FEBRUARY, 1806.] Payment of Witnesses. [H. OF R. corporation of a bank, or any thing similar. | in the report were conceded. It was probable Congress have only to inquire whether or not that there would never be a vessel entered at the ends are proper; whether the powers asked Charlestown from a foreign country. With reare or are not likely to be injurious. The gen- gard to the success of the prayer of the petitiontleman from Virginia (Mr. CLARK) says, that ers, Mr. J. said he should not have been sanincorporations of all kinds, particularly eccle- guine, but for a constitutional provision which, siastical, are objects of his great abhorrence. he considered imperative. No port of entry exThe objects of his abhorrence must then be isted in the western part of Virginia, in consevery numerous, for they almost every where quence of which, vessels sailing from Charlesabound. In Massachusetts nothing can be more town were obliged to pay duties at New Orleans. common. The incorporation of a religious so- The constitutional provision, to which he alludciety is not for the mere purpose of enabling ed, was this: "No preference shall be given by such a society to receive the gifts that may be any regulation of commerce or revenue to the bequeathed them; the incorporation is for the ports of one State over those of another; nor purpose of enabling a society, or number of shall vessels bound to or from one State be persons, to transact their business, to hold prop- obliged to enter, clear, or pay duties in another." erty, to sue and be sued, &c. Property they Was it not obvious that a preference was given must hold, and, if not held as a corporate body, to the ports of one State over those of another they must hold it as joint tenants-tenants in by requiring the vessels of the one, to enter and common-or they must have trustees to hold it clear in the ports of the other; and was it not for them, or a part must hold as trustees for the also obvious that the latter part of the provision rest; and hence arise innumerable difficulties, was equally violated? It would be a great conlitigations, and disagreements-difficulties that venience to the petitioners to give bonds and will not arise in corporate bodies. You have take out clearances in the neighborhood of the only to take care, when an act of incorporation place where their vessels are built, instead of is granted, that no powers be granted that may being obliged to go to a distance of 2,000 miles, have an injurious effect. where they would find themselves among strangers. Mr. SOUTHARD.-The incorporation of almost all societies is for the advantage of the public; the incorporation of religious bodies has ever been beneficial to morals and to society at large. It enables them to give and to receive justice; to sue and to be sued. The benefits of incorporation are innumerable; what were society without them? what are we but a corporate body? The bill passed to a third reading by a large majority. THURSDAY, February 20. Charlestown, (Kanawha,) Virginia. Mr. CROWNINSHIELD, from the Committee of Commerce and Manufactures, made a report on the petition of sundry inhabitants of Charlestown, Virginia, praying that said place may be made a port of entry and delivery. The report is detailed, and assigns a variety of reasons against the expediency of granting the prayer of the petitioners, and concludes with a resolution that they have leave to withdraw their petition. The House having taken the report into consideration Mr. JACKSON observed that the facts detailed Mr. CROWNINSHIELD observed that there were several ports of entry already in Virginia from which vessels might clear without paying duties at New Orleans. He further observed that New Orleans and Natchez were not within the limits of a State, and therefore were not embraced by the constitutional provision referred to; and added that duties were only paid on the entry of vessels from a foreign country. Mr. J. C. SMITH thought there was sufficient plausibility in the remarks of the gentleman from Virginia, to give the subject a full discussion. He therefore moved a reference of the report to a Committee of the whole House on Monday, which was agreed to-yeas 59. FRIDAY, February 21. Payment of Witnesses. The House resolved itself into a Committee of the Whole on the bill from the Senate, providing for the payment of the witnesses on the trial of Samuel Chase. Mr. J. C. SMITH said, at the close of the last session, a bill providing for the payment of the witnesses on the part of the United States, had gone from the House to the Senate, and been disagreed to by them. The Senate on their part, had passed a bill providing for the payment of all the witnesses, to which the House had disagreed. A conference had taken place on the disagreeing votes of the Houses, and the bill had been lost from a want of concurrence. The consequence was, the witnesses still remained uncompensated; some of whom have sustained heavy expenses. Petitions received this session from several witnesses on the part of the prosecution, had been referred to the Commit tee of Claims, who had reported a bill which was the same in substance with that adopted by the House the last session; the committee not considering themselves at liberty to depart from the principle then established by the House. [FEBRUARY, 1806. refused it. The two Houses stood on the same ground. One are the triers and the other the hearers. If Congress agree to pay all the expenses of an impeachment, the impeached may run the expenses to such an amount as to prevent a trial. Why pay the expenses in this case, if not in any other? Shall they be paid because this man is a judge, and not a man ar he deserves no more indulgence than a private individual, and though he is acquitted, the acquittal is not such as to convince the nation, or any other body of men, that he is innocent. It was not that kind of acquittal which an honest man would wish. It was constitutional, but not by a majority of the Senate. Are we, under these circumstances, obliged to pay the witnesses he has chosen to summon? Believing, as he did, the man guilty, and the charges in many instances supported, the payment of his witnesses appeared to him a very strange thing. In this, as in every other case, he was willing to yield to a constitutional decision, but he could never consent to pay the witnesses of the accused. It was for the House to decide how long this unprofitable contest (for unprofitable it surely was to the witnesses) should be kept up. Mr. S. said he was not disposed to go into a consid-raigned before a judge? When a judge is tried eration of the question, whether the expenses of an impeachment should in all cases be incurred by the Government. He would barely observe that the Senate had been unanimous; and if the House should adhere to the ground they had taken, no compensation would be allowed to the witnesses. He submitted it, whether, under these circumstances, it were proper to keep up such a conflict? It had so happened that many of the witnesses, summoned by the accused, had been used by the managers, and the process of summoning them had been similar on both sides. In the bill there was an omission to provide for the expenses incurred by the managers. If no other gentleman proposed an amendment, he should think it his duty to offer one, providing for these expenses. He hoped the committee would agree to the bill. Some gentlemen might think, by agreeing to it, they evinced an opinion of the guilt or innocence of the accused. But such a vote could not be viewed in this light. The House had exercised their constitutional right by voting an impeachment, while the Senate had exercised the same right in acquitting the accused. The same body who had acquitted, had sent down this bill, involving their opinion that the pro- | posed compensation to witnesses was right. Indeed he considered the bill from the Senate as a taxation of costs by the court who sat on this occasion. Mr. ALSTON said the amendment went to try the question, whether the House would agree to pay all the witnesses summoned on the trial of Judge Chase. Before it was made, the honorable Speaker ought to have told the House whether they could determine which witnesses were summoned on the part of the United States, and which on the part of Judge Chase, From every thing which he had seen, (and he had examined all the documents on the subject,) he had found no data upon which to determine what witnesses had been summoned on one side or the other, unless from the recollection of gentlemen, by which he supposed the House would not consent to be governed. When the Mr. MACON, with a view to try the question, question was before the House the last session, whether the House would agree to pay all the he had expressed his doubts whether they ought witnesses, moved to insert after the word wit- to pay the witnesses of an accused man, whethnesses the words-“on behalf of the United er he was acquitted or convicted; but he was States." He said the history of this business now convinced that, until Congress passed a given by the gentleman from Connecticut was law, prescribing how witnesses are to be paid, correct. The accused had been acquitted by a they were bound to pay them. No such law constitutional majority, consisting of a minority had been passed. He would ask gentlemen of the Senate. It was not, he believed, the learned in the law, whether a witness on the practice in any criminal court, of any State in part of Judge Chase could demand compensathe Union, for witnesses summoned by the de- tion from him? Have we passed any law, prefendant, to be paid by the State. The States, scribing how much shall be paid, or how it shall in many instances, pay their own witnesses, be done? No such law has been passed. Mr. where the person accused is not convicted, but A. said he thought gentlemen were carrying with respect to the conflict between the two their prejudices too far in this instance. He Houses, he was convinced the decision of this had voted for five out of eight of the articles, House was correct; and that it accorded with but the Senate had acquitted him of all of them. the general usage throughout the United States. He was contented with this decision, and so far If there was an exception, he did not recollect as he was acquainted with the sentiments of it. It was true that one or the other House those he represented, he believed they too were must give way, or the bill would be lost. He satisfied. It was not now a question how this would much rather that it should be rejected principle should be settled. If a general law by the disagreeing votes of the two Houses, were brought before them, there was no doubt, than that it should pass as it then stood. If but that, if a man so conducted himself as to the Senate had offered this bill, it is equally bring himself to a trial, he should pay his own true that the grand jury, who make a bill, have witnesses, provided such law declared how FEBRUARY, 1806.] Payment of Witnesses. [H. OF R. much they should be paid. The honorable | who are paid out of the public treasury; and Speaker had said there was not a State in the those on the part of the defendant in the same Union in which the witnesses of a person in- way as those on the part of the prosecution. dicted and acquitted were paid by the State. This practice has been extended so far as to emMr. A. said he believed, in Virginia, when a brace the payment of witnesses from another man was indicted and acquitted, he was not State. In a late case, although as far as the subject to the payment of costs. If this were opinion of the court could go, a man was detrue, one State at least, and that the largest in clared guilty of the crime with which he was the Union, had set a different example; and if charged, yet, the jury having pronounced him precedent was entitled to any influence, it was innocent, a witness on his part, brought from against the Speaker. Mr. A. said this, however, Kentucky, was paid out of the public treasury. had no weight with him. The great objection This is not the case were the individual is conwith him was, that they could not discrimi-victed. If he possess sufficient property, that nate the witnesses of the United States from is answerable for the expenses. those of the accused; and if they could ascertain them, there was no law prescribing how the latter should be paid by the accused. The Senate, undoubtedly, possess the right to say whether the witnesses adduced are necessary; and if, in any future case, improper witnesses shall be bronght forward, they may refuse to tax them. This bill does not provide for all cases of impeachment, but is confined to the case of Samuel Chase. Mr. J. said he would submit a great expense to attend at the seat of Government in an inclement season of the year without giving them a compensation. If a law had been previously passed prescribing that the witnesses of the accused should be paid by him, they would have required some assurance from him. But as no discrimination had been made between the witnesses, they came forward in full faith that the Government would allow them a liberal compensation. Mr. JACKSON believed Congress bound to render compensation to the witnesses on the trial of Judge Chase, on the abstract principle of justice and right, as well as from precedent and practice. The argument of the honorable Speak-whether it was proper or just to compel men at er militated against the inference drawn by him. He says the accused may multiply witnesses to such an extent as to defeat a prosecution. If the proposition, however, be examined in all its bearings, it will be found to operate most severely, and almost exclusively, on the man impeached by the House of Representatives, no matter for what cause, or whether he is guilty or innocent. If the House are determined to destroy him, it is only necessary to vote an impeachment, which will impose upon Mr. NICHOLSON said he had but a few obserhim a ruinous burden. Mr. J. said he did not vations to make on this subject: indeed, indispoapply these remarks exclusively to the impeach-sition disabled him from making many. He ment of Judge Chase. The Journal of the considered this bill as calculated to establish a House would show that he was in favor of his great principle-a principle whether, in all impeachment. But as he had been acquitted by cases of impeachment, the United States are to the constitutional tribunal, clothed with author- bear the burden. It was not in reference to an ity to pronounce him guilty or innocent-the individual that he was induced to advocate the dernier tribunal constituted for such cases-he amendment of his honorable friend, the Speaker, did not consider himself justified to say, after but because its effect would be to establish a their decision, that he was guilty. He held principle that would hereafter govern in similar himself bound by the judicial decisions and laws cases. If the principle were established that in of the country, though as an individual he might all cases of impeachment the Government is to dissent from some of them. The United States bear the expense, it will put it in the power of might, in case a person acquitted on an impeach- the individual impeached to increase the burden ment is compelled to pay his witnesses, multiply to any extent he pleases. And whenever a man charges embracing the whole life of the accused, shall be impeached, base enough to hate the and tracing him from the district of Maine to Government under which he lives and holds an Georgia, so as to compel him, in order to refute office, in a case which requires but two witthe charges, to adduce ten times as many wit-nesses, he may summon two hundred. This nesses as would otherwise be necessary. The trae rule is, that the court shall decide what witnesses are proper to be taxed in the costs, and what are not. The Senate, who in this instance are the court, have decided that all shall be taxed. They were perfectly competent to decide whether any witnesses of the accused were brought forward without sufficient cause, or whether they were essential to the defence. It is manifest, by the bill under consideration, that they have made the latter decision. The gentleman from North Carolina is correct in his statement of precedent. The uniform course in Virginia, is to tax the attendance of witnesses, bill will establish such a principle, and we shall in all future cases be told that the witnesses of the accused were paid in the case of Chase. It was for this reason, Mr. N. said, he advocated the amendment, and to convince the individual that subjected himself to an impeachment that he must suffer some pains and penalties. For it was not to be presumed that the House of Representatives would impeach any man unless there was some color for it-some reason to induce the nation at large to believe him guilty. An impeachment speaks the language of the nation, expressed through their representatives; and whenever a man in office conducts himself so as to make the nation believe him guilty, it was not desirable to offer the protection held out in the bill, particularly when a majority in the other branch also believed him guilty. But, gentlemen say, this is not the practice in the State courts; and we are told in Virginia, when a man is acquitted, the State pays the ex- | pense of his witnesses. Mr. N. said this might be so, though he did not know that it was; it was not so, however, in the courts of the United States. Any gentleman who doubted this, had only to refer to the treasurer's accounts since the Government had been in operation, and he called upon any such gentleman to show a single charge for witnesses in cases of acquittal. It is not the practice in England, nor could it be made to appear by any document, that the witnesses summoned by Warren Hastings, though he was acquitted, had been paid by the Govern- | ment. But admitting, for argument's sake, the practice to be such in the United States as it is represented to be in the courts of Virginia, would that meet the present case? No. In Virginia there was a reciprocity. There, if a man was convicted, he paid all the costs, and if acquitted, the State pays them. But, in the United States, do we make the convicted pay the costs? Had the accused judge been convicted, would gentlemen advocate his paying all the costs? No. In that case he would have been scot free as to the payment of money, though he might have sunk in reputation. In Virginia there is a reciprocity; the convicted either pays the expenses of the prosecution or goes to jail; whereas, in this case, the United States are called upon to bear the whole burden. When Judge Pickering was convicted, was he called on to pay the costs? Such a thing was not then dreamed of. It was then considered proper that the United States should pay their own witnesses. The argument, therefore, fails. The only objection of any weight is that raised by the gentleman from North Carolina. It is said to be impossible to discriminate the witnesses. The gentleman says that he has examined the Journals of the Senate, and cannot find any discrimination. But has he looked at the Journals of impeachment, where it appears that such witnesses were sworn on the part of the United States, and such on the part of the accused? Besides, if this evidence were not on the journal, it could be got from the parties themselves, who could swear they were summoned on the part of the United States or the defendant. This was a common thing in the courts of Maryland, and Mr. N. supposed it was likewise so in other courts. He concluded his remarks by expressing a hope that the amendment would be adopted. Mr. EARLY said it was his misfortune the last session to differ with a majority of the House, and his present opinion was what it then was. His opinion was not founded either on general principles, or on the practice of the several States, or United States courts. It was founded on the peculiar circumstances of this case. [FEBRUARY, 1806. Some of these circumstances had already been stated by gentlemen; but there were some important points of view in which they might be considered, which had not been noticed. It was true, as had been stated by the gentleman from North Carolina, that it could not be distinguished which witnesses were summoned on the part of the prosecution, and which on the part of the respondent, from an omission by the Senate, when they prescribed the form of the subpoena, to distinguish, as it is usual, for which party it was issued. This fact was abundantly proved by the form of the subpoena. How, then, were witnesses to know that they were summoned on the part of the United States, or the respondent? They could not know. There were no circumstances by which they could acquire such knowledge. The party did not serve his subpoenas in person, but they were all sent to the marshal of a given State. A number of them were taken out in blank, and sent to the marshals by post. The gentleman from Maryland has endeavored to obviate the force of this fact, by informing us that a discrimination may be made, by the circumstance of the fact on which side the witnesses were sworn. True; but no gentleman knows better than himself that the witnesses summoned on one side were, in some instances, sworn on the other; and he would call his recollection to the testimony given by Messrs. Tilghman and Rawle. [Mr. NICHOLSON here explained, and contested the fact. Mr. EARLY agreed that these two witnesses had been summoned both on the part of the prosecution and the respondent.] Mr. EARLY said, whether he was correct or not as to the particular cases he had alluded to, he was not mistaken as to the general fact. The gentleman from Maryland had endeavored to obviate the force of this argument in another way, by representing that the witnesses might be called on to swear on which side they were sworn. But this could not be done, but by the passage of some law on the subject. There was no authority which would justify the Secretary of the Senate in demanding such an oath, and if the circumstance could be proved, there was no power, under any existing law, by which the witnesses could recover a compensation for their attendance. They were compelled to attendby whom? By a branch of this Legislature, on pain of imprisonment in case of disobedience. Whence shall they be indemnified? Will any gentleman say they can recover from the respondent? If so, let them point to the law which authorizes such a recovery. Will they say it can be had under the common law? A majority of this House will not bear them out in the argument. For it is a standing principle with us, that the common law is not in force in the courts of the United States. But put this objection aside-how much shall they recover? Where is the law fixing their per diem allowance? There is a perfect chasm in the subject. Mr. E. repeated that his opinion was governed by the peculiar circumstances of the case; by House. [H. or R. Amendment of the Constitution. ADDRESSING OUT FEDERAL JUDGES. Mr. J. RANDOLPH observed that some time had elapsed since he gave notice that he should call up his resolution for amending the Constitution of the United States. The state of his health had not admitted of his taking his seat before this day. He therefore availed himself of the first opportunity to move that the House should resolve itself into a Committee of the Whole on the state of the Union, with the view of taking that resolution into consideration. Mr. MASTERS moved a postponement. The SPEAKER said there could be no postponement of a subject referred to a Committee of the Whole on the state of the Union, as it was in order every day to take up business so referred. the omission of the Senate to insert in the sub- | tials, was qualified, and took his seat in the pœna, on whose side the witnesses were summoned, or to provide for making any recovery from the accused; or how much, and where the recovery should be made. He considered the witnesses summoned, owing to this omission, as being without a remedy, from which resulted the obligation on the part of the Government, as they made the omission, to provide a remedy. The gentleman from Maryland, in noticing the observations relative to the practice of Virginia, stated, that if a similar reciprocity existed on impeachments, his objection to this bill in whole or in part would be done away. Mr. E. said, that in his opinion, this observation fortified the ground he had taken. If there were no reciprocity in this case, it was for want of a general provision. Let us then pass a law making this provision, and let it operate in all future cases. This would be equitable. But the want of reciprocity which arose with themselves, was no ground for omitting to make the only provision for the witnesses which the case allowed. When at the last session, in consequence of the disagreeing votes of the two Houses, a committee of conference had been appointed, he recollected | that a distinguished member of the other branch, now absent in consequence of an unfortunate accident, took this ground-that the subpoena did not distinguish on which side the witnesses were summoned, and made a proposition that the bill should be so modified as to place the allowance made to the witnesses of the respondent on this peculiar ground. This proposition did not then obtain, but Mr. E. was still for taking such a course. He hoped the amendment of the honorable Speaker would not prevail; in which case he would move, by way of preamble to the bill, what would place the allowance on the peculiar ground he had stated, and thus remove the objections of the Speaker. Mr. NICHOLSON made some explanation of what he had previously stated in regard to the practice of courts, and observed that a witness summoned on one side was not permitted to be sworn on the other, until he had been previously examined by the party summoning him. He also passed over the journal of impeachment, to show that the witnesses on the part of the prosecution had all been examined in the first instance, with a few exceptions, which were specially noted, before those on the part of the respondent were called. Mr. SMILIE, being of opinion that the question was not ripe for decision, moved that the committee should rise and ask leave to sit again. This motion having prevailed, the committee rose, and the House adjourned. MONDAY, February 24. Mr. J. RANDOLPH said, if gentlemen were unprepared, he had no objection to waive his call until to-morrow. The SPEAKER remarked that there could be no debate on the priority of business. Mr. CONRAD moved to discharge the Committee of the Whole from the further consideration of the resolution. He said he would briefly assign his reasons for this motion. The session had progressed and the season was fast approaching when every man of agricultural pursuits would be anxious to attend to them, unless detained by important business. He did not believe the proposed amendment to the constitution so important as to require immediate attention. He hoped, therefore, that it would be postponed until the next session, and that the way would thereby be paved for transacting the important national business that claimed their earliest attention. The SPEAKER said the first question was on the House resolving itself into à Committee of the Whole. a The question was taken on this motion, and carried-yeas 61. Mr. GREGG was called to the Chair, and the resolution having been read, as follows: Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, That the following article be submitted to the Legislatures of the several States, which, when ratified and confirmed by the Legislatures of three-fourths of the said States, shall be valid and binding as a part of the Constitution of the United States: The Judges of the Supreme and all other Courts of the United States shall be removed from office by the President, on the joint address of both Houses of Congress requesting the same. The committee divided on agreeing to it, without debate-yeas 51, nays 55. The committee then rose, and reported their disagreement to the resolution. A new member, to wit, EVAN ALEXANDER, returned to serve as a member of this House, for the State of North Carolina, in the place of Nathaniel Alexander, appointed governor of the said State, appeared, produced his creden- | report, The House having agreed to consider the |