H. or R.] Case of Samuel Houston. [MAY 9, 1832. To this question the President replies: "The members ceptions, the principal of which are, 1st, that the Senate of convention, elected by the people, and assembled for a concurs with the President in the treaty-making powers, great national purpose, ought to be considered, in reason, and, in most cases, in the power of appointment: 2d, the and from the nature as well as dignity of their office, as Senate is a judicial body for the trial of impeachments: invested with the same, or equal, immunities with mem-3d, and principally, the President is so far a part of the bers of the regular Assembly, met in their legislative capa- legislative department, that he is required to approve the city; and in this light I shall consider them. The Assem-acts of Congress, which, in the event of his veto, as it is bly of Pennsylvania being the legislative branch of our called, can only be passed by the votes of two-thirds of Government, its members are legally and inherently pos- the members present. And this veto could be as easily sessed of all such privileges as are necessary to enable applied to a bill to protect our privileges as to the Maysthem, with freedom and safety, to execute the great trusts ville road bill. reposed in them by the body of the people who elected: them." us look at the consequences of the doctrine contended for by the learned counsel, and see whether any thing more than its introduction here is necessary to secure and facilitate the first approaches of arbitrary power. With this theory of our constitution in view, and believ ing that, without freedom of debate, the principle of reThe adjudication of the case of Bolton vs. Martin took presentation is but a name, and cannot be maintained, let place under the first constitution of Pennsylvania. The present secures the usual privileges in the usual manner. There is, therefore, a perfect harmony between the doctrines of England, Virginia, and Pennsylvania, on this interesting subject, and I doubt not the same thing may be said of every State in the world, where representation constitutes the basis of Government, or of any of its branches. I will now proceed to consider the argument. The learned counsel maintains, 1st, that the privilege claimed is undefined, and that the offence, and the mode of proceeding, and measure of punishment, ought to be defined and enacted by statute, before the House can take cognizance at all. 24. That the House has no power to arrest or imprison, except for some violence or disturbance in its presence, and that, even in such case, it can only remove the offender, and prevent his return. 3d. Or, if the House can take notice of a breach of privilege, by assaulting a member for words spoken in debate, or for their publication, the offence must be committed while the member is in the actual performance of his duty, or is on his way directly to or from his lodgings and this Hall, or one of its committee rooms. Although the most novel and alarming doctrines have been maintained by members on this floor, I will treat them as merely those of the counsel, that I may speak of them with less embarrassment than if controverting the opinions of members of this body. This course is the more proper, as every novelty suggested by way of excuse or defence here, and every argument tending to prostrate the rights of this House, and, with them, the rights and liberties of this free people, and to subject all to the law of violence, or the mandates of Executive will, have been seized as materials of the response of the accused, and the argument of his counsel. Is there any man, here or elsewhere, in this nation, who ever dreamed of penning a statute defining and enacting all the circumstances of assault, of provocation, of danger, of time, and of place, which will justify the use of force in self-defence? Who ever dreamed of defining the degree or amount of assault that will justify any, and what, amount of force that may be used in self-defence by the party menaced? No legislative lunatic has ever atThe first position of the learned counsel admits an easy tempted this impossible absurdity. And what is the answer. The constitution is a law-is the supreme law-power to punish, or prohibit, the violation of the persons and, as has already been said, it defines the privilege in of members of any public body, but the defence and proquestion in the most precise language, and nearly in the tection of the body itself? The whole body of this same words with the statutes of England and Virginia. House is composed of its individual members. That the We claim no privilege for ourselves, personally, nor any whole is composed of its parts, and is equal to them, and for our constituents, save only those expressly conferred that the separate individual parts constitute the whole and defined by the constitution itself. The constitution body, is an axiom as true here as in mathematical science being the supreme law, no statute could add to, or take applied to other physical bodies. The protection of the from, the members of this House, any privilege whatever whole body is the protection of each member, and the conferred by it. If any statute could have this effect, protection of each member is that of the whole body. Congress could re-enact the prerogative privileges of the These are so necessarily true, that the idea of their sepamost barbarous and arbitrary times; or, repealing what ration cannot for a moment be conceived. It cannot be the constitution has granted, subject members of Congress imagined, by the veriest political madman, how this House to be arrested at the will of the President or his Secretaries, can protect itself as a body, and preserve in safety the as members of Parliament were until the sixteenth cen- freedom of speech and of action within its walls, while it tury; or to be prohibited from debating matters of State, is urged to permit its members, one after another, to be as in the reign of Elizabeth. The Speaker of this House beaten, maimed, or knocked on the head, and slain like might be held accountable, on pain of death, for the pas- so many wild beasts, by every Executive minion, or sage or rejection of any measure obnoxious to the Execu- other violator of its privileges, who chooses to resort to tive, or demanded by his pleasure. The truth is, the the exercise of brutal force. constitution, in this particular, has but declared, defined, If, before the recent occurrence, the question had been and limited the privileges inherently belonging to every asked, whether each department of Government ought not deliberating assembly, and without which they might be to be separate from the others, and, in its separate condiprevented from deliberating at all. tion, independent of their control, there could have been Every friend of free representative Government will but one answer here, or in the nation abroad. But the admit the necessity of separating the legislative, executive, unpleasant subject of these deliberations has occurred, and judiciary branches from each other, and of vesting and this House is urged, here and elsewhere, to decidethe powers of each in separate and distinct bodies of ma- that it cannot defend and protect itself in the discharge gistracy, the members of all of which should, at stated of its duties, unless the Senate and President shall conperiods, be responsible to the people, by subjecting them cur with us in the passage of a statute which shall define to the control of the elective franchise. The constitution and enact what the constitution has already defined and of each of these States that has made one, has accom-enacted, and defining and enacting the manner, time, and plished this, and nearly in the same manner. That of the place, and the circumstances under which it may defend United States has done the same thing, with but few ex-itself and its members from the law of the club. 1 MAY 9, 1832.] Case of Samuel Houston. [H. of R. Suppose we draw up a bill, and either the Senate or this House may, at any time, be reduced to a minority, President shall refuse to pass or approve it, will our claim by the slaughter of as many of its unyielding members to defence or protection in that case rest on any thing as may be necessary to effect so desirable an object. more than a constitutional sanction? And does not the ar- The distinction taken is, between killing or maiming gument prove, if it proves any thing, that we hold our a member of this House as a member, or merely as a privileges at the will of the other branch of Congress? man. If, when the crime is perpetrated, the sufferer Nay, worse than this, at the will of the President? For happens to be on the wrong side of the street, or, after a privilege, without the means of enforcing it, and of se- our adjournment, should take a turn in the pleasure curing its enjoyment, is no privilege. It is worth no grounds east of the capitol, or the botanic garden below more than a right without a remedy. The doctrine, it, before going to his dinner, he may, for words uttered therefore, which is sustained by certain public presses, in debate, with perfect impunity, so far as this House is by part of the population out of doors, and by miserable concerned, be murdered, although all, or a majority of Executive dependents everywhere, even by the learned our members, may see the infliction of the blow, and see counsel and certain members of this body, is, that the the victim expire. According to this novel and alarming immediate representatives of the people in this the peo- doctrine, if a member is crossing the street to visit his colple's House of Congress have not the rights of self-league, or any other friend, or, on the sabbath day, is godefence, enjoyed by every other living thing on earth; ing to the house of God to worship, with his wife, sister, nor any freedom or privilege of speech or action, or of the press, except such as it shall please the Senate, or the President of the United States, to allow them to possess; nor the means of using even these, unless their assent to these means shall be first obtained. or daughter by his side, he may be forced from the presence of the person under his protection, or, in the presence of that person, openly murdered, and the perpetrator of the murder be free from the power of this House, provided he has with him some peaceable, trusty Should I live a thousand years, and all that time be a witness to hear him'exclaim, "Take notice, I murder this member of this House, I never will so far degrade myself, man as a man, and not as a member of Congress, for or those I represent, or so far hazard the liberties of this what he said of me in debate, and afterwards truly pubfree people, as to be concerned in writing or voting for lished for the information of his constituents and the the passage of any such law as it is contended is indis-country; and take notice when and where I kill this man; pensable to our existence as a free assembly. 2d. That the House has no power to arrest or imprison, except for some violence or disturbance committed in its presence; and even in that case it can only remove the offender, and prevent his return. he is not on a straight line between his lodgings and the Hall of the House of Representatives, nor any of its committee rooms, and, therefore, I do not intend to commit a breach of the privileges of the House, nor any contempt of its authority." Now, this second proposition of the learned counsel, This doctrine cannot but be one of those untenable connected with the first, is a complete felo de se. What errors which men, in the heat of debate, and in defence is the main argument? It is no more than this, that we of new-born opinions, sometimes fall into and feel it necannot proceed to punish a breach of privilege until some cessary to maintain. Our ancient, fixed opinions--those act of Congress shall pass, defining the offence, enacting we have always held--until driven from them by some the punishment, and the mode of proceeding. We have sudden impulse, we are apt to support by arguments at no portion of the powers in question, until it shall be which the common sense of mankind will not revolt. But communicated by act of Congress. Now, there is no when supporting doctrines never before thought of, or such act of Congress; and where, then, does the learned denying what, through all time, had been approved by counsel discover the power he at length concedes? Sure- our ancestors, and even ourselves, we cannot account for ly in the law of self-defence which he had before denied. the extremes of contradiction and extravagance into which The main argument will not bear to be pushed to its una- we fall. The reasoning faculty being loosed from its voidable consequences. Push it so far as to deny our moorings, is like a ship at sea in a storm without rudder power to prevent or punish a murder within our walls, and without anchor; we become so irrational as scarcely and there is not a partisan of anarchy or power so hardy to be accountable beings. as to contend for it; not a wretch who could sustain it My colleague, to whom I have already alluded, conwithout a blush. The counsel, therefore, for once ad-sidered the power of this House to arrest and imprison mits the law of necessity, security, and protection, which for contempt, as he calls it, as bearing a strict analogy to it is his main purpose to deny; and, admitting this, he arrests by judicial process. He declared it to be uniwholly yields his main proposition, which he feels to be versally unlawful to arrest in the first instance, except, absolutely necessary to the defence of his client. as I understood him, in capital cases; perhaps he may The third position of the learned counsel is the most have said special cases, as, from where I sit in the Hall, extraordinary of all: "If the House can take notice of I could not distinctly hear him: I would be glad to be put any breach of privilege for words spoken in debate, or for their publication, the offence must be committed while the member is in the actual performance of his duty, or on his way directly to or from his lodgings and this Hall, or one of its committee rooms." right. [Here Mr. PATTON explained, and admitted that he had been in an error at the first.] Mr. D. proceeded. Mr. Speaker, I will, notwithstanding, proceed to the remark I was about to make, as the power of the House is still denied, but on the general This argument is certainly novel; and if its claim to principle: I will turn myself to the analogy now abandonbe considered a useful invention can be as well sustain-ed, and avail myself of it. Be it then known that in Vired as its novelty, (and I have no doubt that witnesses to ginia, as well as everywhere else in christendom, the prove its usefulness can easily be procured in this city,) it capias to arrest and secure the body is the first process in is an invention unquestionably entitled to all the benefit all criminal proceedings, where any species of corporal of the patent law. punishment is a necessary part of the judgment on conAdd to this doctrine what has been contended for by its viction. Where corporal punishment cannot be inflicted inventor, the gentleman from New York, [Mr. BEARDS- at all, or even where it may be part of the judgment in LEY,] and, I think, sustained by a gentleman from Georgia, the discretion of the court or jury, the first process is a [Mr. WAYNE,] and one of my honorable colleagues, [Mr. summons. This was our law before my colleague or I PATTON,] i. e. the right of the party accused to purge him- was born. It was so in the colony, and from the foundaself, by his answer, as in cases of contempt of courts, and tion of the commonwealth, and doubtless will continue so an effectual weapon is furnished, by which a majority of, until its overthrow. MAY 9, 1832.] Case of Samuel Houston. [H. or R. In pursuit of his argument, in denying the power of the It cannot be doubted that challenging a person to fight a House to act without a statute of Congress, my colleague duel is an offence, or that bribery, or an attempt to commust have been at war with what before must have been mit bribery, is also an indictable offence; and if the power his deliberate habit of thinking. Being displeased with of this House extends to the punishment of such offences, something that appeared in one of the journals of this I presume that power must rest on the same foundation city, he submitted a resolution to prohibit the publication with that now asserted here—that it is a violation of the of our proceedings during the present trial, and, being rights of the constituent body, either to intimidate a mem pressed as to the means of punishing any infraction of the ber, to prevent him from acting freely, or to corrupt him, so rule proposed, I understood him to say that any disobedi- as to prevent him from acting fairly, or to maim or kill him, ence of the rule would be a contempt, and, of course, so that he cannot act at all. Such, Mr. Speaker, are the liable to be punished by summary proceedings, that is, by precedents at home, so far as this House is involved. The arrest and imprisonment. In that opinion I agree with power in question has been exercised here for an attempt him; but how does he agree with himself? In the case to commit bribery; in New York for challenging a memunder consideration, the accused has assaulted a member ber. If in such cases the power has been sustained, who for that which, by the constitution, he shall be held ac- can question its existence where the member has been countable nowhere except in this House. He is accused actually assaulted and rendered incapable of performing of violating the freedom of debate expressly guarantied his duty honestly or corruptly, or performing it at all? by the constitution. In the case supposed, the violation But, Mr. Speaker, there is a race of politicians, so wise would be of that which is enacted by a rule of this House in their own conceit, so self-sufficient, that they refuse to only. The House will have perceived that I carry this be instructed by the opinions, or enlightened by the expower no further than to violations of its privileges by perience, of the whole world before them--on whom the acts in themselves unlawful, and always punishable. And lights of history are shed in vain; a tribe of restless men, does any one think that a rule of this House can create a who cannot be satisfied with the constructions of the race crime, and make it punishable, of its own authority? of statesmen who made and first administered the GoBut the doctrine contended for is plainly this: that vernment of this country; to whom it passes for nothing while, for the violation of that which is enacted by rule of if every Congress before the present exercised a given this House, we have power to arrest and imprison, yet, power, or sustained a particular principle of construction. until a statute of Congress shall pass, you may walk Yet these same politicians are so vain as to imagine that through this District, treading in the blood of our mem- they, in the short life of their power, can decide for all bers, and this House is powerless, either to punish or posterity. Thus it is, that, while now they are scattering prevent the enormity. Of so much less force is the pro-to the winds all precedents set before them in times anvision of the constitution than a mere rule of the House cient or modern, they call upon us to be cautious of our of Representatives. To the arithmetic which thus appor- doings, because we are now called on to decide the most tions the magnitude of the offence to the power of enact-important principle ever yet decided under this Governing and the power to punish, I am a stranger; as I am to ment, and to decide it, too, for all posterity; forgetting all that reasoning that renders us powerless to repress the that, if their posterity shall bear any resemblance to themgreater evil, yet all-powerful to punish the lesser. I will selves, they will feel as little respect for their opinions take occasion to say here that a power to punish by im- and principles, as they themselves possess for those of all prisonment implies the power to arrest the person of the the world besides, past, present, or to come. This race offender in the first instance, in order to subject him to of restless statesmen have appeared in every country, and that punishment in case of conviction; and that the exer- only appeared in each to disturb its repose. They pass cise of the power to arrest implies the power to imprison. off the political stage and of life, soon to be forgotten, Every arrest, made by authority of a tribunal, is an act by leaving the state of society and Government more unsetwhich that tribunal asserts a power to imprison. tled than they found it, with no monuments but such as bear testimony to their ceaseless strifes. If there be among us politicians of the kind I have described, I will even yet venture to quote them one precedent from the journals of the Virginia House of Delegates, of May session, in the year 1784. It is the case of a proceeding for contempt against John Warden, of Hanover county. The first entry will be found in page 46. It is in these words: A gentleman from South Carolina [Mr. MITCHELL] declared, the other day, that he had looked to the precedents in cases of breach of privileges, and found the uniform practice had been to summon the party first, or, as my colleague contended, serve him with a rule nisi. To this a gentleman from New York replied that he, too, had examined the precedents, and found that, since the sixteenth century, an arrest was the first process, and that he believed not an instance to the contrary could be "Information being given to the House, by a member found. The gentleman from South Carolina produced no in his place, that John Warden, of the county of Hanover, case; he contented himself with a declaration of the fact. hath been guilty of a high contempt and breach of the The gentleman from New York instanced the cases of the privileges of this House, in uttering certain expressions Earl of Shaftesbury and of Sir Alexander Murray. These derogatory to the honor and justice of the same, took place in the latter part of the seventeenth century, "Ordered, That the subject-matter of the same be renot many years before the great revolution of 1688, and ferred to the Committee on Privileges and Election; that at a time when the public mind in England was nearly they do examine the matter thereof, and report the same, ripe for that revolution; one of the first glorious fruits of with their opinion thereupon, to the House. which was an independent judiciary. The latter gentle- "Ordered, That the Sergeant-at-Arms attending this man also mentioned the cases of Randall and Whitney, of House take into his custody the body of the said John Jarvis, and of John Anderson, in this House, and of a Warden, and Mr. Speaker is desired to issue his warrant person in New York, for challenging De Witt Clinton, a accordingly." Senator, for words spoken in debate. In all these cases, an arrest by the Sergeant, by authority of the Speaker's warrant, was the first process. There was no rule nisi in these cases, nor do I presume there ever has been in any case whatever. All the precedents referred to in Congress, as well as that in New York, were cases in which the act charged was an offence at common law, and indictable somewhere. Here, the House will observe, there is no oath, nor even written statement of the words spoken. The member who, tradition has informed me, was the celebrated Patrick Henry, merely stated in his place that words had been spoken derogatory to the honor and justice of the House. There was no division, no yeas and nays called; nor was the fact charged a violation of the person of a member for words spoken, nor his legal arrest, nor any MAY 9, 1832.] Case of Samuel Houston. [H. OF R. thing within the legal operation of the act I have men- and Henry, if, in your opinion, they favor you—I rely on tioned, nor of any written law whatever. The proceed- their practice. The time of the proceeding against Waring was simply founded on a supposed inherent right in den was propitious to a fair and deliberate consideration the body to protect itself against calumny. Nor were the of the question of power--in 1784, just after the acknowforms of proceeding, or punishment to be inflicted, found-ledgment of our independence—just after a glorious, suced on any written law. There was no such law then, nor cessful struggle against prerogatives and privilegesis there now. For beating a member, or for killing him, when our liberty was young and uncorrupted-while we for words spoken, the Senate and House of Delegates of were yet poor, but honest and frank, and before party Virginia would, to this day, have to proceed according to passions had placed themselves in the judgment seat. their own discretion. I had this precedent in view, when, Mr. Speaker, I hold in my hand a fragment, torn from the other day, I answered the gentleman from South Ca- the Washington Globe, inserted no doubt for the purpose rolina that, in voting for the arrest in this case, I ground- of affording, as every good citizen should do, all the ed myself on the written statement of the member from lights in its power to guide our feet in the dark path of Ohio, and not on his affidavit, the production of which I our duty. It reads thus: then regretted, and yet do. "Parliamentary privilege.—Lord Kenyon, Chief Justice John Warden was a Scotch gentleman, of extensive of the Court of King's Bench, in England, in the case of literary acquirements, much esteemed, and whose society Lord Abingdon, who took occasion to print a speech was sought in all polished circles. He was, too, a very made in Parliament, in which he charged Mr. Sermon, profound jurist, yet, like many of his countrymen, he was an attorney, with gross fraud, laid down the following loyal to his sovereign. He took no part, however, in the law: That the privilege of Parliament, in the case, exrevolution on either side, and was subject to no censure. tended to words spoken in the House of Lords, and conThe Assembly was passing an act, or had passed it, which fined to its walls.' He also laid down the following posioperated to prevent the recovery of British debts. His tion: That a member of Parliament had certainly a right Scotch temper was excited, and, in a moment of loyal to publish his speech, but that speech should not be made excitement, he exclaimed, that if the House had passed the vehicle of slander against any individual; if it was, such an act, some of them had refused to pay for the it was a libel.'"--[1 Espinasse's Rep. 227.] coats on their backs! He apologized to the committee in the following words: "I do acknowledge that, on a mistaken opinion that the House of Delegates had voted against the payment of British debts, agreeably to the treaty of peace between America and Great Britain, I said that, if it had done so, some of them had voted against paying for the coats on their backs. A committee of the House judging this expression derogatory to the honor and justice of the House, I am sorry for the offence I have given, and assure the committee that it never was my intention to affront the dignity of the House, or insult any member of it." In the constitution of the United States, the provision of parliamentary privileges in debate is as follows: "For any speech or debate in either House they shall not be questioned in any other place." The commentary by Mr. Jefferson is, "But this is restrained to things done in the House, in a parliamentary course. For he is not to have privilege contra morem parliamentarium to exceed the bounds and limits of his place and duty." In the case of Coffin vs. Coffin, 4 Mass. Reports, page 1, Chief Justice Parsons, of the Supreme Judicial Court of Massachusetts, lays down the following positions on this subject: This apology, though really a deep sarcasm, was deem- "When a representative is not acting as a member of ed sufficient, and Mr. Warden was discharged. But if the House, he is not entitled to any privileges above his he had refused to apologize, and been guilty of contuma- fellow-citizens; nor are the rights of the people affected if cious behavior, the House must have committed him, he is placed on the same ground on which his constituents and, as I have already shown, their arrest affirmed their stand. power to do so, notwithstanding no breach of the peace had happened, nor any thing in the presence of the House, or elsewhere, to disturb, interrupt, or disquiet their proceedings. These proceedings were founded on no written law. They were maintained as pertaining of right to the body, and maintained without a division. In the front of this journal will be found the names of members composing the standing committees. Among them will be found those of Patrick Henry, Richard H. Lee, John Marshall, now Chief Justice, James Madison, fate President, John Taylor, of Caroline, late a Senator in Congress, John Nicholas, who afterwards settled and became distinguished in New York, with many others whose memories we foudly cherish. Mr. Madison was one of that very Committee on Privileges and Elections who considered verbal scandal a contempt and breach of privilege, and concurred in the arrest and proceedings. "But, to consider every malicious slander uttered by a citizen, who is a representative, as within his privilege, because it was uttered within the walls of the Representatives' chamber to another member, but not uttered in executing his official duty, would be to extend the privilege further than was intended by the people, or than is consistent with sound policy, and would render the Representatives' chamber a sanctuary for calumny--an effect which never has been, and I confidently trust never will be, endured by any House of Representatives of Massachusetts. "A struggle for privileges, in this State, would be a contest against the people, to wrest from them what they have not chosen to grant. And it may be asserted that the grant of privileges is a restraint upon rights of private citizens which cannot be in the least restrained, but by some constitutional law." There is no doubt that the quotations are right, and How vain is the attempt to torture the arguments of the doctrine. The privilege extends to words spoken in Henry and Madison about the necessity of exclusive juris-debate, in the course of business, and not to words spoken diction in this District, in order to protect Congress from otherwise, though within the walls. The doctrine laid what had happened in Philadelphia, when their Hall was down by Chief Justice Parsons is, that, where the memsurrounded by a military force, into an argument to prove ber is not acting as a member of the House, he is not entheir belief that they can only shield themselves from any breach that may happen here, and, in that case, only by virtue of our general exclusive jurisdiction. The cases are the same; and if they were not, I would apply the remark of a great Connecticut statesman, Roger Sherman, to this case, with a little variance: "Give me," said he to Mr. Giles, "your vote, and you are welcome to the argument." You may resort to the theories of Madison VOL. VIII.-181 titled to any privileges above his fellow-citizens. The facts of his being a member, and that he is within the walls of the House, constitute no defence, unless, as Mr. Jefferson says, they were "uttered in executing his official duty." The doctrine here asserted by Lord Kenyon, Chief Justice Parsons, and Mr. Jefferson, is precisely what I have contended for, that is, that all personal or prerogative privi leges have ceased, and no freedom of speech is protected H. OF R.] Case of Samuel Houston. [MAY 9, 1832. but the freedom of speech in debate, and of proceedings to be truly informed. Information and misinformation in the House in the execution of his duty; that, for any are not convertible terms. While it is the right of the voluntary slander within the walls, and for every thing constituent that the acts of his representative should be else, except official debate, a member is just as responsi-reported to him, it is the interest of both that he should ble as any of his fellow-citizens. be truly reported. For this purpose, notes of our speeches But it is said that a member has an undoubted right to are not taken by stealth. They are taken by permission. publish his speech; yet, if it contain libellous matter, he Permission is granted to editors to sit near the Speaker's is responsible. This is also true in England, in the sense chair, and take notes of proceedings and debates for pubin which the judges use it. It is not true here. A repre-lication. Cui bono is this permission granted? Is it granted sentative here is at liberty to make a true report of his for the good of the printer, that he may have profit therespeech, and, in doing this, he is entitled to the protection by? The public good, and not individual profit, is the of the constitution. In England, no one is privileged to object. But no editor can take notes himself of all that publish the speeches and proceedings of Parliament. is said and done, in order to a faithful report. He is perWhen this is done, it is a contempt, and a breach of the mitted, therefore, to employ, with or without compensaprivileges of the House. In modern times, speeches are tion, so many and such persons as he pleases, to aid him. published in violation of the rule, which remains unchang- In doing this, he has as perfect a right to ask the aid of ed. Public opinion requires the publication of speeches the member who has delivered a speech, as any other there, and the practice is permitted; but the notes of person. From him he will be most likely to procure the speeches are yet taken by stealth. The liberty of the most and the safest aid. This is every day's practice. press is precisely the same thing in England as here. It A member feeling a desire to be truly reported to his conis the liberty to publish, without censorship or previous stituents, which is his undoubted right, must attend to restraint, any matter whatever, the party being responsi- it himself, and either write out his speech, furnish his own ble for the publication when made. notes, or correct those taken by another. This I mean to Thus, it is said, a member of Parliament is at liberty to do in the present case. I have been informed, in such a publish his speech; but if it contain libellous matter, it is manner that, strange as it may appear, I suppose it true, actionable or indictable. By this is meant neither more that there is but one man in the United States so perfectly nor less than that a member has, in respect of his speech, master of the stenographic art as to be able to make a true the same right of publication with every fellow-subject. report of the debates. If there be such a person in the His privilege, as a member, is to address what matter he United States, I am told he is the only one in the world. pleases to the ear of the House, within its walls, with a However this may be, it is evident that those who note our view to affect its judgment. In doing this, alone, he is debates and proceedings either have not this art, or are privileged. The publication of his speech being forbid- extremely negligent in the use of it. As an instance of den, he is responsible for any injury done by it. Every this, in one of the morning papers I am represented as individual member of Parliament has an undoubted right having made yesterday the discussion I am now engaged to demand that the galleries be cleared, and the doors in. In truth, a member has a right to furnish notes of his shut. This, indeed, is seldom done. The power of the speech; to write it out, or correct it, when done by anomonarch, and the hereditary privileges of the nobles, are, ther; and is obliged to do it for his own vindication and according to our notions, encroachments on popular right protection from those inaccurate, garbled, and false re-the immunities of the hierarchy not less so. Yet these ports with which our journals abound. have to be maintained, and, therefore, an absolute right to publish speeches and proceedings in Parliament is not granted. The people have no right to hear them without permission. The right of the nation, of the constituent, of the member, concur in demanding a true report. The interest, too, of each, requires it; and when a member has exercised his right in this particular, the question is reduced An attempt is made to refute these positions, by a criti- to this, that he has or has not made, or caused to be made, cism on the words "right to publish." It is said that a true report. That, and that alone, is the question. Of what a man has a right to publish, it must be lawful to pub- this the learned counsel was so sensible, that he interrogatlish. Hence, it is inferred that there can be no rule ed the member from Ohio, most particularly, whether the against publication. It is contended that it would be ab- publication in question was a true report of what he had surd to say a member has a right to publish that which, said or not. Had the witness answered in the negative, when published, will subject him to indictment as for an he would have been unquestionably divested of his priviunlawful act. This, when examined, will be found to be lege, which could never protect falsehood. When he nothing more than an equivoque. Referring to the free-answered affirmatively, however, the counsel assumed the dom of the press, considered as the great bulwark of pub-ground, until then new as to him, that a member is anlic liberty, the supposed difficulty vanishes. Right to swerable for a true report of his speech, as the printer publish means nothing more than exemption from previous would be for a false one. But it is but justice to the counrestraint. This freedom of publication is precisely the sel to acknowledge that this ground of defence, like the same in both countries. The difference is in the security one suggested by the member from New York, was first for its enjoyment; that, in England, rests on law and po- made here; the latter of which the learned counsel, after pular opinion; here, on these, and a constitutional prohi-a few days' reflection, afforded by his indisposition, bition to legislate against it. wholly omitted, when going through his legal defence This Government has nothing hereditary in it. It is the second time. But if the learned counsel yet thinks a nothing more than public opinion, expressed in certain member responsible for the true publication of his speech, prescribed forms. The franchise of free election lies at I presume he must mean that he may be made responsible the root of all government here. A government, thus in court. For it would be a monstrous obliquity, even in resting wholly on public opinion, cannot be well adminis- this defence, to suppose him liable to be knocked in the tered, nor long maintained, without public information, and head without judge or jury. Were.I to vote for the dispublic virtue. To the safe exercise of the electoral fran- charge of the accused, on the legal ground of a publicachise, not only is intelligence necessary, but a knowledge tion as contended for, I should fear much that I suffered of public measures, with the views and opinions of public myself to be led into such an error as a means or excuse men. This is the life-blood of this Government. The to still the murmurings of a conscience ill at ease. Nor constituent body have an actual, unquestionable right to could I find any thing in the evidence to justify such a know the conduct of their immediate representatives. vote, if I believed the law to be as contended for. They, and the whole nation, have a right to be informed On the part of the defence, it would be a question of |