of the nature and cause of the accusation-to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor-and to have the assistance of counsel for his defence." I would ask whether any prosecution, any-it a man may lose his liberty for an offence 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, if all or any of these safeguards are no protection to a citizen accused and tried here, if he may be tried here according to the discretion of the House, without jury or accusation, or witnesses or counsel, and the constitution is no shield for him here, then have the framers of the constitution of which we boast, left in the hands of one of the departments of the Government, or rather in one branch of it, a power as boundless and dangerous as could be desired by a despot-then have they taken pains to secure the citizen from oppression, from every quarter but one. And our boast must now be, not that we have a free Government, securing the citizen from every violation of his rights, but that we have a Government, of which only one department has ab-hang up his laws thus high, what was it in the solute power over our lives, liberties, and property; 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 unconstitutional, 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 courts of the United States deciding it to be unconstitutional and void? And 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 offenders to avoid the offences defined, and commit others. And this is the same writer who condemns the tyranny of Caligula for having his laws hung up so high that they could not be read, and then punishing those who transgressed them. If it was tyranny in him to Parliament he was defending 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? Sir, the modern annotators on this author understand better the rights of the subject. At the page which I have quoted, may be seen the opinions of Christian Archbold and Chitty upon this defence of the undefined and undefinable laws of privilege-(1st Chitty's Black., p. 164.) They condemn it as unjust and oppressive, contrary to the rights of Englishmen. They declare that to punish thus for offences which no previous law had defined and denounced, is an arbitrary exercise of power; is punishment, upon the universally reprobated principle of ez post facto. Bank of the United States. Mr. CLAYTON asked leave to make a report in relation to the Bank of the United States; and leave having been granted, Mr. C., from the Committee of Visitation and Inquiry into the Affairs of the Bank of the United States, made a report, and moved that, without being read, it be committed to a Committee of the whole House on the state of the Union, and be printed. WEDNESDAY, May 2. Revolutionary Pension Bill. [H. OF R The bill to enlarge the revolutionary pension bill was read a third time. Mr. WILDE being about to vote in a manner different from what he had always formerly done, he begged to explain the grounds on which he should do so. He was decidedly in favor of the principle of the bill; nor did he much object to its extent: but he considered the time of its introduction altogether objectionable. He referred to the excited state of the public mind, and the large amount of money the bill would draw from the Treasury; and said that while the dark and portentous cloud of the tariff discussion yet hung over the [On this motion to print the report of the Select Investigating Committee, an animated debate sprung up, going into the merits of the question: in which Messrs. McDuffie, Clayton, Adams, Hubbard, Lamar, Cambreleng, Wayne, Wickliffe, Whit-country, he should be destitute of all claims to. tlesey, Thomas of Maryland, R. M. Johnson, and Watmough took part.] The question was then put on committing and printing the report, and agreed to. Mr. CLAY, of Alabama, asked leave to move for the printing of 10,000 copies of the report. The request being objected to, he moved to suspend the rule to allow him to make the motion, but the House rejected the motion, (which requires a vote of two-thirds,) yeas 86, nays 84. TUESDAY, May 1. The House resumed the consideration of the revolutionary pension bill. The question being on the amendment of Mr. WICKLIFFE, which proposed to extend the benefits of the bill to all who were engaged in the Indian wars of the West, down to the year 1795, Mr. BLAIR, of S. C., moved to insert a clause to include those militia who fought in the battles of King's Mountain and Guilford Courthouse, in North Carolina, without proof of further service, and he demanded the yeas and nays on his motion, which, being taken, stood -yeas 46, nays 113; so the amendment was rejected. Mr. LETCHER also renewed the amendment which he offered in committee to include those who fought in the Indian wars from 1775 to 1783; which was agreed to without a division. The amendment of the Committee of the Whole, to include those militia in the pro rata allowance who served three months, was concurred in by yeas and nays-98 to 73. Mr. DAVIS, of Massachusetts, moved the previous question, which was carried-yeas 91, nays 60. The main question was then put, and the bill ordered to be engrossed, and read a third time -yeas 125, nays 50. this bill until the other most perplexing subject patriotic feeling if he should consent to pass should first have been disposed of. Not believing that there would, after that, remain time to resume the present bill with any other hope of further consideration of the bill be indefinitely its passage, he concluded by moving that the postponed. On that question the yeas and nays were ordered, and, being taken, stood—yeas 45, nays 128. The yeas and nays were then ordered on the passage of the bill, and, being taken, stood as follows: YEAS. Messrs. Adams, Allison, Anderson, Angel, Appleton, Arnold, Ashley, Banks, N. Barber, Barringer, Barstow, Isaac C. Bates, James Bates, Beardsley, Bethune, Boon, Bouck, Briggs, Burges, Cahoun, Cambreleng, Carr, Collier, Lewis John Brodhead, John C. Brodhead, Bucher, Bullard, Condict, Silas Condit, Eleutheros Cooke, Bates Cooke, Cooper, Corwin, Coulter, Crane, Crawford, Creighton, Daniel, John Davis, Dayan, Denny, Dewart, Dickson, Doddridge, Doubleday, Duncan, Ellsworth, George Evans, Joshua Evans, Edward Everett, Horace Everett, Fitzgerald, Ford, Gaither, Gilmore, Grennell, Hammons, Harper, Hawes, Heister, Hodges, Hogan, Holland, Horn, Hubbard, Hughes, Huntington, Ihrie, Ingersoll, Jarvis, Jewett, Richard M. Johnson, Kavanagh, Kendall, Kennon, Adam King, John King, Kerr, Leavitt, Lecompte, Letcher, Lyon, Mann, Marshall, Maxwell, McCarty, Robert McCoy, McIntire, McKennan, Mercer, Milligan, George E. Mitchell, Muhlenberg, Newton, Pearce, Pierson, Pitcher, Potts, Randolph, John Reed, E. C. Reed, Semmes, Slade, Smith, Soule, Southard, Spence, Stephens, Stewart, Sutherland, Taylor, Philemon Thomas, John Thomson, Tracy, Verplanck, Wardwell, Washington, Watmough, Weeks, Wheeler, Elisha Whittlesey, Freder ick Whittlesey, Edward D. White, Wickliffe, Williams, Young-126. NAYS.-Messrs. Alexander, Robert Allen, Archer, Barnwell, Bell, James Blair, John Blair, Bouldin, Chinn, Claiborne, Clay, Clayton, Coke, Conner, Craig, Davenport, Warren R. Davis, Drayton, Felder, Foster, Gordon, Griffin, T. H. Hall, W. Hall, Hawkins, Irvin, Charles C. Johnston, Lamar, Lewis, Mardis, Mason, McDuffie, McKay, Newnan, H. OF R.] Post Office Contracts, &c. [May, 1832. Nuckolls, Patton, Plummer, Polk, Roane, Russel, | to the inquiry proposed, except on account of Speight, Stanberry, Standifer, Francis Thomas, the unnecessary labor to which it would put Wiley Thompson, Vance, Wayne, Worthington 48. So the bill was passed, and ordered to be sent to the Senate for concurrence. MONDAY, May 7. Post Office Contracts, &c. the department. It was extremely inconvenient to have the clerks taken from the regular course of their occupations to answer calls of this kind, which, after great time and trouble had been spent upon them, for the most part issued in nothing. In reply to the gentleman from North Carolina, (Mr. SPEIGHT,) and from Kentucky, (Mr. JOHNSON,) Mr. EVERETT stated that the reply of The following resolution, offered some days the department could not require much time, ago by Mr. EVERETT, came up: Resolved, That the Postmaster General be directed to transmit to this House a copy of the contracts lately made by him with True and Greene, and Hill and Barton, for printing Post Office blanks; and also a copy of the contract made with Simeon Ide, for the same purpose, in 1827; and also to state whether proposals were published for said contracts, and the amount paid under said contracts. Mr. BLAIR, of South Carolina, moved to lay the resolution on the table. all the papers called for being merely copies of the contracts, the offers of individuals, and a statement of the quantity of papers, &c., paid for. That though it was true there was no law directing the department to advertise for the contract, yet the gentleman was mistaken in supposing it had been the practice of that department to make private contracts for their printing. That, in 1827, the department did advertise: how the practice had been before that time, he was not informed. Mr. WHITTLESEY was in favor of the resoluMr. EVERETT, of Vermont, rose to state the tion, but he wished a much more extended ingrounds on which he had offered the resolu- quiry gone into in reference to the affairs of that tion. In 1827, the contract for printing Post department of the Government. Gentlemen Office blanks was given to the lowest bidder. who support the Administration had made the On proposals published by the department, in most frank and liberal professions (and none the early part of the session, his attention was could be more rejoiced at witnessing them than called to the subject by a letter from one of himself) that they were ready and willing to go his constituents, requesting him to ascertain into such an inquiry, if any gentleman would when the proposals for the contract for the rise in his place and say that he had reason to ensuing four years would be published; and believe that there was mismanagement in any that, on application to the department, he was part of the affairs of the Government. Mr. W. informed that contracts had already been made said he was one who did believe, and had long with Hill and Barton, and True and Greene. been under the belief, that very gross misOf the nature of that contract, whether benefi- management did exist in the Post Office Departcial or not, he was not informed. He was ment; and he was desirous of availing himself advised that proposals had been made to the of the frank offers that had been made to introdepartment at lower rates than the former con-duce the resolution he had offered, proposing a tracts. That when the department thought proper to change the mode of making a contract of this magnitude, it was proper the House should know it; and if any evil had resulted from it, it might be provided against by legislation. Mr SPEIGHT suggested that the gentleman might accomplish his object by simply requiring the Postmaster General to state whether the practice of the department at present was different from what it had been formerly. The call in its present shape must produce a very voluminous report, which, in his opinion, was wholly unnecessary. more extended inquiry than that contained in the resolution just offered by the gentleman from Vermont; and he hoped that the honorable gentleman from Kentucky, (Mr. JOHNSON,) at the head of the Post Office Committee, with whose liberality of conduct and feeling every one was acquainted, would extend the same indulgence to an inquiry of this kind, which he had done in so prompt and ample a manner on a late occasion. [When on the Bank Committee.] As to the labor that might be necessary to answer the call, he considered that a matter of very small comparative importance. If the Mr. R. M. JOHNSON said that it was proper affairs of the department were going wrong, the for him to state that the practice of the depart-House ought to know it; but if they were all ment had been perfectly uniform on the subject of these contracts. There was no law requiring them to be given to the lowest bidder. The usual mode had been for the department to fix the price of the supplies it needed; and to avoid the delay and trouble of carrying them from one part of the country to another, the contracts were parcelled out in different parts of the Union. Mr. J. said he had no objection | for persons and papers conducted with fairness and propriety, the inquiry would afford an opportunity for making that fact known to the House and to the nation. He then moved to strike out the whole of the motion now before the House, and insert a proposition for the appointment of a committee to examine the present condition of the Post Office Department, &c. &c., with power to send MAY, 1832.] Case of Samuel Houston-Mr. Houston's Defence. [H. OF R. and things in general, although a similar com- Mr. CRAWFORD said that the amendment | States-the trial which was shortly to be restruck him as of a most extraordinary charac- sumed the tariff-the apportionment bill-the ter. A proposition had been offered by the bill for interval improvements-all these were gentleman from Vermont to inquire into a not sufficient. The gentleman wanted a comsingle contract-an inquiry into which he pre-mittee got up, who should inquire into matters sumed no one would make any opposition; and now to such a resolution the gentleman wished to append an amendment, going to propose an inquiry into the whole administration of the Post Office Department, and this without the allegation of a single fact. Only on the belief of the gentleman from Ohio, the House was called to cast a shade over the reputation of one of the best officers that ever existed in any Government. The gentleman would probably say that such was not his intention in offering the amendment, but Mr. C. knew too well that an inquiry of this kind could be wielded with some effect at the approaching election; and if it should be gone into, he would venture to predict that it would be so used. Why were committees of investigation ever appointed? It was only when some disease was believed to lurk beneath the surface which required to be probed to the bottom. But would that House institute a Committee of Investigation without any charge being first made? On what should such an investigation be based? It should always be preceded by the allegation of some specific fact of malversation. If Mr. C. should see that, he pledged himself to vote for the inquiry; but he could not consent that the money, of the people should be consumed on such an investigation, without some distinct ground to believe that something was wrong. Besides, at this late stage of the session, could the gentleman believe that such an investigation, if gone into, could possibly be completed? Did he remember that they were within four weeks of the usual termination of the session? The gentleman said that the grounds of his amendment had long been in his mind; if so, why did he not sooner bring them forward? Believing that no good could grow out of the proposed inquiry, and that the officers of the Government had some character to be preserved, he should vote against the amendment. Mr. R. M. JOHNSON had not expected such a substitute to be offered by any member of the House, certainly not by a gentleman who, like himself, was entitled to be called a working member; a gentleman, too, who had told him in conversation, and had told the House in debate, that it was not worth while to call up any more of those useful bills for private relief, of which not less than three hundred remained still unacted upon. Though the honorable gentleman had labored in the preparation of those bills, still it was now so late in the session that the gentleman had abandoned them in despair. Now, however, the gentleman seemed to wish to get up a dust. The House, he presumed, had not dust enough already. There were not enough of exciting subjects before it. The Bank of the United The hour of twelve, appointed for a further hearing of the case of Samuel Houston for an alleged breach of privilege, having arrived, the accused was brought to the bar; when he rose, and addressed the House in his own defence as follows: Mr. Speaker: Arraigned for the first time in my life, on a charge of violating the laws of my country, I feel all that embarrassment which my peculiar situation is calculated to inspire. Though I have been defended by able and enlightened counsel, possessing intellect of the very highest order, embellished, too, by all that science and literature can bestow, yet it seems proper that, under such circumstances, I should be heard in my own vindication. The charge which has been preferred against me is one of no ordinary character. If I shall be convicted of having acted from the motive alleged by my accuser, lasting infamy must be the necessary consequence. To my apprehension, the darkest dungeons of this Government, with all the pains and penalties of treason, present a trifling consideration when compared with that load of infamy which, under such circumstances, must attach itself forever to my name. What is the nature of the charge? I am accused of lying in wait, for the purpose of depriving a fellow-man of the efficient use of his person, if not of existence itself. Sir, can there be a greater crime? Who, but a wretch unworthy of the name of man, could ever be guilty of it? I disclaim, utterly, every motive unworthy of an honorable man. If, when |