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 resolution:
"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 following resolution:
"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 charge.
"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 place.
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 governments.
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 elections.
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 grand jury.
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 440.
89. 2 Inst. p. 50.
90. C. U. S. Art. 3.
91. Art. 6.
92. Art. 7.
93. Art. 3.
94. Art. 8.