SENATE.]

Safe keeping of the Journal.

[MARCH 25, 1836.

from giving us any right to destroy or injure them, would but add to the enormity of the crime; just as it would be more criminal in a guardian to defraud or destroy his ward than any other person.

tion of the journals of the proceedings of this body, it has had the good effect of arousing attention, for the first time, to the unprotected condition of the journals of the two Houses, and the other public records. I have caused diligent search to be made, and the result In making these remarks I am aware that no law can is, that, with the exception of the eighteenth section of restrain us from doing what we may think proper in our the act of 1790, to punish certain crimes against the official characters as Senators; and that, while acting in United States, which provides for punishing in certain that character, we are not amenable to any court. It folcases the falsifying for fraudulent purposes the records lows, of course, that whatever act may be passed by of the courts, there is no law whatever to protect the Congress to protect the journals of the two Houses canpublic records. As strange as it is, it is no less true, not prevent either House from passing resolutions, with that they may be mutilated, obliterated, falsified, ex- a view to mutilate, obliterate, expunge, alter, disfigure, punged, or destroyed, by those in whose possession or otherwise destroy or injure their journals, or subject they are, or any person who may have access to them, the members to punishinent for passing such resolutions; without subjecting the person perpetrating the crime but still a law, making it penal to destroy or injure them, to the slightest punishment. Our Secretary, who is in will not be without great and salutary effect in protectcharge of our journals, if so disposed, might destroying the journals, even against the two Houses. We may them before our eyes, without exposing himself to any legal penalty. All who hear me, whatever may be their opinions on particular points, must agree that such a state of things ought not to continue. Setting aside the obligation imposed by the constitution on us in reference to our journals, the great importance of the public records would of itself make it our duty to preserve and protect them with the utmost care. They contain the only authentic account of the proceedings of the legislative and judicial departments of the Government, and from them must be drawn mainly the materials for the true political history of the country, to say nothing of the important interests, both public and private, involved in their being preserved free from all alterations or changes, or suspicion of being altered or changed.

But, as sacred as is the duty of adopting the requisite measures for their protection, regarded in the light presented, it becomes far more so, when to that is added the obligation imposed by the constitution on this and the other House to keep a journal of their proceedings. Yes, we are under the obligation of an oath to keep our journals-a word of the most comprehensive meaning, and, at the same time, free from all ambiguity, as applied in this instance. It implies that our proceedings shall be fully and accurately recorded, and, when so recorded, that the journal containing them shall be carefully protected and preserved. Without recording, it would be impossible to preserve, while the injunction to record would be vain and absurd, without the obligation to preserve. The very object of recording is to preserve, for the use of the present and all future generations, a true and faithful account of the acts of this body. Such is the extent of the obligation imposed on the Senate by the constitution, in providing that it shall keep a journal of its proceedings; and, in taking the oath to support the constitution, we have all solemnly sworn faithfully to perform this duty, with the others imposed by that instrument. To discharge this obligation, we are bound, not only to abstain from destroying, altering, or in any respect injuring the journals ourselves, but to adopt all proper measures to guard them against destruction, alteration, or injury, by others.

The impression that they are our journals, and that we may do with them as we please, is the result of a gross misconception. They indeed contain an account of our proceedings, but they belong not to us. They are the property of the public. They belong to the people of these confederated States; and we have no more right to injure, alter, or destroy them, than the stranger that walks the streets; no more than we have to alter or destroy the journal of the other House, or the records of the courts of justice. We are, it is true, the representatives and the agents of those to whom our journals rightfully belong; and, as such, are their keepers, placed under the sacred obligation of an oath to perform our duty in that capacity, but which, so far

order the expunging or destroying of the journal either
in whole or in part, but we cannot perform the act.
That must be the work of an agent. Some one must be
ordered to do it; either the Secretary, or some one else.
Though the order may not make us amenable to the
laws, it cannot exempt the Secretary, or whoever may
be ordered to perform the odious and unconstitutional
act, from responsibility. In a court of justice, on an in-
dictment for the violation of law, it would be so much
waste paper when opposed to an act of Congress and
Our Secre-
an express provision of the constitution.
tary, as well as all our other officers, from you (address-
ing the Vice President) to the lowest clerk, are all
under oath to support the constitution. Each, when he
comes to act, must judge for himself, and act on his own
individual responsibility. If the members of this body
should misconstrue or disregard the injunctions of the
constitution to keep the journal, that would not justify
the Secretary, should he be ordered to expunge or de-
stroy the journal. What he ought to do in such an
event is a case of conscience; that he must decide for
himself; and I do trust that, if the members of this body
should be so regardless of the solemn obligation impo-
sed by their oath as to give such an order, neither our
present nor any future Secretary would be found want-
ing in the requisite firmness and virtue to resist an order
so clearly unconstitutional. But such may not always be
the case; and, in such event, the beneficial effects of
proper penal enactments to protect the journals from
being expunged or destroyed would be experienced.
He who might not be restrained by the sanctity of an
oath, may be by terror of punishment; and a Senate,
impelled, by party spirit and party discipline, to order
the performance of an act in subversion of the constitu-
tion, might find itself arrested by the refusal of its select-
ed agent, under the terrors of the laws, to perpetrate
the criminal act. Thus, a law to preserve and protect
the journals of the two Houses, and other public records,
by inflicting condign punishment on all who may destroy
or injure them, may be found in practice to be an ef-
ficient protection against the danger to which they may
be exposed, in high and violent party times, from the
Houses themselves.

It is too late to suppose that party violence and discipline could not possibly drive the Houses to an act so palpably in violation of the constitution, and the high duty they are under to preserve the public record as the precious and sacred depository of the acts of the legislative and judicial departments of the Government. After what has already passed here, as well as in several of the State Legislatures, the danger can no longer be considered imaginary. As monstrous as it may seem, it can no longer be doubted that those who by the constitution are made keepers of the journals, their protectors and guardians, may so far forget their duty as to be the first to aim at their destruction. Admonished by

what has occurred, and looking forward to what may hereafter follow from the present attempt, every one, be his party what it may, who is desirous to see some restraint imposed on the violence and madness of party, ought to aid to throw around the journals and other public records every guard that may contribute to protect them against the destruction to which the rage of party war may hereafter expose them.

I have great confidence in the Committee on the Judiciary, and have no doubt, should the resolution be adopted, they will give the subject a thorough investigation; and, should their opinion concur with mine, they will, I doubt not, be able to devise the proper measures to effect the important object intended to be accomplished.

|

[SENATE.

who introduced it, we may understand the object of it. The object thus understood is, by indirection, to withdraw from the regular action of the Senate the resolution of the Senator from Missouri proposing to expunge a resolution now upon the journal of the Senate. The resolution of the Senator from Missouri is now regularly before the Senate for consideration, and all the Senators have full opportunity to express their opinions upon it. It is right and proper that such opportunity should be given, and that a decision in the usual course should be had upon it. It is not of a character to require that it should be sent to a committee to report upon it. The Senate is already in possession of all that relates to its proper action upon it. If, however, it was to be sent to a committee, it ought to be done by a direct motion to commit it, instead of attempting, by the introduction of another resolution, using the very term expunge, to strike a side blow at that resolution.

The Senator from South Carolina seems disposed to dictate to the officers of this body whether they should or should not obey the orders of a majority of the body. The propriety of one member of the Senate assuming to prescribe to an officer of the Senate, before that officer is called upon to act, what ought to be his course when called upon by a majority of the body to do an act in obedience to it, must be left to the judgment of the Senate. It seems to me, to say the least of it, to be a most extraordinary proceeding. I think this resolution should be laid upon the table; but, as some other Senators may desire to express their opinions upon it, I will not now make the motion.

Mr. BENTON observed that, in looking over the Directory, he found that the Committee on the Judiciary, like all the other important committees of that body, was composed of a majority of those members who were in the majority in the Senate when the committees were chosen. He found that committee to be-Mr. Clayton, chairman; Messrs. Buchanan, Leigh, Preston, and Crittenden.

Mr. NILES said that, as the resolution was merely one of inquiry, he felt reluctant to object to its passage, although he could not perceive the force of the reasons the honorable Senator [Mr. CALHOUN] had urged in its support. Neither had he any objection to the gentleman's discussing on this question the resolution before the Senate offered by the Senator from Missouri; he could, if so disposed, go into that inquiry, and examine the power of the Senate over its journal, and its right to correct or alter the same. But he was not disposed to follow the gentleman in this course, or to reply to his arguments on that subject. At the proper time he proposed to offer his sentiments on that resolution. He did not perceive either the force or consistency of the gentleman's reasons for the adoption of his resolution. At one moment he informs us that there are no legal provisions whatever for the security of the public records and the journals of Congress; that there is no obligation to preserve them; and that they may be destroyed by any one, by the Secretary of the Senate himself, with impunity. Then again we are told that the provisions of the constitution are so clear and strong that they cannot be mistaken or perverted, and that they impose on the Senate the most sacred obligation, not only to keep a journal, or cause their proceedings to be recorded by the Secretary from day to day, but likewise to take care of and preserve the journal. If the gentleman is right in his construction of the constitution, (and I am not now disposed to deny that he is,) it appears to me that there is an obligation of the highest nature, so far at least as the Senate is concerned. The journal of the Senate is a public record of the highest authority, and is so regarded in courts and elsewhere-a record which we are enjoined to make and preserve by the constitution, according to the gentleman's construction of the provision relating to this question. How, then, can it be said that there is no security for these records? Is there no authority in the constitution? If it imposes so sacred an obligation on the body, can it be said there is not protection or security for the preservation of our journal? But perhaps the gentleman means that there is no legal sanction--that there can be no punishment for mutilating, defacing, or destroying the journal. If the journal of the Senate is a public record, and made such by the constitution, is it not a crime to destroy it, upon general principles, upon the principles of the common law? To violate the constitution must be an offence. He felt reluctant to oppose a resolution of inquiry only, but could not perceive, from the gentleman's own view of the subject, that there was that necessity for legisla-said) that the country had decided on the merits of the tion which he professed to feel, and which he so earnest. ly pressed on the Senate.

Now, every body knew, if this resolution should be sent to them, what the report of that committee would be. The report would, in fact, be the speech of one of these gentlemen on the floor; and the only difference there would be between them would consist in one being dignified with the name of a report, while the other would be simply called a speech. The only object of referring the resolution would be to get a report from the committee adverse to the expunging resolution he had introduced. He should look upon such a report in no other light than the speeches of members of the committee, made up in the committee room. He did not know whether it was perfectly regular, according to parliamentary practice, to take one subject already under the consideration of the Senate out of its hands, by sending another immediately relating to it to one of the committees. He was not disposed to make any formal motion upon the subject; but he would observe that expunging seemed to be one part of the business, and the right and justice of the condemnation another; and gentlemen were called upon to consider how far the sen. tence they had pronounced was consistent with truth and justice, and how far they could intrench themselves behind technicalities, to avoid going before the country on the merits of the case. They were aware (Mr. B.

sentence they had pronounced, and decided against them. They had better, in his opinion, meet the sub

up into the form of a report, in one of the committee rooms of the Senate.

Mr. SHEPLEY said, ordinarily I should not be dis-ject on its merits, than rely on their speeches, worked posed to make any objection to a resolution of inquiry; and if I regarded this as coming properly within that class of resolutions, I would most readily consent that it should go to the committee. From the language of the resolution, as well as from the remarks of the Senator

Mr. CLAYTON said that, as a member of the Committee on the Judiciary, to which this resolution propo sed a reference, he was not anxious for the accumula

tion of labor, nor did he believe that a majority of its members felt any ambition to consider or report upon such a subject as that presented by the expunging reso Jutions. But, in answer to a remark of the Senator from Missouri, [Mr. BENTON,] that every body knew, if the resolution of the gentleman from South Carolina [Mr. CALHOUN] should be sent to them, what the report of that committee would be, he would say that, if the Senator from Missouri could foretell the contents of that report, it was more than he (Mr. CLAYTON) could do. The question involved in this resolution is, what legal enactments (if any) are necessary to prevent the forgery, alteration, or mutilation, of the records of Congress? The question upon which the individual members of the committee have heretofore expressed an opinion is a very different one, being merely whether these records shall or shall not be altered or expunged. We have said by our votes, during the last session, that they shall not be altered or expunged, and we have not yet found among us any one who has been guilty of the design to obliterate or expunge these records. The Senator from Missouri has nevertheless informed us that we are now divided on this old question as four to one, and his observation was so made as to leave no room for any one to doubt that he referred to the Senator from Pennsylvania [Mr. BUCHANAN] as the dissenting member of the committee. Sir, what authority has he for this? How does he know that the member from Pennsylvania has abandoned his whole ground on this question? We all remember that, when the expunging resolutions, as they are termed, were last year called up by me, in obedience to resolutions of the Legislature of the State I have the honor in part to represent, and rejected by an overwhelming majority of the members of this body, comprehending men of all parties here, the Senator from Pennsylvania expressed himself decidedly against them, and voted with us against them. How does the Senator from Missouri know, then, that this gentleman is now prepared to reverse his vote? Then, as to the real and only question before the Senate, whether any and what legislation is necessary to protect the journals from frauds, forgeries, or mutilation, I defy the Senator from Missouri to point out an instance in which any one mem. ber of the committee has ever expressed any opinion on the subject, or to show the slightest foundation for his opinion that others know what the contents of our report will be. No, sir; this question is now presented for the first time, and although we do not court the inquiry, for reasons which must be manifest to others, yet we shall not shun it if the Senate really desires to secure the public records of the country against the open exercise of lawless power or secret frauds.

[MARCH 25, 1836.

This

cal fusion, and direct the mode in which the other House shall keep its own journal, in defiance of a clear constitutional provision, conferring upon each House, separately, the sole prerogative of keeping its own journal. distinction cuts deeper into the question of the expunging resolutions now before this body, and conceded to be sought to be reached by this motion, than perhaps the gentleman from South Carolina supposes. This distinction (sought to be broken down by the adoption of this motion) demonstrates that each House has the exclusive control over its own journal, and can alone direct the manner of keeping the journal of its own proceedings. The manner of keeping each of these journals is, to some extent, designated by the constitution, and the very distinction which Mr. W. said he had alluded to demonstrated that to keep a journal of our proceedings meant only to note down an account of our proceedings from day to day; for, had the constitutional provision related to the preservation of a journal of both Houses after it was made, it would not have left this direction to the mere naked operation of a separate rule of each House, after the journal of the two Houses was made. The whole direction is to make a journal, and the manner in which that shall be done is directed by the constitution. Each House is to make its own journal of its own proceedings; it is then to publish that journal. The direction is to publish, not to preserve, unless, indeed, publishing the journal was considered the best mode of preserving the journal. Had the direction, indeed, been to Congress to keep a journal of its proceedings by the operation of some law to be made in pursuance of a constitutional injunction, then, indeed, might there have been some ground to contend that to keep a journal meant to preserve a journal already made. But, as the constitution now stands, every moment that the Secretary is noting down our proceedings here, from day to day, he is fulfilling for us the constitutional injunction upon the subject of keeping a journal. If this clause in the constitution had any other meaning, and some law were required upon a subject that is confided to the exclusive separate authority of each House, it is most extraordinary that the discovery is just now made, after the lapse of nearly half a century, since the adoption of the constitution. No law is required, none can be made, to direct the manner in which we shall keep our own journal. But the resolution of the gentleman from South Carolina contemplates "legal enactments;" enactments which that gentleman has conceded are designed to operate upon this body, and to prescribe the mode in which it shall keep its own journal; legal enactments to interfere with a subject confided by the constitution to the exclusive separate conMr. WALKER said that there was at least one objectrol of each House. Mr. W. denied the constitutionaltion to the motion, as it now stood, of the Senator from ity of any such enactment. This direction as regards South Carolina, [Mr. CALHOUN,] which he thought it keeping a journal was, in that section of the constitu. proper to state to the Senate. That motion asked to tion, designating only the separate powers of each of be considered by a committee of the Senate "the expe- the two Houses, not their legislative powers in their joint diency of providing proper measures for the safe keep-capacity as the Congress of the United States. As well

ing of the journals of the two Houses." Now, are we not attempting by this motion to assume jurisdiction in relation to a matter over which we have no constitutional control? The constitution says, "Each House shall keep a journal of its proceedings." What right, then, has the Senate to direct the proper measures for the safe keeping of the journal of the other House? Each House is to keep a journal only of its own proceedings. What right, then, have we to direct the method in which the other House shall keep its journal? The constitution requires two journals to be kept, one by each House; journals that are distinct and separate; journals that the constitution requires to be kept distinct and separate, and by different journals; and yet we are asked to blend these journals into one by a new species of politi

might you attempt to legislate as regards our sole power to judge of the qualifications of our own members, or the determination of our own rules of proceeding, as to regulate by law the manner in which we shall keep our own journal. Mr. W. said he should, therefore, oppose the adoption of this resolution.

Mr. EWING said he thought the doctrine advanced by the Senator from Mississippi somewhat extraordinary. I cannot (said Mr. E.) comprehend how a law to preserve our journals, which the constitution requires us to preserve, can be a violation of the constitution. It is very true Congress has no power to pass a law directing how we shall keep the journal, nor what we shall enter upon it--for that matter is intrusted by the constitution to each House of Congress for itself;

District of Columbia-Territorial Government of Wisconsin.

SENATE.]

Adjournment.

Territory, the day is not distant when it will be made to appear (as the committee which reported this bill has already declared,) that it is capable of supporting the population of an empire.

Mr. CLAYTON's motion was then put and carried, and the bill was taken up for consideration.

Mr. CLAYTON then moved to substitute for the bill, as reported, the amendment which he had laid on the table on Friday last, and which was then ordered to be printed for the use of the Senate. In support of this motion, he proceeded to explain the principles of the bill, and of the amendment which he offered as a substitute for it; and concluded by expressing his willingness to give any other explanation, if desired by any member, should any not be satisfied with the proposition. When Mr. C. concluded, the amendment he offered was adopted by the Committee of the Whole, and the bill was then ordered to be engrossed for a third reading without a division.

ADJOURNMENT.

The Senate proceeded to the consideration of the joint resolution submitted by Mr. KING, of Alabama, assigning the 30th of May next as the end of the present session of Congress.

Mr. CRITTENDEN moved to amend the resolution by making the day of adjournment the 20th instead of the 30th of May.

[MARCH 28, 1836.

no member of this body has retarded the appropriation bills more than the Senator himself. The debate on his fortification resolution, and on his expunging resolution, had almost expunged every thing else from the Senate. There was no way that he knew of, of getting at the appropriation bills. He was agreed to lay the resolution of the Senator from Alabama, for the present, on the table, for he did not believe that they could, consistently with a due regard to the public service, fix on the day of adjournment at this stage of the session. He sup. posed that this expunging resolution must have its full share of debate; and he thought they had better go on and debate it, and when they had done, proceed earnestly with the despatch of the public business.

Mr. C. then moved to lay the resolution on the table; but withdrew the motion at the request of

Mr. MANGUM, who hoped the resolution would not be laid upon the table. He thought their former experience put it beyond all question, that the subject introduced by the Senator from Missouri would occupy them until next Christmas day, if gentlemen indulged themselves in long speeches, instead of attending to the public business. Complaints had been made that, at this late period of the session, the appropriation bills had not been acted on. But he would ask why this was so. The appropriation bills had not been brought there; and the responsibility was neither on that body nor with those with whom he acted. What had delayed the public business? First, the resolution of the Senator from Missouri, resolving that the surplus revenue should be appropriated to the defence of the country. The mere resolving this proposition did not expedite the public business; and it would have been much better to bring in a bill that could have been acted on at once. He thought that by fixing the day of adjournment they would expedite the business of the Senate. He was much gratified at the quarter from which this resolution for adjournment came. He looked upon it as an administration measure, and as an evidence that they were disposed to proceed earnestly to the despatch of business, instead of wasting time in long wire-drawn debates, that were only calculated to drill political parties. Let us, said he, by fixing the day of adjournment, bring back the practice of Congress to those good old times when the sessions were shorter, and more business was done in them.

Mr. BENTON could not consent to adjourn, and leave nearly the whole business of the session undisposed of. Experience would enable every gentleman to know that, in the vast amount of business before them, there were particular subjects which alone would occupy a whole month. Except those seven bills mentioned by him the other day, they might say they had been here about four months without doing any business. There was not a dollar yet appropriated for fortifications. He read an extract from a newspaper published in Pennsylvania, to show how the people were deluded by the delay of these appropriations; from which it appeared, by a calculation in relation to the distribution of the surplus funds, that it was expected the proportion of that State would be upwards of two millions of dollars. This great accumulation of public moneys was on the same principle as water dammed up, in which case there would be more water above than below. Mr. B. enumerated some of the most important subjects that were Mr. KING, of Alabama, had fixed upon the day withto be acted on, some of which would take up half, and out consulting the administration or any other party. If one or two the whole of the time allowed by the resolu- the Senate had occupied a great deal of time in debate, tion. There was upwards of twenty millions to fortifi- he would ask whether the honorable Senator from North cations, &c., that ought alone to have been appropria- Carolina [Mr. MANGUM] had not had his full share of it. ted before this time; and on another subject there was He wanted to fix an early day, and then adapt their five and three quarter millions, which, if the Senate car- work to it; and, in so doing, he cared not where the ried out their pledge, must be appropriated-making a responsibility rested. He would repeat what he had total of about twenty-seven millions. And were they to before observed, that when an early day was fixed on, go on fixing an arbitrary day, within which they could speeches were shorter, and business was done as well, not possibly do the business? They were sent here to and with greater despatch. He had fixed on the 30th do the public business, and it was their duty to do it. as the earliest period within which he had thought they They were not sent here to adjourn when they got tired, could get through with the business, and was rather but to dispose of the business intrusted to them. He surprised that any Senator should fix an earlier day. would join hands with gentlemen for as early an adjourn- Had Senators, in doing so, any political object in view? ment as possible, and would pledge himself to go to He was not certain that they could get through the busiwork as industriously as any one to effect it. But he ness by that time, (the 30th,) but could see no reason was not willing himself, and as the friends of the admin- why it should not pass the Senate; and if, when it came istration were now in the majority, he hoped they would to receive the action of the House, it was ascertained not consent to adjourn and leave the business undone. that it was impossible to get through the business by that He wished to go on and work industriously at the busi- time, the period of adjournment could then be fixed at ness, and as soon as they got done with it to adjourn. a more distant day. He thought they ought to go on Mr. CLAYTON was glad to hear that the Senator and get through with the business, without regard to from Missouri was so anxious to go to work on the pub-party considerations. They owed it to themselves and lic business. The gentleman said that the appropriation to the country, to despatch the business as soon as posbills ought to have been passed before this; but who was sible, and adjourn.

to blame for the delay of those bills? Sir, (said Mr. C.,)

Mr. MANGUM referred to the journals of last session,