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H. OF R.]

Case of Randall and Whitney.

[JANUARY, 1796.

M. would rejoice in the ingenuity of any lawyer who should discover that all the House were in the same predicament.

FRIDAY, January 1, 1796.

different when the circumstances occurred in another place; and Mr. T. was convinced that the charge ought to be sworn to. The passage under amendment was in these words: "That it should It was then moved to adjourn. The motion be reduced to writing ;" and the dispute was about was negatived. Another amendment was proadding the words, "and sworn to." Mr. T., though posed, and, after a few words, withdrawn. A for examining the members on oath as to the member next proposed that when this House adcharge against Randall, was opposed to the amend-journ, it shall be till Monday next. Negatived. ment as useless, because the members must, in his The House then, without coming to any decision, opinion, be sworn when Randall is brought to the adjourned till to-morrow. bar. The mere declaration of a prosecutor, not under oath, and of a defendant in the same situation, are equally exceptionable. A phrase had A letter from Mr. Charles Petit to the SPEAKER, been repeatedly used which Mr. T. did not understand. It was said that a member was entitled was read by the Clerk. Mr. Petit stated that he was the surviving partner of the late Major Gen"to stand up in his place" and give information eral Greene and Mr. John Coxe, in the office of so and so. With the meaning of this expression Quartermaster General. There was enclosed a Mr. T. was unacquainted, nor did he know any long memorial to the House, to which he requestlaw which authorized the imprisonment of a fel-ed particular attention. The memorial was read, low-citizen on a mere charge unsupported by oath and ordered to lie on the table. He did not see the use of the amendment. but he was clearly satisfied that members ought to be examined and sworn touching their accusations, as well as any other persons.

CASE OF RANDALL AND WHITNEY. The House proceeded in the consideration of the report of the Committee of Privileges. The report was read.

Mr. NICHOLAS was not, in this instance, for departing from the principles of Common Law. In- Mr. BALDWIN remarked, that the discussions of stead of supporting the dignity of the House, yesterday had served to convince him more and about which so much has been spoken, he was more that the plan proposed by the Committee of afraid that, by arrogating too much on the side of Privileges, in their first report, was the most eliprivilege, they might lessen their dignity. He gible that could be adopted; and, he added, that declared, upon his honor, that he thought the gen- the further the House proceeded in the business, tlemen concerned should, for their own sakes, in- as they did yesterday, the more they would be sist on being cross-examined by the prisoner and convinced of the necessity of referring the ultehis counsel. To be cross-examined implies no re-rior proceedings to a select committee. After the flection on a witness. The imperfection of human nature requires such a precaution, and were Mr. N. a party, he would insist on being cross-examined. The proposed amendment would narrow the business too much. It would be better to lay it aside, and let the members be, as above proposed, subject to cross-examination from the prisoner.

Mr. MADISON said, that when Randall came to the bar he would possibly save all this trouble, by confessing his guilt, and casting himself on the mercy of the House. He mentioned an anecdote of a Judge who had been publicly insulted. He informed his brethren of the Bench, and, on his complaint, the offender was apprehended. When he was brought before the Court the oath was administered to the Judge. Mr. M. related this story to show the propriety of every accusation being sworn to, whatever may be the rank or situation of the accuser.

The motion for amendment was withdrawn. Mr. SEDGWICK hoped that the members would be sworn and cross-examined. He was decidedly of opinion that this ought to be the case.

Mr. MURRAY said, that if the House were not defensible on the doctrine of privilege, where would an authority be found for what they had already done? We all know, and we all knew at the time of committing Randall, that it was done without any support from law. By carrying this reasoning to its utmost length, the SPEAKER might be liable in an action of damages; and Mr.

House have had the parties before them, interrogatories have been proposed and answered, the prisoners do not plead guilty, and yet there appears to be cause of retaining them in custody. He was convinced that the select committee was alone competent to taking and arranging the evidence for the decision of the House. Mr. B. concluded his remarks by moving that the further consideration of the report of the Committee of Privileges should be postponed till Thursday next. If that was agreed to, he should then move for a select committee.

Mr. HILLHOUSE stated a variety of objections to a reference to a select committee. He supposed it highly improper for the witnesses to be sworn by a select committee, and that committee to send for the members and have them sworn and examined in that private way. However troublesome and difficult, the House must meet all the questions and decide them on this floor. He insisted that the practice of the House did not justify a reference to a select committee of a business of this magnitude. Adverting to the debate of yesterday, relative to the members being under oath, he said that he was opposed to the measure. The great and important interests of the citizens of the United States are committed to the wisdom of the members of this House, and they are under a solemn oath for the faithful discharge of their duty; and, therefore, the declaration of the members, as such, is entitled to full and entire credit.

JANUARY, 1796.J

Case of Randall and Whitney.

Mr. W. SMITH said, that the objections of the gentleman from Connecticut are contrary to the daily practice of the House. The investigation of facts is constantly performed by select committees, and he saw no force in the remarks of the gentleman relative to a private investigation. The prisoners will be attended by their counsel, and, as to the members of the House, the committee can take no measures which are not sanctioned by the House. Mr. S. cited several incidents in the precedents of the House, to show that equally important cases had been referred to select committees. The report is not to be final, it is to be submitted to the House for a final decision. Mr. S. remarked that he supposed a select committee would be appointed which would not include any of the members who had given information to the House on the subject.

[H. OF R.

tle reprimand for your indiscretion. But, if you fail in this, we will put it out of your power, during the session, to insult the members with your rascally proposals. A dozen lawyers may attend him, pocket his money, and walk away at their leisure. I have no objection, if they do but keep silence whilst they are here.

Mr. SHERBURNE said, that, if the gallery had been cleared before the affair of Randall and Whitney was first brought before the House, he would have been ready to consent to a private examination before a select committee; but the charge was made in the face of the world, and hence a citizen of America was entitled to an open trial. Alluding to the speech of Mr. Isaac SMITH, Mr. SHERBURNE thought it highly injurious to presume any man guilty, because he had been accused by members of the House. What is it to Randall who are the accusers, what are their characters, or whether they are members of this House or not? We talk about the dignity of the House-the rights of our fellow-citizens are equally entitled to respect and attention. What a doctrine has been held up to-day! That a man is guilty, because he has been accused by members of this House! No, sir: every man is presumed innocent till he is proved guilty. Mr. S. concluded by wishing that the doors had been shut when the subject was first introduced.

Mr. ISAAC SMITH next rose, and spoke as follows: I will take up the subject where we left it yesterday. Debates have run into length and perplexity on this occasion, which, I presume, has been owing to our ideas running too much in the legal line. We seem to consider ourselves as bound by the rules and usages of Common Law Courts. If we are, I am free to say that we have begun wrong, we have progressed wrong, and we will end wrong. The rules and usages of Law Courts arise from, and are founded upon, pre-existing laws. Here there is no preceding law, and, therefore, whatever we have done, or shall do, is a mere nullity. Shall we then give up this busi-save a good deal of time. ness as impracticable? No. We will assert the privilege of this House. And what is this privilege? Perhaps it never has been defined, nor its extent and limits ascertained; perhaps it never ought. The Parliament of Great Britain has studiously avoided the discussion. But I will presume to assert that it is a necessary and competent power lodged in this House, ex necessitate rei, by which we are enabled to defend ourselves against insult from within and contamination from without; and this power is to be exercised at the discretion of the House, and is bound by no rules but what arise from common sense and common justice. Shackle it by standing regulations and it is no longer discretion, it is law. Every case that occurs must stand on its own bottom, and be determined according to attendant circumstances.

Mr. MURRAY recommended that the subject should be remanded to a committee, which would

My opinion, therefore, and I do assure you, sir, I speak with great diffidence, but my duty compels it is this: that Randall be brought to the bar of this House; that it be demanded of him whether he is guilty of the facts he has already been charged with? He no doubt will say, No, I am not guilty. In reply, I would say to him, sir, I do not believe one word you say, for several honorable members have solemnly declared that you are guilty; and what you have now to do, and all you have to do, is to convince the House, if you can, that, although your conduct was crime, still you are not criminal, because your motives were not corrupt, and your intentions were pure, and you offended merely from ignorance. Then you may, perhaps, meet with a gen

Mr. SHERBURNE.-When we speak of privileges of the House, it seems a word of cabalistic meaning. Will any gentleman define or point out these privileges? In what book of the laws are they written? If they are indefinite, we may come to be hereafter as irregular as a Convention, and our sentences as dreadful as those of a revolutionary tribunal. The latter, when they thought fit, refused to hear the evidence of a prisoner, under pretence that they had already conveyed to their minds a sufficient conviction of his guilt, and he was instantly hurried off to the scaffold. It seemed that this allusion referred to the idea of a gentleman from New Jersey, that because Randall had been accused by members of that House, the House were authorized to conclude him guilty. The term of leges non scriptæ had been used by the gentleman last up as to the privileges of the House. The phrase, Mr. S. thought, to be derived from the first Constitutional Assembly of France. They had applied it, along with the word inviolability, to Louis XVI., and soon after cut off his head. They had declared that he, like the King of England, could do no wrong. We have no such officers, thank God, in America, and Mr. S. hoped that we never should have them. The PRESIDENT is, by the Constitution, declared impeachable; this House, &c. are also declared to be so. Where, then, is the inviolability talked of?

Mr. MURRAY said, that we might represent this matter in a painful light to the public eye; but he insisted that it was essential to support the privileges of the House. The measure of apprehend

H. OF R.]

Case of Randall and Whitney.

[JANUARY, 1796.

ing Randall and Whitney had at first been assented the House, Mr. SMITH was for the members (of to by all the members. The gentleman who whom he would be one) being examined upon spoke last had, among others, embarked himself oath. in it.

A vote was then taken on the motion for postponing the further consideration of this affair till Thursday next. Only eighteen gentlemen rose in the support of it.

Mr. HILLHOUSE then moved to strike out the following words from the report, viz: "witnesses on behalf of the prisoner," and to insert, "all witnesses, excepting members of this House, who may give information in their places; and that all ques-case. tions to any member shall be put by the SPEAKER,

under the direction of the House."

Mr. NICHOLAS was in favor of the oath being administered to members. It had been alleged that the oath taken to the Constitution took away the necessity for another on giving evidence against Randall and Whitney. If that oath serves here, it may also regulate our conduct everywhere else, and we may refuse to swear before an ordinary Court of Justice. The oath to the Constitution was not sufficiently connected with the present It either does not apply to the question before the House, or it likewise applies to all other judicial cases. He hoped that the House would never arrogate to themselves such a privilege as that now contended for. Any improper assumption would make the House incur suspicion, and, he would add, contempt.

Mr. SHERBURNE, in reply to something which had fallen from a preceding member, rose again to take away any possibility of suspicion that his arguments glanced at members personally-an idea the most remote from his mind. If he had a trial depending where all he had to lose in the world was at stake, so perfect and unlimited was his confidence in the members who gave information about Randall, that he would take their verbal declarations on any point with as much readiness as if they had been on oath. It was the principle which he looked to. Randall himself had a right to be satisfied of his having a fair trial. The House, like Cæsar's wife, ought to be above suspicion. As to the argument that the oath taken by members at their admission to a seat in the House prevented the necessity of swearing in the present case, this doctrine reminded Mr. SHERBURNE of something which he had once seen. A clergyman of New England was, in the course of a trial, called on to give evidence. When the Clerk was going to administer the oath, he turned round to the Judges, and inquired whether his ordination oath, taken many years before, would not save him a repetition of that ceremony now.

Mr. S. SMITH rose to speak a few words on the question of swearing members; because, when the examination should commence, it would be necessary for him to come forward. He also had the honor of a visit from Mr. Randall. Before Mr. SMITH went last to Baltimore, the man had called upon him at his lodgings. He requested and obtained a private conference, wherein he represented the great advantage that would accrue to the United States by removing the Indians to the other side of the Lakes; that this could be done by the influence of certain merchants in Canada. And then he proceeded to the detail of the plan, in much the same terms as have already been mentioned in the accounts of Mr. W. SMITH, Mr. MURRAY, and Mr. GILES. When Mr. S. SMITH came back into the room, he said to a gentleman now sitting by him, and who lodged with him, [Mr. BRENT, from Virginia,] that he suspected there was another Georgia business going forward; and that "I might, perhaps," said Mr. SMITH, Smiling, "make my fortune in the Northwestern Territory." The man spoke with so much decisiveness, that Mr. SMITH was forced to give him some degree of credit when he said that he had secured a majority. He was afraid of coming into a delicate situation, if he should mention the proposal in the House, if there was really any sort of foundation for the report. He could not have had an idea of any man coming forward and flatly telling such a story, without some reason to think himself telling truth. Mr. SMITH now understood how these people, while attempting to deceive others, had in reality deceived themselves. Mr. S. SMITH Mr. GILES had hitherto been silent; but the had listened with patience to the man in the view turn which the question was taking, induced him of getting the whole out of him. Other gentle- to rise and submit his opinion to the House. He men did the same, and this Randall construed into saw only two reasons for proceeding on the docapprobation. Randall clearly conveyed to me the trine of privilege. First, where it rose from the idea that such members of Congress who actively necessity of the case. In the present instance, he supported their memorial might have a large share saw no necessity for any exemption of members in those lands, and those who only gave their con- from giving evidence with the usual solemnities. sent, a smaller. These were the words of Ran- The second reason for insisting on privilege might dall, who likewise mentioned the number of Sen- be the dignity of the House. In a country like ators who were, as he termed them, snug. Just this, where parade is laid aside, dignity consists in after this application, Mr. SMITH was obliged to doing right-in adhering to the principles of subreturn to Baltimore on business, and had, on his stantial justice. The House would not consult way, been puzzled in his own mind what to think their dignity if they should attempt to separate of this intelligence, or what to make of it. [Mr. S. themselves from the mass of the people. For his SMITH had not been in the House since the Ran-own part, Mr. G. should not feel right, if he was dall affair was laid open, which explains the late-to give information without the usual solemniness of his rising to speak.] As to the point before I ties. He would, therefore, vote that the amend

Mr. BRENT, in a few words, related the application of Randall to Mr. S. SMITH, as already stated, with Mr. S. SMITH'S remark that this seemed to be a second Georgia business.

JANUARY, 1796.]

Case of Randall and Whitney.

ment, so far as it related to exempting members from giving oath, should be struck out.

Two other amendments were successively proposed to the amendments of Mr. HILLHOUSE. It was difficult to hear them distinctly; and the less material, because all the reasonings of gentlemen turned on this single point, whether it was consistent with the privileges of the House to let its members be examined upon oath.

Mr. W. SMITH stated the inconsistent situations in which this plan, if adopted, would involve gentlemen. A member is giving evidence, upon oath, at the bar: a question is proposed to be put to him, and the member leaves his place as an evidence, and assumes that of a judge, to give his vote in deciding whether such a question shall be put to himself. Where was the propriety of shifting characters in this Proteus-like manner? Mr. S. knew no instance where the members of a Legislative body were ever sworn by that body, on giving evidence about a question of privilege. It happened only where there was a trial before the House. The moment you decide that members are to be sworn, they are virtually suspended; for, on any question which they were to answer as witnesses, they would not have a title to determine as judges. The moment that you resolve this thing to be determined by the rules of judicial evidence, you alter the whole nature of the transaction: your former proceedings are admitted to have been wrong, and Randall may bring an action against the SPEAKER for damages and wrong imprisonment.

Mr. BRENT observed, that when the writ for apprehending Randall and Whitney was issued, he had his doubts that the House were proceeding too far: he was suspicious that they exceeded the limits of their authority. In the present stage of the business, he was less indeterminate in his opinion on the present question, relative to the members being on their oath as witnesses. He thought it noways derogatory to them as members, nor would it be so to the PRESIDENT OF THE UNITED STATES; it could not lessen the dignity of any character whatever. Mr. B. was in favor of the House proceeding so as to give the accused all the advantages they could derive from counsel in a Court of Law. He saw no reason for a departure from the common rules of taking evidence. It is said not to be usual for Legislative bodies to proceed as a Court of Judicature, and that members of Legislative bodies are not put on oath in their Legislative capacities. This idea is derived from the practice of the Parliament of Great Britain. Is that a sufficient precedent for us? He hoped not. Our great object is this: that the House be secured from disrespect and insult. This idea forms the basis on which its privileges as a Legislative body are supported. It is from the nature of the case, and not from British precedents, that the privileges of this House is derived. Adverting to the members being sworn, he conceived that there was no more impropriety in it, on the ground of their being judges, than there is in the Judge of a Court, who, when called on to give evidence, descends from the Bench-is sworn-gives

[H. of R.

his testimony with the customary solemnitiesresumes his seat-and ultimately gives judgment. Mr. HARPER was in favor of the members being sworn to the truth of the declarations, when called on to give evidence. He knew of nothing in the present case that rendered it necessary they should be exempted. Evidence on oath is the basis of law proceedings in this country. It had been affirmed by Mr. SMITH, (his colleague,) that if a Judge were insulted in his office, the Court would proceed immediately to punish the offender. Mr. H. said he apprehended not: the Judge must make oath to his complaint. It has been said that the members cannot with propriety be interrogated or cross-questioned. The inference from this is, that because we are judges in our own cause, we will preclude the accused from the usual modes of vindicating themselves. Mr. H., in adverting to the members being sworn, disclaimed all personal considerations. The gentlemen who would probably be affected by the regulation possessed characters far above suspicion. Mr. H. considered the discussion as forming an uninteresting precedent. A motion was now made to adjourn-ayes 34,

noes 50.

The amendment before the House, at this particular place of the debate, was, in substance, as follows: Instead of saying, in the report, that "the Judge of the District of Pennsylvania should be requested to attend to administer the oath to witnesses on behalf of the prisoner," the amendment proposed to strike out the last six words, and insert, to all witnesses."

Mr. W. SMITH rose after Mr. HARPER, and remarked, that if the doctrine laid down by that gentleman was right, it was a judicial proceeding altogether, and the House had been in the wrong from the beginning to the end of the matter. He would oppose the present motion, in every possible shape and stage of it; for if we must go on by judicial rules, we must have a Grand Jury, &c., and (though by what authority Mr. S. could not tell) must convert ourselves into a Court of Law. If the motion succeeded, he gave notice of his design to move that Robert Randall and Charles Whitney should be dismissed from the bar of the House, and that the PRESIDENT OF THE UNITED STATES should be requested to prosecute them for their offence in one of the Federal Courts.

Fifty-four gentlemen rose in support of the amendment, which was carried. The House then agreed to the report of the Committee of Privileges; which report, as amended, is in the following words:

"That the proper mode of conducting the further inquiry and the trial in the case of Robert Randall and Charles Whitney will be to proceed, first, with a further hearing of Robert Randall at the bar of the House.

said Robert Randall and Charles Whitney be reduced "That the information that has been given against the to writing, and signed by the informants themselves, respectively, and entered at large on the Journal; that the said information be read to the prisoners, and that they be called upon by the Speaker to declare what they have to say in their defence.

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That, if the said prisoners shall offer any parole evi

H. OF R.]

British Treaty-Commercial Restrictions-Flag of France.

dence in their exculpation, the same shall be heard at the bar of the House, excepting the members of the House, who may give their testimony on oath, in their places; and no question shall be put to any member on the part of the prisoner, by way of cross-examination, except leave be first given by the House; and every such question shall be put by the Speaker; and that the Judge of the District of Pennsylvania be requested to attend, for the purpose of administering an oath or affirmation to all witnesses. That all questions on the part of the House, to be asked of the said witnesses, shall be put by the Speaker.

"That, on every debate, the prisoners and their counsel shall be directed to withdraw; and that, when they shall have concluded their defence, and are withdrawn, the sense of the House shall be taken on the guilt or innocence of the prisoners, respectively."

MONDAY, January 4.

THE BRITISH TREATY.

[JANUARY, 1796

of the House, and the honor of the magnanimous Republic that was the subject of the Message.

The PRESIDENT's Secretary was then introduced, with an American officer bearing the Standard of the French Republic,* sent by the Committee of Public Safety, Organ of the National Convention, as a token of friendship to the United States. The Secretary presented a Message in writing from the President, with sundry papers accompanying it to the SPEAKER, by whom they were read as follows: Gentlemen of the Senate, and

of the House of Representatives:

A Letter from the Minister Plenipotentiary of the French Republic, received on the 22d of the last month, I covered an Address, dated the 21st of October, 1794, from the Committee of Public Safety to the Representatives of the United States in Congress; and also informed me that he was instructed by the Committee to present to the United States the Colors of France. I Mr. PARKER presented five petitions against the therefore proposed to receive them last Friday, the first late Treaty with Britain, from certain citizens of day of the new year, a day of general joy and congraVirginia. He said that they were copies of some tulation. On that day the Minister of the French Reother petitions on that head already presented to public delivered the Colors, with an Address, to which the House, which made it perhaps unnecessary to I returned an answer. By the latter, the House will read them. Mr. TRACY asked whence the peti- see that I have informed the Minister that the Colors tions came? Mr. PARKER answered, from Nor-will be deposited with the archives of the United States. folk county. Mr. THATCHER inquired if they were But it seemed to me proper previously to exhibit to the from corporate bodies. Mr. PARKER replied that two Houses of Congress these evidences of the conthey were from individuals. The petitions were the sentiments expressed by me on the occasion in betinued friendship of the French Republic, together with referred to the Committee of the Whole House half of the United States. They are herewith comon the state of the Union.

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it shall not be lawful for any foreign ship or other vessel to land in the United States any goods, wares, or merchandise, except such as are of the produce, growth, or manufacture, of the nation to which such ship or other vessel may belong."

Mr. S. observed, that at the session before last, one of the resolutions offered by a member from Virginia was in substance analagous to the present resolution, and that resolution, there was reason to believe, would have passed. The Treaty lately negotiated made some provision, of the kind contemplated, more essentially necessary than ever. Such a protecting encouragement to the American navigation was the more proper, as, when the said Treaty should be in force, it must receive a severe shock.

municated.

G. WASHINGTON. UNITED STATES, January 4, 1796.

[TRANSLATION.]

The Representatives of the French People, composing the Committee of Public Safety of the National Convention, charged by the law of the 7th Fructidor, with the Direction of Foreign Relations, to the Representatives of the United States of America in Congress assembled:

Citizens Representatives: The connexions which nature, reciprocal events, and a happy concurrence of circumstances, have formed between two free nations, cannot but be indissoluble. You have strengthened those sacred ties by the declarations, which the Minister Plenipotentiary of the United States has made, in your name, to the National Convention, and to the French people. They have been received with rapture by a nation who know how to appreciate every testimony which the United States have given to them of

their affection. The Colors of both nations, united in the center of the National Convention, will be an everlasting evidence of the part which the United States have taken in the success of the French Republic.

PRESENTATION OF THE FLAG OF FRANCE. The SPEAKER informed the House, that a Mes- DESCRIPTION OF THE FLAG-It is tri color, made of the richest sage was ready to be delivered to the House, of a silk and highly ornamented with allegorical paintings. In the nature calculated to give the most pleasing satis-le, a Cock is represented, the emblem of France, standing on thunderbolt. At two corners, diagonally opposite, are reprefaction to every American breast. He suggested sented two bombshells bursting; at the other two corners, other to the House, and the citizens in the galleries, the military emblems. Round the whole is a rich border of oak leaves, alternately yellow and green; the first shaded with brown propriety of not suffering the fervor of enthu- and heightened with gold; the latter shaded with black and resiasm to infringe on the dignity of the Representa-instruments. The edge is ornamented with a rich gold fringe. tive Councils of the United States. He recom- The staff is covered with black velvet. crowned with a golden mended that a respectful silence should be ob-ike, and enriched with the tricolor cravatte and a pair of tassels worked in gold, and the three national colors. The flag is to be served, as most compatible with the true dignity deposited in the archives of the United States.

lieved with silver; in this border are entwined warlike musical

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