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Abridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives online

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Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 165 of 191)
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entitled to immunities of this nature are privi-
leged persons, and of this description are
members of this House. AU privilege is said
to be a nuisance, yet, for reasons deemed suffi-
cient of themselves, some of a very important
character have been conferred upon those who
represent the people here. No one has denied,
no one can deny, their existence. They were,
no doubt, conferred, and are tolerated on pub-
lic grounds, and not as a boon or indulgence to
individuals. They should be few, limited, well
defined ; and they are of that character. The
constitution which created and confers them, is
explicit, and too plain to admit of doubt or



Mat, 1832.]

Case ofSamvel Homtan.

[H. OF E.

cavil. Senators and Representatives in Con-
gress are privileged from arrest " in all cases,
except treason, felony, or breach of the peace ; "
*' and for any speech or debate in either House
they shall not be questioned in any other
place." All this, sir, is plain and explicit.
Here is no room to raise a question. These are
the undoubted rights or privileges of members
of Congress. "Whoever violates them, does a
wrong to the individual and the country, sets
the constitution at defiance, and justly exposes
himself to that measure of punishment which
the laws have provided for such cases.

These privileges are founded on good reasons.
Eepresentatives of the people ought to speak
freely, and without the fear of personal injury,
or the vexation and hazard of responsibility
elsewhere. If words, slanderous in their terms,
are uttered here, the constitution declares they
are not slanderous. If spoken on another oc-
casion, and in another place, malice would be
Implied. But in words spoken here, malice is
repudiated, and for all legal purposes good mo-
tives are absolutely inferred. We are exempt
from civil process. For debts, we may set the
law and its officers at defiance. We are beyond
their reach. Our privilege is our shield. We
are free from arrest in aU cases except for crimes
— " treason, felony, or breach of the peace."

These impunities, not enjoyed by others, but
which are the indisputable rights of members
of this body, should admonish us of the corre-
spondent duty — never to abuse them. They
were not designed as a shield for mendacity,
fraud, or malice ; and should never be used as
a cover for defamation, or to stir, up an un-
founded and false clamor.

It has been said that these are not strictly the
privileges of members, but of their constituents ;
or rather, that they were conferred for the bene-
fit of the constituents, and not at all for the in-
dividual members. The discussion upon this
branch of the subject, I believe, has not been
very intelligible to any one. The privileges of
members are their rights — their individual and
constitutional rights; and whether conferred
with a view to their own protection and se-
curity in performing their public duties, or for
a higher object, the benefit of their constituents,
I regard as a matter of utter indifference.
Sufficient for me that the privilege has been
conferred, that the right exists, that the consti-
tution has spoken, and aR are bound to heed
and obey its voice. We are not legislating with
a view to determine what privileges ought to
be conferred on members of this House. That
was decided by the people in adopting the con-
stitution under which we are assembled. Our
privileges are to be found in that instrument.
Legislation cannot abridge them ; nor can the
whim, the caprice, or the will of this body make
them, like the privileges of the British Parlia-
ment, unlimited, undefined, and undefinable.

•I therefore, sir, dismiss the matter of privi-
lege. If the privilege of a member has been
invaded, the existence of the privilege itself is

not denied. If a wrong has been done, and no
one denies that there has, the law has provided
ample means for redress. The courts are open ;
justice will be sure and speedy ; the course is
plain and free from difficulty. No one doubted
the power of the courts to inflict an adequate
punishment, and affijrd to the injured party an
adequate reparation. But here, in this House,
the disputed point — indeed, sir, in my judgment,
the only essential point in controversy, is the
power of the House to try and punish for an
offence which I admit has been committed.

The testimony has undergone a strict analy-
sis, and been summed up in due form. For
what purpose? To prove what the accused
admitted in his plea, and what no one has ques-
tioned — that an assault has been committed on
the member from Ohio, (Mr. Stanbebet.) To
prove further, what I wUl not stop to contro-
vert, that the assault was made for words
spoken in debate. Both points, for the purpose
of this discussion, I will admit to be established.
I wUl take them la this respect to be indubita-
ble. But what consequence shall we draw from
them ? Why,, certainly, argued the gentleman
from Virginia, (Mr. Doddeidob,) if the mem-
ber was assaulted for that cause, it was a breach
of the privileges, and a high contempt of the
authority of this House. And as " a privilege
without the means of enforcing it, and of, se-
curing its enjoyment, is no privilege," this
House has therefore an unquestionable right to
try and punish the accused for that assault I

This is the species of argument which we
have heard ; and in this manner the honorable
gentleman comes to the conclusion that this
House is fully authorized to do what it is as-
suming to do. I differ with the honorable gen-
tleman totally in both these positions. The
assault on the person I admit ; but I deny that
there was any assault upon the privilege of the
member, or any contempt of this House. Priv-
ilege is a peculiar right or immunity, possessed
by the few, to the exclusion of the many. A
breach of privilege is but a violation of that
peculiar right. But this assault would have
been equally an outrage, and equally unjustifia-
ble, had it been committed on any other citizen.
It was a, violation of rights equally possessed
by all, and not of any special right, which
adheres to an individual as a member of this
House. It was a breach of the general law of
society, and not of the peculiar immunities of
this House. I maintain then, sir, that the
rights of the member, as such, have not been
wounded, nor has the dignity of the House been
insulted, or its authority contemned. The
general law of the land is ample foi- this case,
without relying upon any peculiar provision
for the security of members of this body.

But if I am mistaken in this ; if, indeed, this
may with propriety be treated as a breach of
privilege and contempt of this House, what
then ? Does it follow that this House is author-
ized to punish ? That is averred by the gentle-
man from Virginia. His position is, that the



H. OF K.]

Case of Bamml Houstai,

[Mat, 1832.

body possessing the privilege must have the
means of securing its enjoyment, and of punish-
ing for its violation, or it is no privilege. This
is bold ground. If the honorable gentleman
has sustained it, or if it can be sustained in any
manner, I will admit the question to be settled.
But although the position has been advanced
as authoritative, yet I submit to the House
that it was accompanied with very little argu-
ment to illustrate or establish its accuracy. I
confess, sir, that I cannot accede to this opinion
of the honorable gentleman, able and accurate
as I know him in most things to be. Is it true
that an individual or a public body, whose
privileges have been assailed and trampled
under foot, has a right, not only to repel the
assailant, but to inflict upon him retributive
justice ? I should say not, sir. I should turn
to the courts for justice. I should invoke their
powers, where the individual wrong or the
public offence called for reparation or punish-
ment. But the honorable gentleman, like the
accused now on trial, would take the law into
his own hand. A wrong having been done, by
violating a privilege, he would himself right
it : the aggrieved and injured party he would
make judge. Upon this argument, the right
and the authority to punish are called into
existence by the attack upon privilege. This is
new doctrine, and an unusual mode of trans-
, mitting and acquiring judicial power. A blow
has made many a worthy man a knight, but
upon this principle the beating of one member
transfers judicial power not only to himself, but
to aU other members of the same body.

I would not, sir, treat this subject lightly or
irreverently. We are inquiring into the con-
stitutional powers of this House, the source of
its authority, and the manner in which it is
acquired. If, indeed, our powers as a judicial
body arise upon the perpetration of an outrage
on a member, it cannot be improper to explore
this theory of the constitution, and present it
to the public gaze. "Will it stand examination ?
Can the judgment of any gentleman approve
it ? The mass of our powers are legislative, not
judicial. Ordinaiily we have not the powers
of a court ; nor have we at any time, unless
they are brought into existence, as is urged by
the gentleman from Virginia, by a breach of
privilege. His theory regards the power to
punish as incident to the possession of the
privilege. But how does the gentleman prove
the accuracy of this position ? Does he find it
in any judicial system whatever ? Is such the
opinion of iany jurist or statesman, except the
gentleman himself, whose opinion is worthy of
respect? "Where does the gentleman find
authority for the position he has advanced with
such confidence?

"We have no privileged orders here, yet there
are many individuals, aside fi-om members of
Congress, who are temporarily clothed with
privileges. Attorneys at law, jurors, witnesses,
parties to suits, are familiar instances. AU
these are privileged — ^have rights peculiar to

themselves. But, how do they personally vin-
dicate these privileges when assailed, and inflict
summary punishment upon the violator? I
need not answer this question. We all know
that they have no power of that description,
and that their only relief is in the courts.
They may punish. Such is the nature and the
province of judicial power ; but I take leave to
deny that any such power is necessarily con-
veyed by conferring privileges upon an indi-
vidual or a public body. The English Convo-
cation, or Ecclesiastical Synod, furnishes an
apposite illustration of the question now under
discussion. A public statute of the reahn gives
to members of that body the same rights and
privileges as were or should be enjoyed by the
nobles and commonalty called to Parliament.
Yet, sir, was it ever heard that that assembly,
the miniature of a Parliament, with aU its gor-
geous display and expanded powers — ^with all
the immunities of the body to which it is assimi-
lated — was it ever pretended that it could deal
out retributive justice for a violation of its
privileges ? Certainly, sir, nothing of this nar
ture was ever suggested there. It remained for
the honorable gentleman from Virginia to dis-
cover and present as an axiom in legislative
jurisprudence, that the power to punish is
inseparably connected with the possession of
privilege !

Thtjesdat, May 10.
Case of Samuel Houston.

The House resumed the case of Samuel
Houston — ^the question pending the same as

Mr. Ckanb, of Ohio, said when this case was
first brought before liie House, I supposed it
merely involved a question of fact, and that, if
the charge was sustained by the evidence, the
appropriate punishment would foUow, as a
necessary consequence. But I was mistaken.
Some gentlemen wholly deny the power of this
House to punish contempts and breaches of
privilege; others, restricting the power to the
narrowest possible limits, maintain that the
peculiar circumstances of this case will not
warrant its exercise. I shall endeavor to show
that the charge against the accused is fully sus-
tained by the proof; that the House does right-
fully possess the power to punish ; and that this
case presents a fit occasion for its exercise. The
charge is, that the accused committed an assault
and battery on the member from Ohio, for
words spoken in debate by the latter. The
accused, in his answer, admits the commission
of the assault and battery, but, through his
counsel, seeks to avail himself of a novel species
of defence ; that this outrage on the gentleman
from Ohio was committed, not for the speech
made by him in this House, but for the publica-
tion of that speech ; and his refusal to answer
the interrogatory of the accused, whether that
publication was a correct copy of his speech.



May, 1832.]

Case of Samuel Houston.

[H. OF K.

The defence is not sustained by the evidence,
and, if it were, it would not avail the accused.

I will not waste the time of the House, by a
minute recapitulation of the testimony. The
answer of the accused does not directly deny
that the act was committed for the cause as-
signed in the charge, in his letter to the member
from Ohio ; he makes no inquiry or complaint
respecting the publication ; his only object was
to ascertain whether that publication was a
correct report of the speech. For aught that
appears in the testimony, the accused did not
know that the member from Ohio had any
agency in the publication, untU the fact was
stated by him on his examination. But if any
doubt rested on this point, it would be com-
pletely removed by the testimony of the mem-
ber from Tennessee. The answer of the accused
to the well-meant remonstrances of his real
friend, proves the temper of his mind — proves
conclusively that it was the speech delivered in
this House which roused his indignation, and
inflamed his thirst for vengeance ; and that it
was a mere afterthought to ascribe the subse-
quent outrage to the publication of that speech.
It was here, in this Hall, he had suffered wrong,
and here should the wrong be righted. The
court of Heaven itself should not shield the
wrong-doer. The ferocious contempt of all
sanctions, human and divine, exhibited in that
answer, however characteristic it might have
been, in the mouth of a robber chieftain, " with
hand of blood and brow of gloom," in the six-
teenth century, and in a country then the most
lawless and worst governed in Europe, surely
will not be endured in this enlightened age and
civilized country. To my judgment, the evi-
dence establishes fuUy and incontrovertibly,
that ^the true and only cause of this outrage is
the only one assigned in the charge, and that
the accused cannot and ought not to evade the
consequences of this act, by ascribing it to
another and simulated motive.

But, were the fact otherwise, I deny that the
decisions of the English courts, in the cases of
Lord Abingdon and of Oreavy, are to be con-
sidered as applicable to, or authoritative in, this
country. Nor would the defence now set up
be sustained in the British House of Commons.
By the law of that country, as expounded by
its judges, a member of Parliament is not re-
sponsible for any thing said by him in debate,
except to the House of which he is a member ;
but if he publish his speech in the newspapers,
though for the purpose of correcting an erro-
neous report made without his privity or con-
sent, this act of publication renders him liable
to a prosecution, if the published speech con-
tains matter reflecting on the character and
conduct of an individual, and he cannot set up
his privilege as a bar to such prosecution. A
party arraigned before the House of Commons
for an assault and battery on one of its mem-
bers, urges this defence : True, I assaulted and
beat your member ; but the act was done for
the publication of the speech, not for the speech

itself. By the law of the land, a member
publishing his speech may be prosecuted as a
libeller ; ergo, a member publishing his speech
may be assaulted by any one who fancies him-
self injured by such publication, and your rights
are untouched, your privileges inviolate. I
deny the logic 'of this conclusion. It is a Twn
sequitur. In fact, the House of Commons has
always punished insults and personal violence
to its members, from whatever cause, as a
breach of privilege.

In all arguments drawn from analogy, we
must be careful that the cases are alike, that
there is no essential difference in the facts and
circumstances ; otherwise, our reasoning will
be inconclusive and erroneous. Before we
adopt and naturalize these doctrines of the
English courts, and extend their application to
such cases as the one now before" us, let us
compare the difference in the forms of Govern-
ment, and of the institutions of the two coun-
tries. The one is a monarchy, of which the
secrecy in counsel is a constituent quality ; the
other a republic, of which publicity is the life
and soul. In England, in a prosecution for an
alleged libel, the truth of the charge cannot
be given in evidence ; here, truth may be freely
published, whether it affects Government, magis-
tracy, or individuals, if such publication be made
from good motives, and for justifiable ends.

" The two Houses of Parliament," I quote
Hallam's Constitutional History of England,
vol. 3, p. 398, " are supposed to deliberate with
closed doors. It is always competent for any
one member to insist that strangers be ex-
cluded ; not on any special ground, but by
merely enforcing the standing order for that
purpose. It has been several times resolved
that it is a high breach of privilege to publish
any speeches or proceedings of the Commons ;
though they have since directed their own votes
and resolutions to be printed." It was re-
solved, nem. con., February 26, 1729, that " it
is an indignity to, and a breach of the privilege
of this House, for any person to give, in written
or printed newspapers, any account or minutes
of the debates or other proceedings of this
House, or of any committee thereof ; and that,
upon discovery of the authors, &c., this House
will proceed against the offenders with the
utmost severity." In 1738, the resolution was
repeated in nearly the same words. On the
30th of April, 1747, Cave, the editor of the
Gentleman's Magazine, was brought to the bar
for publishing the House's debates ; he denied
that he retained any person in pay to make the
speeches, and, after expressing his contrition,
was discharged, on payment of the fees.

Look at the contrast exhibited by the Ameri-
can Congress. So far from this secrecy, this
caution to keep the people in ignorance of our
proceedings, every facility is afforded, and great
expense is incurred, to give publicity to them.
Extra copies of important public documents are
printed, and scattered through the whole coun-
try, for public information. Instead of conniving



H. OF E.]

Case qfSamvel Houston.

[May, 1832.

at reporters, as in England, admitting them as
it were by stealth, and secreting them behind
the pillars of the galleries, here they are ad-
mitted of right ; you assign them conspicuous
stations in the Hall, and, in fact, constitute
them officers of the House. I know that those
rules and orders of Parliament, though unre-
pealed, are obsolete ; that the debates of both
Houses are freely and fully published ; and the
intelligent writer to whom I have referred,
atti'ibutes the improvement, nay, even the
preservation, of the Briti^ constitution, to this
circumstance. "Perhaps," is his language,
" the constitution could not have stood so long,
or rather would have stood like a useless and
untenanted mansion, if this unlawful means had
not kept up a perpetual intercourse, a recipro-
city of influence, between the Parliament and
the people." But a corrupt House of Com-
mons, imbued with the slavish doctrines of a
former age, anxious to muzzle the press, to
shroud their proceedings in secrecy, may arouse
those sleeping lions, and wOl do so, whenever
they believe the spirit of the people is broken
to submission.

Are the representatives of the American
people prepared to admit the doctrine that a
member cannot publish his speech, however
truly and faithfully, without divesting himself
of his privilege ? So reporter, however skilful,
can report with perfect accuracy the language
and sentiments of a speaker. Is it not noto-
rious that, if you deny to a member the right
of revising and correcting the notes of the
reporter, his speech must go out to his consti-
taients, and to the public, mutilated, distorted,
and misrepresented ? Are gentlemen aware of
the consequences of this rigorous exclusion of
the right of revision and correction? Why,
speeches, as delivered here sometimes, resemble
bear-cubs, which are licked into shape only
when they approach the press.

Feidat, May 11.
Case of Samuel Houston.
The House resumed the case of Samuel Houston.
Mr. Kbbe, of Maryland, said : Mr. Speaker, in
the decision of this question the rights of the
people of this Union are involved. It goes to
the foundation of the Government ; it strikes
at the root of liberty ; it may realize the boding
fears of many who already apprehend a dissolu-
tion of the Union. Por, if the representatives
of the people, here assembled, cannot protect
themselves agaiust violence, and external influ-
ence and control, by whom shall they be pro-
tected ? By what laws, by what judgment, or
by what tribunals can they be preserved ?

Sii*, we are about to decide a case in which,
it is true, the rights and privileges of a private
citizen are involved, as well as the privileges
of the frhole people, in the persons of their
immediate representatives. The dignity of this
people is thus brought into question by the
conduct of the accused. To the high tribunal

of public opinion, and to our immediate consti-
tuents, we must all answer for the course that
we may now adopt. It becomes us, therefore^
to deliberate calmly, and to decide with an
enlightened judgment, upon a case so impor-
tant ; and he who treats the question lightly,
cannot, I think, either justly appreciate the
character of our Government, or regard the
permanency of its free institutions.

The first question before the House is, whether
Samuel Houston is guilty of a breach of its
privileges. This being decided affirmatively,
wiU draw after it, as I trust I shall prove by
reason and authority, the power of punishment,
as well as the kind and extent of it. But this
question involves an inquiry into the nature and
extent of our privileges, as a matter of constitu-
tional right and power, and into the particular
facts which are ^eged to have constituted the
transgression imputed to the accused.

I listened, sir, to the defence which was
offered by the learned counsel for the accused^
not only with a respectful and devoted atten-
tion, (an attention greatly heightened by the
interest of ancient friendship,) but with a deep
anxiety to be informed upon this weighty quesf
tion. I felt every disposition to applaud his
eloquence, and I could not but sometimes ad-
mire his ingenuity ; but his constitutional and
legal interpretations I was compelled wholly to
repudiate. The learned counsel, and honorable
members too, have talked of privileges unde-
fined and undefinable ; and the counsel of the
accused complained, even to the last, that he
was in some degree of ignorance of the charge
alleged against his client. He claimed, at least,
that one inalienable right belonged to the citi-
zen — ^that, before he is put upon his trial, he
shall know and undersand the accusation against
Mm. In the eloquent and ingenious counsel
these were the commonplaces, I wSl not say
the tricks, of the advocate ; but, in honorable
members, with a full knowlege of the facts, and
with the constitution in their hands, those
grave doubts and subtleties did, I confess, sur-
prise me. The accused himself displayed no
such fastidious hesitation on this point. He
affected not to misunderstand the charge. He
confessed the violent act charged upon him, but
avoided its legal consequence, by denying the
intent imputed, or that he has committed any
breach of constitutional privilege. The counsel
at length supposed that " the main charge was
that of assaulting a member for words spoken in
debate, and, thereby, committing a breach of
the privileges of this House ; " and then he
boldly said he would undertake to show that
no such privilege belongs to a member of this

Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 165 of 191)