JANUARY, 1804. Official Conduct of Judge Chase. H. OF R. gentleman from Virginia, as well as other mem- The committee reported that, in their opinion, bers on this floor, were then in the House. The they contained evidence of his guilt, and he was case being, I believe, the only one in which there impeached. In the case of Judge Pickering, the was a charge of treason, excited, in a considerable same course has been pursued. The Executive degree, the attention of members, many of whom transmitted documents to the House which conattended the trial. How comes it, then, that this tained, as it was supposed, proofs of misconduct, charge was not then made? If it shall be said and the House proceeded to an impeachment. the House did not interfere at that time because These precedents confirm the principle of those the criminal was lying under sentence of death, drawn from the practice of the British House of it will be recollected that, in 1801, Fries was par- Commons. What course is now proposed? Withdoned. Why was not the inquiry then made? out any charge against the judges, without any If it shall be said that it would have been impru- man saying they are guilty of any misconduct, we dent to make it on account of the party then in are about to appoint a secret committee, to deterpower, why was it not made in the seventh Con-mine whether any charges can be made, and gress, when a change of men took place? How whether any proofs to support them can be found. can gentlemen reconcile this great delay with the Although I'am willing that the conduct of these high regard they profess for the purity of the gentlemen shall be investigated, for I am sure they streams of justice, and for justice itself? For must desire it, and although I have no objection such is the respect they entertain for justice, that to impeach them, if gentlemen wish it, and exthey have determined to bring to conviction this hibit proper proofs on which to ground it, yet I unjust and criminal judge. Gentlemen ought to cannot consent to pursue a course so improper as account for this culpable neglect. It is impossible that now proposed. For this reason I am against that they should have been ignorant of the trial the resolution, not because I am hostile to an inof this man. It was not a sudden or a hidden vestigation, but because I cannot consent to the thing, done in a corner; it was done in public, in appointment of a secret committee to search, in the face of the Legislature, and yet it has slept to the first instance, for an accusation, and to look the present day. Under such circumstances, I for proofs to justify it. submit it to the House, whether much respect ought to be paid to the hearsay of the gentleman from Pennsylvania. The very delay, and other circumstances attending this transaction, show that it is not of the serious nature contended. I therefore think that, if properly brought before the House, and suffered to rest upon proof, it would constitute no ground for impeachment. As to the proposed form of proceeding, if we examine precedents, we shall find that it is not warranted by them. None mentioned compare with the case under consideration. The precedent in the case of Lord Bolingbroke does not compare with that. In that case the House of Commons raised a secret committee to examine the negotiations made for a peace. The committee was not raised to impeach Lord Bolingbroke, but to investigate the negotiations of the Ministry; and on the disclosure of facts, which took place on that occasion, the impeachment was grounded. Such, also, was the case in the instance of the Western expedition. The House appointed a committee vested with general powers to inquire into the causes of its failure, without particular reference to the conduct of any person. If we turn our attention to British precedents, we shall find that a committee has never failed to investigate the official conduct of any person contemplated to be impeached. In the case of Hastings, Mr. Burke came forward and moved an impeachment directly. In all cases this course has been pursued in the British House of Commons. So far as we have had precedents in this country, a similar course has been pursued. In the instance of Governor Blount, the Executive transmitted documents to this House, which contained, as it was supposed, evidence of his guilt, they were referred to a committee to examine them, and also to determine whether it was proper to print them. Mr. FINDLEY rose to explain. He said it was not the object of the House, in their investigation of the causes of the failure of the Western expedition, to make new arrangements, but to inquire into the conduct of certain officers who had directed it, viz: the Secretary of War, the Commanderin-Chief, and the Commissary. Mr. NICHOLSON said, he happened not to be in the House yesterday at the moment when the resolution, under consideration, was introduced; and when he entered he found the gentleman from Connecticut (Mr. R. GRISWOLD) on the floor, who concluded his remarks by moving a postponement. Mr. N. did not think it then correct to offer remarks upon the main question, but as the resolution itself was now under consideration, and the subject of no common nature, he could not think of passing a silent vote upon it. When he rose, to-day, for a few moments, on the motion to amend, by inserting the name of Judge Peters, he had then declared, and he now begged leave to repeat it, that whenever any member of the House should rise in his place and state that any officer of the Government had been guilty of official misconduct, he had no hesitation in saying, that he would consent to an inquiry. He cared not how exalted his station, or how far he was raised above the rest of the community; the very circumstance of his superior elevation would prove an additional incitement. Such, he said, was the nature of the Government, and so important the duty, in this respect, devolved upon the House of Representatives, that the conduct of the Chief Magistrate himself, as far as his vote could effect it, should be subjected to an inquiry whenever it was demanded by a member. The greater responsibility, the more easy and more simple should be the means of investigation. Were he, indeed, the friend, personal or political, of the officer H. OF R. Official Conduct of Judge Chase. charged, and he believed that impeachment would be the result of inquiry, it was possible that his feelings as a man might induce him to forget his duty as a Representative, and urge him to resist the inquiry; but, were he convinced of his innocence, he would do all in his power to promote it, in order that he might stand justified to the nation and to the world. JANUARY, 1804. capital cases, it was a right which they ought always to exercise. But, in Fries's case, the law was not permitted to be brought into the view of the jury by his counsel; the court denied to the prisoner the assistance of counsel, which was secured to him by the Constitution, and he was condemned to an ignominious death, which he must have suffered but for the subsequent interference of the Executive. Mr. N. said, he had thought proper to make these remarks in answer to those gentlemen who had undertaken to pronounce the conduct of the court to be strictly correct. Although he did not mean to commit himself by declaring that this afforded sufficient ground for impeachment, yet he could not avoid saying, that the refusal to hear counsel in defence of the prisoner, did not meet his approbation. the party was condemned without a hearing; that he was denied the assistance of counsel, which was secured to him by the Constitution of his country; that the right of the jury to decide both the law and the fact was refused; for it amounted to a refusal when the court would not permit the jury to be assisted by the arguments of counsel. He asked if gentlemen would consider Upon the present occasion, he begged that he it correct in a court, upon an indictment for murmight not be understood to say that the offence der, to prohibit the prisoner's counsel from conwith which these judges were charged, was such tending before the jury, that the offence charged as would warrant an impeachment. But, while amounted to manslaughter only? Surely not. he meant not to commit himself on a question of The question, in the case of Fries, was, whether such high moment, he could not avoid expressing the act of which he had been guilty amounted to his astonishment that the conduct stated should treason, or to a misdemeanor? and this the court not only be defended upon the floor of the House, refused to suffer the jury to have an argument but entirely approved; that gentlemen should ven- upon. He declared that, in all criminal prosecuture to declare that the court acted strictly in the tions, the jury had a clear, undoubted right to deline of their duty, in refusing to hear counsel on a cide, as well the law as the fact; they were not point of law which involved the guilt or the inno-bound by the direction of the court; and that, in cence of the prisoner. A man was charged with the highest offence against the Government, and, if guilty, was subject to the severest and most ignominious punishment recognised by our laws. High treason was the crime, and death the penalty. The Constitution declared that treason against the United States should consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. The framers of the Constitution intended to be as precise as possible in their definition of treason, they were anxious that no room should be left for doubt afterwards. They had seen to what an infinite variety of objects the crime of treason had been extended in England, and wisely confined it here to the only two offences which could be said to strike at the existence of the Government. The laws of the United States had declared that resistance to the execution of a law should only be considered as sedition, and had provided the punishment of fine and imprisonment. Fries was charged with resisting the execution of a law, and this offence the court determined to be treason, without hearing his counsel, and refused to permit them to address the jury on the subject, although the jury were the judges as well of the law as the fact. A resistance to the execution of a law, they construed to be treason, in the face of the act of Congress, which declared it to be a misdemeanor only, punishable with fine and imprisonment. These constructive treasons, he said, had been reprobated by the wise and good in all ages, and at a very early period in the history of English jurisprudence had received the pointed disapprobation of the Parliament. He adverted to what he called a wise and humane provision in the statute of Edward III., by which the judges were prohibited from declaring anything to be treason not so expressly defined by the letter of the statute. That the court had given such an opinion, was not now, however, the point of charge against them; that they extended the doctrine of treason beyond both the letter and spirit of the Constitution, was not now the foundation of the present motion. The accusation was that, in a case involving the life or death of a freeman, The gentleman from Connecticut had doubted whether the present proceeding was conformable to principle. He thought that we ought to have the proof before we take any steps to procure it. Mr. N. begged leave to ask how proof was to be procured before inquiry was made? In what manner information was to be obtained before it was sought for? If a member had stated upon oath that a judge had been guilty of improper conduct, which would warrant an impeachment, the motion would not be, in the first instance, to inquire, but to impeach. If information was necessary, how was it to be procured? By sitting here, and writing for depositions to be sent in? Surely not. If a person was in the lobby, acquainted with all the facts, how were they to be communicated to the House? Was he to come to the bar, and offer a voluntary affidavit, or would it be correct to introduce him without any previous proceeding? In that case, would it not be necessary to declare, by a prior resolution, that we would commence an inquiry before testimony could be offered at the bar? If a member should state that a witness was at hand who could prove official misconduct in a judge, the correct course would be to introduce a resolution, declaring that the House would inquire, and it could not be resisted. What, he asked, was the proposed course? Instead of making the inquiry in the House, it JANUARY, 1804. Official Conduct of Judge Chase. was requested that it might be made by a committee. Instead of using our power to bring witnesses before us, it is proposed to authorize a committee to examine them. This would be more convenient and more proper. To bring them before the House would be attended with inconvenience, and unnecessary delay. He could not tell what the mode of proceeding before the House of Representatives would be, but, generally, he believed, it was the practice for a member to propound the question to the Speaker; the Speaker then to propound it to the witness; the answer to be made to the Speaker, and by him reverberated back again to the House. He asked, if the House would consent to this? If they would agree to a course of proceeding so tedious, so procrastinating, so evidently embarrassing? And yet this must be the course, unless that proposed was adopted. It was said by a gentleman from Connecticut, (Mr. R. GRISWOLD,) that we were about to appoint a committee to ransack the country for an accusation, and afterwards to search for proof to support it. He complains that no accusation is made. Mr. N. averred that an accusation was made; it was made during the last session, and again repeated during the present. He asked, if it was no charge to declare that a juge had condemned a man to the most ignominious death, without a hearing; without allowing him those benefits which he claimed under the Constitution? Was it a trivial circumstence for a member of this House to declare that a freeman had been indicted for a high capital offence; that he appeared at the bar and pleaded not guilty; that his counsel were ready to prove the truth of the plea, but that the presiding judge had refused to hear them? If this was not a charge, and a charge, too, of a most solemn nature, he did not understand the meaning of the words. It was brought forward as boldly as the gentleman from Connecticut could wish, and the only question now was, in what manner shall we inquire into the truth of it? Shall we appoint a committee to make the inquiry by calling witnesses before them, or shall we dismiss it without investigation? Shall we give it the go-by, and suffer the character of the judges to rest under an imputation so heavy? Shall we proclaim our own dishonor, by publishing abroad that a heavy charge had been made, in the face of this House, against one of the highest judicial officers of the Government, and that we were too pusillanimous to notice it? What the gentleman meant by comparing the proposed committee to the Spanish Inquisition, Mr. N. did not really understand. Did the gentleman wish to make a false impression upon the public mind? Was he anxious to cast an odium upon the proceeding by calling it an inquisitorial committee, and affecting to believe that it was to be clothed with the powers of the Holy Inquisition? The Inquisition had the power to seize the person of the party, to deny him all access to his friends, to confine him in a cell, and refuse him all assistance whatever; to stretch him on the wheel, and rack and torture him into confession. Does the gentleman wish to induce a belief that H. OF R. this committee is to be clothed with the same powers? All committees appointed to inquire, might, to be sure, be called Inquisitorial, because they were to make inquiry, but the epithet of Spanish inquisition was intended to convey an idea totally incorrect. The gentleman had asked why this charge had been suffered to rest so long? The facts upon which it was made were said to have taken place in 1860. Mr. N. thought it would be fair to reply to the gentleman that, possibly, he himself had, in some measure, accounted for the delay; the proper time had not before arrived. But if the act upon which the charge was grounded was criminal at that day, was it less so now? If Justice had slept so long, did it follow that she was dead? He hoped and trusted not. Though she had lain dormant till she was almost trampled to death, she was again roused to her accustomed vigilance, would pursue her victims, and drag them to punishment. The day of retribution, he hoped, was at hand. The gentleman from Connecticut had declared that the proposed course was not warranted by precedent. He had noticed, but had not explained away, the precedents introduced by the gentleman from Pennsylvania, (Mr. FINDLEY.) His own precedent, derived from the impeachment of Mr. Hastings, instead of being in his favor was directly against him. In that case it was not pretended that the proof was before the House of Commons. Mr. Burke had derived his information from certain papers relative to Indian affairs, which some years before had been produced and referred to a select committee. In the year 1786, Mr. Burke rose in his place, not as a member of that committee, and charged Warren Hastings with high crimes and misdemeanors. About the same time he presented a written paper containing a specification of these charges. But this was not the impeachment. The written paper stated that as Governor General of Bengal he had disobeyed the instructions of the court of directors; that he had acknowledged himself perfectly acquainted with their wishes, but instead of obeying, had used his utmost endeavors to defeat them; and much more of an important nature. This he moved might be referred to a Committee of the whole House, in order that an inquiry might be made; and there was not a single dissenting voice. He did not adduce the proofs in the first instance, but stated his opinions that Mr. Hastings's conduct had been criminal, and demanded an inquiry. The Commons of England did not hesitate-they instantly resolved to inquire. No one was heard to declare that there was no charge, because there was no proof. Witnesses were brought to the bar and there examined by a Committee of the Whole, in support of the charges; nor was there a motion to impeach until the testimony was gone through. On the contrary, the facts proved were reported by the Committee of the Whole, who likewise expressed an opinion that Warren Hastings had been guilty of high crimes and misdemeanors, and ought to be impeached. The impeachment therefore was not upon the H. OF R. Official Conduct of Judge Chase. motion of Mr. Burke, but upon the report of a committee, who under the instruction of the House had made an inquiry. What then, Mr. N. asked, was the course now proposed? His friend from Virginia had called the attention of the House to certain alleged misconduct of a judge, which had been stated by a member in his place during the last session. That statement had again been repeated in the House yesterday, not in writing, indeed, but in language so clear and in terms so unequivocal that pone were so stupid as not to understand it. Like Mr. Burke, he asked that a committee should be appointed to inquire into the truth of the charge. The House of Commons had referred the subject before them to a Committee of the Whole, and the House of Representatives were moved to refer the subject before them to a select committee. A select committee was proposed, because it would be more convenient and more expeditious. If the subject might with propriety be referred to a Committee of the Whole, with equal propriety might it be referred to a select committee. He had noticed this precedent, not because he thought it necessary to cross the Atlantic for authorities, but because the gentleman had introduced it as favoring his own doctrines. If there was already no precedent, in his opinion the House ought to make one; but he believed their own Journals would furnish them with one. At the first session of the seventh Congress, in a very few days after the House met, Mr. N. said he had risen in his place, and stated that he had seen in the public prints, during the preceding Summer, charges of a serious nature against an individual who had filled one of the highest stations under the Government, that he had misapplied considerable sums of public money, and was a defaulter to a very large amount. Upon this vague rumor, he had moved that the accounts of the former Secretary of State should be laid before the House. No gentleman then declared that it was necessary to have proof before an inquiry took place. No one dreamt that information as to facts was to be had, before it was sought for. Some indeed had asked how far the motion was to extend; whether it was to embrace all the other Secretaries of State? Others desired that the accounts from all the departments should be called for, and finally it was determined to let the resolution lie for a short time. In a few days after, on the 14th of December, he modified the resolution, in conformity with the wishes of several gentlemen, and it passed, directing that "a committee should be appointed to inquire and report, whether moneys drawn from the Treasury had been faithfully applied to the objects for which they had been appropriated, and whether they had been regularly accounted for," &c. A precedent more in point he thought could not be desired. The inquiry was produced, not upon proof, not even upon the suggestion of a member, but because a report as to the misapplication of public money had circulated through the public prints of the day. He might be told perhaps that this was an inquiry of a general nature. But general as it might be, it was directed at the conduct of individuals, and JANUARY, 1804. under other circumstances might have furnished materials for an impeachment. The gentleman from Connecticut was a member of that committee, and Mr. N. asked him if he would pretend to say that it was a secret committee, as he had called that now asked for? Or was this only another attempt to impose upon the public? Another precedent, he thought, might be furnished from the Journal, but he was unwilling to refer to it. It had been said, too, that impeachments would be cheap if they were to be made upon the suggestion of a member. It appeared to him that the motion to inquire had been constantly mistaken for a motion to impeach. Did gentlemen suppose that an impeachment must necessarily follow an inquiry? It would seem as if they entertained a poor opinion of those whose conduct was the subject of discussion. But they ought to recollect that the impeachment could not be the act of any individual, nor of the committee, but of the House; and this, too, after all the facts were collected and presented, with the evidence to support them. If this mode was not to be adopted, he did not know any other manner in which an impeachment could be instituted, unless where the President thought the peace of the country or the revenue were endangered, and gave the information himself, as in the case of Governor Blount and Judge Pickering. Nor did he think this could affect the independency of judges, unless they were to be made independent of the laws, the Constitution, and the people. Had it not been for the debate which had taken place on this subject, he should have imagined that the friends to the judge would have been the first to promote the inquiry, after it was moved for. If he was innocent, the inquiry ought to be wished for: after passing through the ordeal, he would come out like pure gold from the crucible. If guilty, no man ought to feel a disposition to screen him from punishment. Mr. N. could not avoid on this occasion alluding to the recent conduct of a judge in a neighboring State, upon whose character an imputation of the blackest nature had been thrown by a miscreant. That judge, conscious of his own rectitude, and disdaining to shelter himself from inquiry, demanded an investigation of the charge, and the consequence was an entire and honorable acquittal. Mr. ELLIOT. When, in the course of a late debate in this House, it was observed that a member had advanced an anti-republican sentiment, the supposed imputation was repelled by the remark, that the gentleman to whom allusion had been made, had passed a political ordeal which few had experienced, and which ought to place his character as a republican above the reach of suspicion. I have myself suffered an ordeal of that description, under circumstances of gloom and depression which have fallen to the lot of but few young men of this country; and I am far from being confident that one ordeal only will fill up the measure of my humble fortune. A more anti-republican resolution than the one upon your table, sir, I think I never saw. Reflection has confirmed me in the opinion which I expressed yesterday, that it is unprecedented, unparliamentary, and tends to the assumption, on the part of this House, of a censorial and inquisitorial power over the Judiciary, unwarranted by the Constitution. The intention and object of the mover, however, must have been extremely different; the motive is pure and the object meritorious; but that honorable gentleman, with all his talents and discernment, has, in my opinion, fallen into an error. I believe it a sound principle, that no official measures should be taken to censure or criminate the conduct of a public officer, until facts shall be stated which amount to a specific and definite charge of misconduct. In the present instance we have no written allegations, and what is the amount of the verbal information with which we are furnished? A gentleman from Pennsylvania has stated in his place that he has heard that some one of the judges, whose name appears in the resolution, was guilty of improper and oppressive conduct, in the exercise of his judicial functions, on a trial for treason some years since. And a gentleman from Virginia has stated that he has received information which induces him to believe that the inquiry he demands will lead to an impeachment. Is it our duty to act upon the vague rumors of common fame, or the opinions of individual members? The resolution under consideration has been materially altered this morning, and I gave my vote for the alteration, because I believed that the misconduct of a court ought not to be attributed to a single judge. I feel it my duty, Mr. Speaker, to remark, that the information which is possessed by the members of this House, respecting the conduct of those judges, is extremely contradictory. No gentleman has told us that he possesses personal knowledge of the misconduct imputed to those officers; and I possess information on the subject, derived soon after the transaction, from a source which I considered as authentic, and which produced so deep an impression upon my mind, that I should scarcely abandon my belief of its authenticity, even from the general recollection of persons who were present at the scene. I understand that the judges did nothing more or less than decide a legal question in a legal manner. They did not interdict the counsel for the prisoner from examining a question of law, but they restricted them to what they considered as their legal and Constitutional limits. They told them that the Constitution of our country had clearly and explicitly defined the crime of treason, and confined them to the plain field of the Constitution, inhibiting them from a resort to British authorities to prove that to be treason which the Constitution of our country had not made treason, or to prove that what our Constitution had made treason, was not recognised as such by foreign precedents. This statement may be incorrect, and, if it be correct, the conduct of the judges may have been improper and severe, but it cannot justify an impeachment. And if the court went farther, interrupted the counsel for the prisoner, informed them that it was H. of R. the province of the court to determine points of law, declared that their opinion was fixed upon those points, and even forbade the counsel to prolong their arguments upon them, it might still be questionable whether the conduct of the court rendered its members liable to impeachment. A venerable gentleman from Pennsylvania, (Mr. FINDLEY,) who has long been in the service of his country, has been incorrect in stating that I had observed that I would never go into the inquiry without evidence; that incorrectness must have been unintentional; if I used an expression of that description, it was a lapsus lingua; but I am confident that I said, and I am certain that I intended to say, that I thought it improper to institute the inquiry until some fact or facts should be stated as a ground of accusation. A gentleman from Virginia (Mr. JACKSON) has told us that common fame is sufficient ground for impeachment in Great Britain. That gentleman has not adduced his authorities for this proposi tion, and, had he adduced them, I am confident they would not have answered his purpose, when contemplated in all their bearings, when examined with all their qualifications. The same gentleman also observed, if I understood him correctly, that were he satisfied that the conduct of the judges, in the case alluded to, was legal and correct, he would still vote for the inquiry. To me this declaration appears extraordinary. Why vote for an inquiry when satisfied that no criminality existed? A gentleman from Pennsylvania, (Mr. SMILIE,) who contends that there is no necessity for precedent in the present instance, as we are competent to form precedents for ourselves, has yet thought proper to explore the books for precedents, and has presented us with the result of his labors. To guide our conduct on the present occasion, we are referred to the case of the Earl of Strafford, over whose tomb genius and virtue love to mourn, and will mourn in future ages! It cannot be possible that that gentleman wishes to recommend for our imitation that flagrant perversion of every principle of law and justice, that cruel catastrophe! A gloomy and terrible precedent, one of the most dark and disgraceful in the British annals, and utterly unsusceptible of application to the principles of a Republican form of Government. The gentleman from Maryland, (Mr. NICHOLSON.) to whom I listened with peculiar pleasure, and who has certainly displayed ingenuity, has been equally unfortunate in his selection of precedents, and in his application of them to the case under consideration. He has cited cases, which, by his own statement, militate against the principles he assumes. We are first presented with the celebrated case of Warren Hastings. In that case, a member rose in his place, and after accusing Hastings of high crimes and misdemeanors, exhibited specific charges of malconduct, in consequence of which an inquiry was instituted. Here is a solid basis, and the very basis which is wanting on the present occasion, upon which to erect the superstructure of impeachment. That gentleman has also mentioned a resolution intro |