Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-Third Congress Page: 1,471
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1471
GALES & SEATON'S REGISTER
1472
Senate.]
President's Protest.
[April 24, 1834.
of the Senate, and failed in his appearance, he was or-
dered to be committed. In debating- the legality of this
order, it was insisted, in support of it, that every man, by
the law of nature, and every body of men, possesses the
right of self-defence; that all public functionaries are es-
sentially invested with the powers of self-preservation;
that they have an inherent right to do all acts necessary
to keep themselves in a condition to discharge the trusts
confided to them; that, whenever authorities are given,
the means of carrying them into execution are given by
necessary implication; that thus we see the British Parlia-
ment exercise the right of punishing contempts; all the
State Legislatures exercise the same power; and every
court does the same; that if we have it not, we sit at the
mercy of every intruder who may enter our doors or
gallery, and by noise and tumult, render proceeding in
business impracticable? that, if our tranquillity is to be
perpetually disturbed by newspaper defamation, it will
not be possible to exercise our functions with the re-
quisite coolness and deliberation; and that we must,
therefore, have a power to punish these disturbers of our
peace and proceedings.
" To this it was answered, that the Parliament and
courts of England have cognizance of contempts by the
express provisions of their law; that the State Legislatures
liave equal authority, because their powers are plenary;
they represent their constituents completely, and possess
all their powers, except such as their constituents have
expressly denied them; that the courts of the several
States have the same powers by the laws of their States,
and those of the Federal Government by the same State
laws adopted in each State, by a law of Congress; that
none of these bodies, therefore, derive those powers from
natural or necessary right, hut from express law; that
Congress have no such natural or necessary power, or any
powers but such as are given them by the constitution;
that that has given them, directly, exemption from per-
sonal arrest, exemption from question elsewhere for what
is said in their House, and power over their own mem-
bers and proceedings; for these no further law-is neces-
sary—the constitution being the law; that, moreover, by
the article of the constitution which authorizes them (to
make all laws necessary and proper for carrying into exe-
cution the powers vested by the constitution'in them,'
they may provide by law for an undisturbed exercise of
their functions—e, g. for the punishment of contempts, or
affrays or tumult in their presence, &c.—but, till the law
be made, it does not exist, and does not exist from their
own neglect; that in the mean time, however, they are,
not unprotected, the ordinary magistrates and courts of
law being open and competent to punish all unjustifiable
disturbances or defamations, and even their own sergeant,
who may appoint deputies ad libitum to aid him (3 Grey
59, 147, 255) is equal to small disturbances. That in re-
quiring a previous law, the constitution had regard to the
inviolability of the citizen, as well as of the member: as,
should one House, in the regular form of a bill, aim at too
broad privileges, it may be checked by the other, and
both by the President; and also as, the law being promul-
gated, the citizen will know how to avoid offence. But
if one branch may assume its own privileges without con-
trol; if it may do it on the spur of the occasion, conceal
the law in its own breast, and after the fact committed,
make its sentence both the law and the judgment on that
fact; if the offence is to be kept undefined, and to be dc-
clarcd only ex re nata, and according to the passions of
the moment, and there being no limitation, either in the
manner or measure of the punishment, the condition of
the citizen will be perilous indeed. Which of these doc-
trines is to prevail, time will decide. Where there is no
fixed law, the judgment on any particular case is the law
of that particular case only, and dies with it. When a
new and even a similar case arises, the judgment which is
to make, and at the same time apply the law, is open to
question and consideration, as are all new lnws. Perhaps.
Congress, in the mean time, in their care for the safety of
the citizen, as well as that for their own protection, may
declare bylaw what is necessary and proper to enable
them to carry into execution the powers vested in them,
and thereby hang up a rule for the inspection of all which
may direct the conduct of the citizen, and at the same time
test the judgments they shall themselves pronounce in
their own case."
I take it for granted, that, until Congress shall pass laws
regulating its privileges, we must look alone at the enu-
merated grants of privileges in the constitution, and to
the ordinary judicial tribunals, for our necessary pro-;
tection and safety. The only interference with the doc-
trines of Mr. Jefferson, upon this point, happened in a
decision of the Supreme Court of the United States, in the
case of Anderson vs. Dunn. Although that opinion does
not, in the slightest degree, touch the privilege now for.
the first time claimed in this or any other country, yet l
must say, I am not reconciled to its doctrines. I under*,
stand the doctrine of that case to be, not only that the
power of punishment for contempts is implied from ne-
cessity, but that the degree of punishment is only limited
"to the least possible power adequate to the end"—
which can mean nothing more nor less than a power of
punishment to any extent which the offended party may
deem adequate.
That case, however, furnishes a principle totally at war
with the present charge upon the President, of breach of
privilege. The court declare " that it cannot be denied
that the power to institute a prosecution must be de^
pendent upon the power to punish." What punishment,
let me ask, can one co-ordinate branch of this Govern-,
ment inflict upon another? We can have no hesitation in
deciding upon what some of his triers for this breach oi
privilege would deem ** adequate" punishment, if the
power to punish existed. More than one of his triers hav$
already declared, that President Jackson has done that,,
in regard to this bank, which, if done by a British mon-
arch, would have brought his head to the block. Most
righteous and merciful judges! The President's only of-
fence is, that he has presented a view of his own rights
and powers, in opposition to the expressed opinions of
the Senate, which no Senator has or can answer, except
by declaring that he has been guilty of a breach of privi-
lege! And this result is arrived at, not from any view
of our own constitution and laws, but from researches into
the unadulterated nonsense of the privileges of a British
Parliament.
Should we not rather consult the good sense of our own
times, and if we can find no precedents in the history of
our own proceedings, we shall not disgrace ourselves by
imitating the examples of our State Legislatures. 1 have
come across a parallel case; I mean to say parallel in every;
point of view where any essential principle is involved, in
the legislative history of that firmly democratic and digni->
ried State of Pennsylvania. The late venerable Governor
of that Commonwealth, who was one of the signers of the
Declaration of Independence, lived, also, as does our Pres-
ident,^ in high party times, when inter faction es kges
silent." Among-st other violent persecutions, he was
charged, in 1807, with having violated the constitution,,
and articles of impeachment were reported against.him by '
a committee of the House of Representatives, and most of
these articles said nothing in terms of a criminal intent.
At a subsequent session, in 1808, this report was taken
up and indefinitely postponed. After this decision, his
biographer informs us that—
" On the next day, the Secretary of the Commonwealth }
piesented a replication from the Governor, relative to the r
charges exhibited against him by the committee, which,
being read, Mr. Sergeant inquired whether the comma-
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Gales, Joseph, 1761-1841. Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-Third Congress, book, 1834; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc30746/m1/41/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.