H. OF R.]

Question of Privilege.

[APRIL 26, 1832.

punish such offences, Congress can make them so, and, ing, can impose no adequate punishment. Their impritherefore are under no necessity to assume the jurisdiction sonment can never be like that of the British Commons, themselves. for it must not be made more rigid than "absolutely and Neither is it proper. It can never be proper that a imperiously required" to protect the House from the of party prosecuting for offences against itself shall be the fender, it must be the exertion of "the least possible judges to try and punish. This House charges a man power" of restraint; and such (as I have seen) is the sort with an offence; the members are the prosecutors; they of imprisonment applied in this case, so very different produce the evidence, argue the cause against the prison- from that within the four walls of the court's jail, that, exer, 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 it vilege of arguing with his judges, and refuting their argu- certainly would be none to spend even the whole winter ments, will generally be of little use to him. It would be in Washington, with apartments in one of its best hotels, hard enough to have such fearful odds against him in num- with the further benefit of a very courteous and agreeable 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 committee in Jarvis's case, and of the Supreme Court in Dunn The counsel, in such an encounter, might possibly also and Anderson, the House may, if they shall find that this meet some things still more fearful than superior numbers mitigated imprisonment will not effectually restrain such and talents. There may hereafter be, upon a bench of offences, consider it “necessary," and will therefore have two hundred and fifty judges, (of which this House will the power to increase its rigor: to this I answer that it consist,) such a thing as a captious, impatient judge. He certainly may, and if it takes this power, very probably, 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, or ing powers of rebuke and invective; and he may be pro- even death, may be thought necessary for the protection 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. I the inferiority of the counsel, his humble and unprivileged do not think that, by admitting that it may come to this, it 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 disabled; but these circumstances, effectually as they would appeal to the magnanimity of the high and the privileged, might possibly be sometimes forgotten.

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 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 conland, in more modern and better times, that it is not pro- stitution to other departments. per that any House should redress its own wrongs. We find, in Starkie on Slander, (479,) that the House of Commons has, on several occasions of contempt, declined the jurisdiction, and requested the prosecution of the offend ers before the courts. The author commends this course of the House, and quotes from the address of the Attorney General to the jury, in one of the cases, an acknowledg. ment of the unfitness of the House of Commons to try offences 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.

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?

What is the nature of the power in question? Is it legislative, executive, or judicial? And if it be judicial, does not the constitution expressly 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.)

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 House may assert over the act complained of in this case, there can be no doubt but that the court has 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 callappropriate tribunal for such proceedings, which will ing it a breach of the peace, and the other a breach of prireadily occur to our minds. Has the House sufficient vilege? And if so, which is to have the preference in this powers, in cases of difficulty or resistance, to bring such conflict of jurisdictions? Is it to depend upon the speed cases to any successful result? When the party is con- of their respective officers, and the offender be made first victed, has the House the power to inflict an appropriate to answer where he is first caught. punishment? It cannot be proper or necessary that this House, should try, if it cannot adequately punish, particularly when the ordinary tribunals can do both.

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."

Suppose, in this case, when the warrant was issued, the accused had been found by the Sergeant-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 It is plain that, with a power thus restricted, there may grand jury, &c.;" nor shall any person be subject, for the be very atrocious cases, where the House, after convict-same offence, to be twice put in jeopardy, &c., "nor be

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.

[H. OF R.

deprived of life, liberty, or property, without due process courts of the United States deciding it to be unconstituof law." tional 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 parliamen- to 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 I know that in England there have been asserters of the law of Parliament as to all other law. 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 a speedy 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 I would ask whether any prosecution, any where, in under the piles of their musty rolls, whence they could which a man may be found guilty of an infamous crime, or never be dug up, or to hide them still more securely in in which his person may be imprisoned, is not "a criminal the breast of Parliament, until they were brought out, as prosecution." If so, are not all these safeguards of the conoccasion required, for use? stitution 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 Arching to the discretion of the House, without jury or accusa- bold and Chitty upon this defence of the undefined and tion, 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.

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.

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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 What are ex post facto laws, within the meaning of our perty: where only one privileged order exists, which has constitution? 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 infringe

ment?

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

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

as a law undeclared, a law locked up in the breasts of those who claim to execute it.

[APRIL 26, 1832.

The wisdom of the Senate thereupon determined them to resolve that William Duane, who had committed a conBut, sir, upon this dark subject of privilege and con- tempt against the Senate by his libel, had, by refusing to tempt, we are not wholly without the light of law. The appear as required, and extenuate his offence, committed American Congress have not thought it necessary or pro-another contempt; and a most terrifying warrant was thereper that it should be undefinable or undefined. They upon issued against him, commanding the Sergeant-at-Arms passed at the last session a law defining contempts, and to arrest him, and commanding all the officers of the Unitconfining them simply to acts of interruption, committed in the presence of the tribunals of justice.

ed States, and all the people of the United States, to aid him in arresting the offender. But although the whole hue and cry of the nation was raised against him, and although, as I believe, he was daily to be seen in the streets of Philadelphia, he was never arrested, or, if arrested, never brought before the Senate. The journal shows that some memorials and remonstrances were presented by the people of Pennsylvania, in which the Senate was requested to reconsider its proceedings in the case, which it was resolved should not be read; and, finally, on the last day of the session, it appears among the last acts of the House, that a resolution was passed ordering the said William Duane to be prosecuted for his libel under the sedition law. Thus all this fire, like that of the House of Lords against Lord Holt, when they threatened him with the Tower, for daring to understand the law of Parliament, as is said in the note in 1st Raymond, page 18, "went out in smoke." I should think this case ought to be considered as settling all pretensions of either House of Congress, to try, as a breach of privilege, a libel on the proceedings of the House, or, of course, a libel on a member for words spoken in debate.

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 I have now contended that this House can have no powevery feeling of interest, and every passion of man, anders but under a grant, express or implied, from the conbringing 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.

And if it be conceded that a libel on a member for words spoken in debate cannot be punished here as a contempt, 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 application of punishment.

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 constitution;

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 contempt in the courts, by the spirit of which, at least, this House is as much bound as the courts.

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 no 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 attemptconsidered a breach of their privileges. He was ordered ed and abandoned.

I come now, in the second place, to show that, admitting the power, this case is not within its reach.

If the House has the power, what must be the case, in point of fact, to be within it?

to appear at the bar of the House to answer it. He de- I think I have thus shown that in no case, at least manded the aid of counsel, and by a resolution of the Se- when the offence is committed out of the House, and so nate was allowed the aid of counsel for the production of as to occasion no interruption to its proceedings, can the witnesses, who were to be heard in extenuation of his of- House exercise the power assumed on this occasion. 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 profession, and the rights of free citizens, to submit either to such restrictions. Their letter, indignantly refusing to appear trammelled by those humiliating conditions, was sent to the Senate, and they were informed by the accused, that, as he was not allowed to defend himself, he should take no further concern in their proceedings, but leave it to the wisdom of the Senate to act as they might see fit.

It must be a wrong done, in violation of a member's privilege, for words spoken in debate. I presume it will be allowed that the House can have no power to try a citizen for an assault upon one of its members, committed in the street, when the House is not sitting, upon an ordinary quarrel.

To give the jurisdiction claimed here, it must be made for words spoken in debate.

Question of Privilege.

The offence, then, consists of two ingredients, viz. an act certain what provoked the accused to the act. done, and a particular purpose or intent; both must be confidential friends have been questioned by his accuser, found in the case. It is true the intent may be inferred from or by the House, as to his conduct and declarations in the the act; and if no circumstances appear, indicating any whole course of these attacks upon his character and feelother cause for the act, the act would authorize the ings. The honorable Mr. JOHNSON and Dr. Davis both inference of the intent. But if circumstances appear, declare that his conduct and language were mild and paindicating other causes for the act, then it must ap- cific, until the note from the complainant to Mr. JOHNSON pear which of these causes produced the act, and it was shown to him. must be shown to be that cause which gives the House jurisdiction.

There is then no conflicting evidence. It is clearly proved not to be the case of an assault for words spoken But I can further even undertake to show, in the pre-in debate, but for another cause, and the House can have sent case, that it was not the privileged speech, but the no jurisdiction over it. subsequent unprivileged provocations, or one of them, that produced the act.

The circumstances themselves show this without any ar-tution. gument.

For the speech was made, and produced no act or excitement. It does not appear that the accused even heard of it.

Then the speech was written by the member and printed. This was seen and borne with all patience. The accused then writes a respectful note, alluding both to the speech and the publication, opening the way for ex-scribed, viz. by a law; the constitution not saying they shall planation.

H. OF R.]

Question of Privilege.

[APRIL 26, 1832,

briefly as I can, some of the grounds of argument by who undertook to understand this mysterious law of Parwhich these views may be opposed.

In ordinary proceedings of a criminal nature, the accused has always an opportunity of knowing definitely not only the charge he is to answer, but he also hears and replies to the grounds or principles of law on which it is intended to be sustained.

On the present occasion, (as I have already shown in reference to the charge,) he has had neither of these means of defence.

I do not mention this in the way of complaint, but to show that this tribunal is not so proper a forum for such trials as one more judicial in its nature, and which has settled forms of proceeding; and also to excuse myself if I should seem to be answering arguments and refuting positions that may not appear in the prosecution of the case. It may then be urged, against the defence I have taken to the facts, that it will be always difficult and often impossible to prove the purpose or intent of the party in making the assault, to which I need only answer that it is no more difficult or impossible than in other and numerous cases, where it is always required, where the intent is an essential part of the offence, as in the cases of acts comImitted with intent to defraud. Acts sometimes in themselves are innocent, where the intent only is criminal; as the possession of forged bank notes, with intent to pass them, and many other cases. In all which, though the act, as here, may be admitted, the intent must be proved.

It may further be said that, in a case like the present, the person charged in debate may always seek another provocation, and thus evade the power of the House. To this, I answer, that if so, and the power of the House is thus easily evaded, it cannot be of any great importance, for the protection of the House, to assume such a power; it cannot be either necessary or proper.

liament, and had the independence and courage to declare it, was Lord Holt; and I have referred to some of his decisions, and to the case in Wilson, in which his opinion is clearly against the power, even of the House of Commons, to proceed in such a case as this is. To which I may add that of Lord Chief Justice Wilmot, in page 265 of his opinions, denying such a power to the English courts.

Lord Ellenborough, it is true, attempts, in Sir Francis Burdett's case, to deny Justice Foster's statement of his opinion of Lord Holt, but shows no authority, and gives no sufficient reason for doing so.

I shall also, no doubt, be told of the precedents and authorities in our own country; and these, I agree, are far more worthy of our consideration.

We find, then, upon the journals of the two Houses of Congress, the cases I shall now refer to.

We find the cases of Randall and Whitney, in 1796; John Anderson, in 1818; Russel Jarvis, in 1828; and the memorable case to which I have obviously referred, of the proceedings of the Senate against Mr. William Duane. None of these cases exactly resemble the present.

The cases of Randall and Whitney, and John Anderson, were for attempts to bribe members of this House; that of Jarvis, for an act done within the verge of the House, while in session, and consequently within the power I have admitted of preventing acts of interruption to the House while sitting.

The case of bribery certainly admits of distinction from the present case-that being an act which necessarily is done to a member as a member, which may or may not be the case as to an assault. I may further observe as to those cases, that it does not appear, as to Randall and Whitney, that any objection was made by them, on consti tutional grounds or otherwise, to the power of the House; and in the case of Anderson, it appears, in page 131 of And again: I may say to this, that though the person the journal, that he expressly waived all such objections. thus assailed in debate may seek another provocation, There is nothing, then, in the practice of either House the member who has thus used his privilege and means to look to it, need not give another provocation. He may, and must, if he means to claim the protection of his privilege, keep within it. If, as here, he goes beyond it, and adds another provocation, he does not deserve, and cannot claim, other protection than the laws afford to every man.

I will now consider, with as much brevity as possible, what I presume will be urged in support of the power assumed by the House on this occasion.

First, it may be said that the question is already determined by authority; that it is sanctioned by settled usage and judicial decisions.

That the British House of Commons claims, and is allowed, such a power, I have already admitted; gravely questioned, nevertheless, (at least in the extent of its application to a case like the present,) by eminent jurists, whose opinion ought to be held as better authority here than that of the asserters and abusers of this power.

to show that it has yet been found either necessary or proper to call to trial here persons who may have committed, out of the House, any acts of wrong against a member on account of words spoken in debate. And the only instance in which such an act of wrong, as in Duane's case for a libel on the Senate for their proceedings, was attempted, ended where, if any where it should have begun, in the recommendation of a prosecution in the courts of law.

The fact that so few cases, of any description, have occurred, and the absence of all precedent of a case here prosecuted, either of the nature or to the extent now claimed, (although we all know that cases like the present, in all respects, have occurred, and have been left to the ordinary judicial tribunals,) is certainly worthy of consideration, when we are inquiring into the necessity of this House having the power contended for.

There is one judicial decision upon this subject, that I find has been misunderstood by a very learned writer upon the constitution, and may be misapprehended here. This But I have shown that there can be no analogy between is the case of Duane and Anderson, reported 6th Wheathe powers of this House and that of the English Com-ton. It has been thought that that case decides in favor mons; that the power is denied there from a source to of the power exercised by this House in the case of Anwhich this House cannot look; that it is such a power as derson, and establishes the right of this House to punish the framers of our constitution would not have allowed to an attempt to bribe a member, committed out of the House. any or to all the departments of our Government, and such The case settles no such principle. None such was beas they have plainly prohibited here. fore the court. It only decides (what my argument has If I am told of the authority of the English courts re-admitted) the power of the House over acts committed in cognising the power in the Commons, I may say that the its presence. The pleadings in that case presented no authority of any men upon a question of which they pro- other question, and it is an authority thus far, and no farther. fess themselves entirely ignorant, cannot have much weight. There have been, however, some other principles setThe decision, therefore, of English judges upon a ques-tled by the decision of that high tribunal, that seem to me tion under the lex parliamentaria, which they declare is a applicable to the present question. matter they do not, and dare not, understand, cannot be Their opinion in the case of the Bank of Columbia against much relied on. On the contrary, I may claim the autho-Okely, reported in 4th Wheaton, page 243, shows in what rity of the English judges. The only an among them light they consider the constitutional right of trial by jury,