The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session Page: 202
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202
APPENDIX TO THE CONGRESSIONAL GLOBE.
Feb. 1844.
28th Cong 1st Sess.
Report of the Committee of Elections—Mr. Black.
H. of Reps.
certain members of this House declare that the an-
nexation of Texas to this confederacy would even-
tuate in a dissolution of the Union. Suppose they
take it into their heads that to advocate this,annex-
ation is, therefore, a "high misdemeanor," and that,
as they are not restricted to "disorderly behavior"
for cause of expulsion, they, in their discretion, ex-
pel me from the House, simply because I advocate
the propriety of taking Texas into the Union: who
could aoubt their power to come to such a conclu-
sion, whether right or wrong, under a latitude of
construction which allows any other cause than
"disorderly behavior" as ground of expulsion? If
I am disorderly in my behabiour, let me be expelled;
it however must be expressly on that ground, and by
a vote of two-thirds—but not because I am constitu-
tionally qualified, and have been elected by a majority
of the voters of Georgia, whose potential voice is
thus to be contemned and reversed by a bare major-
ity of this House.
Within this limit, I am willing to hold myself re-
sponsible. Your power to expel, tin is narrowed
down and confined, would be conservative; and not,
as otherwise, disorganizing and destructive. But for
it, a few unprincipled and turbulent men might im-
pede the government, and destroy the liberties of the
people, by converting this House, which is their
primary assembly, into a den of mobocrats and an-
archists.
But, sir, there is no such charge against the 21
members who are now arraigned before you. On
the contrary, I think I may say, without the fear of
contradiction, that they are at least of constitutional
"behavior." This much is conceded to them by the
honorable gentleman from New York, [Mr. Hunt,]
who, while he streneously advocates their expul-
sion, declares them to be well behaved-men, whose
singular modesty and merit had excited for them,
in his breast, feelings of the deepest respect and es-
teem. This comes from the whig side of the
House; and it may be well to remember it, for I
mean to show, before I sit down, that while these
gentlemen are moving heaven and earth to turn out
of that door 21 members, to whose good "behavior"
they themselves bear testimony, Congress has
never yet inflicted, except in one case by the Sen-
ate, a similar punishment, even upon men who have
been arraigned before them for advocating murder,
robbery, piracy, and treason.
Mr. Speaker, this power of expulsion has never,
since the foundation of the government, been exer-
cised, as far as I can ascertain, even in a solitary in-
stance, by the House of Representatives; and but
once by the Senate. The violation of the constitu-
tion and laws; of order, decorum, and the observ-
ances of morality and religion; violence and murder;
nay, sir, the subornation of perjury, the advocation
of treason itself, and the perpetration of the foulest
crimes which can blacken and defame the human
character, are among the charges which have been
repeatedly made by formal resolutions, and other-
wise, against members of the federal Congress; and
yet, in no case, except the one referred to in the
Senate, have you ever ventured upon the enormous
responsibility of expulsion. Even the secondary
and inferior punishment of censure has been inflicted
but once upon a member of this House. Abortive
attempts have been made in both Houses to inflict
these punishments, and I propose to speak of them
in their chronological order; for if "history be phi-
losophy teaching by example," we could not devote
the remainder of my hour to a better purpose than
to turn over the pages of our parliamentary records,
and make the events of the past a lesson for the
present and the future. From these, we shall learn
how cautious Congress has been in approaching the
rights of members, even when they have been ar-
raigned on the gravest charges. Of the truth or
falsehood of these charges, I know nothing, and of
course do not pretend to speak. I only refer to
them as matters of political history, to illustrate the
position I have assumed in this debate.
The first case is that of Humphrey Marshal!,
then a senator from Kentucky. In 1796, certain
charges of fraud and perjury which had been pre-
ferred against him, were communicated, without
affirmation or denial, by the legislature of that State
to the Senate of the United States, with a request
that they should be investigated by that body, for
the sake of its own honor, and that of the senator's
constituents. It appears that Mr Marshall himself
was anxious and willing for the investigation; and,
as this is the oldest precedent in the history of the
expulsive power, I will quote all that is material of
the proceedings in the report of senator Livermore;
No. 79.—Charges against Humphrey Marshall^ u. Sena-
tor from Kentucky. Communicated to the Senate March.
u, i;96.
Mr. Livermore, from the committee to whom were referred
the letter of the Governor, and the memorial of the lepresenta.
uves of Kentucky, with the papers accompanying them, made
the following report:
That the representatives of the freemen of Kentucky state,
in their memorial, that, in Februaiy, 1795, a pamphlet was
.published by George Muter arid Benjamin Sebastian, (who were
two judges of the couttof appeals,) in which they say that
Humphrey Marshall had a suit in chancery in the said court of
appeals, in which' it appearing manifest, from the oath of the
complainant, from disinterested testimony, from records, from
documents furnished by himself, and from the contradictions
contained in his own answer, that he had committed a gross
fraud, the court gave a decree against him; arid that in the
courseof the investigation, he was publicly charged with perju-
ry. That Mr. Marshall, in a publication m the Kentucky Ga-
zette, called for a specification of the charge; to which the said
George Muter and Benjamin Sebastian, in a like publication,
replied that he was guilty of perjury in his artswer to the bill
in chancery exhibited against him by James Wilkinson; and
that they would plead justification to any suit brought against
them therefor. Thatno such suit, as the said representatives
could learn, had been brought. The said representatives further
say, that they do not mean to give an opinion on the justice of
the said charge, but request that an investigation may immedi-
ately take place relative thert to. - _
Your committee observe, that the said suit was tried eighteen
months before Mr. Marshall was chosen a member of the Sen-
ate; and that, previous to his election, mutual accusations had
taken place between him and the judges of the said court, re-
lating to the same suit.
The representatives of Kentucky have not furnished any copy
of Mr Mai shall's answer, on oath, nor have they staled any
part of the testimony, or produced any of the said records or
documents, or the copy of any paper in the cause; nor have
they intimated a design to bring forward these or any other
proofs.
Your committee are informed by the other senator, and the
two representatives in Congress, from Kentucky, that they have
been r* quested by the legislature of that State to prosecute this
inquiry; and that they are not possessed of any evidence in the
case; and that they believe no person is authorized to appear
on hehalf of the legislature.
Mr Marshall is solicitous that a full investigation i f the sub-
ject should lake place in the Senate, and uigesthe principle,
that consent lakes away error, asapplying, on this occasion, to
give the Senatejurisdlction. But as no person appears to pros-
ecute, and there is no evidence adduced to the Senate, nor even
a specific charge, the committee think any further inquiry by
the Senate would be improper. If there were no objections of
this sort, the committee would still be of opinion that the memo-
rial could not be sustained. They think that, in a case of this
kind, no person can be held to answer for an infamous crime,
unless on a presentment or indictment of a grand jury; and
that, in all such prosecutions, the accused ought to be tried by
an impartial jury of the State and district wherein the crime
shall have been committed. If, in the present case, the parly
has been guilty in the manner suggested, no reason has been
alleged hy the memorialists why he has not long since been tried
in the Slate and district where he commuted the offence. Un
til he is legally convicted, the principles of the constitution and
of the common law concur in presuming that he is innocent.
And the committee are compelled, by a sense of justice, tode.
clare that, in their opinion, this presumption in favor of Mr.
Marshall is not diminished by recriminating publications which
manifest strong resentmentagainsthim. Andthey arealsoof
opinion that, as the constitution does not give jurisdiction to the
Senate, (he consent of the party cannot give it; and that, there-
fore, the said memorial oueht to be dismissed.—[Miscellaneous
State Papeis, Vol. 1, p. 144.
This report, which was adopted in the Senate by
a vote of 16 to 8, constitutes an original precedent,
and exhibits the singular spectacle of a senator im-
pugned by his own State legislature before the
U. S. Senate upon the serious accusations of fraud
and perjury. These charges were not urged upon
the responsibility of the legislature, but so far
adopted as to be made the subject of solemn memo-
rial, and were deemed of sufficient importance to re-
quire an investigation. The oath of the complain-
ant, disinterested testimony from records and docu-
ments furnished by the senator himself, and his
own sworn answer, seem to have excited a suspi-
cion in the breasts of his constituents that he might
have committed these heinous offences; and so fully
were they impressed that the charges of Judges
Muter and Sebastian made out at least a prima facie
case of gross delinquency, that they openly de-
manded an expurgation for the sake of vindicating
their own, arid the honor of the Senate. All this
will appear from their memorial, which is to be
found on page 141, 1st vol. Miscellaneous State
Papers And what was the result' Expulsion, or
even censure? No, sir. While the Senate declare
that the papers and proofs submitted do not suffi-
ciently maintain the charges, they dismiss the
whole case for want of jurisdiction. They presumed
him innocent until legally convicted, and declared
that he should not be "held to answer," unless on
the presentment or indictment of a grand jury; and
that then he had a right to be tried by a jury of the
vicinage. The acquittal of Mr. Marshall by the
Senate was only incidental; but the final discharge
of the committee to whom his case had been re-
ferred, was put upon the broad ground that the
Senate had no power under the constitution to ex-
pel him, even if th? accusations had been sustained.
Sir, fraud and perjury are breaches of law, for the
commission of which the Senate decided they had
no jurisdiction to expel; but this House is now in-
voked to expel twenty-one members, upon an al-
leged violation, by their constituents, of the second
clause of the apportionment act! If precedent,
based on constitutional grounds and sound reason,
has not lost its accustomed influence, we will take
no measure, upon this occasion, the ultimate ac-
complishment of which can be effected only by the
expulsion of the members elected by general ticket.
Let the history of the past be philosophy teaching
us by examble—a lesson which, if studied and prac-
tised, will make this House a conservative, and not
a disorganizing, element in our federal govern-
ment.
The next case, in chronological order, is that of
William Blount, a senator from the S:ate of Ten-
nessee. It occurred- in 1797, and had its origin in a
message; from John Adams, then President of the
United State?. On the 3d day of July, 1797, Mr.
Adams sent a paper to the two Houses of Congress,
in which he stated that the intelligence he had received
from various sources exhibited, in a very strong
light, the critical situation of the country. He sent
them also such a collection of documents as would
enable them to judge of it, and to take such meas-
ures as might be necessary in the emergency. Among
the documents was a letter signed by William
Blount, and directed to Mr. Carey, who was, at
that time, in the employment of government, as in-
terpreter to the Cherokee nation of Indians, and an
assistant in the public factory at Tellico Block-house.
On the 4th July, 1797, Messrs. Ross, Stockton,
Henry, Sedgwick, and Read, were appointed a com-
mittee, with power to send for persons, papers, and
records, to consider and report upon so much of the
President's message, and the documents accom-
panying the same, as relates to a letter purporting
to have been written by Mr. Blount to Mr. Carey,
and what, in their opinion, it was proper for the
Senate to do thereon. After the acquiescence ofMr.
Blount in the investigation, and the recognition by
the Senate of Jared Ingersoll, and Alexander J.
Dallas as his counsel, various incidental reports
were made by the committee during the progress of
their labors. At length on the 8th day of July,
1797, they made their final report. I shall quote it,
without abbreviation, as it is explanatory of the
only case which may be deemed an exception to the
general rule which has prevailed in regard to this
high-handed doctrine of expulsion. It occurred,
you will remember, sir, during the administration
of the elder Adams, and may have been intended
as "res adjudicata" in the State prosecutions which
were to follow in the wake of the sedition law; one
of which I shall notice in the course of my re-
marks:
Senate Journal, 1797, pp. 390, 391,392.
"The committee to whom was referred that part of the Pres-
ident's message which relates to a letter purporting io have
been written by William Blount, esq., one of the senators from
the State of Tennessee, together with the papers ol accompany-
ing the same, h.ivmg had the same under their consideiatlon,
beg leave to make a lurther report:
'Thai, Mr. Blount having declined an acknowledgment or de-
nial of the letter imputed to him, and having failed to appear,
to give any satisfactory explanation respecting it, your com-
mittee sent for the original letter, which accompanies this re-
port; and it is iri the following words:
'Colonel King's Iron Works, April 21,1797.
'Beau Carey: I wished to have seen you before 1 ret uined
to Philadelphia; but I am obliged to return to the session of
Congress, which commences on the 15th of May.
'Among other things that 1 wished to have seen you about,
was the business Captain Chesholm mentioned to ihe British
minister last winter, at Philadelphia.
'1 believe, butam not quite sure, that the plan then talked of
will be attempted this fall; and if it is attempted, it will be in a
much larger way than then talked of; and if the Ir.diuns act
Iheirpart, 1 have no doubt but it will succeed. A man of con-
sequence has gone to England ahout the business; and ]1 he
makes arrangements as he cxpicts, 1 sImII myself have a hand
in the business, and probably shall be at the head of the busi.
nees on the part of the British, You are, however, to under-
stand that it is not yet quite ceitam that the plan will be at-
tempted; jet you will do well to keep things m a proper train
of action, in case it should be attempted; and to do so will re-
quire all your management-I say lequire all jour manage-
ment, because you must t.ike care, in whatever 5011 say to
Rogers, or anybody else, not to let the plan be discovered by
Hawkins. Dinsmore, Byers, or any other person in the interest
of the United States or Spain.
'If I attempt this plan, I shall expect to have you, en I all my
Indian country and Indian f,lends, w'th me; hui yon are now
in eood business, I hope, ami you aie not to risk the loss of it
by saying anyihme that will hurt you, until you again hear
from roe Where Captain Chesholm is. I d" nol know: I left
him in Philadelphia in Match, ami he freqwmly visited the
minister, and spoke upon the subject; but I believe he will to
into the Creek nation, by way of South Carolina ( r Georgia.
He gave out he was going to England; but I did not believe him.
Among things that yon may safely do, wiil be to keep up my
consequence with Watts, and the CreeKe and Cherokee? genep
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United States. Congress. The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session, book, 1844; Washington D.C.. (https://texashistory.unt.edu/ark:/67531/metapth2368/m1/212/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.