H. OF R.] Impeachment of William Blount. or held by efficient bail; and when bail is refused, it is where it does not afford a sufficient security. Is any such security required in this case, asked Mr. D.? There is not. The process would be a rare one, if the party were required to appear. It would be to say, that the moment the person accused, and in custody, is found guilty, that moment he shall be at liberty; but in all the previous stages of the prosecution, he shall be a close prisoner. If such a man wished, therefore, for his liberty, he must wish to be found guilty as soon as possible. Is it possible, then, said Mr. D., that this could be a proper course to be pursued? that it can be right to bring a man thus charged before the court, that he may be found guilty, in order that he may afterwards smile at the impotency of its vengeance? The Constitution, continued Mr. D., has proceeded on a different principle. The process in cases of impeachment, in this country, is distinct from either civil or criminal-it is a political process, having in view the preservation of the Government of the Union. Impeachments under the British Government are wholly different from impeachments carried on under this Government. The Constitution proceeds on the high authority of public opinion and of the high value of reputation to every man who is a candidate for public office, and that the declaration of public reprobation, expressed by the Constitutional organ, is one of the severest punishments. It considers that the punishment of fine and imprisonment may be endured, but that public abhorrence is not to be borne. The punishment in this case, therefore, is wholly a declaration of public opinion, not only that the person receiving it has proved himself unworthy of his present office, but that there is such a baseness attached to his character as to render him unfit for any office in future. Taking the matter up in this view, the propriety of not considering the offence as criminal will clearly appear. Were the offence to be considered as a crime, merely, the judgment of the court should involve the whole punishment; whereas, it has no connexion with punishment or crime, as, whether a person tried under an impeachment be found guilty or acquitted, he is still liable to a prosecution at common law. This process, therefore, is perfectly sui generis-equally unknown to the British Government or to this country. Upon this view of the subject, Mr. D. said his opinion was, that the House ought to instruct the managers, but in a way directly opposite to that proposed by the resolution under consideration. Mr. HARPER allowed it would be very difficult to answer the challenge thrown out by the gentleman from Connecticut, to produce an instance in which a man, tried for an offence, the punishment for which does not extend to his person or property, is required to appear in person; for, before the present Constitution, no such case existed; and, at present, there is none such but what is contained in the Constitution. But every punishment under the common law affects either a man's person or property, as they are the only punishments to be had. Admitting, therefore, that no such case [DECEMBER, 1798. can be found, neither in this country nor in that from which we have drawn the principles of our jurisprudence, where no punishment like the one contemplated in our Constitution was ever imagined, the argument has no weight. Mr. H. denied the principle upon which this personal appearance is required. It had been the practice, from the earliest records of our jurisprudence to the present time, that a man shall never be tried in his absence for a criminal offence. Gentlemen say the reason of this is, that he may be ready to receive judgment. If so, it would be foolish, because the court might direct the person of a criminal to be brought before them to receive sentence, as well as they could do it before his trial. What, then, said he, is the reason? Ask the great sages of the English law, and they will give an answer very different from his learned friends. They will say that it is because a man ought always to be face to face with his judges and accusers; that no witness ought to be heard against a man, or his life or property put in jeopardy, without his personal presence; and so sacred is the principle held, that a man is not permitted to depart from it. This is not a solitary instance in which personal convenience is sacrificed to natural convenience; this is frequently the case, in order to make sure the barriers which protect individual security. It is in this respect that our jurisprudence is chiefly distinguished from the inquisitorial proceedings of former times, where a man might be found guilty of the highest crimes without knowing who were his accusers, witnesses, or judges. It is by this sacred maxim that no man can be put in jeopardy without being confronted by his accusers. And shall we, said he, depart from this principle? Why shall we do this? Because the judgment to be awarded in this case does not extend to person or property? Is the judgment less than if it affected person or property? Gentlemen will not say so. They will say that a man's reputation is the dearest possession which he can enjoy ; and certain he was, that gentlemen who are opposed in opinion to him on this subject would sooner be deprived of their property or personal liberty than lose their fame and reputation. It was, in his opinion, the highest punishment that could be inflicted upon a man of worth. An abandoned profligate, indeed, who holds reputation for nothing, and who conceives he is free if he has the liberty of roaming at large, will not thus consider this punishment; but a virtuous citizen will consider it in the light in which he had presented it, as it places an indelible mark of infamy upon a man, which separates him from the rest of his fellow-citizens, and places an insurmountable barrier between him and all that is fair in character. Yet, gentlemen say this is not a criminal proceeding! Yet, surely, if the punishment is greater for this offence than it is for any other, the proceeding must be considered as criminal. Mr. H. said, it might be very convenient for a man to stay away from the court which tries him. He could conceive instances in which it would be convenient for a man to pay a fine which should be imposed upon him, rather than appear in court. DECEMBER, 1798.] 10 Impeachment of William Blount. nity. [H. OF R. But may it not be conceived that cases may arise the proceeding, but said nothing about its digwhich it would be the greatest hardship to try a man in his absence? And yet, said Mr. H., if this barrier is once broken down, how shall we be able to say, "Thus far shall the departure go, and no farther." We cannot. The greatest abuses may arise from it. He should say nothing in reply to the gentleman from Connecticut, except that wit had little alliance with sense; it is pretty enough, and may serve to amuse us, but never serves to enlighten the subject on which it is used. If a man, who is In this instance, we are told, the process was liable to a penalty of ten pounds, cannot be tried, first left with the wife of Mr. Blount. Suppose cannot plead, except in person, how much more the thing had ended here, could we have said the is this necessary, in a case where all the people of man bad had actual notice? He would have had the United States are prosecutors, where the Senlegal notice, but it could not have been said that ate are the judges, and when a Senator, a person be had received actual notice; but, notwithstand- of the third rank in our Government, is the party ing, the trial might have been proceeded with. In accused? In such a case, the greatest possible this instance, it is true, that the accused had per- solemnity ought to be observed. Ought the pubsonal notice, but the messenger might have re-lic to be suffered to see the foolish spectacle of the turned after he had left the process at his house, so that a man might be tried without knowing of his trial; and the step from this proceeding to that, would not be so great as this is from the esablished practice of our courts. It is an old adage, said Mr. H., that first steps are most difficalt. If this is taken, the succeeding ones would readily follow, which would render our proceed ings, in such cases, the most inquisitorial and tyrannical. I hope, therefore, said Mr. H., the House will adhere to the landmarks of our ancestors, and not, by this new-fangled doctrine, set up our own wavering, deceitful reasonings, in their stead, throwing down the strong barriers which have been set up around the safety of individuals, and the administration of strict justice. It is right, continued he, to adhere to the maxims of experience, though we may not always see the reason upon which they are founded; as counsel argue in court against a precedent, on the ground that the reason' of the thing has ceased to exist; the court invariably say, "no, we do not know this, nor the consequence of departing from established precedent; we choose to walk in the paths of experience, which we know to be safe, and not in new courses, which, for aught we know, may lead to destrucDon." If, said he, we depart from the maxims of experience. we subject ourselves to the dominion of our passions-to revenge on one side, or to favoritism on the other, and our reasonings will lead as this way or that, according to our enmity or affection towards the party accused. It is true, on one day the decision may be in our favor, but it may be against us on the next; and though our favorite be screened to-day, he may to-morrow, when the popular opinion, which is ever varying, shall have changed, be overwhelmed, by this departure from established principle. House of Representatives going up to the Senate from day to day, to try a man who is laughing at them in the State of Tennessee, or the District of Maine? This sort of ridicule ought not to be thrown upon this trial. Does not every one know that one part of the solemnity of such a trial consists in the personal presence of the accused; try him in his absence and you take off three-fourths of its solemnity from the mind of the public. And it was certainly the great design of this trial, to produce a strong effect upon the public mind by making an example of the person accused, by a public trial and degradation; and he believed it would be rendered infinitely less so, if the personal appearance of Mr. Blount be dispensed with. He hoped, therefore, the House would reflect before they adopt an opinion which would go to the entire demolition of the most valuable of our privileges, the sacred barrier of our persons and property against the encroachments of power, and the best means of preventing future malversations of office. Let us not said he, be governed by these new maxims which have overspread and created so much mischief in some parts of the world. It had been the same kind of disregard for experience, and contempt for old establishments, which had produced so much confusion and misery, which we wish to keep from our country. He hoped the most minute part of this mischief would not be suffered to enter in among us. The gentleman from Virginia had spoken of the dignity of this proceeding, as if the report had thas spoken. It, indeed, spoke of the solemnity of Mr. OTIS said, the gentleman from South Carolina had, with his usual eloquence, entertained the House; but, however ably he might have discussed one of the points in dispute, he had altogether eluded the other. Admitting, for the sake of argument, all that he insists on true, yet another important point remains, viz: whether it be incumbent on this House to decide the question, or leave it to the decision of the Senate; and upon this his friend had not thought proper to bestow a single word. If it were desirable to avoid the influence of passion on this question, it would be expedient to avoid the question altogether, and leave it to the decision of those who may be supposed to be less under its influence. And if this question came to be tried before the Senate, he had not a doubt, though his friend from South Carolina thought it his duty to advocate the necessity of the personal appearance of Mr. Blount, the same sense of duty would then induce him to take the contrary side of the question. The gentleman from South Carolina' had said, that the fame and reputation of an individual is more dear to him than his liberty or his life, from which he infers that the common law having so scrupulously guarded individuals from trial in their absence, in this case, also, trial ought not to be had in the absence of Mr. Blount. However H. OF R.} Impeachment of William Blount. [DECEMBER, 1798. I see a peculiar propriety in this House instructing their managers to go forward as prosecutors, and that they appeal to the Senate to compel appearance on the part of the respondent; to go forward and direct that body in what manner to proceed; it is the duty of this House so to do by their dear fame and reputation may be to the gentleman from South Carolina, and he knew they were very dear to him, the law does not consider the matter in the same light. The loss of reputation is not looked upon, in the eye of the law, in the same view with the loss of life or of limb, nor provided with the same severity of punishment. In Eng-resolution. This case is somewhat analogous to land, if a man does not appear, a process of outlawry and fine is issued. In former times, it was lawful for any man to kill persons of this description. Modern times have humanely done away the latter provision; but the outlawry and fine is yet in existence. When a man is indicted, the object of the law is to rescue society from the pernicious effects of his crime, in the way which common law points out. Persons are not to be tried in their absence, as a trial in their absence would be injurious to them, considering that they are generally poor persons, and unable to fee counsel in their absence, and that, therefore, the hand of power might gripe and destroy them. But impeachments are prosecuted in order to purify the National Councils, and to prevent them from being contaminated in future by the re-election of men of infamous character. But if the mode now proposed be taken, the provision might be eluded, by the re-election of the accused person, before judgment could be obtained against him. The gentleman from South Carolina says, that if Mr. Blount does not appear, the effect intended to be produced upon the public mind will be lost; but if he should be again elected to office by the proposed delay, what will be the effect produced on the minds of the people, and upon his judges? Let us not suffer this State criminal, or any other, to escape from any needless attention to form; let us present ourselves before the Senate as the prosecutors, and leave them to decide a question which properly belongs to them. Mr. GORDON said, it seems to have been the principal idea of gentlemen, by their observations, to direct what mode the Senate should pursue in the trial, and not what previous steps should be taken toward proceeding with the trial. It is to direct the managers whether they should take further steps on the trial. It cannot be certain that, when we make the application, the Senate will see proper to proceed agreeably to our request. The situation of the case stands thus: The people of the United States, by their Constitutional organs, accuse Mr. Blount of certain crimes; they have requested that certain steps should be taken in order to bring him to answer; the Senate have complied with the request, and have notified the person, of which they have informed this House, and that he has failed to make his appearance. What is the next step to be taken? Is it not right that this House, as prosecutor, should come forward and take further steps to procure his appearance, in order that the man should appear and process be had? When this process is followed, what is the next proceeding? In an application to common law, if a person is duly summoned and he does not appear to answer the indictment, does the court proceed with the trial? I presume not, a criminal prosecution; and, if it is so considered, then there can be no doubt on the step to be taken; in that case the personal appearance cannot be dispensed with. But it is denied that it is so; if so, consequently, we must pursue a different course. But, what is a criminal prosecution? It is a charge exhibited by the Government against a person for violating the peace, welfare, and dignity of the community; all laws are made for securing that peace, welfare, and dignity to the community, and the offender is tried by them. Now, is not this a charge of that nature? The charge is for high crimes and misdemeanors, and the Senate as the judges are to judge on the degree of crime and punishment in the case. Here is every part which constitutes a criminal trial. The accused, the accusers, and the court-and all competent. We, therefore, maintain this position, that it must be taken entirely in the view of a civil process. It is said, that because the judgment does not act in personam, because it does not punish the man, it is not a criminal process; now, admitting the idea that no other judgment should be rendered that should affect the estate of the person but a disqualification from office, would it not be a punishment to be removed from office, and disqualified from holding any? If this was the only punishment for any offence, according to that doctrine, there would be no criminal code in the United States. It is well known that a person holding an office, during good behaviour, has a freehold in it; it is a freehold estate. Should it, then, be said that a forfeiture of this is not a punishment? It certainly is. Several objections have been made to the report, and most of them resolves itself in this, that it involves inconveniences. It has been also said that, if this mode is pursued in the impeachment, its object would be entirely frustrated, and no judgment could be given on it. These objections, he thought, were made without due consideration. If the present law was insufficient to compel a personal appearance, it did not follow from that, that no law could be made, adequate to the purpose. When the Judiciary law was passed, if it had not provided marshals, &c., for executing it, there might have been the same argument used; but no man would argue, for instance, if a person was tried for his life and convicted, and there had been no law to execute sentence, that the court had not power to order some person to carry that sentence into execution; the same would apply to the present case. The deficiency could be made up by a law, which would answer the end. It had been said that it was not necessary, in civil law, for a person to appear; but the case was dif ferent. The process in civil law was only against property, and not against the person; but there was no analogy in the cases, as this did not affect the property, but the individual. It had been said that, in criminal law, bail was not admitted, but in this case bail had been. It is true, that bail is allowed in misdemeanors, but it is only for appearance, and the court cannot proceed to judgment without the person is present. The law considers that, in that case, bail is sufficient to oblige him to respond to the judgment the court may eventually enter, but, if the party is not there, they do not pronounce judgment; they resort to his bail to get satisfaction. But the gentleman from Connecticut has told us that the Constitution of the United States proceeds from a different principle than any law; that this respects disqualification from office, which is the highest punishment that can be inflicted; and yet, he says, an offence that shall merit the highest punishment that can be, is not criminal, but only civil. What strange doctrine is this! Criminal law, he says, is to rescue a community from the pernicious effects of a man's crimes. And, is not this to rescue the United States from the pernicious effects of such crimes as are charged in the case? It has a great similarity with assault and battery, and yet it must not be termed criminal. Again: we are told that if we do not proceed immediately, if we delay the matter agreeably to the resolution, the person may be eventually discharged. Let us not be so much for the severity of justice as to do away the principle of the law. Such a doctrine as this would lead to this inference, and it may as well be said in the case of a man imprisoned under a charge of murder, this man may elude the law, it may be dangerous to wait for a trial, let us hang him at once. It will be most advisable to go on in the regular way, and if, in the event, it should die away, we should avoid what is, in my mind, much worse, and be at least right in the view of jurisprudence. Upon these ideas, he thought there was sufficient ground for the present application, and particularly if the case can be considered in the view of criminal. Sir, as the process now seems going on, I will suppose the case of a person appearing by his attorney. It is a principle regularly established by courts of law, that a confession regularly made by an attorney, in his absence, should bind him to all intents and purposes the same as though made by himself; and, where answer is made, it does not include him in that suit, but in any other to which they may relate. Now, let me suppose that there was an individual arraigned before the bar of the Senate for high treason; that this individual wished to appear by his attorney, and is heard by attorney, (which I shall take for granted ;) the attorney comes in and confesses that he is guilty of the crime. I ask, whether the confession would not be taken as conclusive evidence? On the principle of common law it would be, if I know anything of the operation of confession. If this is the consequence of confession by attorney, it must strike a person with abhorrence! That the life of a person should be trusted to an attorney [H. OF R. Who shall say whether a person arraigned for so high a crime is guilty or not? Again: suppose an attorney should undertake, whether he is authorized or not, to appear and plead in the absence of a person indicted, (and such a thing is possible,) he undertakes to personate him, and pleads for him, as he is entitled to do; may not such a one have an evil design in that case? It is possible. If, therefore, such a thing was to be done in the present case, can there be compensation for a judgment which would render this person infamous in the eyes of his fellow-citizens, and remove him from office as well as disqualify him in future? There cannot possibly. I might go on to point out a great variety of inconveniences more, which might attend this neglect, but shall submit those I have mentioned. I do not conceive that great inconveniences can arise from the measure, as a law can be made to secure its effects, and remedy evils which may otherwise be apprehended. That if, after he is informed of its contents, he does not appear, it shall be taken for granted the facts are true, and judgment be had accordingly. But the Constitution of the United States speaks of a judgment which shall be rendered in case of conviction, and further adverts to common law, but it does not define what other judgment shall be rendered after the impeachment is closed. The Senate have their limits prescribed, beyond which they cannot go, although they may come short; they may only pass censure upon a person impeached, but the judgment may be removable. Upon the whole, he did not think it would be consistent with the dignity the Legislature ought to observe in the trial of a citizen, if the personal appearance was dispensed with, and therefore he hoped the resolution would be concurred in. Mr. EDMOND said that, upon reading the resolution, it appeared to him to import that the prosecution could not proceed unless the Senate compelled the man to make his personal appearance. It is my opinion that the prosecution might go on whether he is brought into court or not. I do not pretend to say what has been the jurisprudence of Great Britain, because it appears to me that very little analogy can exist between a trial before the Senate, and an impeachment in England. In order to discover its powers, we ought to inquire how this court is constituted, and then what are the crimes or offences that may be brought before this court, and then what is the mode of procedure in this court, and see, for it is laid down in the Constitution, a direction which is obligatory on us. The Constitution says, that the Senate shall have the sole power to try all impeachments, and they should be on oath before they be constituted into that court, &c. [Here he read the direction in the Constitution.] The court is to be the Senate; they are on oath; the penalty is, removal from office; at the same time it takes care to point out that this court shall not extend to affect any criminal procedure that may be had against the party for the same offence; ít has carefully drawn a line here. It goes on to point out the objects that can be brought before H. OF R.] Impeachment of William Blount. [DECEMBER, 1798. this court-the President, Vice President, and we contend with submission, that this difficulty civil officers; the crimes are, for treason, bribery, is carefully avoided, and this court as carefully and other high crimes and misdemeanors. The established on the proceeding of common law, and mode of trial appears at the first blush to be differ- that it ought to be guided in conformity to that rule ent from all other courts, as no jury can here be as established in the United States. If they do not allowed, but it shall have no relation to any criminal conform to the common law, it is an injury to prosecution on the same subject. If, as the gen- the party accused, because I do not know any way tleman from South Carolina declares, this amounts by which their judgment can be set aside. It is to a criminal case, what would be the conse- for this reason that the managers wish for inquence ? It must be determined a criminal case, struction from the House; if the House should or it must not; if so, it has attached to it all the think fit to agree with the motion, it will so far rules relevant to a criminal court. If I agree meet their wishes. I feel very anxious that the with the gentleman, what will be the result? It responsibility of proceeding should not rest upon will be that a second prosecution in common law the managers. It appears now that the Senate is permitted by the Constitution; in all other cases have instituted rules for the proceeding with the a man shall not be put in jeopardy twice for the trial, which, in my opinion, are contrary to comsame crime; but it appears clear that the offences mon law. We find they have established it acto come before this court are different from offences cording to the rule of their court, that not the in common law, and the mode different; it takes person himself should answer, but the person who away the privilege of a trial by jury, because it comes as his counsel should say whether he is or is a political crime, and his political privileges are is not guilty. Is there any court of law the same taken away by disqualification, &c. And, as in case in this respect? What may be the conduct of his of a trial for high treason, the privilege of a jury counsel we do not know. is taken away, the Constitution wisely ordains that two witnesses shall be necessary in such overt acts. In that case would depositions be admitted? Would not they compel the accused to look the accuser in the face? But, sir, a difficulty may occur agreeably to the construction of the gentleman, which would not easily be surmounted; suppose the President, or Vice President, or one of our Judges, should be guilty of treason, and, in such a case, no doubt he would fly; suppose he goes to another country; he is still your President; if then you cannot proceed to try him in his absence, we are in the disagreeable situation of having our President in another country, and guilty of treason, and he cannot be brought to trial! Is this fact, that a want of power in our Government shall screen the guilty from punishment? It is true, we ought to give every privilege the nature of the case will admit, to a person impeached, but not such as will defeat the law. Was this to be law, the case would be, that so long as he could keep himself from being taken, he would be safe; but, from the impropriety and attendant difficulties of the motion, I hope it will not pass. Mr. SEWALL said, the gentleman last up endeavored to get rid of the difficulty by stating the nature of the court by which the impeachment was to be tried; that it arose from the Constitution; that its powers were defined, or limited. He appeared to conceive that this court is above all law and rule of proceeding that can arise in the community; that there is no law by which this court is to regulate its proceedings, and they, having the sole power to try, have no rule, but their own opinion, to say whether the party is before them or not. If they really are so exalted a body, I shall not be sorry if this impeachment fail, but I shall if any other ever does occur. For, if the judgment of this court can go to the destruction of fame and character, it will be in a dangerous situation; this seems to be the bent of the gentleman's arguments; but, on the other hand, My colleague (Mr. Oris) has been very anxious to prove that we have been trying before a wrong court; he says we ought to wait the objections on his part by his counsel. That gentleman ought to know that the court is bound to say that it proceeds according to courts of law. What may be the consequence of dispensing with his presence? The counsel for William Blount, being learned men in the law, may take advantage of every proceeding of this kind; they appear in court for William Blount; they conceive he is not guilty; but if, contrary to their expectations, facts should be proved to fix his guilt, they then come forward and say, our client is not here in person, he not being here in person, your honors say he is guilty, we move an arrest of judgment; we forbid any judgment being entered, as, agreeably to our law, he must be present. But the position may come forward, that he was not tried in the common way; were I one of that counsel, I should declare that judgment and conviction so obtained was contrary to the common law, and, therefore, I should be for avoiding it by any action that I could; I should conduct myself exactly as I would in a case of common law. I would observe again, that this House ought not to consider themselves as prosecutors, by the rule of law, or without the rule of law. We come forward for the whole community; why, then, should we attempt to obtain judgment in any other way than we would if it was before any other law body instead of the Senate? If the Senate are to act contrary to every other court, then the gentlemen are right in their opinion, but they cannot. The gentleman has supposed that impeachment and criminal law are subject to distinction, because the Constitution has provided that, notwithstanding the impeachment, a trial at common law may be had; he, therefore, supposes that if this is criminal the other is unnecessary. I understand, then, that this being a criminal proceeding, should not be a bar to other proceedings, because the |
