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[DECEMBER, 1798 or held by efficient bail; and when bail is refused, can be found, neither in this country nor in tha it is where it does not afford a sufficient security from which we have drawn the principles of our Is any such security required in this case, asked jurisprudence, where no punishment like the one Mr. Ď.? There is not. The process would be a contemplated in our Constitution was ever imarare one, if the party were required to appear. It gined, the argument has no weight. Mr. H. denied would be to say, that the moment the person ac- the principle upon which this personal appearance cused, and in custody, is found guilty, that moment is required. It had been the practice, from the he shall be at liberty ; but in all the previous earliest records of our jurisprudence to the present stages of the prosecution, he shall be a close pris time, that a man shall never be tried in his absence oner. If such a man wished, therefore, for his for a criminal offence. Gentlemen say the reason liberty, he must wish to be found guilty as soon of this is, that he may be ready to receive judg as possible. Is it possible, then, said Mr. D., that ment. If so, it would be foolish, because the cour this could be a proper course to be pursued ? that might direct the person of a criminal to be brought it can be right to bring a man thus charged before before them to receive sentence, as well as they the court, that he may be found guilty, in order could do it before his trial. What, then, said he. that he may afterwards smile at the impotency of is the reason? Ask the great sages of the Eng. its vengeance? The Constitution, continued Mr. lish law, and they will give an answer very difD., has proceeded on a different principle. The ferent from his learned friends. They will say process in cases of impeachment, in this country, that it is because a man ought always to be face is distinct from either civil or criminal-it is a to face with his judges and accusers; that no political process, having in view the preservation witness ought to be heard against a man, or his of the Government of the Union. Impeachments life or property put in jeopardy, without his perunder the British Government are wholly differ sonal presence; and so sacred is the principle held, ent from impeachments carried on under this Gov- that a man is not permitted to depart from it. This ernment. The Constitution proceeds on the high is not a solitary instance in which personal conveauthority of public opinion and of the high value nience is sacrificed to natural convenience; this is of reputation to every man who is a candidate for frequently the case, in order to make sure the barpublic office, and that the declaration of public riers which protect individual security. It is in reprobation, expressed by the Constitutional organ, this respect that our jurisprudence is chiefly distinis one of the severest punishments. It considers guishod from the inquisitorial proceedings of forthat the punishment of fine and imprisonment may mer times, where a man might be found guilty of be endured, but that public abhorrence is not to the highest crimes without knowing who were his be borne.
accusers, witnesses, or judges. It is by this sacred The punishment in this case, therefore, is wholly maxim that no man can be put in jeopardy witha declaration of public opinion, not only that the out being confronted by his accusers. And shall person receiving it has proved himself unworthy we, said he, depart from this principle? Why of his present office, but that there is such a base shall we do this? Because the judgment to be ness attached to his character as to render him awarded in this case does not extend to person or unfit for any office in future. Taking the matter property? Is the judgment less than if it affected up in this view, the propriety of not considering person or property? Gentlemen will not say so. the offence as criminal will clearly appear. Were They will say that a man's reputation is the dearthe offence to be considered as a crime, merely, est possession which he can enjoy; and certain he the judgment of the court should involve the was, that gentlemen who are opposed in opinion whole punishment; whereas, it has no connexion to him on this subject would sooner be deprived with punishment or crime, as, whether a person of their property or personal liberty than lose their tried under an impeachment be found guilty or ac- fame and reputation. It was, in his opinion, the quitted, he is still liable to a prosecution at com- highest punishment that could be inflicted upon mon law. This process, therefore, is perfectly sui a man of worth. An abandoned profligate, indeed, generis-equally unknown to the British Govern- who holds reputation for nothing, and who conment or to this country.
ceives he is free if he has the liberty of roaming Upon this view of the subject, Mr. D. said his at large, will not thus consider this punishment; opinion was, that the House ought to instruct the but a virtuous citizen will consider it in the light managers, but in a way directly opposite to that in which he had presented it, as it places an indeliproposed by the resolution under consideration. ble mark of infamy upon a man, which separates
Mr. Harper allowed it would be very difficult him from the rest of his fellow-citizens, and places to answer the challenge thrown out by the gentle- an insurmountable barrier between him and all man from Connecticut, to produce an instance in that is fair in character. Yet, gentlemen say this which a man, tried for an offence, the punishment is not a criminal proceeding! Yet, surely, if the for which does not extend to his person or pro- punishment is greater for this offence than it is for perty, is required to appear in person ; for, before any other, the proceeding must be considered as the present Constitution, no such case existed; criminal. and, at present, there is none such but what is con- Mr. H. said, it might be very convenient for a tained in the Constitution. But every punishment man to stay away from the court which tries him. under the common law affects either a man's per- He could conceive instances in which it would be son or property, as they are the only punishments convenient for a man to pay a fine which should to be had. Admitting, therefore, that no such case be imposed upon him, rather than appear in court.
Impeachment of William Blount.
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arise from it.
But may it not be conceived that cases may arise the proceeding, but said nothing about its dig
which it would be the greatest hardship to try nity. a man in his absence? And yet, said Mr. H., if He should say nothing in reply to the gentlethis barrier is once broken down, how shall we be man from Connecticut, except that wit had little able to say, “ Thus far shall the departure go, and alliance with sense; it is pretty enough, and may farther." We cannot. The greatest abuses 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
bad bad 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 he 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 be had left the process at his house, House of Representatives going up to the Senate so that a man might be tried without knowing of from day to day, to try a man who is laughing at bis trial; and the step from this proceeding to them in the State of Tennessee, or the District of that would not be so great as this is from the es- Maine? This sort of ridicule ought not to be tablished practice of our courts. It is an old thrown upon this trial. Does not every one know adage, said Mr. H., that first steps are most diffi- that one part of the solemnity of such a trial conealt. If this is taken, the succeeding ones would sists in the personal presence of the accused ; try readily follow, which would render our proceed- him in his absence and you take off three-fourths ings, in such cases, the most inquisitorial and ty- of its solemnity from the mind of the public. And rannical. I hope, therefore, said Mr. H., the House it was certainly the great design of this trial, to will adhere to the landmarks of our ancestors, and produce a strong effect upon the public mind' by bot. by this new-fangled doctrine, set up our own making an example of the person accused, by a parering. deceitful reasonings, in their stead, public trial and degradation ; and he believed it throwing down the strong barriers which have been would be rendered infinitely less so, if the personset up around the safety of individuals, and the al appearance of Mr. Blount be dispensed with. administration of strict justice. It is right, con- He hoped, therefore, the House would reflect betunded he, to adhere to the maxims of experience, fore they adopt an opinion which would go to the bough we may not always see the reason upon entire demolition of the most valuable of our privwhich they are founded ; as counsel argue in court ileges, the sacred barrier of our persons and propagainst a precedent, on the ground that the reason' erty against the encroachments of power, and the of the thing has ceased to exist; the court invari- best means of preventing future malversations of ably say, “ no, we do not know this, nor the conse- office. quence of departing from established precedent; Mr. Otis said, the gentleman from South CaroHe choose to walk in the paths of experience, lina had, with his usual eloquence, entertained the which we know to be safe, and not in new courses, House; but, however ably he might have diswhich, for aught we know, may lead to destruc- cussed one of the points in dispute, he had alto100." If
, said he, we depart from the maxims of gether eluded the other. Admitting, for the sake experience, we subject ourselves to the dominion of argument, all that he insists on true, yet another of our passions—to revenge on one side, or to fa- important point remains, viz: whether it be inForitism on the other, and our reasonings will lead cumbent on this House to decide the question, or as this way or that, according to our enmity or leave it to the decision of the Senate ; and upon affection towards the party accused. It is true, on this his friend had not thought proper to bestow one day the decision may be in our favor, but it a single word. If it were desirable to avoid the may be against us on the next; and though our influence of passion on this question, it would be favorite be screened to-day, he may to-morrow, expedient to avoid the question altogether, and when the popular opinion, which is ever varying, leave it to the decision of those who may be supshall have changed, be overwhelmed, by this de- posed to be less under its influence. And if this parture from established principle.
question came to be tried before the Senate, he Let us not said he, be governed by these new had not a doubt, though his friend from South marins which have overspread and created so Carolina thought it his duty to advocate the nenuch mischief in some parts of the world. It had cessity of the personal appearance of Mr. Blount, been the same kind of disregard for experience, the same sense of duty would then induce him to and contempt for old establishments, which had take the contrary side of the question. produced so much confusion and misery, which The gentleman from South Carolina' had said, we wish to keep from our country. He hoped that the fame and reputation of an individual is the most minute part of this mischief would not more dear to him than his liberty or his life, from be suffered to enter in amoog us.
which he infers that the common law having so The gentleman from Virginia had spoken of scrupulously guarded individuals from trial in the dignity of this proceeding, as if the report had their absence, in this case, also, trial ought not to thas spoken. It, indeed, spoke of the solemnity of be had in the absence of Mr. Blount. However
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Impeachment of William Blount.
dear fame and reputation may be to the gentleman I see a peculiar propriety in this House instructfrom South Carolina, and he knew they were very ing their managers to go forward as prosecutors, dear to him, the law Joes not consider the matter and that they appeal to the Senate to compel apin the same light. The loss of reputation is not pearance on the part of the respondent; to go forlooked upon, in the eye of the law, in the same ward and direct that body in what manner to proview with the loss of life or of limb, nor provided ceed; it is the duty of this House so to do by their 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 out- a criminal prosecution; and, if it is so considered, lawry and fine is issued. In former times, it was then there can be no doubt on the step to be taken; lawful for any man to kill persons of this descrip- in that case the personal appearance cannot be distion. Modern times have humanely done away pensed with. But it is denied that it is so; if so, the latter provision ; but the outlawry and fine is consequently, we must pursue a different course
. yet in existence.
But, what is a criminal prosecution? It is a charge When a man is indicted, the object of the law exhibited by the Government against a person for is to rescue society from the pernicious effects of violating the peace, welfare, and dignity of the his crime, in the way which common law points community; all laws are made for securing that out. Persons are not to be tried in their absence, peace, welfare, and dignity to the community, and as a trial in their absence would be injurious to the offender is tried by them. Now, is not this a them, considering that they are generally poor charge of that nature? The charge is for high persons, and unable to fee counsel in their ab- crimes and misdemeanors, and the Senate as the sence, and that, therefore, the hand of power judges are to judge on the degree of crime and might gripe and destroy them. But impeach-punishment in the case.
Here is every part ments are prosecuted in order to purify the Nation which constitutes a criminal trial. The accused, al Councils, and to prevent them from being con- the accusers, and the courl-and all competent. taminated in future by the re-election of men of We, therefore, maintain this position, that it infamous character. But if the mode now pro- must be taken entirely in the view of a civil proposed be taken, the provision might be eluded, by cess. the re-election of the accused person, before judg- It is said, that because the judgment does not ment could be obtained against him. The gentle act in personam, because it does not punish the man from South Carolina says, that if Mr. Blount man, it is not a criminal process; now, admitting does not appear, the effect intended to be produced the idea that no other judgment should be renderupon the public mind will be lost; but if he shoulded that should affect the estate of the person but be again elected to office by the proposed delay, a disqualification from office, would it not be a what will be the effect produced on the minds of punishment to be removed from office, and disthe people, and upon his judges ? Let us not suf- qualified from holding any ? If this was the only fer this State criminal, or any other, to escape punishment for any offence, according to that docfrom any needless attention to form ; let us pre- trine, there would be no criminal code in the sent ourselves before the Senate as the prosecut- United States. It is well known that a person ors, and leave them to decide a question which holding an office, during good behaviour, has a properly belongs to them.
freehold in it; it is a freehold estate. Should it, Mr. Gordon said, it seems to have been the then, be said that a forfeiture of this is not a punprincipal idea of gentlemen, by their observations, ishment? It certainly is. to direct what mode the Senate should pursue in Several objections have been made to the report, the trial, and not what previous steps should be and most of them resolves itself in this, that it intaken toward proceeding with the trial. It is 10 volves inconveniences. It has been also said direct the managers whether they should take fur- that, if this mode is pursued in the impeachment, ther steps on the trial. It cannot be certain that, its object would be entirely frustrated, and no judgwhen we make the application, the Senate will ment could be given on it. These objections, he see proper to proceed agreeably to our request. thought, were made without due consideration. If The situation of the case stands thus: The peo- the present law was insufficient to compel a perple of the United States, by their Constitutional sonal appearance, it did not follow from that, that organs, accuse Mr. Blount of certain crimes; they no law could be made, adequate to the purpose. have requested that certain steps should be taken When the Judiciary law was passed, if it had not in order to bring him to answer; the Senate have provided marshals, &c., for executing it, there complied with the request, and have notified the might have been the same argument used; but no person, of which they have informed this House, man would argue, for instance, if a person was and that he has failed to make his appearance. tried for his life and convicted, and there had been What is the next step to be taken ? Is it not right no law to execute sentence, that the court had that this House, as prosecutor, should come for- not power to order some person to carry that senward and take further steps to procure his appear-tence into execution; the same would apply to ance, in order that the man should appear and the present case. The deficiency could be made process be had? When this process is followed, up by a law, which would answer the end. It what is the next proceeding? In an application had been said that it was not necessary, in civil to common law, if a person is duly summoned and law, for a person to appear; but the case was difhe does not appear to answer the indictment, does ferent. The process in civil law was only against the court proceed with the trial ? I presume not. I property, and not against the person ; but there
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was no analogy in the cases, as this did not affect Who shall say whether a person arraigned for so the property, but the individual. It had been said high a crime is guilty or not? that, in criminal law, bail was not admitted, but Again : suppose an attorney should undertake, in this case bail had been. It is true, that bail is whether he is authorized or not, to appear and allowed in misdemeanors, but it is only for ap- plead in the absence of a person indicted, (and pearance, and the court cannot proceed to judg- such a thing is possible.) he undertakes to personment without the person is present. The law con- ate him, and pleads for him, as he is entitled to do; siders that, in that case, bail is sufficient to oblige may not such a one have an evil design in that him to respond to the judgment the court may case? It is possible. If, therefore, such a thing eventually enter, but, if the party is not there, was to be done in the present case, can there be they do not pronounce judgment; they resort to compensation for a judgment which would render his bail to get satisfaction.
this person infamous in the eyes of his fellow-citiBut the gentleman from Connecticut has told zens, and remove him from office as well as disus that the Constitution of the United States pro- qualify him in future? There cannot possibly. ceeds from a different principle than any law; that I might go on to point out a great variety of this respects disqualification from office, which is inconveniences more, which might attend this the highest punishment that can be inflicted; and neglect, but shall submit those I have mentioned. yet, he says, an offence that shall merit the high- I do not conceive that great inconveniences can est punishment that can be, is not criminal, but arise from the measure, as a law can be made to only civil. What strange doctrine is this ! Crim- secure its effects, and remedy evils which may inal law, he says, is to rescue a community from otherwise be apprehended. That if, after he is inthe pernicious effects of a man's crimes. And, is formed of its contents, he does not appear, it shall not this to rescue the United States from the per- be taken for granted the facts are true, and judg. nicious effects of such crimes as are charged in ment be had accordingly. the case? It has a great similarity with assault But the Constitution of the United States speaks and battery, and yet it must not be termed crim- of a judgment which shall be rendered in case of inal.
conviction, and further adverts to common law, Again: we are told that if we do not proceed but it does not deline what other judgment shali immediately, if we delay the matter agreeably to be rendered after the impeachment is closed. The the resolution, the person may be eventually dis- Senate have their limits prescribed, beyond which charged. Let us not be so much for the severity they cannot go, although they may come short; of justice as to do away the principle of the law. they may only pass censure upon a person imSuch a doctrine as this would lead to this infer- peached,' but the judgment may be removable. ence, and it may as well be said in the case of a Upon the whole, he did not think it would be man imprisoned under a charge of murder, this consistent with the dignity the Legislature ought man may elude the law, it may be dangerous to to observe in the trial of a citizen, if the personal wait for a trial, let us hang him at once. It will appearance was dispensed with, and therefore he be most advisable to go on in the regular hoped the resolution would be concurred in. way, and if, in the event, it should die away, Mr. Edmond said that, upon reading the resowe should avoid what is in my mind, much lution, it appeared to him to import that the prosworse, and be at least right in the view of juris- ecution could not proceed unless the Senate comprudence. Upon these ideas, he thought there pelled the man to make his personal appearance. was sufficient ground for the present application, it is my opinion that the prosecution might go on and particularly if the case can be considered in whether he is brought into court or not. I do not the view of criminal.
pretend to say what has been the jurisprudence Sir, as the process now seems going on, I will of Great Britain, because it appears to me that suppose the case of a person appearing by his at- very little analogy can exist between a trial betorney. It is a principle regularly established by fore the Senate, and an impeachment in England. courts of law, that a confession regularly made by In order to discover its powers, we ought to inan attorney, in his absence, should bind him to all quire how this court is constituted, and then intents and purposes the same as though made by what are the crimes or offences that may be himself; and, where answer is made, it does not brought before this court, and then what is the include him in that suit, but in any other to which mode of procedure in this court, and see, for it is they may relate. Now, let me suppose that there laid down in the Constitution, a direction which was an individual arraigned before the bar of the is obligatory on us. The Constitution says, that. Senate for high treason; that this individual the Senate shall have the sole power to try all imwished to appear by his attorney, and is heard by peachments
, and they should be on oath before attorney, (which I shall take for granted ;) the they be constituted into that court, &c. [Here attorney comes in and confesses that he is guilty he read the direction in the Constitution.] The of the crime. I ask, whether the confession would court is to be the Senate ; they are on oath; the not be taken as conclusive evidence ?. On the penalty is, removal from office; at the same time principle of common law it would be, if I know it takes care to point out that this court shall not anything of the operation of confession. If this extend to affect any criminal procedure that may is the consequence of confession by attorney, it be had against the party for the same offence; it must strike a person with abhorrence! That the has carefully drawn a line here. It goes on to life of a person should be trusted to an attorney : point out the objects that can be brought before H. OF R.]
Impeachment of William Blount.
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 ileman 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 conimon 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 My colleague (Mr. Otis) has been very anxious that two witnesses shall be necessary in such overt to prove that we have been trying before a wrong acts. In that case would depositions be admitted ? court; he says we ought to wait the objections on Would not they compel the accused to look the ac- his part by his counsel. That gentleman ought cuser in the face?
to know that the court is bound to say that it proBut, sir, a difficulty may occur agreeably to the ceeds according to courts of law. What may be construction of the gentleman, which would not the consequence of dispensing with his presence ? easily be surmounted ; suppose the President, or The counsel for William Blount, being learned Vice President, or one of our Judges, should be men in the law, may take advantage of every guilty of treason, and, in such a case, no doubt he proceeding of this kind; they appear in court for would fly; suppose he goes to another country; William Blount; they conceive he is not guilty; he is still your President ; if then you cannot pro- but if, contrary to their expectations, facts should ceed to try him in his absence, we are in the dis- be proved to fix his guilt, they then come forward agreeable situation of having our President in an- and say, our client is not here in person, he not beother country, and guilty of treason, and he can- ing here in person, your honors say he is guilty, not be brought to trial! 'Is this fact, that a want we move an arrest of judgment; we forbid any of power in our Government shall screen the judgment being entered, as, agreeably to our law, guilty from punishment? It is true, we ought to he must be present. But the position may come give every privilege the nature of the case will forward, that he was not tried in the common way; admit, to a person impeached, but not such as will were I one of that counsel, I should declare that defeat the law. Was this to be law, the case judgment and conviction so obtained was contrawould be, that so long as he could keep himself ry to the common law, and, therefore, I should be from being taken, he would be safe; but, from the for avoiding it by any action that I could; I should impropriety and attendant difficulties of the mo- conduct myself exactly as I would in a case of comtion, I hope it will not pass.
mon law. Mr. Sewall said, the gentleman last up endea- I would observe again, that this House ought vored to get rid of the difficulty by stating the not to consider themselves as prosecutors, by the nature of the court by which the impeachment rule of law, or without the rule of law. We come was to be tried ; that it arose from the Constitu- forward for the whole community; why, then, tion; that its powers were defined, or limited. should we atternpt to obtain judgment in any He appeared to conceive that this court is above other way than we would if it was before any all law and rule of proceeding that can arise in other law body instead of the Senate? If the Senthe community; that there is no law by which ate are to act contrary to every other court, then this court is to regulate its proceedings, and they, the gentlemen are right in their opinion, but they having the sole power to try, have no rule, but cannot. their own opinion, to say whether the party is be- The gentleman has supposed that impeachment fore them or not. If they really are so exalted a and criminal law are subject to distinction, bebody, I shall not be sorry if this impeachment cause the Constitution has provided that, notwithfail, but I shall if any other ever does occur. For, standing the impeachment, a trial at common law if the judgment of this court can go to the de- may be had; he, therefore, supposes that if this is struction of fame and character, it will be in a criminal the other is unnecessary. I understand, dangerous situation; this seems to be the bent of the then, that this being a criminal proceeding, should gentleman's arguments; but, on the other hand, not be a bar to other proceedings, because the