to the Committee of Privileges, as this procedure would not be final; or, if the House was not ready to vote immediately, the discussion might proceed and time would be given for coming to the conclusion. Mr. C. PINCKNEY.-This subject involves the important questions, What are the privileges of Congress, and how far are they defined by the Constitution; and what is the liberty of the press, as it respects those privileges? These are subjects of great consequence, and such as I suppose the House will touch with much caution. My name having been mentioned in the body of the original motion I feel myself particularly called upon to deliver my sentiments fully, as well with respect to the manner in which it is mentioned, as to the limitations of the Constitution, and what ought, in my judgment, to be the conduct of the Senate, on this very interesting occasion. SENATE. I shall consider this subject from its importance, and the peculiar manner in which it has been introduced, as open to such animadversions as are within the rules of order and are consistent with decorum. I shall probably advance doctrines that will be termed as extraordinary here, but it shall be done with the good manners I have ever considered as the criterion of good breeding, and which self-respect will forbid my violating. It is the first question respecting the privileges of the Senate that I have ever been present at, and, as it involves the liberty of the press, it is only necessary for me to mention these subjects, to show the House the propriety of our well-examining every line of the resolution on your table, before we adopt it. I feel myself particularly called upon to give my opinion fully on this subject, because my name is inserted in the body of the resolution, and, to those In considering, first, what are the privileges of unacquainted with the circumstances, it might Congress, and how far they are defined by the have the appearance of being done at my request; Constitution, I am naturally led into a repetition whereas it was not only done without my knowof arguments I have found myself too frequently ledge, but is contrary to my wish, and opinion of obliged to use on this floor; that is, to entreat the the power of the House, and of the mode in which House to recollect the nature of our federal sys- such inquiries should be conducted; that even if tem; that all powers not expressly and specifically the House had the power, the remarks and infordelegated to Congress, are reserved to the States mation contained in the paper are not sufficiently and people: and particularly to remember, that important to attract its notice, particularly as they where any powers are so expressly defined as the had been completely silent on the abuse of the privileges of Congress are, that it is our duty very Senate in the Gazette of the United States, recarefully to consider the consequences, before we specting the stopping of the enlistments for the artake a step that may, by subsequent or cool re- my; that the inquiry might lead to steps not withflection, be found to exceed them; that the priv- in the defined privileges of the Senate, and that, ileges of Congress, as limited by the Constitution, as these may involve the liberty of the Press, and have been very deliberately considered by men the right of a citizen to publish the debates and whose opinions were not swayed by party, and public acts of this House, those who were opposed whose impartial situation gave the best opportu- to what they might consider unconstitutional renity of judging; that having before them the ex- strictions, ought to meet the question at the thresample of the unlimited privileges of the British hold, and contest it in every stage. I shall thereParliament, and colonial assemblies, or councils, as- fore feel it peculiarly my duty to do so, and, after suming to themselves the right of such privileges; having stated to you my objections to any interfethat knowing the consequences of undefined pow-rence at all on this subject, to move the postpone. ers, and being well aware what privileges were necessary to prevent an interruption of the undisturbed situation a member should enjoy, during the time he is engaged on public affairs, after much thought they had defined them in the manner fixed by the Constitution. No man, who is a friend to order, will justify what properly deserves to be termed the licentiousness of the press. When, instead of candidly reviewing the arguments or public conduct of a member of the Legislature, or officer of the Government, it meanly descends to private scandal, instead of being defended, it should be met with contempt and disdain. Abuse is the price that public men, and frequently those of the most ability, are obliged to pay; and it is seldom, in countries where the press is free, and strong political parties are known to exist, that it is much noticed. Men of elevated minds, who feel themselves strong in the powers of reasoning, will always yield to their feeble opponents the miserable resort of abuse; it is the surest test of imbecility, and the public, who generally think right, seldom hesitate to suppose it equally the proof of weakness and of malice. ment of the resolution, or to amend it in some way that shall place on the journals my opinions of the extent of your privileges, and reasons for objecting to the mode of inquiry proposed by the gentleman from Connecticut. In examining the Constitution. we find, that to prevent any attempt being made on the part of either branch of Congress, to define their own privileges, and exercise the same, as occasion or circumstances may, in their opinions, require, and to remove all doubt as to the extent and exercise of the privileges they are to enjoy, the Constitution has positively and expressly limited and defined the same, by declaring "That each House shall be the judge of the elections, returns, and qualifications of its own members; that they may compel the attendance of absent members, in such manner, and under such penalties, as each House may provide; that they may determine the rules of their proceedings, punish the members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member. That the members of both Houses shall, in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at their respective Houses, and in going to and returning from the same, and, for any debate or speech in either House, shall not be questioned in any other place.” This is all that is said on the subject of privilege; and surely no words can be more explicit, nor any subject more clearly defined. The powers they are to exercise, and the persons and cases they are to operate upon, are all distinctly marked and named; nor is there a word or a sentence in the whole that can by any possible construction be made to mean that for any libels or printed attack on the public conduct or opinions of either House of Congress, or of any of its members, that their privilege shall extend to ordering the persons charged with the offence before them, and imprisoning them at their will. The Constitution wisely determined, that they should possess all the powers necessary to their formation, and the undisturbed order of their proceedings, and the safety of their members from arrest, during their attendance, and going to, and returning from Congress; but it at the same time recollected, that it is the nature of our Government to invite examinations of public measures, that it is the duty of our citizens to make these inquiries, to watch over the proceedings of our public bodies, and if they find them departing from the Constitution, or exceeding their authority, instantly to announce it. That our Constitution supposes no man, or body of men, to be infallible, but considers them all as mere men, and subject to all the passions, and frailties, and crimes, that men generally are, and accordingly provides for the trial of such as ought to be tried, and leaves the members of the Legislature, for their proceedings, to be amenable to their constituents and to public opinion; it however particularly guards the right of the citizen to investigate their measures; and in case of a false or libellous attack, it intends, if the power of collecting juries is fairly exercised, to provide a just and impartial tribunal to decide between them, to act upon oath, and who ought not to be the particular friends or enemies of either. On this subject I shall hereafter more fully remark, and at present take some little notice of an observation that has been made, and which, with the subject of privileges, should be considered as preliminary to those that are necessary on the liberty of the press. It is, that if Congress possessed the power contemplated by this resolution, it was their duty to pass some legislative act respecting it, declaring the manner in which it should be executed, and designating the officer or officers who were to do so; that the people would then know the manner in which offenders were to be summoned or apprehended, or brought before them; but this should have been done when no particular case had occurred, and was before them, and that no proceeding of privileges in any case like the present, ought to be had until such act was passed, and the mode of proceedings clearly ascertained; that if the power was given by the Constitution, until Congress had legislated upon it, in the manner above mentioned, it was extremely improper for either branch to attempt to exercise it; that a judiciary department was erected by the Constitution. but that Congress were obliged to legislate upon MARCH, 1800. it, and detail its duties, and provide for the appointment of officers to execute them, before the powers of that department could be properly exercised; and that if Congress possessed the power some gentlemen contend for on this point, they must previously legislate on it in the same manner. On this subject there can be no doubt of the propriety of this objection, if Congress possessed the power; and their never having passed such a law is a strong proof, that whatever opinions either branch may have entertained, that both did not suppose they possessed this power, or certainly they would have legislated upon it. If they did not doubt, or were not sure they did not possess this authority, why did they not legislate on it at the time they did on all such other parts of their privileges and powers as they conceived they had authority to act on. They (that is, Congress) passed an act on the subject of the election of members of the House of Representatives, of which that House are the sole judges; each House detailed, in a particular manner, their rules and modes of proceeding-this was all that was necessary to be detailed. The remainder of the clause respecting privilege is so express on the subjects of privilege from arrest, government of members, and expulsion, that every civil officer in the United States, and every man who has the least knowledge, cannot misunderstand them. I assert, that it was the design of the Constitution, and that not only its spirit, but letter, warrant me in the assertion, that it never was intended to give Congress, or either branch, any but specified, and those very limited, privileges indeed. They well knew how oppressively the power of undefined privileges had been exercised in Great Britain, and were determined no such authority should ever be exercised here. They knew that in free countries very few privileges were necessary to the undisturbed exercise of legislative duties, and those few only they determined that Congress should possess; they never meant that the body who ought to be the purest, and the least in want of shelter from the operation of laws equally affecting all their fellow citizens, should be able to avoid them; they therefore not only intended, but did confine their privileges within the narrow limits mentioned in the Constitution. And here, sir, let me ask, are not these privileges all that are necessary? They have complete authority to keep order and decorum within their own chamber, to clear the galleries if an audience are unruly, and to punish their own members, to take care that no arrests, except for treason, felony, or breach of the peace, shall keep their members from their duty, and for all libellous attacks or misrepresentations the laws are open to them; and if unjustly attacked, no doubt the juries of their countrymen, who are interested to preserve the dignity and independence of their Legislature, will give them the most ample satisfaction. But it is said, "each branch must possess this power to punish for breach of privileges, which they must judge of as circumstances may arise and require; that every legislative body, or branch of one, possesses an inherent right to protect itself, which must be exercised as their discretion directs, because it may MARCH, 1800. Breach of Privilege. SENATE. frequently be necessary to exercise it immediately, if either branch possessed this power themselves? when the public safety would make it impossible to wait for reference to other bodies, or tribunals," and. "that if a man was approaching to knock you down, it would be absurd, instead of defending yourself, to deliberate whether you were authorized to do so; that you must act instantly, as the occasion demands; and that as each individual in society possesses this inherent right to protect himself, so does each branch of the Legislature." This, as far I have been able to collect, is the sum of the reasoning on this subject; and it is said to be strengthened by the practice and precedents of the British Parliament, and the Colonial Legislatures, before the Revolution, and most of the State Legislatures since, and is now universally received as the true doctrine on this subject. If they have the right to punish libels, or false, or malicious attacks, why include them in this act? Their power extends over the whole of the Union, and can reach any inhabitant, in any State. Is it not therefore clear, that by giving this authority to the federal judges, to try and punish for written or printed attacks on either branch of Congress, that the Congress of 1798 did not suppose, for attacks of this kind, made in the papers, there was any other mode of punishment than by a trial, where the person charged would have the benefit of trial by jury? Surely this must have been their opinion, or they would not have had two different modes of trial and punishment for the same offence. They never would have erected a new jurisdiction to include a crime, when one That it is the doctrine and practice of the British sufficiently strong and energetic existed already; Parliament, I will allow; but it was because the but to prove this still more clearly, let us indoctrines there held are utterly inadmissible in a quire, why the Constitution should have been free Government; and to prevent any influence so attentive to each branch of Congress, so from them, and their precedents, and the impro- jealous of their privileges, and have shewn so per practice of the Colonial and State Legisla- little to the President of the United States in tures, that this limitation of the privileges of Con- this respect. Why should the individual memgress was here purposely introduced. Will any bers of either branch, or either branch itself, have man undertake to say, that the privilege of the more privileges than him? He is himself, as far Parliament of Great Brritain ought to be that of as his qualified negative goes, a branch of the the Congress of this country? Do you suppose Legislature; he is, besides, your Executive, he is that all their members, and their property, and the sword of the law, and does he possess any privieven their servants, should be protected from arrests leges like these? If a man meets him walking during the whole time they are elected for, many alone in the streets and insults him, or if one of of them for twenty years together, or during their ruffian manners should enter his house, and even lives? Would it be thought safe in this country abuse him there, has your President any privileges that a small majority of a small body, or single like these? Can he commit and imprison withbranch of a Legislature, should claim and exercise out a trial? No sir, he must resort to the laws the authority, whenever they please, to send and for satisfaction, where the person charged with seize any man in your community, however im- the outrage will be heard, and where each party portant, and confine him in a loathsome dungeon, will have justice done them, by men who ought for six months together, merely because he has to be so impartially summoned as that no undue differed with them in politics, and criticised, as he bias will be found, when they come to decide. had a right to do, on their legislative acts? Is it No privilege of this kind was intended for your a pleasant sight to our citizens, to see sergeants-at- Executive, nor any except that which I have arms, with their rods, inquisitorially seizing free- mentioned for your Legislature. The Convenmen, and dragging them to your bar, and there tion which formed the Constitution well knew exhibiting them as criminals, or spectacles to that this was an important point, and no subject crowded audiences, merely because they thought had been more abused than privilege. They therethey had a right to attack, by argument, proceed- fore determined to set the example, in merely ings which appeared to them unconstitutional? limiting privilege to what was necessary, and no Can you have the most distant idea, that your more. Look into the constitutions of all the Constitution could have intended thus forever to States, which have been formed since the Fedshut the door of inquiry, and make it so penal and eral Constitution, and see if they have not done dangerous to your citizens that none of them will the same. The Constitution of South Carolina dare to venture it? Is it possible for any man to is remarkably explicit and limited on this subject: read the Constitution with attention, and then It says, "that each House may punish by imprisonsuppose that such could have been its design? So 'ment, during its sitting, any person not a member, far from being so, I do assert that great pains were who shall be guilty of disrespect to the House, by taken specially to guard against the exercise of any disorderly or contemptuous behaviour in its any such power, and I have no doubt that the presence, or who, during the time of its sitting. Congress of 1798 must have been of this opinion, shall threaten harm to the body or estate of any or else why did they pass the 2d section of the se- member, for anything said in either House; or dition law? Why did they (improperly in my who shall assault any of them therefor; or who opinion, because it ought to belong to the State shall assault or arrest any witness or other person, judicials) why did they make the crime of writ-ordered to attend the House, in his going to or reing, uttering, publishing, or printing any libel turning therefrom; or who shall rescue any peragainst the President, or either branch of Con-son arrested by order of the House." These are gress, triable, and punishable, in the federal courts, all privileges, except privilege from arrest or seiz SENATE. Breach of Privilege. MARCH, 1800. tion give him uneasiness, an Executive, instead of venturing on any such measure himself, if he can obtain a majority in either branch, will easily discover some mode of having this man's political inquiries construed into breaches of privilege; and, under cover of his friends' influence, immure and silence, during a whole session, and for half a year, a man, whose arguments were perhaps unanswerable, and whose system may be the one which your councils may the next year adopt. I am far from supposing that we are yet so much advanced in the arts and intrigues of older Governments as to make this probable at present; it is not however impossible, and must be guarded against. ure of estate, mentioned in that constitution; and the slightest inspection at once shows, that except for disrespect or contemptuous conduct, in its presence, or threatening or assaulting a member for his conduct in the House, that no other authority is given to punish-not a word is said about libels, or attacks by writing or printing, on their conduct. It is well known that our Constitution intended the press to be free; to be the means of communicating the acts of the Government, and of commenting on them where necessary; that it supposes that majorities will sometimes exist, who may wish to overstep the boundaries they ought not to pass; and, therefore it provides for them, in the hands of the people, this The next question is, that of the liberty of the wholesome correction of the press, which those press, as applying to these defined privileges; and who resort to must use at their peril. If they as it is the first time this sacred subject has been use it properly, animadvert with propriety, and before either House on a question of privilege, I really point out defects or usurpations in the shall expect your indulgence in making some reGovernment, the people will applaud their zeal, marks on it. I shall be very short; for however and the laws will support them in their exertions; fruitful the subject is, yet so much has been said of it but if they falsely or maliciously misrepresent, the elsewhere, and you must be so well acquainted law will become the avenger of the Government, with it, that it will be necessary for me barely to and unprejudiced juries be the means of punish-state some general principles, as they apply to the ing calumniators. This is the true footing upon which legislative privilege should be put in every Government, and it is the one on which it is now placed in the United States. By this you give sufficient power to punish, for any improper thing done in their presence, which may disturb the order of either House, or violate the decorum of their proceedings; and for any supposed slanderous attack, the tenderness with which you ought to touch the Constitutional right of the public to inquire into public affairs, and the delicate subject of trial by jury, will always necessarily oblige you to recur to the latter for redress and satisfaction. If it was proper. on subjects like this, to refer to British precedents, I could mention a recent one, which is exactly in point; and shows, that even in the English House of Commons, the doctrine I contend for prevails; it is, that in all cases of libels against either House, the remedy must be by prosecution by the Attorney General, and trial by jury. In Stockdale's case, Doctor Logan published charges against the House of Commons, in which he stated, in a variety of ways, that they had been guilty of great cruelty to Mr. Hastings. Mr. Pitt and Mr. Fox, and all sides of the House, agreed that it was a libel; but, instead of ordering him before the House, they entered into resolutions directing the Attorney General to prosecute. It appears to me so clear, that for all libels or attacks on either branch of the Legislature, in writing or in print, the mode must be by prosecution, that I do not know it is necessary to trouble you at this time with any further reasoning on that head; I will therefore only mention one more, and then conclude this part of my subject: it is, that from the nature of our Government, where our President is elective, and obliged to attend to public opinion, even if he wishes to do so, he will never venture on those bold measures, which hereditary Executives sometimes attempt. If, then, there should be some men, whose political talents he is afraid of, or whose inquiries into his administra question before you. I feel a pride in saying that in no country has the press ever been as free as in United America; however clouded or interrupted this freedom has, in my opinion, lately been, I entertain a hope that in a few months all its shackles will be removed, and that the emotions they have occasioned in the public mind will for ever forbid its being thus fettered again. To no subject have I ever more carefully applied, than what ought in a well regulated Government to be the freedom of the press. I well know that where the press is not free, liberty is but a name, and Government a mockery. I have therefore endeavored to form, in my own mind, what ought to be the true standard of the freedom of the press with us; and I have no doubt that it consists in this: That the printing press shall be free to every person who undertakes to examine the proceedings of the Legislature, or any branch of the Government, and no law shall ever be made to restrain the right thereof; that the free communication of thoughts and opinions is one of the most invaluable rights of man; and every citizen may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty; that in prosecutions for the publication of papers investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the Jury shall have a right to determine the law, and the fact, under the direction of the court, as in other cases. This is the situation in which the Constitution of Pennsylvania has placed the press; and it is the true and safe one, upon which it ought to be placed in every free Government. Here the right to investigate the conduct of the Legislature, and of official men, is not only recognised and established, but the Constitution seems to require it as a duty, from the citizens. It says to them, these are men periodically delegated by you to manage your public concerns-to you, and you alone, they MARCH, 1800. Breach of Privilege. SENATE. are accountable for their conduct; nor can you knowledge of their acts, well knowing, if they were know whether it is meritorious, or otherwise, but unjustly attacked, it gave them the most ample by having the right to examine into it, and by means of defence; and that if it became immodefreely and frequently exercising that right. And rate and licentious, the laws were always sufficiwould it not be the strangest thing in the world, ently energetic to punish it. How many indiviwhen the Constitution not only establishes the duals when attacked or slandered, have rejoiced right, but calls upon the citizens to exercise it that such a defence has been afforded them; and with alertness, and by no means to neglect it, that if how indispensable is its free investigation to the they should happen to displease a branch of the removal of doubts which sometimes crowd about Legislature, whose conduct they have censured, the characters of public bodies, or men, and which that they should be delivered immediately into the it is necessary to remove! Public bodies are pubpower of this branch, to be dealt with as they please; lic property; and so indeed are public men, who that the men they had accused, and whom they have in any degree rendered themselves conspichad, by the Constitution, a right to accuse, should uous by their exertions: few of these, if ever there become their judges? Would not this be a most ex- was one, can expect to be without personal enemies; traordinary doctrine? Would it not involve an in- these will be in proportion to the talents of the consistency, that ought not certainly to be chargea- man they dislike, and his consequence with the ble upon the framers of the Constitution? In private people. Men who engage in public life, or are cases of slander, or defamation, would you suffer the members of legislative bodies, must expect to be person abused, or any near connexion of his, or exposed to anonymous, and sometimes avowed, person interested in the event of the suit, to be on attacks, on their principles and opinions. Their the jury? Certainly not. How much more gla- best shield will be an upright and able conduct. ringly improper then would it be, in cases of a pub- The best informed will sometimes err; but when lie nature, where the acts of a legislative branch their intentions are pure, an enlightened nation are censured, and where the charge has been openly will easily discover it, and pardon the mistake. and honorably brought forward, to commit the With the shield of conscious rectitude, a Governperson who produced it, at once, to the power of ment can never dread the press. It is only in the body whose acts he has condemned! Let us States where the happiness of the people is not suppose, that in the exercise of this invaluable the end of Government, or where an individual right, some disinterested and independent man, or a few possess the whole authority, that the press urged by the most honorable and patriotic motives, is not agreeable to them. Hence, in despotisms, should conceive a branch of the Legislature over- it is generally odious to the sovereign, and strictly stepping the bounds of the Constitution, and going limited. We have, however, found even among into measures destructive of our rights, or injurious them, a latitude which proves that in the most to our interests; that this man should be an import- despotic countries, where the sovereign is conant member of your community, of known integ-scious of using his power for the good of the peority and independence of situation and character, ple, he fears not the slanders of the malicious. It that he should have no private ends of his own to is remarked of Frederic of Prussia, that few prinanswer, or anything in view but the public good; ces were more libelled by his subjects; but that that he has embarked in the investigation at the in no country were libels more disregarded: that entreaty of a numerous and respectable part of the few, if any, instances ever occurred of his endeacommunity, who wished the public mind to be so voring to discover the authors, or to crush by punfairly and fully possessed of facts, and reasonings ishment, the spirit of inquiry which literary puron them, as to be able, at the next election, to de- suits had diffused among his subjects. A more termine with precision and fairness on the conduct remarkable instance is, that of the Empress of of their Legislature; under these circumstances Russia; in giving her directions respecting libels, would it be proper to deliver this man into the pow- she says, "great care ought to be taken how we er of a body whom he has charged with misbeha-'extend. this crime; representing to ourselves the viour, or a departure from Constitutional principles? danger of debasing the human mind by restraint Or would it not be more fair, would it not wear and oppression, which can produce nothing but more the appearance of impartiality in case an ex-ignorance, and must cramp and depress the rising amination was necessary into the nature of his charges, or the manner in which he has made them, and the expressions he has used, to have a distinct and unprejudiced body, a jury acting under oath, to decide between them? As far as I know anything of the principles of natural justice, I should suppose there was no question on the subject, and no other opinion ought to be entertained, and that without it there can be no such liberty of the press, or freedom of inquiry, as the Constitution intends. And here, sir, let it be asked, why should a Government that means well, or is confident in its uprightness and ability, ever fear the press? It should be to them a source of great pleasure, in reflecting that they had so excellent a mode of diffusing a effects of genius." I did not expect to have been obliged ever to have introduced on this floor, Frederic or the Empress, as examples on the subject of the press. The love of liberty, or a wish to countenance the spirit of political inquiry, were not certainly among the reasons for allowing this latitude; but they at once discovered, that if they wished to govern an enlightened people, the spirit of inquiry must be unshackled, and an extensive range given to literary productions. Among the ancients we find Tiberius, and Trajan, and Titus, allowing absolute liberty of speech and writing, suppressing the laws against seditious words and writings, and punishing informers. But the most remarkable instances we have, that freedom of |