PUBLIC DOCUMENTS. 



679 



disqualifications which would ensue from conviction, 

 will remain. And remembering that no case for the 

 exercise of the power claimed has, during the ninety 

 years of this Government, ever before arisen, and 

 that it now arises at a time when no conviction upon 

 it is practicable, it is perhaps not too much to say 

 that the danger to public liberty would be less in 

 leaving a person in office whose conduct in such office 

 in unexceptionable but who was discovered to have 

 been formerly guilty of a heinous crime until he 

 could be convicted by the ordinary tribunals of jus- 

 tice, or driven to resignation by the indignation of 

 the people, than, by impeaching for him such offense, 

 afford precedent and color to the majority to remove 

 or expel for opinion's sake where necessary to secure 

 complete control of the body, or to be rid of an ob- 

 noxious officer. 



About this exercise of power men will be apt to de- 

 cide according to their general views of the powers a 

 Legislature should possess. According as they think 

 with Mr. Adams, "that the institution would be de- 

 fective which should be impotent to discard from its 

 bosom the contagion cf such a member until the 

 sluggard steps of municipal justice could overtake his 

 enormities," or remembering that too many cases 

 have occurred in which, as Judge Story says, 

 " whatever may have been the demerits or the ac- 

 cused, his final overthrow has been the result of po- 

 litical resentments and hatred far more than of any 

 desire to promote public justice." may decide as 

 they are disposed to think with Mr. Jefferson about 

 the powers the Legislature should exercise. 



F'>r myself I am generally disposed to support the 

 narrowest views of the powers of the Legislature. 

 The real source of legislative corruption grows out 

 of the power of private and specal legislation. 



bo long as the Legislature can create private cor- 

 porations with extraordinary privileges, grant valua- 

 ble franchises and monopolies, make great gifts of 

 land, or bounty, or subsidy, just so long will Repre- 

 sentatives be sent here, or be exposed to improper 

 influence after they come here, to secure these favors. 

 In some of the States private and special legislation 

 has been forbidden by the fundamental law. I wish 

 it were so forbidden in Congress, for then the in- 

 ducement tocorruption would be removed. " Where 

 the carcass is, there will the vultures be also." 

 And the dangers to the country in these regards will 

 not, I fear, be prevented by the exercise or the pow- 

 er of impeachment for previous offenses. 



Entertaining these views, I felt unwilling on the 

 occasion of Whittemore's reflection to the Forty- 

 first Congress to vote for his exclusion. And, in the 

 case of Patrick Woods, I declared in the House that 

 Congress possessed no such omnipotent power as 

 Parliament ; that its power to punish for a contempt 

 was only the power necessary to preserve the body 

 from indignity and interference; that the question 

 in such cases was the right to and extent of the pun- 

 ishing power which the House may exercise on the 

 principle of self-preservation. 



That case was indeed not analogous to this, being 

 the case of punishing for an assault on a member 

 without the .District: but it involved the same gen- 

 eral considerations of the limits of the rightful exer- 

 cise of the discretionary power given Congress. In 

 that case the action of the House did not conform to 

 my views, and subsequent reflection as well as cer- 

 tain authorities of which I have since learned have 

 confirmed and strengthened them. One of these au- 

 thorities arose from the action of the Legislative 

 Assembly of Nova Scotia, 



That Legislature was created by charter from the 

 Queen, as our Congress is created by charter from 

 the people. The charter gave no special power to 

 the Legislature in respect of expulsion or commit- 

 ment, while the provision in our Constitution bus 

 been considered not to confer any distinct power, but 

 to limit an incidental and inherent power to the con- 

 currence of two-thirds. That Legislature having 

 punished one Kielly, he sued the Speaker of the 



House, who pleaded the order of the House, which 

 was sustained by the local courts, from which Kielly 

 appealed to the Privy Council of Great Britain. The 

 case was heard by the council, and such precedents 

 for the action of the Assembly, both in the action of 

 Parliament, and other colonial assemblies, appeared 

 that the council ordered the case to be reheard, and 

 it was accordingly reargued in 1843 before Lords 

 Lyndhurst, Cottonham, Brougham, and Campbell, 

 each of whom had been or subsequently became Lord 

 High-Chancellor of England, and before Vice-Chan- 

 cellorB Shadwell and Wigram, Chief-Justices Vaughn 

 and Denman, Lord Abinger, then Chief Baron of the 

 Exchequer, Baron Parke, Mr. Justice Erskine, and 

 Dr. Lushington. 



In view of the extraordinary standing and char- 

 acter of these justices, I make this extract from their 

 unanimous opinion, as delivered by Chief Baron 

 Parke: 



The whole question, says the court, is then reduced to 

 tills, whether oy law the power is incident to every local 

 Legislature. 



The statute law on this subject being silent, the com- 

 mon law is to govern It ; and what is the common law 

 depends upon principle and precedent. 



Their lordships see no reason to think that in the prin- 

 ciple of the common law any other powers are given them 

 than spch as are necessary to the existence of such a body 

 and the proper execise of the functions which it is intend- 

 ed to execute. These powers are granted by the very act 

 of its establishment. This is the principle which gov- 

 erns nil legal incidents. 



In conformity to this principle we feel no doubt that 

 such an assembly has the right of protecting itself from 

 all impediments to the due course of its proceeding. To 

 the full extent of every measure which it may be really 

 necessary to adopt to secure the free exercise of their 

 legislative functions they are justified in acting by the 



Principle of the common law. But the power of ptmisb- 

 ]g any one for past misconduct as a contempt of its au- 

 thority, and adjudicating upon the fact of such contempt, 

 and the measure of punishment as a judicial body, Irre- 

 sponsible to the party whatever the real facts may be, is 

 of a very different character, and by no means essentially 

 necessary for the exercise of its functions by a local Le- 

 gislature, whether representative or not. All these func- 

 tions may be well performed without this extraordinary 

 power, and with the aid of the ordinary tribunals to in- 

 vestigate and punish contemptuous insults and interrup- 

 tions. 



These powers certainly do not exist in corporate or 

 other bodies assembled with authority to make by-laws 

 for the government of particular trades, or united num- 

 bers of Individuals. The functions of a colonial Legisla- 

 ture are of a higher character, and It is engaged In more 

 important objects: but still there is no reason why it 

 should possess the power in question. 



It is said, however, that this power belongs to the 

 House of Commons in England ; and this, it is contend- 

 ed, affords an authority for holding that it belongs as a 

 legal Incident, by the common law, to an assembly with 

 analogous functions. But the reason why the House of 

 Commons has this power is not because it is a represent- 

 ative body with legislative functions, but by virtue of 

 ancient usage and prescription. In some, the very exer- 

 cise of the power with the sanction of the tribunals, and 

 the acquiescence of the public for a long period of time, 

 may raise a presumption that the power has been duly 

 communicated by law. But in this case we have the 

 simple question to decide, without usage, acquiescence, 

 or statute authority. 



In conclusion ; therefore, I do not feel so clearly 

 justified in holding, cither upon principle, precedent, 

 or authority, that Congress has the power to impeach 

 a civil officer such as the Vice-President for crime 

 committed before induction into such office, as to 

 mnke me willing to recommend an impeachment for 

 such an offense at a time when the impeachment can- 

 not possibly be tried. 



That the purchase from a man deeply interested 

 in preventing legislation, and the holding by an offi- 

 cer so largely controlling legislation as a V ice-Presi- 

 dent, of snares of a company like the Credit Mobi- 

 lier, earning enormous profits by an imposition upon 

 Congress, and continuing such profits only through 

 the absence of wholesome legislation, such purchnee 

 having been made at a price far below the market 



