THURSDAY, February 11.
TREASON AND OTHER CRIMES.
The bill reported by Mr. GILES, for the punishment of treason and other crimes and offences against the United States, was considered as in Committee of the Whole. After having been read by sections from the Chair, some verbal amendments were made to the first section. The words of this member of the bill are as follow:
Be it enacted, &c., That if any persons owing allegiance to the United States of America, shall levy war against them, by assembling themselves together with intent forcibly to overturn or change the Government of the United States, or any one of the Territories thereof, or forcibly to dismember the said United States, or any one of them, or any one of the Territories thereof, or forcibly to resist the general execution of any public law thereof, or forcibly to take possession of, or hold any fort, magazine, dock, navy yard, or of any public vessel of the United States, or to forcibly invade or hold any part of the United States, or of the Territories thereof, against the authority of the United States, or if any person or persons shall traitorously aid or assist in the doing any one of the acts aforesaid, although not personally present when any such act is done or committed, and being convicted of any one or more of the aforesaid acts, on confession in open court, or on the testimony of two witnesses to the same overt act of treason, whereof he or they may stand indicted, such person or persons shall be judged guilty of treason against the United States, and shall suffer death.
These alterations having been agreed to, chiefly in the form of the bill, by the transposition of certain words
Mr. MITCHILL expressed his disagreement to the principle itself of the bill. He questioned whether Congress had authority to act upon the subject. The powers of the Legislature were, on the crime of treason, limited by the Constitution; and it deserved mature consideration, whether, on the present occasion, we were not about to transgress the bounds within which we ought to move. By the third section of the third article of that great charter of our rights and privileges, it is declared that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here is the definition of treason in the Constitution, that great national instrument, which is the law-paramount of the land, and by which Congress itself must be governed.
The Convention of 1787, when devising a frame of Government for a free people, well understood the commotions that frequently agitated societies of men claiming the right to speak and to act as they pleased. That sagacious body possessed perfect knowledge, from history, of the proscriptions and attainders which an overbearing majority were but too prone to pass upon those who differed from them in their preference of one man or measure to another, or who thwarted their views of interest or ambition, of resentment, or power. They, therefore, provided a salutary check upon the will of the Congress itself, thereby guarding against that heat and violence which the collisions of parly have been often observed to produce. Thus was a security enjoyed by the minority of the two Houses, and of their adherents and supporters throughout the nation, against the exterminating spirit which the majority might feel, and, in an evil hour, be tempted to exert.
Such was his understanding of the meaning of this part of the Constitution. But the bill before you, Mr. President, has a bold and innovating aspect. It ventures into declarations of various actions, which shall be deemed to constitute levying of war. If this proceeding is correct, it will be in our power, or in the power of a future Congress, to declare that certain other actions. not specified in this bill, shall also be construed as criminal in the same atrocious degree. And a succeeding Legislature may enlarge the catalogue, until constructive treasons shall be multiplied to a most alarming amount. The people of this free and happy country will be disarmed of the shield by which their sages and patriots, who devised the present admirable frame of Government, intended to protect them, even from legislative injury. And they will be exposed to, all the multiplied evils, of treasons declared by Congress; and it may possibly happen, in some future time, less auspicious than the present, that the majority of that body may be actuated by passions and stimulated by motives of a sanguinary tendency. We ought to take measures of precaution against such alarming consequences. I feel a strong repugnance to the demolition of established landmarks. I have, said he. a great veneration for these monuments, erected by our predecessors. And, I fear, the enactment of the present bill will be accompanied with the overthrow of one of the most valuable safeguards of the Constitution. He was willing to admit the great uncertainty with which the doctrine of treason was clouded. All our trials for that offence had demonstrated the unsettled condition of the law. But it was by no means certain that this was a sufficient reason for Congressional interference. He felicitated himself, and he congratulated the Senate and his country, that arraignments for treason had hitherto been few and rare. There had not been time nor opportunities enough to elaborate the ultimate decisions of the law. The human mind did not acquire knowledge by intuition, but by experience. The march of the understanding in the investigation of truth was slow. In cases of jurisprudence, as well as in every other intellectual research, the advances toward truth were gradual. Case after case must be studiously considered, judgment after judgment must be rendered and revised, and consequence after consequence traced to their terminations. In such a course of proceeding, it might happen, according to the amount of business which occurred, that generation might follow generation, and age succeed to age. before the summa ratio, the high result of reason on the subject, could be attained. According to this method, of perfecting the law by practice, many trials for treason would be necessary to make its exact meaning known. And, for his own part, he was willing to postpone for centimes this painful mode of delineating the endless number of species and varieties that a Legislature could, in a day, arrange, under the generic term of treason.
But, why was it necessary for Congress to expound the Constitution? Was there not a department of the Government, to which the interpretation of the statutes enacted by the two Houses, treaties concluded with foreign nations by the President and Senate, and the great national act of the Convention, as ratified by the several States, was specially entrusted? He meant the body of the Judiciary, consisting of men selected from the class of citizens, for the express purpose of declaring what the law is. If seemed more orderly and regular to permit the judges to remove the existing obscurity in the law. by the exercise of their professional talents, than to alter by statute a course of investigation which conformed to the true theory of the Constitution. It is certain that inconveniences of a serious kind do exist; but had we not better bear them than run the risk of rendering them worse by tampering? It would be lamentable indeed if the remedy we are about to apply should prove worse than the disease. It might, perhaps, be a fault in him that he regarded the courts of justice with a sort of habitual reverence. He owned that he might be mistaken in viewing the present invasion of their province with a sentiment that alarmed his solicitude while it awakened his sensibility. But so it was. He would not conceal his preference to the tried and settled method of deducing the rules and maxims of the law through the constituted tribunals.
Mr. M. said, he would state another consideration, which was very impressive on his mind. It was the power claimed and exercised by the judges to repeal or nullify statutes by declaring them unconstitutional. Suppose the bill on your table, Mr. President, should pass; and it should afterward be considered by the Judiciary as a statute which the Constitution forbade Congress to enact? Would it not be pronounced void, and all proceedings under it be discontinued or dismissed? This, then, is the dilemma to which we are reduced; if Congress proceeds in the manner proposed by the bill to define treason, and their acts are binding upon the judges, then succeedirg Congresses may multiply the species of those offences to any number that may suit the purposes of an infuriated majority, and the courts be compelled to carry those acts into operation, however mischievous or ruinous; or, if statutes which, in the opinion of the judges, militate against the spirit and letter of the Constitution, are declared by them to be of no force or effect, we certainly legislate to no purpose. As to the power of deciding on the unconstitutionality of statutes, the courts had, it was well known, exercised it in several instances. Many able statesmen had been induced to believe this was a sound and legitimate employment of their functions. And as the powers granted by the Constitution were at present understood and exercised, he doubted whether, even if this bill should ripen into a statute, it would bear the test of judicial scrutiny.
These were imperfect sketches of some of the ideas which he entertained on this important subject. They were uttered in this incipient stage of the debate for the purpose of gaining further information. No one could be insensible of the toll that had been expended by the committee, and more especially by his honorable and learned friend, the Chairman, in preparing it. He wished for a full discussion of this great question, and he entertained no doubt it would be examined with a seriousness worthy of so "high an argument."
For the purpose, therefore, of bringing the subject to a point, and of inviting the supporters of the hill to offer all the reasons they may think propel to urge in its support. Mr. M. concluded by makiug a motion to strike out the section.
Mr. GILES then rose, and delivered a speech substantially as follows:
He said, that on a subject of so much delicacy, difficulty, and importance, as the one how under consideration, it was natural to expect that the committee who reported the bill would he called upon to present to the Senate the reasons which had induced them to advocate the principle upon which that bill was predicated. That, as he considered each individual gentleman of that committee better qualified than himself to state the general motives operating on the committee, and, certainly, to state his own individual impressions upon the subject, Mr. G. would confine himself to stating some of the leading motives of his own conduct in introducing the principle reported in the bill.
Mr. G. begged to be indulged with a few preliminary observations, which, although not directly in point upon the Constitutional question presented for discussion, would, ultimately, he found to be not without some bearing upon it.
Mr. G. proceeded to observe that one great object of every Government was the protection of the rights of individuals, and however diversified the forms of different Governments may have been at different times, they have all, at all times, concurred, at least in this one point, that one of the most effectual means of protecting rights is the punishment of wrongs. In the execution of this delicate power, so peculiarly interesting to the governed, different Governments have been variously organized as to the manner of executing it. In Governments founded on force, the power of punishing has generally been left solely to the will and pleasure of the Executive. In Governments founded on consent, the modifications of this power have been various, according to the degree of confidence or jealousy entertained by the people towards their rulers. Modern jurists have extended their political speculations very far, in multiplying barriers for the protection of innocence against possible or presumed oppressions on the part of the Government, and it is. even now, questionable whether they have not extended them so far as to have them practically converted into shields for the protection of guilt an effect that never could have been intended by the most speculative philanthropists. Indeed, it has been seen that, in a nation celebrated for its political intelligence, as well as for its military prowess, the visionary idea was once conceived of placing the protection of all rights upon the sole basis of the perfectibility of man. But, if this political vision was ever attempted to be reduced to practice, it was soon abandoned, because it was found not suited to the meridian of even that gallant nation who had the credit of the invention. Hence, I conclude that the power of punishing wrongs is an essential ingredient in the formation of all Governments, and that it ought not to be so limited and restrained, as to destroy its practical energy. The Constitution of the United States displays much of this spirit of jealousy against its administrators, and the amendments to it still more. Of course they impose many limitations and restraints upon the Government in the execution of the power of punishing. This may be accounted for by the circumstances which preceded and gave rise to the Constitution and its amendments. The American Revolution was produced by the oppressions of a distant Government, and in the formation of all the State constitutions which preceded that of the United States, the whole of which was founded upon the fair consent of the people, this natural effect was produced, viz.: that in the formation of their own governments, the people transferred a great portion of the jealousies they felt against the rulers of a distant Government to the rulers they were about to establish for their immediate Government at home. The Constitution of the United States, although formed some time after the Revolution, yet exhibits a great portion of the spirit of jealousy produced by it, arid the amendments still more, probably from the passions called into action by the eloquent and animated discussions against the adoption of the Constitution itself. The formation and adoption of the Constitution of the United States are deemed to be among the most wonderful political events ever presented to the contemplation of the human mind. Considering the cotemporaneous passions excited by the conflicting systems of policy observed by the different States in relation to each other, the strong jealousies existing in relation to real or supposed differences of interest amongst the different States, and highly excited by animated discussions upon great national objects, just preceding the calling the Convention, the differences of habits, manners, and opinions, amongst the people in different parts of the United States, &c., &c., it is wonderful that a Constitution, founded on a spirit of mutual concession, should be formed, so admirably calculated to combine and protect the interest of the whole, and. at the same time, so peculiarly adapted to the peculiar character, genius, and temper of the American people.
In addition to these and many more difficulties, the Convention were without a model for imitation. They had to solve the new and difficult political problems of extracting from pre-existing state governments, all powers of a general nature, and of leaving with them the exercise of all powers of a local nature; and these powers, thus selected, were to be so modified and adjusted as to suit the high and jealous temper of the American people. Notwithstanding all these difficulties, it will be found, upon the most critical examination of the instrument, that, whilst it contains sufficient energy completely to effect the object of its institution, it affords to innocence the most complete protection against the oppression of Government that ever has been devised by any political institution. To effect this great object, it was determined to distribute these general powers amongst three great departments forming the Government of the United States, the Legislative. Executive, and Judiciary departments. Mr. G. said this adjustment had been made with such consummate wisdom and skill, that, whenever it had been made his duty to examine the arrangement, his reflections had always resulted in new and increased admiration of the excellency of its provisions. The theory of three distinct departments in government is, perhaps, not critically correct; and. although it is obvious that the framers of our Constitution proceeded upon this theory in its formation, yet, in the practical adjustment of the departments to each other, it was found impossible to carry this theory completely into effect. In the nature of things there can be but two great departments in government: the Legislative, whose duty it is to prescribe rules of conduct, or in other words to make laws for the government of the people; the Executive, to carry those laws into effect. But as from the imperfection of language the meaning of the laws is not definitively understood, the Judiciary department is introduced to explain the meaning of the laws prescribed by the Legislature to aid the Executive in carrying those laws into effect. Hence, it is obvious that the Judiciary is a branch of the Executive department, and. accordingly, under the Constitution, the President appoints all judicial officers, and. except the judges, all other officers of the courts hold their offices during his pleasure.
Mr. G. observed it was not his intention or wish to legislate into the Constitution one scintilla of power not intrinsically contained in the instrument itself, nor, by a weak or timid exercise of the powers it does intrinsically contain, to paralyze or destroy its energy, and thus to counteract the great objects of its institution the common defence and general welfare. It will be observed, said Mr. G., that he did not use these terms as conferring on the Government any power whatever, but merely as the ends for which the specified powers were conferred; nor did he propose to disturb the distribution of the powers among the several departments of the Government. He had made these remarks to rescue the Constitution from certain absurdities which had been attributed to it by the application of certain generic and technical phrases in the interpretation of it, instead of examining its own intrinsic organization. For instance, superficial observers take it for granted that the three great departments of the Government are co-ordinate, and independent of each other. It is to be observed that the words co-ordinate, independent, are not to be found in any part of the Constitution. They are borrowed from the technical phraseology of another country, and do not apply to the Constitution of the United States, at least not without great limitation. If by the word co-ordinate is meant that the Judiciary Department is equal in dignity, co-ordo, it is admitted. If it be meant in point of time. co-ordo. it is not the fact. The Legislative department pre-existed the Judiciary department; for, according to the Constitution, the establishment of the Judiciary department was entrusted to the Legislative department, and, of course, that department must necessarily pre-exist the department to be established by it. and the fact is well known to be so. With respect to the word independent, as applicable to the Judiciary, it is not correct, nor justified by the Constitution. This term is borrowed from Great Britain, and by some incorrect apprehension of its meaning there, or from some oilier cause, is applied here to the department itself, instead of the officers of the department. In Great Britain the phrase is "an independent judge," not "an independent judicial department." According to the English Constitution, such a phraseology would bo absolute nonsense. In this country the terras have been used as synonymous, whereas there is the most palpable difference both in the form and effect of their meaning. An independent department of a Government is conceived to be a department furnished with powers to organize itself, and to execute the peculiar functions assigned to it without the aid, or in other words, independent of any other department. A moment's attention to the Constitution will serve to show that this is not the Constitutional character of our Judicial department. An independent judge may he defined to be a person, who, in the exercise of judicial functions, is placed above temptation in the discharge of his judicial duties; or. in other words, a judge who will neither gain nor lose anything by deciding for or against the Government, or for or against any individual, or number of individuals; or, a judge whose salary is fixed, and who does not hold his office at the pleasure of another person.
In England the King is the fountain of honor and justice, and formerly decided upon the meaning of the laws in his own person; afterwards, that branch of executive duties was confided to his commissioners, who were appointed by him, held their appointment during his pleasure, and were dependent upon him for their compensations, until by the statute of 13 of William III., it was declared that the judges should hold their offices during good behaviour; still, however, their offices were vacated upon the demise of the Crown until the 1st of Anne, when it was declared that the offices of the Judges should not be vacated until six months after the demise of the Crown; and, finally, by a statute of 1st of George III., the salaries of the judges were fixed, and it was declared that their offices should not be vacated upon the demise of the Crown. This statute completely established what in England is called the independence of the judges. But to infer from this that the judicial department there is independent of the Parliament, would be an absolute misapplication of terms, and incompatible with every principle of the British constitution. From these observations it is not to be inferred that our Constitution is precisely analogous to the British in all these respects, but to show the meaning of the term, "independent," in the country from which it was borrowed, and its misapplication to our Constitution. It was his wish to discard these technical, general terms, which rather embarrass than assist us in the correct interpretation of the Constitution. It was his wish to examine the instrument, and to deduce our interpretation of it from its own context. For whatever degree of independence is attached either to the judicial department, or to the judges themselves,. according to the Constitution, it was his wish should be fully enjoyed by the department or the judges without the smallest abatement; but the Constitution, as it is, should be a standard of interpretation, not what it is described to be by general borrowed misapplied phrases.
With this general exposition of the Constitution, he would now proceed to examine the precise question under consideration. The question is. can Congress declare by law what acts amount to treason against the United States under the Constitution? He said that from the best reflections he had been able to bestow upon .the subject, under a strong sense of the duty imposed upon him, he had no doubt but Congress can and ought to do so. And since his reflections he had wondered that he ever had doubted the legislative right. The first clause in the Constitution upon which this question arises is in the following words:
"Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid or comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."
Mr. G. said that the only reason which could be deduced from this clause for excluding Congress from passing all laws which might be deemed necessary and proper for carrying into effect the power therein contained, was, that in the distribution of powers, this particular power was classified amongst the judicial powers. But it will be observed that it is not directed exclusively to the judiciary, nor legislative department; and it will also be observed, that some of the powers classified under the judicial department are particularly directed to the legislative department. Hence it may be fairly concluded, that the mere classification of this power with the judicial powers is not of itself sufficient to exclude the necessary legislative power for carrying it into effect.
A reason however may be assigned, perhaps not satisfactory to all, for this classification of powers. It is derived from the last part of the clause, which seems to be a limitation to the judicial, as well as legislative department. This part of the clause requires two witnesses, at least, to the overt act of treason, as indispensable to a conviction; whereas in other criminal cases, conviction may be had. according to the ordinary rules of evidence in courts, upon the testimony of one witness. This limitation upon the ordinary rules of evidence in courts, would of itself have justified the classification of this power according to the Constitutional arrangement. Hence it appears irresistibly conclusive, that, according to this particular clause of the Constitution, the power of declaring what act shall amount to the treason of levying war, and of adhering to the enemies of the. United States, is conferred on the Government generally, and not on any department exclusively.
This clause must evidently be considered, both as conferring power and limiting its exercise. The word "consist'' is the word conferring power; the word "only" is the word limiting its exercise.
The word "consist" is directory to the Government generally, and not to any department exclusively. The word "only" excludes from the whole Government the power of introducing all constructive or imaginary treasons, and limits its power only to the two species of treason included within that term, to wit: the treason ''of levying war" and ''of adhering to the enemies of the United States." The word "only" therefore in this clause relates only to the species of treasons embraced by it, and not to any particular acts which may amount to treason under either of these species. Hence, the clear and obvious language of the Constitution is this: the Government of the United States may declare what acts amount to the treason of ''levying war and adhering to the enemies of the United States," but it shall not declare any other act whatever treasonable. The reason of this arrangement will be the more obvious, by reference to the doctrine of treason in the country from which these terms are borrowed. In England, exclusive of the two species of treason recognised by our Constitution, there are various other treasons, and many of them constructive; such as imagining the King's death. &c.; showing too much civility to the Queen or Princesses. &c.; counterfeiting the King's coin, &c. The great object therefore of the Constitution was to exclude from the Government of the United States this whole family of treasons; and the terms used are extremely proper for this exclusion and for the inclusion of the two species only recognised by the Constitution.
But it is said treason is already defined by the Constitution. Is the fact so? Let the inquiry be made; and also the extent to which the definition goes. "Treason against the United States shall consist only in levying war against them, and in adhering to their enemies, giving them aid and comfort." Two species of treason are here defined; but no act amounting to either species of treason is defined. Ask the question, what is treason against the United States? The Constitution answers, "levying war against them, or adhering to their enemies." Reverse the question, what is levying war against the United States, or adhering to their enemies? The answer is, treason. No act which will amount to either of these offences is defined. This definition, although extremely useful as a guide to the Government, is of no practical use to the citizen, because it gives him no information of any act which amounts to treason; and which, if he commits, he will be guilty of treason, and subject to the highest punishment known to our laws. This knowledge of the nature and tendency of acts is the only knowledge that can be useful and necessary to the citizen.
It appeared to him wonderfully strange that offences the most complicated in their nature, the most dangerous in their effects to society, and the most fatal to the individual committing them, should not be explained to the people, but.should be locked up in the breast of the judge, and that an attempt to explain them legislatively to the people should be thought to be an alarming invasion of their rights, if not criminal in itself. But if the terms levying war, &c., do not define treason, it is presumed that some gentleman in his place will tell us what specific acts will constitute the offence; for his part he had paid great attention to the subject, and in the present state of things, he acknowledged himself perfectly incompetent to it. Nor would the difficulties be lessened by a recurrence to all the judicial opinions yet given upon the subject. These attempts had demonstrated not only the incorrectness of the supposition that these treasonable acts were defined, but the indispensable necessity of some legislative definition; for it is believed that no two judges have yet delivered the same opinion upon some of the most essential characters of many of these acts; and if judges themselves should not be able to comprehend, and precisely to fix this Constitutional definition, how can it be expected that the people at large can do so? He had always been taught to believe that one essential characteristic of a free from a despotic Government consisted in giving full information to the citizen of every penal act, and the punishment consequent upon its commission; and is there nothing in the Constitution which recognises this principle, and almost makes it injunctive upon the Government? In the 6th article of the amendments to the Constitution, most of which may be considered as a bill of rights. I find these words: "In all criminal prosecutions the accused shall enjoy the right to a speedy trial, &c., and be informed of the nature and cause of the accusation." &c. For what purpose should he be informed of the nature and cause of the accusation; if, when he is informed of both, he is unable to ascertain by examining the law whether he has been guilty of any offence or not? And is it not of infinitely more importance to the citizen to know the nature and consequences of any particular act he is about to commit, than to be informed of the nature and cause of his accusation; when, after he shall have been thus informed, he is unable to ascertain by any law whether the nature and cause of the accusation against him he criminal or not? Indeed, without the knowledge of the criminality of the charge, a knowledge of the charge itself would be of very little advantage to him. Again, suppose a citizen should be indicted upon the identical words of the Constitution, "of levying war," without the specification of any particular overt act amounting to that offence, would such a definition be sufficient for conviction? Certainly not. More definition is therefore required than can be found in the Constitution.
The next question which presents itself for consideration is, how can this further definition be obtained? What department is most competent to it? What is the proper department under the Constitution? He said, there can be no doubt but the legislative is the only Constitutional and competent department for that purpose.
Mr. G. said, it would he recollected that according to the interpretation put upon the clause of the Constitution first read, it was stated that the power of declaring or ascertaining the acts which would amount to the treason of "levying war. &c., and adhering to the enemies, &c.," was conferred on the Government generally, and not on any department exclusively. If this position be correct, which appealed to him to be a plain matter of fact, he would now call the attention of the Senate to another clause in the Constitution, which he considered directory as to the proper department for exercising this power. The clause he alluded to was in the eighth section of the first article of the Constitution. He would read both clauses together third section, third article:
"Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Eighth section, first article: "Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof."
Now ask the question, is the power of declaring or ascertaining what acts amount to the treason of "levying war against the United States, or of adhering to their enemies," &c.. vested by the Constitution in the Government of the United States? Answer. It certainly is. What is the proper department for passing all laws necessary and proper for carrying this power into execution? The Constitutional answer certainly is, Congress. If this exposition be correct, and it appeared to him to be self-evident, it is no longer a Constitutional question, but it is a question of expediency. Is it necessary and proper, under existing circumstances, to pass such laws? This question has been before answered in part, but would be further examined presently. The clause in the Constitution last read, had also had a general cabalistical phrase applied to it. It is called "the sweeping clause," and attempts have been made to infer from it general powers to the Government; although he should discard that interpretation, and readily admit, that it confers no power of itself upon the Government; it is of infinite importance in adjusting all powers vested in the Government and by the Constitution. It determines upon the department, in which the ultimate power of the Government is vested. The first part of the clause relates to powers previously, and specifically given to Congress. The word's are. "to make all laws necessary and proper for carrying into execution the foregoing powers." This, although extremely proper, is the least important part of this clause; because all necessary and proper means for carrying into execution all the powers specifically vested in Congress, might have been inferred; it was however, perhaps, better to express it. and leave nothing to inference; but the remaining part of the clause is the real operative part of it. The words are, "and all other powers vested by this Constitution in the Government of the United States, or any department or officer thereof." The wisdom and foresight of the framers of our Constitution, is particularly discernable in this article. They clearly foresaw, that many difficulties might arise in the execution of many of the powers vested in the Government of the United States or in some of the departments thereof, which, at that time, could not be conceived or imagined. For the purpose, therefore, of meeting these difficulties, and insuring the due execution and administration of the Government, this clause was introduced, declaring, in effect, that whenever any such difficulties should occur in relation to any powers vested in the Government, &c., Congress should have power to pass all laws necessary and proper for relieving them from such difficulties, and carrying such vested powers into due execution. This clause, in his opinion, therefore, must be considered as also settling all questions among the departments respecting the ultimate deposite of power.
But a formidable difficulty is here interposed. The danger of legislating on this subject. It is said, if Congress should undertake to declare what acts amount to the treason "of levying war, and adhering to the enemies, &c., they may declare acts treasonable, not embraced by these definitions and limitations; and supposing they should do so, where is the remedy? In the first place, it may be observed, that there is no such supposition warranted by the Constitution. The supposition itself is therefore unconstitutional. The Constitution has furnished certain guards against its violation, in this respect as well as in all others. The Representatives are chosen at certain short periods: are themselves subject to the same rules of conduct prescribed to others; and take a solemn oath to support the Constitution of the United States. It is believed that these guards are sufficient for the protection of the Constitution, and that the danger of its violation is merely imaginary; but in the next place, this supposition might be answered by another. Suppose the judges were to declare certain acts treasonable which are not embraced by those species of treason defined in the Constitution, where is the remedy? The danger in this case appears to be greater than in the other, and there is no remedy at all. because the judges are irresponsible; except, to use their own language, to God and their own consciences. They are not responsible to the people, who alone possess the ultimate censorial power; whereas their Representatives are responsible directly to them at short periods, and the President and Senate, indirectly, responsible to them at periods somewhat longer. But it can be demonstrated, that the Judiciary department, under its present organization, is utterly incompetent to the due exercise of this power, as will be clearly seen from the following statement.
The Supreme Court of the United States has no criminal power whatever. That power is confided to the circuit courts. There are eighteen circuit courts in the United States, including the circuit court of Columbia, and excluding all the Territorial courts. These courts are composed of twenty-eight judges, and are held at eighteen different places, without any connexion with each other. As far as the opinions of these judges have been ascertained, it is believed that no two of them have concurred as to all the acts which amount to the treason of levying war, the only species that has yet been presented to them for adjudication. The other species, "of adhering to the enemies of the United States," &c., not having yet occurred, the United States having enjoyed almost an unintermitted state of peace ever since the adoption of the Constitution. If that species of treason should become frequent, a circumstance highly probable, in case of a change in the state of the nation to a state of war, a similar result may be expected. What prospect of settling principles correctly can we have, if eighteen different tribunals should settle the same question in eighteen different ways? Yet his honorable friend from New York seems disposed to wait with patience until some certainty can be established in the usual course of judicial decision, which, even in the event of concurring opinions, could not happen in a century; and unless there should be some new order of things in that respect, could never happen at all. Instead of certainty in the ascertainment of offences, confusion incalculable must be the consequence.
But let us see what the Chief Justice says upon this subject, in his opinions delivered upon the trials at Richmond:
"It is true, that in that case, after forming the opinion that no treason could be committed, because no treasonable assemblage had taken place, the court might have dispensed with proceeding further in the doctrines of treason. But it is to be remembered, that the judges might act separately, and perhaps at the same time, on the various prosecutions which might be instituted, and that no appeal lay from their decisions. Opposite judgments on the point would have presented a state of things infinitely to be deplored by all. It was not surprising then that they should have made some attempt to settle principles which would probably occur, and which were in some degree connected with the point before them."
"This court is told that, if this opinion be incorrect, it ought not to be obeyed, because it was extra-judicial. For myself, I can say that I could not lightly be prevailed on to disobey, were I even convinced that it was erroneous; but I would certainly use any means which the law placed in my power to carry the question again before the Supreme Court for reconsideration, in a case in which it would directly occur and be fully argued."
Here we see the Chief Justice pathetically deploring the consequences of opposite decisions upon the same point, and lamenting his inability to bring these cases before the Supreme Court. For what? He tells us to settle principles, or, in other words, to prescribe rules for the government of the circuit courts, in which consists the very essence of legislation. Hence the judicial legislation of the Supreme Court is to exclude Congressional legislation; but he evidently admits the, incompetency of the circuit courts to legislate upon this subject; and. unfortunately for the legislation of the Supreme Court, it has no jurisdiction in criminal cases; and, therefore, there is no legal mode of bringing the cases before them for the purpose of settling principles, or in other words, for the purpose of legislation. Hence will result all the confusion which the Chief Justice so properly and pathetically deplores. Yes. sir, the uncertainty and confusion resulting from contradictory decisions of your courts upon the doctrine of treason against the United States will be such, that no man can know when an act is innocent or guilty, and when his innocence or guilt will very much depend upon the court before which he may happen to be brought for trial. Our situation will be, probably now is, like that described in England in the time of Henry IV., after a great many statutes had been passed, and contradictory adjudications had been made in relation to this same doctrine of treason. In the preamble to the statute of the first of Henry IV., the situation of the nation, in relation to treason, is thus described: "That no man knew what he ought to know, or to do, or to say, or to speak, through doubt of such pains." This, if not now, will inevitably be the case of this country, unless some legislative corrective of the present system be applied. There are also great objections to the forms of judicial legislation; they consist too much in inference, too little in dictum. They want the words, "Be it enacted," &c. The judges blend their reasonings with their inferences, so that it requires great legal skill to make the proper analysis. A plain man of the best understanding could never do it. The enacting clauses are obscured by the preamble. It is like enacting our speeches, interspersed with our laws. Take for instance the judicial opinions lately delivered in the United States upon the various questions of treason which have been brought before the courts, and ask yourself this question: Do you understand the doctrine of treason now better than you did before the opinions were given? Is not the subject rendered more confused and uncertain? Can you tell whether accessorial treasons in England are principal treasons in the United States? Judge Chase and others say they are. Judge Marshall says he does not know whether they are or not. but his reasoning would go to show that they are not. In the doctrine of treasons, this is an all-important question; and if the judges cannot agree, how can plain men settle the question, and why is it that the people should be kept in the dark upon this branch of our penal laws alone? It cannot be on account of the heinousness of the offence, its dangerous tendency towards society, nor its fatal effects to the individual committing it. All these reasons plead loudly in favor of telling the. people plainly what the acts are involving such consequences, that they may take care to avoid their commission.
He then proceeded to examine some further consequences of a different interpretation of the Constitution, to which he begged the most serious attention of the Senate. If the judges are to declare what acts amount to treason against the United States, without any legislative aid, one of two consequences will inevitably result. Either the statutes of England, in relation to these species of treason, the decisions of the English judges thereupon, and perhaps the opinions of some of their elementary writers, will become the law of the United States, and even immutable or fundamental law; or all acts amounting to treason must he transcribed only on the minds of the judges. Upon the first of these points, let us examine the decisions of the judges themselves.
He would first call the attention of the Senate to a rule of court laid down in the trial of Fries, and found in the Appendix to Tucker's Blackstone, pages 14 and 15:
"Judge Chase, on the subsequent trial of Fries, declared 'That the court would admit, as a general rule, of quotations from the English books; not as authorities whereby they were bound, but as opinions and decisions of men of great legal learning and ability. But even then the court would attend carefully to the time of the decision, and in no case must it be binding on the juries.' As this was pronounced as a general rule by the court, and not as the opinion of a single judge, we may consider it now settled that the English authorities are not binding as precedents; consequently they do not form part of the law of the land, but are to be respected only as the opinions of men of great legal learning and ability, which may nevertheless be canvassed as freely as the opinions of other men. Neither are we bound to suppose that the framers of our Constitution meant to adopt those decisions as a guide to our courts in the interpretation of the definition of treason against the United States."
According to this decision. English authorities are to have no binding influence on the courts, but are to be respected as the opinions and decisions of men of great legal learning and ability.
Let us now turn to the decision of the Chief Justice at Richmond, with this same rule of court before him. It is suggested to have been before him, because this celebrated treatise of Judge Tucker, upon the doctrine of treason, was referred to in the same decision, and almost the whole of the Chief Justice's reasoning upon accessorial treasons was drawn from it.
"What is the natural import of the words ' levying war;' and who may be said to levy it? Had their first application to treason been made by our Constitution, they would certainly have admitted of some latitude of construction. Taken most literally, they are, perhaps, of the same import with the words 'raising or creating war,' but, as those who join after the commencement are equally the objects of punishment, there would probably be a general admission, that the term also comprehended making war, or carrying on war."
"But the term is not for the first time applied to treason by the Constitution of the United States. It is a technical term. It is used in every old statute of that country, whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our Constitution in the sense which had been affixed to it by those from whom we borrowed it. So far as the meaning of any terms, particularly terms of art, is completely ascertained, those by whom they are employed must be considered as employing them in that ascertained meaning, unless the contrary be proved by the context. It is, therefore, reasonable to suppose, unless it be incompatible with Other expressions of the Constitution, that the term 'levying war' is used in that instrument in the same sense in which it was understood in England and in this country, to have been used in the statute of the 25th of Edward III., from which it was borrowed.
"It is said that this meaning is to be collected only from adjudged cases. But this position cannot be conceded to the extent in which it is laid down. The superior authority of adjudged cases will never be controverted. But these celebrated elementary writers, who have stated the principles of the law, whose statements have received the common approbation of legal men, are not to be disregarded. Principles laid down by such writers as Coke, Hale, Foster, and Blackstone, are not lightly to be rejected."
It cannot escape observation that the Chief Justice here expressly lays it down, that the laws of England, in relation to these species of treason, form the substratum of our laws, from which figurative expression, is evidently inferred an undeniable declaration, on the part of the judge, that the laws of England, in these respects, are the foundation (substratum) of our laws: or, in other words, the fundamental, immutable laws of the United States, and, of course, in their essential operation, a part of the Constitution of the United States. But. the Chief Justice goes further, and declares that the decisions of the English judges form a part of these fundamental laws, and even the principles in relation thereto, laid down by their celebrated writers, are not to be disregarded. It is hardly to be presumed that, before this declaration, it had ever entered into the imagination of any man, that our Constitution was composed of such materials. If it be the case, however, it is devoutly to be wished that these laws, decisions, and principles, of elementary writers, should be collated, printed, and annexed to our Constitution as legitimate parts thereof; and if Congress are to be excluded from all participation in the exercise of this authority, the Supreme Court could not render a greater service to their country than to make the collation with all convenient despatch, for the information of Congress, and still more for the people at large. But, sir, are there no objections to these substrata of our laws? On no one subject of jurisprudence in Great Britain have there been such monstrous perversions of justice, and such passionate and contradictory decisions, as on the doctrine of treason, and why? Because they have been almost always made in violent and troublesome times, and generally after bloody contests for the Crown. If his interpretation of the Constitution should be deemed incorrect, rather than hold some of his most important rights upon substrata like these, he had thought of preparing an amendment to the Constitution, to authorize Congress to declare what acts should amount to treason against the United Slates. Rut. in reflecting upon that subject, he found the eighth section of the first article of the Constitution as good a provision for that purpose as could be drawn by way of amendment, and he begged gentlemen to reflect upon it, and see whether they could prepare a better, to wit:
"Congress shall have power to pass all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof."
But. sir, let us now discard this doctrine of the Chief Justice, and take up the rule laid down by the court on the trial of Fries: that the British laws, decisions, and elementary principles, are not the substrata of our laws on the doctrine of treason, but merely entitled to certain respect in guiding the courts to correct decisions. 1 would then ask, where is the doctrine of the treason written? If our laws of treason are not taken from these sources, where are they written? Nowhere, unless on the minds of the judges. Sir, there are great objections to this sort of transcription: first, the transcript will be different on the mind of every different judge; second, it may be different upon the mind of the same judge at different times, and under different circumstances. The retina of the human mind is not fit parchment for the transcription of laws. It is too much like changeable silk. It may vary its complexion, especially when held up to political sunshine. He begged the Senate to take a view of the judicial proceedings which had taken place in the United States in relation to this subject. Without pretending to go minutely into the examination of the evidence before the courts on the trial of Fries, and the late trials at Richmond, a general view of the different results of these trials had always appeared extraordinary to him. Fries, and other ignorant Germans, from a very limited district of country, being hostile to an act of Congress, assembled themselves, and with arms forcibly rescued some persons from the custody of the marshal of Pennsylvania; the prisoners not being charged with treason, and as soon as the rescue was effected, returned peaceably to their homes, and. it is believed, never after assembled in arms for any other purpose. This was considered by the court as unquestionable treason against the United States.
The transactions disclosed on the trials at Richmond, seemed to be of a very different character. It appeared there, that a design to dismember the United States by force, and to establish a separate Government in the part thus separated, and also to seize upon, and include in such Govemment some of the territories of Spain, had been deliberately formed by the most active, daring, intelligent, and enterprising citizens of the United States. That partisans were engaged to effect this design, extending themselves from the city of New York, in the direction of the Lakes, and from thence to Orleans, and from Philadelphia, from this place, &c., to Pittsburg. and in that direction to Orleans, which appeared to be the first object of attack, and from whence further operations were to be determined on. That, in pursuance of this design, a number of men with arms had convened at the mouth of Cumberland, with the chief projectors of this enterprise at their head, and entered into a formal capitulation for surrendering themselves to the authority and laws of the United Slates, after having cautioned the acting officer of the United Slates against compelling them to shed blood in a civil content by refusing their terms of surrender, and thus urging them to resistance. These transactions, according to the opinion of the court, unquestionably do not amount to treason against the United States, and the persons committing them ought not even to be committed for trial before the tribunal having cognizance thereof. But the assemblage is described by the judge as demeaning themselves in a peaceable and orderly manner; no act of violence was committed, nor any outrage on the laws practised. There was no act of disobedience to the civil authority, nor were there any military appearances, although the men were drawn up in something like a semicircle, &c., the capitulation, and its accompanying circumstances, to the contrary notwithstanding. This circumstance, however, was not thought worth mentioning by the judge in his recapitulation of the evidence.
These judicial results appeared strange to him, and he believed they did to every impartial man in the United States. He did not mean to infer from these circumstances anything more than that the highest judicial officers were not exempt from the frailties and feelings of human nature; nor did he mean to use them for the purpose of detracting one atom of independence from the judges; very far from it. He wished they were more independent than he feared they were. But he entertained a very different opinion of the honorable and dignified character of an independent judge; of a department in some respects dependent, and of a judge, who, forgetting the nature of his office, is perpetually aspiring not only to render his department absolutely independent, but to render it supreme over all the other departments of the Government; in the one case he is placed in the elevated and dignified attitude of distributing justice impartially among his fellow-citizens; in the other, he is reduced to the miserable political intriguer, scrambling for power; for when once this appetite, for power is indulged, the sacred mantle of the judicial character will be found but a feeble barrier against its influence. There was nothing in names it was not material whether they were called judges, or consuls, or censors once place power before their eyes, and they would all, with an equal impulse, pursue the means best calculated to attain it. This is human nature; and, under such circumstances, raise this sacred mantle of the judge, and you will find concealed beneath it strong marks of the frailties common to human nature. Hence this argument, derived from the sacredness of the judicial character, had but little influence on his mind; and therefore could never be an inducement for him to yield to their claims to ultimate and unlimited powers; even the oaths taken by the judges have been suggested by them as arguments in favor of their claims to the ultimate power of the Government. Without seeming to recollect that their number is seven, and that the same oath is taken by above one hundred and seventy members of both Houses of Congress; and, as a further protection of the Constitution, Congress is composed of two branches, placed as mutual checks on each other. He said, he would now detain the Senate only a few moments longer, while he made a few observations on the only remaining clause in the Constitution connected with this subject. It is the last clause of the third section of the third article of the Constitution, in these words: "The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood. or forfeiture, except during the life of the person attainted." It will be here observed that this clause relates solely to legislative powers, although it is classified with the power of the judicial department. An inference has been drawn from this clause as the power of declaring the punishment of treason, is expressly given to Congress, it excludes the inference that Congress may also declare what acts shall amount to treason. This, however, is a mere inference; and if that effect was intended by the framers of the Constitution, they would certainly have expressed it for it is not possible to conceive, if this idea once presented itself to them, they would have left a subject of so much delicacy and importance to mere inference. This clause was evidently introduced with very different views, and. so far from its excluding a legislative declaration of the acts amounting to treason, it affords an argument in favor of that construction. This clause, like the preceding one, is intended both to confer power, and to limit its exercise. It gives to Congress the power of declaring the punishment of treason, but limits its exercise to attainder of blood only during the life of the person convicted. But may not Congress, consistently with this clause, apply different degrees of punishment to different degrees of treason? Are there not different degrees of moral turpitude, in different degrees of treason? And how can Congress possibly graduate according to the degrees of moral turpitude, different punishments to different acts, without defining the acts to which such punishments are to be applied? He acknowledged he could not see how it could be done without such definition. The doctrine of apportioning punishments to crimes, according to the standing of moral turpitude, has always been a favorite one in this country, and very probably, was not without its effect in introducing this clause into the Constitution. He said he had done enough, however, for his argument, if he had shown that the inference generally deduced from this clause was not warranted by it. He had now presented to the Senate the leading motives with him for introducing the principle of the bill; and if he had occupied more of their time, than was agreeable, he hoped the delicacy, difficulty, and importance of the subject would furnish his apology.
WEDNESDAY, February 24.
TREASON AND OTHER CRIMES.
The Senate resumed, as in Committee of the Whole, the second reading of the bill for the punishment of treason and other crimes and offences against the United States.
Mr. POPE moved that the further consideration of the bill be postponed until the first Monday in December next.
The PRESIDENT having put the question
Mr. POPE said, that after the very able and ingenious argument of the honorable Chairman of the committee, (Mr. GILES,) who reported the bill, it was with very great reluctance and diffidence that he rose to offer his view of the question.
The bill, however, assumed a principle entirely new, and went to create offences which had been, he believed, heretofore unknown in the General Government, or any of the State governments. The importance as well as novelty of the subject, rendered a full discussion of its merits necessary, before the House pronounced a final decision. A sense of duty, therefore, prompted him, feeling a conviction that the measure was unconstitutional and inexpedient, to express his sentiments on the subject.
Questions of this kind, said Mr. P., whatever may be their ultimate fate, answer one good purpose. They invite an examination of the first principles they lead us to explore the foundation of our political fabric, and the boundaries which the people of these States have drawn around the powers of Congress. We should have constantly in view that the people are the fountain of all power, and when we are about to do any act, it is our duty to inquire whether we have received from that fountain any grant of power to authorize it. Before I proceed to investigate the merits of this bill. I must beg leave to strip this debate of one subject, with which it has been encumbered, and which I think ought not to have been introduced to play upon the question before us. I mean the judiciary, and the independence of judges. Many observations have been made on this subject, the relevancy of which I have not perceived; for, whether their independence be retained or diminished. I presume their judicial functions will not be altered. The orbit in which the Constitution has destined the judiciary to move will remain the same.
On the subject of the independence of the judiciary. I have never indulged much theoretic speculation. My impressions are rather the result of education and habit, than of a thorough examination of the principles on which they are predicated. After the declaration of American Independence, the people of the several States, in forming their constitutions, introduced this principle of an independent judiciary; and at the time the Federal Constitution was adopted, it appears to have been a favorite one with all parties. For my part, I have considered the Constitution defective in not providing for the removal of judges by address, for any reasonable cause which does not constitute matter of impeachment. The American people have incorporated into their system of Government such features of the British Government as were supposed to favor the liberty of the subject.
It seems to have been supposed at the time this subject was before the nation, to be necessary to interpose some barrier to protect the rights of the minority against the persecuting spirit of an overbearing majority, and to secure an accused individual against oppression and injustice from the strong arm of power. The independence of the Federal Judiciary was deemed a valuable safeguard against the encroachments of the Federal Government on the rights of the people, and the sovereignty of the States. The value and importance of this principle here was probably estimated in a great measure by its supposed effects in the British Government. To protect the weak against the strong, to secure to every man, whatever may be his condition, equal and impartial justice, is certainly the legitimate end of every government. To accomplish this great object, it seems to have been thought necessary to give our judicial tribunals such a degree of independence as would enable them to administer justice to all without respect to persons uninfluenced or overawed by any power or party in the Government. Whether this principle is correct in the full extent to which it has been carried by our Constitution, it would be perhaps premature for me now to decide, inasmuch as we have reason to expect that the question will be presented to us in a distinct and independent form. I shall regret to see our judges the tools of an administration, or associated with an opposition for the purpose of embarrassing it. Whenever a judge profanes the temple of justice by acting the part of the political partisan, he ought to be execrated by every honest man in the nation.
I shall rest here on the present occasion, laying entirely out of view the independence of the judiciary, and will proceed to inquire whether we have the power to legislate as proposed by the bill. The House will please to mark the essential difference between the constitutions of the several States and the Constitution of the United States. The former are limitations of power; the latter a special grant of power. The Legislatures of the several States have all power not expressly prohibited. The Congress of the United States has no power but what is expressly given. But while I notice this distinction, let it not be understood that I am opposed to fair and liberal construction.
It will not be amiss to retrospect the state of things before the Federal Constitution was adopted. The States were united by a compact purely federal the old Congress had no authority to enforce their laws or ordinances by acting upon the people individually. Its acts were binding on the States, and depended on their agency to carry them into effect. This form of Government was found by experience to be inefficient, and the present Constitution was presented to the view of the American people. This is partly federal, partly national. It authorizes Congress to carry their powers into effect by an agency on the people; and it will be recollected that of this national consolidating feature the people were most jealous, and against it the opposition was principally directed. It was apprehended that this Government would accumulate powers by implication, until it would swallow up the State governments in one great consolidated empire. It will be recollected that before the present Constitution was adopted, the States respectively had power to punish all crimes committed within their respective jurisdictions; and all powers not granted to this Government having been reserved to the States and the people, it follows that all crimes are cognizable by the States, except such as are specified in the Federal Constitution.
In the enumeration of powers granted to Congress the Constitution contains the following provision: 'To constitute tribunals inferior to the Supreme Court; to define, and punish piracies and felonies committed on the high seas, and offences against the law of nations." Here a power is expressly given both to define and punish; but when the Constitution speaks of the crime of treason a very different phraseology is made use of. It seems to have been deemed necessary to give Congress a power to punish treason, but the framers of our Constitution, warned by the history of other nations of the abuses and oppressions which had been committed in prosecutions for this offence, that treasons had been the great engine by which violent parties in free Governments had borne down each other, deemed it of importance to the liberties of the people to oppose a barrier to this danger by inserting in the Constitution a definition of the crime. This definition is as follows: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." This definition was considered clear, precise, and determinate, and certainly intended to be as fixed and immutable as the Constitution itself. The Constitution then proceeds: "No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." ''The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted." The Constitution has not only provided a barrier against legislative tyranny, but, by fixing the proof necessary ior conviction, has furnished innocence a great security against that odious class of beings, so common in despotic Governments, called spies and informers. The last clause I have read merits particular notice. It gives to Congress power to declare the punishment of treason, but none to define it. In the clause respecting piracies and felonies a power is expressly given both to define and punish. These several parts of the Constitution which I have read seem by necessary implication to negative the power of Congress to define this crime. It is certainly our sacred duty to expound this instrument according to the will of those who framed it. as far as that will can be fairly collected; whether, then, the exposition I have given is vested by the Constitution itself or by the sense of the American people after it was framed, and before it was finally ratified, the result will be the same. It is well known that the work called the Federalist was written by several members of the Convention that framed this Constitution; in one of the numbers comprised in that work the same construction is given to this clause for which I contend; and the author assigns the reasons why power is given to Congress to define piracies, &c., and none to define treason. This exposition of the clause respecting treason is also maintained by Colonel George Nicholas and Mr. Edmund Randolph, in their speeches in the Virginia Convention, and Mr. Randolph, it will be recollected, was a member of the convention which framed this Constitution. Still further to corroborate the opinion I have advanced. I will beg leave to read the observations of Judge Wilson on this subject. in one of his lectures to his students. I rely much on the opinion of Judge Wilson; he was also a member of the Convention, a man of eminent talents, and if his judgment was under any bias, it was rather in favor of increasing than diminishing the powers of the Federal Government. He expresses himself as follows:
"Treason is unquestionably a crime most dangerous to the society and most repugnant to the first principles of the social compact. It must however be observed that as the crime itself is dangerous and hostile to the State, so the imputation of it has been and may be dangerous and oppressive to the citizens. To the freest Governments this observation is by no means inapplicable, as might be shown at large by a deduction, historical and political, which would be both interesting and instructive; but at present we have not time for it.
"To secure the State and at the same time to secure the citizens; and according to our principles, the last is the end and the first is the means, the law of treason should possess the two following qualities: 1st. It should be determinate. 2d. It should be stable."
After reciting the observations of the celebrated Montesquieu on the crime of treason, he proceeds
"In point of precision and accuracy, with regard to this crime, the common law, it must be owned, was grossly deficient. Its description was uncertain and ambiguous; and its denomination and penalties were wastefully communicated to offences of a different and inferior kind. To lop off these numerous and dangerous excrescences, and to reduce the law on this important subject to a designated and convenient form, the famous statute of treasons was made in the reign of Edward the Third, on the application of the Lords and Commons. This statute has been in England, except during times remarkably tyrannical or turbulent, the governing rule with regard to treasons ever since. Like a rock, strong by nature and fortified as successive occasions required, by the able and the honest assistance of art, it has been impregnable by all the rude and boisterous assaults which have been made upon it at different quarters, by ministers and by judges; and as an object of national security, as well as of national pride, it may be styled the legal Gibraltar of England."
In a subsequent part of the same lecture he observes:
"This statute was a safeguard from the arbitrary constructions of courts. It was a shelter from judicial storms, but it was no security against legislative tempests. No Parliament, however omnipotent, could bind its successors, possessed of equal omnipotence; and no power higher than the power of Parliament was then or is yet recognised in the judicial system of England. What was the consequence? In the furious and sanguinary reign of Henry the Eighth, the malignant spirit of inventing treasons revived, and was carried to such a height of mad extravagance, that, as we have seen on another occasion, the learned as well as the unlearned, the cautious as well as the unwary, the honest as well as the vicious, were entrapped in the snares.
Admonished by the history of such times and transactions as these, when legislators were tyrants or tools of tyrants, the people of the United States have wisely and humanely ordained that treason against the United States shall consist, &c. In this manner the citizens of the Union are secured effectually from even legislative tyranny; and in this instance, as in many others, the happiest and most approved example of other times has not only been imitated, but excelled. This single sentence comprehends our whole of national treasons and, as I mentioned before, is transcribed from the statute of Edward the Third."
In addition to the opinions which I have cited, I will beg leave to add that of Judge Tucker, whose learning, ability, and political sentiments, entitle it to very high respect. It will be recollected, also, that the attention of the American people was particularly awakened to an examination of this Constitution after it was framed, and before it was ratified. During that period, every section, clause, and line, was strictly scrutinized, and I believe in no instance did the Constitution receive the construction now contended for. Before the statute of Edward the Third, the judges had great latitude of discretion in defining treason, and, being tools of the Crown, the subjects were harassed and oppressed to such a degree that the Lords and Commons procured this famous statute of treasons to be passed, in order to render this crime so definite and certain that people could understand it, and to abridge the arbitrary discretion of the judges. We are, therefore, compelled to believe that the wisdom of that Parliament was exerted to make as clear and precise a definition of this crime as the English language would enable them. This definition of this species of treason which consists in levying war. stood the test of nearly six hundred years' experience without amendment. If the English courts have in any instances departed from this definition, we must attribute it to the violence of the times in which the decisions were given, rather than to any defect in the law. The experience of the world has proved that in all countries the tone of public feeling will in some degree influence all the operations of Government, and hence it appears, that when a nation is agitated by danger from foreign or domestic enemies, the laws are executed with more rigor than in a time of perfect tranquillity. Although we have reason to felicitate ourselves that we are exempt from the great evils and oppressions incident to despotic Government-, yet I fear that party spirit, when it runs high, will not only influence the general course of our political affairs, but too often tinge the decisions of our judicial tribunals. I believe, however, that the evils felt in Great Britain from prosecutions for this crime were produced by the unprincipled pliability of Parliament in manufacturing new and artificial treasons, during the reigns of tyrannical princes, and especially that of the celebrated monster Henry the Eighth, than to any other cause. If any shades of difference are to be found in the decisions of our own courts, or any contrariety of opinion among learned men on the subject of treason, it is rather to be attributed to the prevalence of party spirit or contrariety of intellect, than to any real defect in the Constitutional definition of the crime. This Constitution was framed but a few years after the close of our, glorious Revolution, when the feelings and prejudices of. the American people were very strong against everything British. Strange, then, that those who drafted this instrument, in their zeal to guard the people from oppression, should have borrowed from a British statute a definition which experience had proved to be defective. Let it be remembered, too. that the Convention who framed it was composed of some of the first statesmen and patriots that ever adorned any age or nation, and we must presume that if they could have devised a better definition, they would certainly have done it. My opinion is, that every definition of crime should be concise, and that confusion and uncertainty is generally increased by amplification. If, however, all America has hitherto misunderstood this clause in the Constitution, and we have a power to legislate on the subject, and it is expedient to do so, I will cheerfully lend my feeble aid to remedy the evils which are supposed by the committee to exist. Permit me, however, first to examine the ground on which this power is claimed. The honorable Chairman (Mr. GILES) has told us that our right to declare what act or acts shall amount to a levying of war is derived from that clause in the Constitution which gives Congress power to make all laws which shall be necessary and proper, for carrying into execution the powers previously granted, and all other powers vested by the Constitution in the Government of the United States, or in any department or office thereof. This is carrying the doctrine of implication much further than has ever been contended for. I have never understood this clause as containing any separate and independant grant of power, but as auxiliary merely. Before we can bottom any measure on this clause, it is necessary to connect it with some power granted to or vested in this Government. We cannot surely imply a power to amend defects in the Constitution, and yet the course of reasoning of the honorable Chairman, however plausible and ingenious, if it proves anything, tends to prove that such a power is implied, and inasmuch as treason is not sufficiently defined by the Constitution, Congress has a right to define it. or, which I consider the same thing, to explain the term levying war. If the Constitution is defective, it belongs to the people, not to Congress, to provide a remedy. It is our duly to exercise power granted, and not to assume what we may deem necessary for the general welfare. It ought to be remembered that the people have already been alarmed by this doctrine of implication. The tocsin has been sounded, and they have, at least by implication, evinced their hostility to this latitude of the construction. I presume gentlemen will not pretend to derive a power to pass this bill from the supposed expediency of the measure. I recollect to have heard some years ago a sentiment expressed by some character of high standing, whose name I have forgotten, that constitutionality and expediency were convertible terms, very much censured. It is very dangerous to indulge this doctrine of expediency at the expense of the fundamental principles of our Government.
The plea of expediency is too often resorted to, to justify the greatest outrages. It was on the broad and indefinite ground of expediency that Great Britain seized on the fleet of Denmark, and that the great belligerents of Europe have prostrated the maritime rights of neutral nations. This plea of expediency, when at war with the sacred principles of our Government ought never to be excused or palliated, but in extreme cases, in times of great public danger. At a moment when a Government is agitated and convulsed, when its very existence is at stake, I should perhaps be as little pleased with the squeamish politician who would be stickling for Constitutional niceties, but rather be disposed to admire the bold statesman, who would step forth and use the means necessary to dissipate the impending storm. A state of things is possible in all Governments, when all the general rules and maxims established for the security of liberty must bend to the supreme law, the safety of the nation. Our Constitution has anticipated such a state. But such is not now our situation, we are not legislating for a moment or to meet a particular emergency; we are passing a general permanent law. by which the conduct and trials of our citizens are to be regulated.
The honorable Chairman made some observations about cabalistic words, by which he supposes some rnay have been misled, the drift of which I confess I did not comprehend. I presume that the framers of our Constitution would not have used any but appropriate words and phrases. Much has been said about common law and English books, calculated more to prejudice than convince. To ascertain the meaning of any legal or technical phrases we resort to English law books, as we do to an English dictionary and English writers, to ascertain the meaning of any English word or phrase. The reports of the decisions of our own courts will gradually supersede the use of British authorities.
The honorable Chairman emphatically asks, what is levying war? And I might in turn inquire what is war, and where do we find the meaning of the term or word? The Constitution says, we shall have power to declare war. To ascertain what constitutes war we must resort to different writers on the subject. War may be waged between nations in many different ways. It might take a volume to explain the different warlike attitudes which nations may assume towards each other, and a man may be guilty of levying war in various ways. Levying war is the act or fact which constitutes the crime of treason, as the killing a man with malice prepense is the act which constitutes the crime of murder. The levying of war is a complicated operation, which may be composed of many subordinate facts, it is the principal fact or result which must be proved or produced by the evidence, before a court and jury can convict a man of treason, as killing a man with malice prepense is the principal fact or result which must arise out of the evidence before a man can be convicted of murder. If a man at the head of fifty thousand, ten thousand, one hundred thousand, or five hundred men should seize on the city of New Orleans, in defiance of the authority of the United States, all men would consider it a levying of war; in a case of this kind there would be but one opinion. But if only two or three men were to assemble armed with intent forcibly to overturn the Government of the United States, I presume no man would call this a levying war, the idea would be ridiculed by the whole nation. The great difficulty is in fixing the line of partition between those acts which amount to levying war and those which do not, but nearly approach it. Crimes of different species are often separated by such delicate shades as to render it difficult to distinguish them; some slight difference is discernible between the opinions of different judges and writers who have undertaken to draw the line of distinction between murder and manslaughter; and in the application of any definition of crime to the variety of cases which happen, a difference of opinion frequently occurs between the most profound judges. Neither human wisdom nor human language is competent to define crimes with such certainty and precision as will prevent contrariety of opinion in many equivocal cases which will arise. This perfect uniformity, which gentlemen seem to be in pursuit of. is unattainable; the attempts of the honorable committee, however laudable, appear to me extremely visionary. In order to guard entirely against this contrariety of opinion, of which gentlemen complain, some scheme must be devised for producing an uniformity of intellect, and compelling all men to view subjects through one common medium; something must he trusted to the good sense of the courts and juries; some confidence must from necessity be reposed. Although the wisdom of this nation was exerted to draw with precision the line of demarcation between the powers of the Federal and the State Governments, yet have we been differing about it ever since. There are many acts which all agree we have power to do, and there are many others which all agree we are not authorized to do; but questions frequently occur, about which there is great contrariety of opinion, and which must be settled by the good sense of those who have to decide them. These inconveniences which grow out of the operations of our Government were foreseen, they result from the imperfection of all human institutions. How often does it happen that the highest offender against our laws eludes the stroke of justice, by the error of the judge, the jury, or the application of those rules and maxims which have been established for the security of liberty! It was expected by the framers of our Constitution that those bulwarks which they reared for the protection of innocence, would often afford impunity to the guilty. All our republican institutions are bottomed upon the humane principle that it is better that many guilty persons should escape than one innocent man should suffer. Shall we, because some partial inconveniences have been experienced, prostrate the sacred barriers fixed by the Constitution? No. sir. The wise statesman, the friend to freedom and human happiness, will reconcile himself to the lesser evil.
It is, sir, an invincible objection to this bill, that it violates that political axiom in the science of free Governments, that the Legislative, Judicial, and Executive departments ought to be separate and distinct. It has been hitherto deemed wise to separate the power of interpreting laws from the Legislative and Executive powers. This maxim pervades all the Governments of the Union as well as the Constitution under which we are assembled. It is a principle for which the greatest statesmen who have figured on the American theatre, and especially those most famed for their attachment to liberty, have professed a sacred regard. If this maxim be recognised, it is a question worthy of consideration, whether the first section of this bill, which goes to explain the Constitutional definition of treason, be in its nature, a legislative or a judicial act. That Congress, as well as every legislative body, has a power to add explanatory sections to any law within its power to alter or repeal, I will not deny; but I contend with great confidence that Congress has no power to expound the Constitution or any law which they cannot repeal, to govern any other department of the Government. Can Congress give a construction to a treaty to govern our judicial courts? Surely such a power was never contended for.
By the compact between Virginia and Kentucky, when the latter became an independent State, it was stipulated that all titles to land derived from the State of Virginia should be decided by the laws of that State then in force. Great uncertainty and confusion attended the construction of that law in the courts of Kentucky. But I presume it would hardly be contended that the Legislature of Kentucky could remedy the evil by a Legislative explanation of the law. And why? Because it is a law over which it has no control. The Executive and Judiciary derive their powers partly from the Constitution and partly from the acts of Congress. Can it be pretended that Congress has power, by a Legislative interpretation, to direct or control either the Executive or Judiciary in the exercise of powers derived from the Constitution? Certainly not. Each department, within its own sphere of action, must judge of the Constitution for itself.
The people have, by the Constitution, enacted the declaratory part of the law of treason by defining it, giving to Congress power to add the vindicatory part by declaring the punishment; these combined constitute the law of treason, by which every man accused must be tried, the interpretation and application of which belongs not to Congress, but to courts and juries. By the first and second sections of the bill we are not only assuming the exercise of judicial powers, but we are abridging the rights of juries. Before any man can be convicted of treason, he must be found guilty by a jury of his peers of the act of levying war; and whether levying war is considered a fact or compounded of law and fact, it is equally the province of the jury to decide it, whatever may be the opinion of the court. What are we attempting to do by this bill? Why, sir. we are undertaking to specify what acts shall amount to the fact or act of levying war. or, rather, declaring what evidence shall be sufficient to convict a man of the crime. A very strange opinion has been advanced by an honorable member of the committee, from Massachusetts, (Mr. ADAMS.) He contends that we have a right to give our opinion or exposition of this clause of the Constitution, but that courts and juries will not be bound by it, if they should think differently. If this bill, when passed, will not be obligatory, it proves that we have no power to pass it. The Constitution declares that the Constitution itself, and all laws, passed in pursuance thereof, shall be the supreme law of the land. According to the opinion of the gentleman from Massachusetts, we might have Judicial construction, Legislative construction, and Executive construction, conflicting with each other. This would be a state of confusion and collision which could never have been intended by the wise framers of our happy Constitution.
The honorable Chairman has, however, controverted this right of the courts to disregard our explanation. I am not disposed, on the present occasion, to discuss at large the question whether the judicial courts can disregard an act of the Legislature which they may deem unconstitutional. I am not an advocate for the power of the Judiciary to declare an act of Congress unconstitutional, in the latitude in which the proposition is generally stated. I presume that it cannot be pretended that the judges are authorized to erect themselves into a board of censors, and ex mero motu by a written declaration to nullify an act of the Legislature. But if a question of which they have cognizance is brought before them for adjudication, in a course of legal proceeding touching the life, liberty, or property of an individual or individuals, in deciding which it becomes necessary to disregard the Constitution or an act of Congress, they must give effect to the Constitution, which is the supreme law, flowing immediately from the sovereign power, the people, rather than to the act of a subordinate authority. Every department within its sphere must judge for itself of the Constitution, and is bound to support it. The exercise of this negative power by the courts results from necessity in the discharge of their judicial functions. A court of justice ought to decide every case according to right, whether that right be deduced from an act of Congress or the Constitution. I believe it was generally understood, when this Constitution was adopted, that the Judiciary would, when necessary and proper, exercise this negative power.
The different departments were expected to check and restrain each other from exceeding the proper limits. This negative power for which I have contended has, I believe, been exercised by the courts of the United States and of most of the States, ever since the commencement of the Government, without producing any serious inconveniences. Legislatures have in some instances inadvertently violated the Constitution. I cannot, however, perceive the necessity of stirring or deciding this question at present. If we believe that the Constitution authorizes the passage of this bill, we ought to presume that the judges will entertain the same opinion. The Legislature should not. without apparent necessity, bring itself into collision with any other department of the Government. A state of hostility between the different departments is very much to be deplored. I consider this instability with regard to fundamental principles extremely unfortunate. It is essential to the happiness of every people, and the permanency of every Government, to have them fixed and settled by a constitution or habit. Great leading principles, when once established and understood, serve as landmarks to direct those entrusted with the administration of the Government, and to warn the people when their important rights are assailed.
One observation has been made in favor of this bill rather specious, but entirely destitute of solidity. We are told that it is necessary to amend the definition of treason to enable the people to understand it. I presume no amendment or explanation is necessary for the honest part of the community. By the law of treason, as it now exists, every man is punishable who is guilty of levying war, in whatever manner it may be done; but if we specify the particular acts, and declare that those only shall constitute the crime, we thereby enable the villain with more certainty to defy public justice.
There is one consideration which ought to impress itself on the mind of every member of this body. If we assume the power of specifying what acts shall amount to a levying of war, every future Legislature can exercise the same power; and hence it will follow that treason, instead of being fixed and immutable by the Constitution, will always depend on the arbitrary opinion of the party that happens to predominate in the Government. Sir, this barrier of the Constitution must not be broken down. This once passed and we are afloat on a boundless ocean, without anything to guide or restrain us but our own will, whim, and caprice.
I will now call the attention of the Senate to another prominent feature in this bill. The section concerning conspiracy. It is in the following words:
"SEC. 3rd. And be it further enacted, That if any persons shall conspire together with intent to commit any one or more of the acts which, if committed, would amount to treason against the United States, according to the two first sections of this act, every person so offending, upon being thereof convicted, shall be adjudged guilty of a conspiracy to commit treason against the United States, and shall be punished by fine not exceeding dollars, and by imprisonment and hard labor for a term not exceeding years, nor less than years."
The Senate will please to recollect the position which I have already laid down, that those crimes which are common to all governments, or rather which are not peculiar to nor result from the particular policy or measures of the Federal Government were punishable by the States respectively before the present Constitution was adopted, and that Congress has no cognizance of any of this description, except such as are specially made so by the Constitution. Conspiracy, murder, &c., are crimes common to all governments, and consequently are not punishable by this Government, unless committed by persons upon whom its jurisdiction has attached in the course of its legitimate operations. Conspiracy is an offence no where mentioned in the Constitution. It may be said that many offences are contained in our penal code not specified in the Constitution: To this I reply that most of those offences are what may be termed mala prohibita, and have been created as necessary auxiliaries to the execution of powers delegated. This Constitution being a special grant of power, those acting under its authority cannot claim the exercise of any power not delegated or vested in them, except such incidental powers as may be requisite to carry the specified powers into effect or result from the exercise of them. The power to punish conspiracy cannot be included with the class of incidental or resulting powers.
This clause may be fairly objected to, as unconstitutional, on another ground. The offence created by it savors very much of that species of treason known in despotic governments, which is committed by imagining the death of the royal person or conspiring against his life. This section is intended, if I understand it, to punish an intent to commit treason. If it is improper to violate the Constitution directly, it is equally so to do it indirectly. I infer that the people of the United States, by declaring that treason should consist only in levying war. &c., intended to proscribe every other species of it; and it may be questioned whether we can with propriety introduce another species of treason into our penal code under the name of conspiracy. Besides it will violate that provision which requires two witnesses to an overt act; for if this clause is retained and the bill passes, I presume a single witness proving an intent to commit treason will be sufficient for conviction. A few fugitive expressions which may escape men in a moment of boasting dissipation, if related on oath in a court of justice by a pimping informer, may be competent to destroy them. In governments founded on force, the despot, conscious that he has no place in the affections of his subjects and consequently jealous of their fidelity, has his secret spies and informers to watch their most minute transactions. Every whisper alarms him. In such governments many, who have been ornaments of human nature, have been sacrificed by the instrumentality of informers, at the shrine of individual malice, or to suit the convenience of ministry. The witness who swears to another's private intentions, unconnected with any open deed, can perjure himself with impunity; the accused has no means of controverting the fact, the armor of conscious innocence cannot save him from ruin. In this Government, which is founded on the affections and interest of the great majority of the people, that jealousy so common in those governments ought not to be indulged. This strict scrutiny into the conduct of individuals is unnecessary here, and tends very much to diminish the stock of private confidence and social felicity. This crime called conspiracy, however odious, is in its nature so vague and indefinite, and liable to be proved by testimony of so suspicious a character, that I fear it would be dangerous to give it a place in our criminal code. Conspirators, when their guilt is well ascertained, will generally be punished with sufficient severity by that great censor, public opinion. It does not appear to be entirely congenial with either the genius or practice of the American Government to punish a man for his wicked intentions, until they have eventuated in the perpetration of some unlawful act.
I will now pass to the last section of the bill, which seems to merit some notice. It is in these words: "And be it further enacted, That if any person or persons shall attempt, by written or printed publications, or by advisedly speaking to or addressing an assemblage of people exceeding persons, to promote and bring about a dismemberment of the United States or any of the territories thereof, or to erect or establish any government within the jurisdiction and against the authority of the United States, the person so offending," &c. This section is liable, independent of others, to the Constitutional objection made to that concerning conspiracy; and I am satisfied that the committee themselves, upon a reconsideration, will be convinced that it is highly impolitic.
When I first read it, I was reminded of a story I have some where read, that a man, whose inclination had never prompted him to go beyond the gates of Rome, sickened and died, when the Emperor issued an edict directing him to be confined within those very limits which he had never wished to pass. The moment we say to the people they shall not speak, we prompt them to throw off the authority of this Government. No man censures more highly than myself the circulation of opinions of this kind, but I believe the censure which awaits the authors of them at the bar of public opinion, is an adequate check. If there are any who entertain such sentiments, let them stand as monuments of the safety with which error of opinion may be tolerated, while reason is left free to combat it. If it should ever be found politic and necessary to suppress publications of this kind, it would be better for the States to legislate on the subject than this Government. An act passed by a State would have more effect upon the conduct of its own citizens than one passed by the General Government. This will be denounced as another sedition law, as violating the freedom of speech and the press; and. without answering any good purpose, may in its con[se]quences do much mischief. I confess I have very little faith in the efficacy of penal laws on the durability of the Union. By the passage of this bill, instead of suppressing the evil, we shall only put a weapon into the hands of its enemies. We had better repose on the affections and attachment of the people to the Government, than attempt to operate upon them by penal sanctions. This Union must be preserved by the tie of common interests or force. It is an objection to this bill that it is calculated to increase the jurisdiction of the federal courts. I would prefer to have it diminished. This federal judiciary is, to the people I represent, the most odious feature in the Government. It has been already very inconvenient and oppressive to them, and would have been much more so but for some late decisions of the Supreme Court of the United States. Those decisions have very much lessened the evil. Certain circumstances which have transpired within the last two years awakened my attention to the subject of union, and the general course of policy, in the internal administration of our Government, which ought to be pursued to preserve it. My reflections have convinced me that we must, as far as the Constitution will authorize, restrain the consolidating principle. This Government should interfere as little as possible with the interior of the States. To them must be left the cognizance of such offences of an inferior grade as may require the corrective hand of Government. This Government must act on a more elevated theatre. Its attention must be directed principally to national objects. If it is necessary to give it more energy, it must be done, not by increasing its agency in the interior, but by giving it a physical force, which will enable it to hold the vulnerable points and command the greater exterior of this extensive country. If the national consolidating principle is kept within its proper limits, and the federative character of the Government retained, I cannot foresee either the necessity or expediency of a severance of the States, although our population should expand to where the Missouri hides its head in the Rocky Mountains. The State government are not only necessary rallying points against usurpation, but I believe the freedom and happiness of the people require that they should have, as exclusively as the nature of our Government can possibly permit, the control of their own citizens and the administration of their internal concerns.
While I applaud the motives which dictated this measure, and feel with the honorable committee an ardent solicitude to punish traitors, and check the spirit of disunion, they must pardon me for believing that, in their patriotic zeal to promote the public good, they have mistaken the extent of our powers as well as the means of attaining the object they have in view.
TUESDAY. March 1.
TREASON AND OTHER CRIMES.
The Senate resumed, as in Committee of the Whole, the second reading of the bill for the punishment of treason, and other crimes and offences against the United States.
On motion, by Mr. MITCHILL, to strike out the first section, as follows:
"Be it enacted, by the Senate and House of Representatives of the United States of America, in Congress assembled, That if any person owing allegiance to the United States of America, shall levy war against them, by assembling themselves together, with intent forcibly to overturn or change the Government of the United States, or any one of the Territories thereof, or forcibly to dismember the said United States, or any one of them, or any one of the Territories thereof, or forcibly to resist the general execution of any public law thereof, or forcibly to take possession of, or hold, any fort, magazine, dock, navy-yard, or of any public vessel of the United States, or forcibly to invade or hold any part of the United States, or of the Territories thereof, against the authority of the United States, or if any such person or persons shall traitorously aid or assist in the doing any one of the acts aforesaid, although not personally present when any such act is done or committed, and being convicted of any one or more of the aforesaid acts, on confession in open court, or on the testimony of two witnesses to the same overt act of treason, whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death:"
It was determined in the negative yeas 15, nays 17. as follows:
YEAS Messrs. Bayard, Bradley, Gilman, Goodrich, Gregg, Hillhouse, Maclay, Milledge, Mitchell, Pickering, Pope, Reed, Thruston, Turner and White.
NAYS Messrs. Adams, Anderson, Condit, Crawford, Franklin, Gaillard, Giles, Howland, Kitchel, Mathewson, Moore, Parker, Robinson, Smith of Maryland, Smith of New York, Smith of Tennessee, and Tiffin. On motion, by Mr. ADAMS, it was agreed to recommit the bill to the committee that reported it; and. on motion, by Mr. CRAWFORD, Messrs. POPE and FRANKLIN were added to the committee.