MARCH, 1800. Breach of Privilege. SENATE. are accountable for their conduct; nor can you knowledge of their acts, well knowing, if they were know whether it is meritorious, or otherwise, but unjustly attacked, it gave them the most ample by having the right to examine into it, and by means of defence; and that if it became immodefreely and frequently exercising that right. And rate and licentious, the laws were always sufficiwould it not be the strangest thing in the world, ently energetic to punish it. How many indiviwhen the Constitution not only establishes the duals when attacked or slandered, have rejoiced right, but calls upon the citizens to exercise it that such a defence has been afforded them; and with alertness, and by no means to neglect it, that if how indispensable is its free investigation to the they should happen to displease a branch of the removal of doubts which sometimes crowd about Legislature, whose conduct they have censured, the characters of public bodies, or men, and which that they should be delivered immediately into the it is necessary to remove! Public bodies are pubpower of this branch, to be dealt with as they please; lic property; and so indeed are public men, who that the men they had accused, and whom they have in any degree rendered themselves conspichad, by the Constitution, a right to accuse, should uous by their exertions: few of these, if ever there become their judges? Would not this be a most ex- was one, can expect to be without personal enemies; traordinary doctrine? Would it not involve an in- these will be in proportion to the talents of the consistency, that ought not certainly to be chargea- man they dislike, and his consequence with the ble upon the framers of the Constitution? In private people. Men who engage in public life, or are cases of slander, or defamation, would you suffer the members of legislative bodies, must expect to be person abused, or any near connexion of his, or exposed to anonymous, and sometimes avowed, person interested in the event of the suit, to be on attacks, on their principles and opinions. Their the jury? Certainly not. How much more gla- best shield will be an upright and able conduct. ringly improper then would it be, in cases of a pub- The best informed will sometimes err; but when lic nature, where the acts of a legislative branch their intentions are pure, an enlightened nation are censured, and where the charge has been openly will easily discover it, and pardon the mistake. and honorably brought forward, to commit the With the shield of conscious rectitude, a Governperson who produced it, at once, to the power of ment can never dread the press. It is only in the body whose acts he has condemned! Let us States where the happiness of the people is not suppose, that in the exercise of this invaluable the end of Government, or where an individual right, some disinterested and independent man, or a few possess the whole authority, that the press urged by the most honorable and patriotic motives, is not agreeable to them. Hence, in despotisms, should conceive a branch of the Legislature over- it is generally odious to the sovereign, and strictly stepping the bounds of the Constitution, and going limited. We have, however, found even among into measures destructive of our rights, or injurious them, a latitude which proves that in the most to our interests; that this man should be an import- despotic countries, where the sovereign is conant member of your community, of known integ-scious of using his power for the good of the peority and independence of situation and character, ple, he fears not the slanders of the malicious. It that he should have no private ends of his own to is remarked of Frederic of Prussia, that few prinanswer, or anything in view but the public good; ces were more libelled by his subjects; but that that he has embarked in the investigation at the in no country were libels more disregarded: that entreaty of a numerous and respectable part of the few, if any, instances ever occurred of his endeacommunity, who wished the public mind to be so voring to discover the authors, or to crush by punfairly and fully possessed of facts, and reasonings ishment, the spirit of inquiry which literary puron them, as to be able, at the next election, to de- suits had diffused among his subjects. A more termine with precision and fairness on the conduct remarkable instance is, that of the Empress of of their Legislature; under these circumstances Russia; in giving her directions respecting libels, would it be proper to deliver this man into the pow- she says, "great care ought to be taken how we er of a body whom he has charged with misbeha-'extend this crime; representing to ourselves the viour, or a departure from Constitutional principles? danger of debasing the human mind by restraint Or would it not be more fair, would it not wear and oppression, which can produce nothing but more the appearance of impartiality in case an ex-'ignorance, and must cramp and depress the rising amination was necessary into the nature of his 'effects of genius." I did not expect to have been charges, or the manner in which he has made them, obliged ever to have introduced on this floor, and the expressions he has used, to have a distinct Frederic or the Empress, as examples on the suband unprejudiced body, a jury acting under oath, ject of the press. The love of liberty, or a wish to decide between them? As far as I know any- to countenance the spirit of political inquiry, were thing of the principles of natural justice, I should not certainly among the reasons for allowing this suppose there was no question on the subject, and latitude; but they at once discovered, that if they no other opinion ought to be entertained, and that wished to govern an enlightened people, the spirit without it there can be no such liberty of the press, of inquiry must be unshackled, and an extensive or freedom of inquiry, as the Constitution intends. range given to literary productions. Among the And here, sir, let it be asked, why should a Gov- ancients we find Tiberius, and Trajan, and Titus, ernment that means well, or is confident in its up- allowing absolute liberty of speech and writing, rightness and ability, ever fear the press? It should suppressing the laws against seditious words and be to them a source of great pleasure, in reflecting writings, and punishing informers. But the most that they had so excellent à mode of diffusing a remarkable instances we have, that freedom of speech and writing are essential to the liberty and greatness of a people, are those of Athens and Rome, when republics: in speaking of them, a celebrated writer says, "that democracy is the nurse of genius, and the greatest encourager of sublimity." The fact is evident from these republics. In Greece. Athens was most democratical, and a state of the greatest liberty; and hence it was, according to Paterculus, "that eloquence flourished in greater force and plenty in that city alone than in all Greece besides; insomuch (says he) although the bodies of the people were dispersed into other cities, yet you would think their souls and their genius to have been pent up within the precincts of Athens." So the city of Rome was not only the seat of liberty and empire, but of true wit and exalted genius. The Roman power outlived, it is true, for a considerable time, its liberty, but the freedom of speech and writing was gone, and wit and genius could not long survive them. How applicable, sir, are these instances, and how incumbent on us is it, if we mean to keep this country a Republic, to cherish the freedom of the press, to remember that without it seldom any thing great or noble can be produced, that to shackle it is to chain the mind, and stifle the seeds of everything that is generous and amiable! That, in the words of a celebrated divine, "reason and freedom are our own, and given to continue so; we are to use, but cannot resign them, without rebelling against Him who gave them; that to invade them is to encroach on the privileges we receive from God, and traverse the designs of Infinite Goodness." We should remember the danger of precedents, and be careful, as this is the first discussion we have had on this subject, not to establish improper ones, or lay a foundation for that debasement of the mind, which always follows the depression of the press. It is important here to remind you, of the anxiety of the State Legislatures in insisting upon the doors of the Senate being thrown open, and their legislative proceedings exposed, like the other branch, to public view. It was done unquestionably with the intent, that minutes of your debates should be taken, and all your proceedings subject to the inspection of such of our citizens as choose to attend; but as from the distance, very few of the States could have citizens attending, the great object certainly must have been to have notes taken of the debates, and printed in the gazettes; that through that channel information may be transmitted to every part of the Union, and thus the States become, in the best manner they are able, judges of the talents, as well as conduct and opinions of their members. That this is of infinite importance, in a representative government, no man will deny; but if a printer is to be seized, and dragged to your bar, and perhaps imprisoned for a mistake, that a law has passed when it is only its second reading, or that a member of a committee was not summoned to attend the meeting of the committee, when he was, and did attend, or for any mistake of this kind, I ask you what printer or reporter will take your debates? Who will MARCH, 1800. venture on it; because, where will you draw the line? Will you require that each reporter shall give every word and observation with exactness, and that the smallest deviation from what was said on the orders or proceedings of the House, shall subject him to the odium, and perhaps expense, of a trial at your bar, which must accrue if he has counsel ? If this is the case, no reporter will certainly attempt to take your debates, and your doors may just as well be shut again. But, say gentlemen, it is not only for those assertions which you have mentioned, but for the preceding and accompanying observations respecting the views and proceedings of the Senate, and of the members of that body in their official capacity, for which we think this examination requisite. I have already said, in the commencement of my argument, that no man can justify the licentiousness of the press, and that it is perhaps to be lamented that so much invective is used in the papers on both sides of the question; but that as most of these observations are on things that did not happen in the Senate room, and many of them are stated to have occurred near two years ago, and that as much more violent abuse against the Senate was published in the Federal paper styled the Gazette of the United States, on the 13th day of February, and no notice has been taken of it, that it was best, upon this occasion, to suffer the present to pass unnoticed likewise: that it is astonishing the honorable mover from Connecticut, who seems to feel so much for the dignity and character of the Senate on this occasion, did not, on that of the abuse which was heaped on it for consenting to stop the enlistment for the army, have similar feelings; and that as he consented to suffer those animadversions to pass, it would certainly be doing no great violence to his feelings to deal with the present in the same way: that perhaps the best mode to lessen the importance of a paper was, not to treat its observations with either too much notice or severity; that in politics, as in religion, persecution seldom made converts; that if I ever had the inclination to raise the importance of a press, and bring it into celebrity and notice, I would wish it persecuted, for I never saw a press in a free Government persecuted but it rose immediately. Attack a press for its political publications, you instantly convince the people that it is dreaded, and must be of great importance, and attract their attention. We can never forget the memorable cases of Sachereral and Wilkes, or how much the English nation was agitated by them, and we ought to be convinced, that in every country having the least semblance of freedom, the same consequences will always flow from the same measures. I request of you again to consider the importance of the question, how far, in the case of libels, or attacks in the papers, for their political opinions, any single branch ought to possess the power, perhaps in a moment of passion and resentment, to decide on what is to affect the personal liberty of a citizen? Whether it is consistent with the nature of our Government, that a single branch, without check or control, should become judges in their own case? Whether any citizen charged with a crime, for which he may be punished by the temporary loss of liberty, is not entitled, by the Constitution. to "a speedy trial by an impartial jury?" And, whether to deny it, in this instance, would not be to interfere with that provision of the Constitution? For my own part, I have no doubt of it; and, feeling as I always do, most jealous for the character of this branch, I am apprehensive, should we proceed in this measure, it may occasion unpleasant observations. Some of its enemies may perhaps say, that no power is so arbitrary as that of the unlimited authority of a single branch, acting in its own cause, revenging its own affronts, and deciding, perhaps more by its own passions and feelings, than by the justice of the case: that a power of this kind. is worse than a despotism; because there the despot is in some measure checked by his individual responsibility; for the act being the official act of the body, is that sort of protection under which an individual despot cannot shelter himself from the public odium-should the measure be oppressive, he must alone meet the general censure, which thus concentered, strikes with force; but when divided among a number, must in a great measure lose its effect. That, in every view of the subject, we must be convinced that for libels, or printed attacks, on either branch, the Constitution must have intended to give the person charged the right of trial by a jury, so collected that a cool and unprejudiced examination might take place, and justice be done to all parties; that this I had shewn to be the case, in the instance I had mentioned, in the House of Commons of Great Britain; and we surely would not wish the press should be more free, or the freedom of inquiry into legislative conduct more unshackled in England than with us. Look sir, into the abuse that is daily poured by the papers of that country, upon their Parliament and Administration, and upon Mr. Pitt and Mr. Fox, and all their leading members; and yet we see no proceedings of this kind. Indeed if we were to believe Montesquieu, and the writers since him, it is to the freedom of the press alone, England owes the portion of liberty she enjoys-it is the ladder by which she rose, and that which she will struggle most to preserve. I devoutly hope she will always keep it, and that we shall likewise maintain it for ever in its utmost purity. If we proceed in this business to the length it may go, that is, to issue the warrant to apprehend and confine, where, sir, is the power given to this branch to issue the warrant, and to appoint an officer to execute it; and in case he is unable to do so, to order the civil officers of the United States to aid him? I see no such power, nor do I believe any such is to be found in the Constitution. But may not another difficulty arise, and that is, if the editor is apprehended, and applies to a Judge, either of the United States, or the State in which you sit, for a habeas corpus, to examine into the nature of the commitment, and the Judge should be of opinion that you have no right to commit for such an offence, and that your remedy must be by prosecution, and discharge the editor, what then is to be done? Will you commit the Judge for doing his SENATE. duty, and deciding according to the Constitution, and his oath to preserve it? And if a State Judge should discharge him, and the State should be of opinion their Judge had done his duty, and ought to be supported in it, will you suppose the present publication sufficiently important to give rise to a conflict of jarring opinions between the United States and the State, and to disturb the harmony which at present so happily prevails? If one or two of their Judges may have held an opinion in England, that a Judge cannot discharge on a habeas corpus a man, however improperly committed, on a charge of breach of privilege, the solemn opinion of the British House of Lords, delivered in the famous case of Ashby and White, goes unquestionably to fix the point, that a Judge can discharge on a habeas corpus, any man illegally or improperly committed, although by either branch of Parliament. Upon the whole of this question, which I consider as extremely important to the liberties of our common country, I am to entreat that the House will well consider every step before they proceed. To adopt the motion before you, is to pledge the House to proceed in a business of great difficulty, and to give a wound to the freedom of the press which it may not easily recover. Remember, sir, it is a blessing guarantied to your whole nation by the Constitution; and that if a few men should at any time be so imprudent as to injure the cause they wish to abet, that ought never to be a reason for depriving a whole people of their dearest right— a right without which, in its full, unshackled, and Constitutional sense, I repeat, that liberty is but a name, and Government a mockery; that the press is to a free people, the tree of the knowledge of good and evil; that it is the only mode through which truth can be conveyed to magistrates and rulers, who will frequently find things written, that their friends did not dare to advise them. I trust that before we proceed to the extremities I apprehend, that all means of gentleness will be first tried. Terror can always be applied to, but never without danger; for if it fails once, it produces disrespect ever after. I have endeavored to give these subjects the deliberate examination they appeared to me to require; nor can any much more important to your citizens, be agitated within these walls. They not only include the privileges of Congress, and the freedom of the press-questions of very great consequence in themselves-but the all-important one of the extent of the right of trial by jury, possessed by your citizens, in the case of written or printed observations on the conduct of the Legislature, or any branch of it, and the Constitutional right they have to make such observations. Their magnitude will, I hope, easily excuse me for the time I have taken. It was to guard the privileges of our citizens, and to secure the great palladium of our liberties, the freedom of the press, that I have made these remarks. The Constitution has declared, that its freedom shall not be abridged; and that it shall not, it is our duty to take care that no question respecting it shall ever be determined without the intervention of a jury. It is difficult perhaps, in preserving its privileges, to guard against its licentiousness; but it is infinitely better that some instances of this sort should arise, than that a particle of its freedom should be lost. Considering, as I always have done, the freedom of the press as amongst the greatest of our public blessings, while I almost adore its good qualities, I am content to throw a veil over its defects. Few men have been for some time, attacked in the papers with more acrimony than myself; but as I know it is impossible to touch the freedom of the press without destroying it, and as I believe it to be the only true means of preserving rational liberty in the world, I trust that our country, which has received such important benefits from its operations, will never cease to cherish and protect it. I hope it will be our boast, as I know it will be our interest, while other nations are endeavoring to fetter and destroy, to guard it as a sacred trust received from our ancestors, and to deliver it, with its rights undiminished, to those who are to succeed us. For these reasons I am decidedly opposed to the motion of the gentleman from Connecticut; and move such an amendment, as will record my opinion on this subject, on the Journals. Mr. P. here read the following: MARCH, 1800. of that of the gentleman from Connecticut, (Mr. TRACY,) they would probably avoid that part of the discussion which would be least agreeable, as the subject would be clear from that locality and personality which attached to the first, and a decision would take place without any reference to this or that particular printer; but if the gentleman would postpone the question, Mr. P. consented to let his motion lie on the table, with a view to its being printed for the use of the members, that so both propositions might be compared and considered with more attention than could be done in any other way. Mr. COCKE declared that the object which he had in view was nothing more nor less than to rid the House of the business altogether. He was not inclined to appoint any special time for the discussion, as the worthy gentleman from South Carolina (Mr. PINCKNEY) had requested. He had no idea that it was supposed he had the saving or exoneration of any printer in view; he had no such thing; but he wished to save the reputation of this body, which he thought was placed in jeopardy by the Connecticut motion. Here it is proposed to inquire and examine of and into, this, that, and the other-to bring one printer here, and generally all persons and papers, who and "Whereas the Constitution of the United States has whatever, just as your committee may think fit. expressly declared That the powers not delegated to Suppose this power is doubted? Suppose the the United States by the Constitution, nor prohibited persons deny your power-how are your comby it to the States, are reserved to the States respect-mittee to enforce their mandates? Suppose your ively, or to the people;' and whereas, to prevent any courts of law claim cognizance as a case of libel, are attempt being made on the part of either branch of Con- you to have two prosecutions and two trials for the gress to define their own privileges, and exercise the same offence? Surely, surely, your committee same as occasion or circumstances may, in their opinion, will have to retire from the untenable ground, require, and to remove all doubt as to the extent and and the defeat will recoil with disgrace upon those exercise of the privileges they are to enjoy, the Consti- of us who attempt to assume powers neither Contution has positively and expressly limited and defined stitutional in themselves, nor just, even if they were the same, by declaring that each House shall be the Constitutional. You can call upon somebodyjudge of the elections, returns and qualifications of its but who?-to inquire who is the editor of the own members; that they may compel the attendance of Aurora. You are to inquire how he became posabsent members, in such manner, and under such pen- sessed of a certain bill which he published; what alties as each House may provide; that they may deter- kind of an inquiry is this? How he procured the mine the rules of their proceedings, punish the memsight of a bill, while it was pending in Senate. bers for disorderly behaviour, and, with the concurrence of two thirds, expel a member; that the members of Why, is there any crime in printing a minute of both Houses shall in all cases, except treason, felony, our transactions? Your bills are printed by your or breach of the peace, be privileged from arrest during own order, for your use, and for the information the attendance at their session of their respective houses, of the other House; two hundred copies or more and in going to and returning from the same, and for are circulated without any injunction of secrecy; any debate or speech in either House, shall not be ques- they are sent off into every State of the Union; tioned in any other place : and are you going to make inquiry how the editor of the Aurora got to see one of them? Why, are not your gallery doors open, and cannot a bill which has been read in public be possibly remembered, at least, cannot it be taken down in short-hand? and will you punish every man who shall repeat, print, or publish what is made public on this floor? Suppose the editor of the Aurora declines to inform your committee of the mode through which he obtains his information; he says it is convenient and useful to him, but his prior engagements do not permit him to divulge it to you; will you punish him for contempt? But suppose you possessed of the physical power necessary to procure the information you require by an application of the torture; while you are straining his muscles "Therefore, resolved, That as the Constitution of the United States does not vest in either branch of Congress any other powers on the subject of privilege than those mentioned and limited and defined therein, therefore to assume any other privilege would be to diminish the rights of the people, expressly reserved to them by the Constitution; to encroach on the powers given to the judiciary; to disparage the right of trial by jury, and to establish the dangerous doctrine that a single branch, without control or interference, can at their own will, and in their own case, punish for reasons on which the Constitution has given to them no power to decide." Mr. P. concluded by adding, that if the Senate went into a consideration of his motion, instead 85 MARCH, 1800. HISTORY OF CONGRESS. Breach of Privilege. and dislocating his joints, what becomes of the grand palladium of American freedom? Where is the liberty of the press, which is secured to the citizens of the Union against Federal usurpation? The Constitution declares that you shall not infringe upon the liberty of the press; and a power expressly denied to the whole Government, a single branch may not assume. Here Mr. C., was called to order by Mr. BINGHAM, of Pennsylvania, who inquired what the liberty of the press had to do on a question of postponement? He believed, while the motion for postponement was under consideration, all debate on the merits of the main question to be out of order. It was contended to be in order to object on a postponement generally to the original motion, for an argument tending to defeat the original motion is reason for a general postponement. SENATE. agreed, but is it nothing to publish untruths respecting the official conduct of the members of this body? is it no crime to publish a bill while before this House? But are printers at liberty to tell lies about our transactions? The Aurora says, that the bill which it published had passed the Senate; this every member knows to be contrary to the fact. The bill has not even to the present moment passed this body, it is still on your table liable to recommitment, amendment, or rejection. Asking the editor how he came to print this falsehood, does not go to examine into the private mode by which conveyance of intelligence is made to that office; there can be no real intelligence, it being a falsehood. But suppose we have no power over this editor, because the press is free, suppose we cannot punish him for his slander, calumny, and falsehood, perhaps the inquiry may lead us to discover some person whom we can punish; will it be said that the Constitution is an impediment in our way to punish one of our own members, if he should be found guilty of abusing the confidence of his situation? At least we can exercise the power of removing one of our officers, if we should convict him of a secret league to transmit intelligence which is confidentially entrusted to his care. Mr. CocкE proceeded, and said he was glad to find that the freedom of debate in this House was not to be destroyed, though it might be interrupted; and he hoped that the freedom of the press would never be subverted while the Government of the country rested upon the Republican principle of representation. He admitted there were a great many ill-natured things said by many of our AmerHe did not mean to insinuate that any improican presses, but that should never induce him to run the risk of destroying the most valuable and per mode was used in conveying this intelligence; effectual bulwark for maintaining us free and in- it might appear that the whole circumstance was dependent, by using an instrument more fit to cut a mere unintentional error, if so he should not down the trunk of a tree, than to prune it of its go farther; but yet the printer could hardly have tendril luxuriances. What was the engine now made the subsequent mistake in relation to the brought out against this freedom-an engine pos- gentleman from South Carolina, in declaring that sessed of all the powers, necessary to insure its he had never been consulted by the committee on success? A printer is to be charged, is to be tried, Mr. Ross's bill; there was something in this caljudged of, and executed, by a body he has offend-culated to produce an effect upon the public mind. ed. Where, will you find men of nerve that will Heinsinuates that the business of the Senate is done risk certain ruin? Such may arise when the press in caucuses, into which the gentleman was not peris in danger. It was under these impressions that mitted to enter; for if he had, it is supposed he might have detected and defeated the mischiefs he wished to get rid of the business altogether. which are working against the public welfare. This is an abandoned slander, as is well known to every member of the House, for Mr. PINCKNEY did attend not one meeting only, as the editor of the Aurora squeezed out some days subsequent to his first licentious publication, but he did attend every meeting, as he has candidly and honorably avowed in his place. any Mr. TRACY, of Connecticut, did not wish to press the business; indeed his conduct had manifested this intention, for the original motion had been suffered to lie on the table a longer term than usual before it was called up, but even now when it was called up he did not wish to hurry it through. He should not refuse a moderate delay, but he hoped the motion from Tennessee would not prevail, as further it went to destroy the object without consideration. In answer to what fell from the gentleman from Tennessee, he would say, that the objections he had made did not all of them apply, and if there was any which did apply, amendments could be made so as to conform them to the sense of the Senate. He wished gentlemen would attend to the words of the resolution, and they would find that they did not carry them beyond what was prudent, mild, and proper. The committee are desired to inquire who is the editor of the Aurora; this will appear to be a proper inquiry, for the person is not publicly known: the imprint declares the paper to be published for the heirs of Benjamin Franklin Bache, but we do not know who are the heirs. The gentleman has told us it is no crime to publish the doings of this body; The gentlemen had declared themselves the champions of the press; but surely gentlemen will not advocate such liberty as this-the liberty of publishing nothing but lies and falsehood. If by the liberty of the press is meant the publication of truth and just political information, it was proper to be supported; but he was desirous of maintaining, along with the liberty of the press, the liberty of the citizens, and the security of the Government; he was not for sacrificing these latter objects to the licentiousness of the press. He was not inclined to enter into a newspaper controversy to maintain the dignity and reputation of the Senate, nor did he think that gentlemen appreciated their own standing in society when they referred the individual members of this body to such a mode of defence against the shafts of calumny |