H. OF R.] Case of John Anderson. [JANUARY, 1818. Jefferson's Manual, in which will be found an | then see what are given to the House of Repenumeration of the privileges claimed by the resentatives. They are all to be found in the British Parliament. That enumeration em- second and fifth sections of the first article. braced, besides many others, the two cases He said there was no power given the House mentioned in the constitution. Hence it must affirmatively to inflict punishment upon persons be most obvious, that the constitution did not not members for any offence either against the intend to adopt the Parliamentary law upon House or its members. Was it to be inferred from the subject of privilege; because, as that cov- the powers which were given? So far from ered a much larger ground, if it had been in- it, he said, that he thought the inference dedutended to have given the whole, it is difficult, cible from the nature of the powers given alif not impossible, to assign a reason why it most irresistible, that such power was not inshould have been thought necessary, by special tended. The great argument had been that the enumeration, to have given a part. creation of the Legislature imparted to it certain inherent powers as a part of its nature and existence. Now, sir, said he, let me ask, what power could be more inherent, in a legislative body, than that of appointing their own Speaker? And yet this power is expressly given. What could be more inherent than the power to determine their own rules of proceeding? And yet this was expressly given. What could be more inherent than the right of punishing one of its own members for disorderly behavior? And yet this was expressly given. He asked whether the giving powers like these, which, if there be any such thing as inherent powers, would have been so considered, did not incontestably prove that the constitution meant not to leave this subject to doubtful construction, but, on the contrary, to give to the whole of the legislative body which it created, as well as to its several parts, the laws of its and their existence, and to impart to them, by grant, the powers necessary to the performance of their several functions. Sir, the framers of the constitution meant to guard as carefully against the latitudinous construction which might be given to indefinite powers, as they did against indefinite privileges; they therefore determined to bring down both power and privilege to a constitutional standard, so that they might be easily measured. It would have been a vain thing to have circumscribed Congress in its legislative power, if the two Houses which compose it had been left, like the British Parliament, to range at large, in the wide field of inherent powers, and indefinite privileges. If, said Mr. B., the House had power to take cognizance of this case, and to punish it, where would they stop? This insult or this attempt upon one of the members was committed, not in this House, but in the District of Columbia. Suppose it had been committed in an extreme part of the United States, would our jurisdiction have reached the offender there, and should our Sergeant-at-Arms have been sent to arrest him? The consequences to which this doctrine would lead, seemed to him to show that it could not be sustained. Nor, said he, is there so much danger to be apprehended from the contrary doctrine, as gentlemen seem to suppose; he thanked God the attempts which had been made were but few, and in each instance had failed; if they should hereafter be repeated, he hoped and believed there was a long, very long, tract of future time between us and that There was no man in the House, he said, who could hold the attempt which had been made in greater abhorrence than himself; but whilst he considered it a daring attempt at wickedness, an outrageous insult to the feelings of the member, and as calculated to excite the detestation of all good men, yet it was not, as he thought he had proven, a breach of privilege. If it were not, then there could be no principle on which the House could pretend to take cognizance of it. There were many insults which might be offered to the members of this House, for which they had no remedy but those which were open to every other citizen. And, indeed, he referred the House to the same section of the parliamentary manual, to which he had before called their attention, to show, that, in a case of acknowledged breach of privilege, as, for example, the arrest of a member, the effect of such unauthorized arrest is, that the member is entitled to be discharged, and the persons concerned in the arrest, are liable to action or indictment for their injurious violation of the member's privilege; but he did not believe that even in that case, the House could inflict any punishment on the persons concerned for a contempt itself. But gentlemen had taken another ground in debating this subject; they had said that the mere creation of a legislative body, ipso facto, imparted to that body certain rights, and, amongst others, the right of self-defence; that as they had the power, so it was their duty to keep themselves pure; and for that purpose, to punish any attempt upon the integrity of its members. This reasoning, said Mr. B., is too broad. Congress is the creature of the constitution; it has, therefore, as he had observed in a former part of his argument, just those powers, and those only, which the constitution had given it; and whatever powers are not given, we must be content to think were not thought necessary. To Congress, composed of the two Houses, it had given the legislative power which it granted. But this was clearly no act of legislation; first, because it was a proceeding proposed to be carried on by one branch of Congress; and, secondly, because it did not propose to provide a punishment for future cases, but to inflict it upon one which had already occurred. But, besides the legislative power granted to Congress, as composed of the two Houses, there were certain powers granted to each of the Houses respectively. Let us period when they should prevail; if any attempt of this kind fail, the man who makes it is foiled in his wicked effort, and covered with disgrace; if unhappily it should ever succeed, we have a constitutional remedy at hand: by expulsion, we may drive from us the unworthy member, and, having cut off the gangrenous limb, the rest of the political body will be restored to health. True, sir, the expulsion of a member requires the concurrence of two-thirds; but does any gentleman doubt for a moment, but that if the acceptance of a bribe were proven, two-thirds, aye, three-thirds, would instantly unite in a vote for the expulsion of him who should have accepted? Mr. TUCKER, of Virginia, said there was one thing, at least, in which he would most heartily concur with the gentleman from New York, who had offered these resolutions to the House; that, the exercise of the power of committing for a contempt of this body, was of so embarrassing a character; and was, in some respects, so little consonant with the general principles to which we yield our assent, that it was desirable another mode should be adopted of punishing offences of so deep a dye, without bringing the offender for his trial and punishment before the body whose privileges had been infringed, and whose dignity had been insulted. It was for this reason, that, on a former day, he had intimated an intention of submitting to the consideration of the House a resolution similar to one of those now under consideration, directing a bill to be reported for the punishment of the offence of bribing, or attempting to corrupt a member of Congress. It was for this reason also, that, however heinous the offence of the party whose case was now before the House, he was, on the present occasion, disposed to manifest towards him the greatest moderation and forbearance. He was so averse to the exercise of a power to punish, where the offence and the punishment are so undefined, and where the tribunal which judges cannot fail to be animated with indignation against the offender, that he was inclined, on the present occasion, to dismiss the party, after the offence had been inquired into, without farther punishment than the reprimand of the Speaker; and to provide for any future case by the enaction of a law imposing penalties adequate to the offence. But, while he was disposed to this course, he could not assent to the proposition of the gentleman from New York, which disavows any authority in this House to punish the offence, as a contempt. It appeared to him essential that this power should exist in the House of Representatives, though it might be wise in them to relieve themselves for the future from the embarrassment of exercising the privilege themselves, by providing for its punishment by law. While he could not doubt of the constitutional powers of the House on this occasion, he would ask gentlemen what would be our situation, if we were without such powers? What would be the effect of promulgating to [H. OF R. the world that the House of Representatives was, at all times, to be approached with impunity by the vilest corruption? That bribes might be offered, without hazard, by the most infamous of mankind, and that the constitution had left this body without the means of preserving pure the fountains of legislation, and of protecting itself from so vile a contamination! He should hesitate much before he should adopt a proposition which might lead to such dangerous results; and he should be diligent in examining the principles of the constitution before he could give his assent to a doctrine which would sap the purity of this body, for the preservation of which that constitution was so solicitous. Nor was he disposed to coincide in the opinion of the gentleman from Virginia, (Mr. BARBOUR,) that, as it is at least doubtful whether we possess the power asserted, we should decline the exercise of it. He was not satisfied that there was a reasonable doubt of our pow ers. Ingenuity may throw obscurity and difficulty around every proposition. Nor did he perceive what part of the constitution prescribed to us as a rule, to reject the exercise of every power where doubt could be thrown around it. On the contrary, in taking the solemn oath to support the constitution, to which another gentleman had so emphatically alluded, he felt himself equally bound to preserve to the Federal Government, and to this body, their just powers, as to guard against encroachment on the rights of the State, or an extension of the pow ers of the Union. It was equally the duty of every member of this body to prevent the most vigorous and useful branches from being lopped off, as to array himself in opposition to every assertion of unconstitutional powers. Upon all occasions of this kind, however doubtful and embarrassed might be the question, it was the solemn duty of every member to examine it according to the best lights which Heaven has given him, and to pronounce fearlessly the result. It was this course he should endeavor to pursue in presenting a very few remarks on the constitutional powers of this House. There were, he observed, two kinds of powers granted by this constitution: enumerated powers, and incidental or accessory powers; the first expressly specified in the constitution, the latter falling under the general grant of all 66 necessary and proper powers;" which terminates the enumeration of the powers conferred on the General Government. The latter, indeed, would have existed independent of that clause, since, according to the principles of common reason, when a power is given to do an act, a power of employing the means necessary to its execution is also given, by implication. While, therefore, it is readily admitted, in relation to these two classes of powers, that the power now asserted is not expressly given, it is confidently alleged to be fairly incidental to the power of legislation; and it will be contended That the power to punish bribery of a mem H. OF R.] Case of John Anderson. [JANUARY, 1818. Mr. MERCER rose immediately after Mr. TUCKER, and addressed the House in substance as follows: The resolutions on your table, Mr. Speaker, involve the decision of three distinct proposi tions. Has this House the power to punish contempt? Is the act charged upon the pris oner a contempt? Have the proceedings of the House been such as to warrant his further prosecution? ber of this House, is vested somewhere in the | the free and deliberate exercise of his judgment, Federal Government; and, that this power of by the representative of the people? Though punishing belongs to the House of Representa- the challenge be given without the walls, is not tives, independent of the other branches of its effect to be felt within; and is it not this (and Government. not the place where the act is done) which must That a legislative body should exist without be considered as determining the powers of Conany power to punish the offence of bribing its gress? The principle on which it can interfere members, is a proposition which seems too mon- in any case, is the right to prevent its delibera strous to be alleged. Hence it is that gentlemen tions from being disturbed; and whether this seem disposed to acknowledge a power in the disturbance be produced by an act in the gallery, Legislature to pass a law which shall prescribe a in the street, in the highway, or in the closet, punishment for the offence, though they deny the body must equally have the power to secure the power of this House to proceed to consider to itself the exercise of free will in the discharge and treat it as a contempt. And where, let me of its legislative functions. And if these prinask, can gentlemen who are so technically accu- ciples be correct-if they justify a right to punrate in the construction of the constitution, dis-ish occasional disorder, how much more imcover that clause of the instrument which ex-portant the privilege of preventing the inroads pressly grants the power to enact such a law? of corruption, at the same time so insidious and There is none. The boundaries of the consti- so fatal? tution cannot be laid down with mathematical precision, by the square and compass. They must be ascertained by the principles of sound reason and common sense, and by the exercise of a just discretion. While, therefore, we cannot discover the power even to legislate on this subject, in the express provision of the instrument, it is doubtless fairly incidental to the power of legislation. It is inconceivable that the convention which framed the constitution should have intended the creation of a legislative body, which should be without the power of self-protection; without the right to assume to itself freedom from disturbance; without the means of securing order in its deliberations; and without the privilege of preserving itself entirely free from the influence of fear, or the corruptions of gold. Some of these incidents to legislation, gentlemen have been compelled to admit. In what a situation should we be, if our deliberations were to be affected by the hisses or the applause of the gallery; if an obnoxious member were to be put down by the threats or tumult of the audience, and a favorite speaker cheered on a favorite subject by shouts of approbation? Can gentlemen deny that we have power to prevent these things? The gentleman from Virginia appears to confine us, even under these circumstances, to the remedy of excluding those who are riotous. Within the walls alone have we power to act, and then only power to exclude -not to punish. Suppose, then, the rioter returns, or betakes himself to the street, and throws stones at your windows. He is without your doors. Have you no power over Have you not accessarily even those powers which every court of justice possesses, without the express provisions of law? If you have not, the situation of this body is deplorable indeed. If you have, where will you draw the line of distinction? What is more important, even in the order and decorum of the House, than the preserving the mind of every member free from the suggestions of fear-the seductions of profit -the grovelling desire of gain-the influence of corruption? What shall we say if an attempt be made to control, by threats or by a challenge, Does this house derive from the constitution the power of punishing a contempt? My honorable colleague, who just preceded me, in a spirit of accommodation, I have no doubt, has proposed to introduce a bill to punish by law an attempt to bribe a member of Congress. If the power of punishing such an act is comprehended among the privileges of this House, the wisdom of any such law may well be questioned. Were the contemplated law restricted to a description of that particular species of contempt to which our consideration is now turned, it would not lead to the inference that this House recognized no other. And if, to obviate this difficulty, a complete enumeration were attempted of every possible insult to the privileges, rights, and dignity of this House, the proposed law would be swelled to the size of the largest volume on your table. It may also be doubted whether a right which this House does not derive from the constitution can be created or protected by an act of ordinary legislation. Those gentlemen who are desirous for a law to define the privileges of this House, and to provide for punhim?ishing the contempt of them, admit their existence, as well as the power of this House to punish their violation, by the mode of reasoning which they have adopted. Before I inquire into the origin of this power, allow me to disavow every feeling which could militate against the most deliberate and impartial exercise of my judgment. I cannot but de plore the unhappy situation of the prisoner, whose head is bleached by the snows of many winters, and who, if really guilty of the atro cious act imputed to him, is an object of still greater commiseration, as his turpitude is JANUARY, 1818.] Case of John Anderson. [H. OF R. without the extenuation of youth or inexperi- | popular branch of every State Legislature, as it is of this House. ence. Sir, said Mr. M., I never beheld a criminal arraigned at the bar of justice without this feeling, nor have I found it difficult to obey the legal injunction to believe the innocence of the accused until he has been heard in his defence and judicially convicted. This maxim of Christian charity it comprehended in that admirable system of practical wisdom which has been repeatedly referred to in this discussion; a system matured by the experience of ages, adopted by the universal assent of the people of the United States, and denominated the common law. It is to this system that I resort for the authority of this House to punish a contempt; to define the act to be punished; to determine the mode of proceeding against the accused; and, if guilty, to ascertain the quality, and measure the extent of his punishment. And I do so, not because the common law confers these powers on this House, but because it defines that written constitution from which we derive them. Sir, there is not an entire article, not a solitary section, scarcely a line of that instrument, which can be correctly understood or practically enforced, without a recurrence to this law. If you desire to know the import of an English word, you turn to the lexicographer of England; for a phrase of statutory law you consult the statute which contains it, and the precedents by which it has been expounded. The terms of the common law must be also defined by a recurrence to the law itself, comprised in the treatises and illustrated by the history of the nation from whom we derive it. The force of the argument which this analogy furnishes, is not impaired by the consideration that the Federal Constitution is of more recent structure. It is the act of the people of the United States, as itself proclaims; and, referring expressly to the common law, in one of its articles, unintelligible throughout, except by the aid of that law, we have a right to resort to its maxims in the present inquiry. If this power is essential to the House of Commons, so it must be presumed that the people of these States regarded it to be, and so must we consider it in relation to the two Houses of this Legislature. It has been urged that many extravagant doctrines would arise from this source of constructive authority. Where, it is asked, shall this House stop in its use? The Revolution of 1776 answers this question. It necessarily lopped off the regal and aristocratical branches of this law. This limitation of the common law relieves the rule of construction, for which I contend, from all that could alarm our fears. It is founded, I am inclined to believe, in judicial decisions throughout the United States. By the unanimous judgment of the General Court, the highest criminal tribunal of Virginia, the principle has been extended so far as to authorize a defendant, indicted for a libel at common law, to give the truth in evidence. This House derives, therefore, from the common law, no privileges which it ought not to possess. The constitution not only uses the terms and phrases of this law, but expressly recognizes its existence. The seventh article of the amend-sesses ments provides, that "in suits at common law, when the value of the controversy shall exceed twenty dollars, the right of trial by jury shall be preserved: and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law;" of that law which gentlemen have asserted to have no existence under this Government, and against which the honorable member from New York would inspire us with apprehension and alarm. I appeal to my colleagues, if this constitution had been formed contemporaneously with that of Virginia, would not the same power to punish contempts attach to the House of Representatives and Senate of the United States, as unquestionably belongs to the corresponding branches of the General Assembly, the House of Delegates and Senate of Virginia? From the form of the Speaker's chair to the power of expelling a member, the character and authority of the House of Delegates is derived, without any express constitutional provision, from the House of Commons, the archetype of the VOL VI.-7 One of my colleagues has contended that all the privileges of this House are expressly enumerated by the sixth section of the first article of the constitution, and restricted to exemption from arrest, in certain specified cases; and from responsibility elsewhere for any speech or debato in the House. And hence, with great apparent plausibility, he infers that the House posno other privilege, and has authority to punish no other contempts, except such as are committed in violation of these. I answer to this argument, it has already been contended by the honorable member who last addressed the House, that this clause of the constitution may be justly regarded as the result of that extreme caution which induced the convention to insert in it what might otherwise have been inferred; a caution which is discernible in other parts of this instrument. To the illustration which he has furnished, many others may be added; as, for example, the very first article of the amendments. The greater part of these are designed to serve the purpose of a bill of rights, for which so many opponents of the constitution had most zealously contended. It cannot be presumed that if this amendment had not been made a part of the constitution, Congress would have prohibited the free exercise of religion, have abridged the freedom of speech, or obstructed the right of the people peaceably to assemble and to petition for a redress of grievances. I am, however, led involuntarily to another explanation of the expediency of expressly incor to which my colleague has referred; an explanation, which is in strict harmony with all the views that I have taken of the general power of this House to punish contempts of its privileges. Every other privilege of this House, except those which are enumerated, will be found to be consistent with the obvious and equal rights of the people. The enumerated privileges are limitations of those rights, and, but for the express grant of them by the people, it might have been doubted whether the character of our republican institutions did not forbid their exercise. In fine these enumerated privileges protect the members of this House, against the common and dearest rights of the citizen-the rights of property and reputation. The privileges for which I contend would protect the House from their injuries, from fraud, violence, and injustice. [JANUARY 1818. porating in the constitution the two privileges | bers in their individual capacity, they are yet the privileges of the House; and the House can, in both cases, punish any member who should waive his privilege without their consent. These, sir, are, in my estimation, the legiti mate and constitutional privileges of Congress; and yet, sir, for the want of legal provision, they may with impunity be trampled on and set at defiance, not only by the defendant at your bar, but by any man in this great community. Is it correct, sir, to say that this inherent right extends beyond the limits which I have assigned it? That, by virtue of our election, we are politically amalgamated, and that the reception of an insult on the shores of the Atlantic would tremble along the sympathetic line, and agonize your feelings beyond the mountains? No, sir; I contend that out of the boundaries of this District we have no protection, no privilege, except those granted by the first article of the sixth section of the constitution, other than the protection of other great and good men-that of virtue, and the privilege of convicting falsehood with truth, and confounding guilt by innocence. Mr. Speaker, behold the delicacy of our situation! A man arraigned at your bar for a most atrocious insult, and yet we have not the power to punish him. Although armed with plenary sover Mr. ROBERTSON supported the resolutions. Mr. ERVIN, of South Carolina, next rose, and said, I beg leave now, sir, to call your attention to what I conceive to be the privileges of the House, and the powers of the House to punish for a breach of those privileges. The first great power which it possesses is an inherent power of self-defence, analogous to the fundamental natural right which every man possesses of defend-eignty, and the exclusive powers of legislation ing himself. It is in both cases merely defensive. The natural right results from man's relative situation in this state of existence. The duties which he owes to his God, his neighbor, and himself, beget, rather let me say, impose on him this power; nay, the obligation of selfdefence is necessary to a complete discharge of those great duties. In like manner, every article in your constitution which confides a trust or imposes an obligation to perform for the good of the people acts of legislation, creates and gives this power to enable you to perform those acts, and discharge, with due faith, the high trust which has been confided to you; and as, in the exercise of the natural right, a man is justified to make use of any force necessary to repel a personal injury, so, likewise, in the exercise of your inherent power, this House is justified to prevent or remove any annoyance within or without the walls of this House, which would tend to disturb its deliberations, or prevent it from the due performance of any of its duties. But, sir, you would not in either case be justified to make use of any force or restraint by way of punishment; for, in the case of the natural right, the use of any force, other than that which is necessary to overcome the offending force, would constitute an act of aggression. So, the exercise of force by the House, in the way of punishment, would not be justified by the inherent power, it being merely defensive. The exemption from arrest, and the privilege of not being questioned in any other place for any speech or debate in either House, constitute more of your privileges; for, although they tend to promote the immediate benefit of mem in all cases whatever in this District; although invested with authority to make all laws which may be necessary and proper to carry into execution all our powers, and to punish the breach of any of our privileges, yet we suffer these powers to slumber in criminal repose. As we pass along the streets, scorn may point the finger of contempt at us, defamations inay teem from the press, arraigning the correctness of our conduct, and impeaching the purity of our intentions; nay, impudence and insolence may beard us at the very threshold of the great council of the nation, and without the provisions of law we cannot punish. Much has been said, sir, about State Legislatures, the judges of the United States, and State judges, possessing the power of punishing for contempt. I can speak with confidence in relation to this power in the State which I have the honor of representing. There, the Legislature, the judges, and even the justices of the peace, possess this power, not by arbitrary assumption, but by the provisions of the constitution and the principles of the common law, made of force in that State by an act of the colonial government, and which act is recognized and continued in force by a provision in the constitution of that State. In relation to the judges of the courts of the United States, we all know that they derive their power from an act of Congress which recognizes the principles of the common law. And I think, upon inquiry, it will be ascertained that the Legislatures and judges of the several States possess this power by some provision in their laws or constitutions. Numerous precedents have been appealed to. I shall not suffer my |