The enquirer. [volume] (Richmond, Va.) 1804-1815, 1808-09-13


'her OF fright or of fact, wiiioperate in favor
OF Mr. Smith. do not incline, therefore,
to theii separation.
~ IS tho, cxa mine the reAsors upon
which lhe jurisdiction fine Senate has been
contested. The two gentlemen, whose aoiy
concluded the defence of Mir. Smith, did
not in all respects take the same grounds
but shallnotice the arguments adduced by
each OF them, which appear to INC materi-
without always discriminating by which OF
them they were urged.
twas sad by the gentleman whom VIC
had ,lat the pleasure of hearing upon this
subject. (Mr. Harpcr) that il tins question
were nesv, he should contend that the pow
CT OF eNpuIsion given by the constitution to
each OF thetwo Houses Of Congress, was re-
str:c.ed 20 mere regulation OF police, for
the preservation OF cider, and that they
could institrte no enquiry into the conduct
OF their members, except ior ohences COM
mittcl in presence OF the House But this
ground was taken only TO be abandoned tor
the gentleman admitted that the authority OF
precedent was against him, and to that au-
,hority lie WIS willing for himself and his
client to submit. l Can subscribe neither to
tho doctrine, ior 20 the reason tor this aban-
donmCnt. II IS a question OF constitutional
power; and IS suCh, il the prccedents had
been ever so much multiplied, they could
not avail against the constitution. IN the
conflict betw ten two such unequal authori-
es, that of precedent ought always Go Yield.
Besides there is but one precedent, which
could in thi case call Tor submission. l
have sometimes heard it said that tgro pre-
cedents were equivalent TO principe !; but
never before understood that one prece-
dent could be admitted as OF force to silence
contradiction No, sir, there is better
reascl than submission to hrcceden: for re-
JectrG this limitation upon the authority CT
tue senate. There is 10 such Limitation III
the tttcr or the constitution there is none
sucl i'll its spirit; and TO introduce such a
| limitation, would involve us in the absurdi-
! ty-o my mind the monstrous absurility,
thati man might be convicted of the most
infahous crimes that can disgrace the
humn character, and unless their punish
mentbc capital, would be entitled perhaps
for yars to hold his seat III the supreme
counds of the nation. This is inevita-
bic IL his constituents cannot recall him ::
and ithas been determined, upon the full
lest determination, and by solemn deci-
| ton, tht a member oEthe Senate is not liable
! to the prccss Of Impeachment. There is then
no reiUcp for Expulsion; for the idea that a
man thualastcd in character, * thus debascd
in conduc, should be permitted to remain
memberbf the legislature, is so diSgraceiul
to the reputation OF tins body, and so PERM
| cious 20 tie interest OF the Whole nation, that
| it cannot pr a moment be admitted. i will
only add tie remark, that if in this objec-
! ton thereycre any substance, it ought to be
prescntedto us III u different form. IF any
member thinks it has weight, he should Of
fer resolution to arrest all further proceed
iiDss. Its argument is not that this resolu-
| ton shouidbc rejected, but that the question
ought net be taken. 1t is in tie nature Of
what we call the previous question.
| Another objection, however, was taken, &
insisted OH with some earBestnesS by both
the counsel. They took distinction between
iadicta6sc offences, and offences nat iHdict-
able. And they commended that the juriscic-
tion Gas they tenn it) Of the Senate is conf
ned to the LATTER that for all indictabe
crimes, if comphint be made to the Senate,
against one ofitsmemberS, TIE Senate might
indeed institute an enquiry, but that for tri-
al they must pass a resolution directing the
proper law officer 10 commence prosecute
on, and until its issue SeqveSter the member
from his seat.
/ we'll remember, and it will be recollect-
ed by many otler members of this House,
that on the impeachment of Judge Chase.
this same distinction between indictable and
unindictable offences was made. But the ar
gument resulting from twas directly the re-
verse of that which is now advanced. 1t was
then insisted, with great plausibiiity, though
confess not entirely to my conviction, that
no offence could be improbable, unless it
were also ndictablc. And the counsel dwelt
with great force upon the dangerous tenden-
cy Of the principle that public officer might
be removed, ":or paltTy errors and indis-
cretions too insignificant to have a name in
the penal code" There is so much weight
in this reasoning, that before hearing tine
counsel Of Mr.. smith, did expect it would
be applied tohis casc-that it would be as
serted that he had done nothing indctable,
and that for no other kind OF defence, could
he beiiable to expulsion: The counsel how
ever have preferred to try the other side of
this two edged word, and to insist that of
fences not liable to indictment, are the only
kinds of misconduct for which the Senate
can remove a member OIL an investigation Of
the facts, by themselves.
They say by the 9th article amendatory to
the constitution, the trial by jury is secured TO
every citizen, in all criminal prosecutions.
We had occasion yesterday on the court mar
tialbll, to remark that this article must be
understood to have reference to the trials in
courts of common law. The soldier, under
your rules and articles of war, if criminally
prosecuted, must be tried not by Jury, but
by court martial. The trial BIZ jury, is Sc
cured for the decision of questions arising,
from what the elementary writer's on govern