87. What farther powers or privileges the several houses of congress may
constitutionally possess, has now become a question of no small importance. The
great Bacon observes 88, "that as
exception strengthens the force of a law, in cases not excepted, so enumeration
weakens it, in cases not enumerated." The powers vested in congress, the
privileges of the members, and of each house, are severally enumerated in the
constitution; not made exceptions from general powers, not enumerated.
Consequently it would appear that they were not capable of extension, beyond the
letter of the constitution itself. The twelfth article of the amendments to the
constitution seems also not to favour a constructive extension of the powers of
the federal government, or any department thereof; yet a case has occurred,
which shews that the house of representatives have put a different construction
on their powers.... On the 28th day of December, 1795, on information given by
several members in their places (not upon oath,) of an attempt to corrupt them
made by one Robert Randall, it was "resolved, that Mr. Speaker do issue his
warrant directed to the serjeant at arms attending this house, commanding him to
take into custody, where-ever to be found, the body of the said Robert Randall,
and the same in his custody to keep, subject to the further order and direction
of the house.
"A warrant, pursuant to the said resolution, was accordingly prepared,
signed by Mr. Speaker under his seal, attested by the clerk, and delivered to
the serjeant, with order forthwith to execute the same, and make due return
thereof to the house." The next day Randall was brought before the house in
custody. He was detained in custody from that time to the 6th day of January,
when a motion was made and seconded, that the house do come to the following
"Whereas any attempt to influence the conduct of this house, or its
members, on subjects appertaining to their legislative functions, by motives
other than the public advantage, is a high contempt of this house, and a breach
of its privileges: and whereas it does appear to this house, by the information
on oath of sundry members, and by the proceedings thereon had before the house,
that Robert Randall did attempt to influence the conduct of the said members, in
a matter relating to their legislative functions, to wit, the sale of a large
portion of the public property, by motives of private emolument to the said
members, other than, and distinct from the public advantage: therefore,
"Resolved, That the said Robert Randall has thereby committed a high
contempt of this house, and a breach of its privileges.
"The previous question thereon was called for by five members, to
wit.... shall the main question, to agree to the said resolution, be now put?
"And on the question.... shall the said main question be now put?
"It passed in the negative.
"A motion was then made and seconded, that the house do come to the
"Resolved, that it appears to this house, that Robert Randall has been
guilty of a contempt to, and a breach of the privileges, of this house, by
attempting to corrupt the integrity of its members, in the manner laid to his
"And on the question thereupon,
"It was resolved in the affirmative, Yeas, 78. Nays, 17.
"Another motion was then made and seconded, that the house do come to
the following resolution:
"Resolved, that the said Robert Randall be brought to the bar,
reprimanded by the speaker, and committed to the custody of the serjeant at
arms, until the further order of this house.
"And on the question thereupon,
"It was resolved in the affirmative.
"Pursuant thereto, the said Robert Randall was brought to the bar in
custody, reprimanded by Mr. Speaker, and remanded in custody of the serjeant at
arms, until further order of the house.
"The 13th of January, the house proceeded to consider the petition of
Robert Randall, praying to be released from the imprisonment to which he is
subject, by the order of this house, which lay on the table: whereupon,
"Resolved, That Robert Randall be discharged from the custody of the
serjeant at arms, upon the payment of fees." Proceedings of the house of
representatives of the U. States, in the case of Robert Randall and Charles
Whitney.... Published by order of the house of representatives.
Upon these proceedings a few remarks may not be deemed impertinent in this
1. By the amendments to the constitution, no person shall be deprived of
life, liberty, or property, without due process of law.
Due process of law as described by sir Edward Coke 89,
is by indictment or presentment of good and lawful men, where such deeds be done
in due manner, or by writ original of the common law. Due process of law must
then be had before a judicial court, or a judicial magistrate. The judicial
power of the United States is vested in one supreme court, and such inferior
tribunals, as congress may establish, and extends to all cases in law and
equity, arising under the constitution, &c. 90
In the distribution of the powers of government, the legislative powers were
vested in congress .... the executive powers (except in the instances
particularly enumerated,) in the president and senate. The judicial powers
(except in the cases particularly enumerated in the first article) in the
courts: the word the, used in defining the powers of the executive, and
of the judiciary, is, with these exceptions, co-extensive in it's signification
with the word all: for all the powers granted by the constitution are
either legislative, and executive, or judicial; to keep them for ever separate
and distinct, except in the cases positively enumerated, has been uniformly the
policy, and constitutes one of the fundamental principles of the American
2. It will be urged, perhaps, that the house of representatives of the
United States is, like a British house of commons, a judicial court: to which
the answer is, it is neither established as such by the constitution (except in
respect to its own members,) nor has it been, nor can it be so established by
authority of congress; for all the courts of the United States must be composed
of judges commissioned by the president of the United States, and holding their
offices during good behaviour, and not by the unstable tenure of biennial
3. The amendments to the constitution 91
expressly provide, "that no warrant shall issue but upon probable cause
supported by, oath or affirmation." The speaker's warrant for apprehending
Randall was not supported by either: for the word affirmation must be understood
as such a solemn asseveration by persons religiously scrupulous of swearing, as
amounts in judicial proceedings to an oath, in point of obligation and penal
consequences, and not to a bare assertion, however positive, made in any other
manner. That the information of the members was made in the solemn manner before
mentioned, or that their oath was dispensed with on account of religious
scruples, cannot be presumed, since they were all sworn to their several
declarations on the fourth of January, and not before.
4. The amendments to the constitution 92
expressly provide, that no person shall be held to answer to a capital, or
otherwise infamous crime, unless on presentment, or indictment of a grand jury.
Randall's offence was certainly an infamous crime, for which he deserved
exemplary punishment. On the twenty-ninth of December, being brought to the bar
in custody, it was demanded of him, whether he did admit or deny the truth of
the charge against him; to which he answered, that he was not prepared to admit
or deny the same. On the fourth of January, being again brought to the bar in
custody, it was demanded of him by Mr. Speaker what he had to say in his
defence; to which he answered, that he was not guilty. Here then Randall was
held to answer for an infamous crime, without indictment or presentment of a
5. The constitution provides, that the trial of all crimes, except in cases
of impeachment, shall be by a jury 93.
After the prisoner had pleaded not guilty, and made an application to the
house that the informations might be sworn to, the house (after some preliminary
proceedings) "resumed the hearing of his trial, and made some progress
therein;" the next day they resumed it; and resolved to "proceed to a
final decision on the said case" the next day.
6. The amendments to the constitution 94
provide, that in all criminal prosecutions, the accused shall enjoy the right to
a special and public trial by an impartial jury of the state and district where
the crime shall have been committed.
On the sixth of January the house proceeded to a final decision on the case
of Robert Randall.
Five members of the house were his accusers, triers, and judges: four of
these voted him guilty; the fifth voted with the minority; whether, as not
conceiving him guilty, or as not conceiving the house to be a proper tribunal to
condemn him, (both questions being blended in the resolution), does not
appear..... Was this a trial by an impartial jury? Again,
By the amendments to the constitution, the jury should be from the state and
district in which the crime was committed. The triers were composed of members,
huc undique collatis.
88. On the advancement of learning, page
89. 2 Inst. p. 50.
90. C. U. S. Art. 3.
91. Art. 6.
92. Art. 7.
93. Art. 3.
94. Art. 8.