Article 1, Section 5, Clauses 1--4
House of Representatives, Breach of Privilege2, 8 , 12 Feb. 1798Annals 7:961--62, 973--78, 997--1002
Mr. Venable, from the Committee of Privileges, made the following report:
Mr. Lyon. Again, I say, Mr. Chairman, I am very extraordinarily situated. Evidence has been introduced into this House to induce the members to believe that I left Colonel Warner's regiment with dishonor; that I am a person of disrepute; that I have been in the habit of receiving insult with impunity. Here I am, three hundred and fifty miles from home, and from the evidence who are able to show the contrary. Had I a reasonable opportunity, I could prove, by the Lieutenant Colonel, who is now General Safford, and several other officers of that regiment, that when I left it, I left it with the regret of much the greater part of the officers and all the soldiers--I mention the Lieutenant Colonel because Colonel Warner is not living. My certificate of having settled my accounts, which is at home, would prove my having done my duty well.
I could prove my having taken my musket and marched to the lines every day, during the siege of Burgoyne. I should not have mentioned this circumstance, had not the Speaker mentioned his having done so when Paymaster.
I could also prove, that when an officer offered me an insult, I chastised him before the officers of that regiment.
[Mr. Champlin asked whether the gentleman said he had chastised an officer, or would chastise him?
Mr. Lyon answered that he had chastised him.]
I could prove that I took the commission in Colonel Warner's regiment when I was driven from my plantation by Burgoyne's invasion; that I resigned my appointment, and left the regiment for the care of my family, for preferment, for honor, for superior office, and to serve the people of the State of Vermont.
I could prove, had I opportunity, that I was immediately appointed Deputy Secretary of the State, Paymaster of the troops of Vermont, assistant to the Treasurer, assistant to the Commissioner of Loans, and Captain of the Militia, besides being called on to act as private Secretary to the Governor.
I could also prove that within two years from the time of that resignation, I was appointed Secretary to the Governor and Council, a Member of the Legislature, Clerk of the House of Assembly, one of a Committee for the Collection and Revision of the Laws, and to a number of other offices under the authority of that State, besides a considerable number of offices in the municipal establishment of the town in which I lived, as well as my promotion to the command of a regiment, and all this before I formed a connexion with one of the most respectable families in that State. I could prove also, that I have been a member of the Legislature of Vermont, except two years, ever since; that I have been appointed to many other offices in which I did not think proper to serve, such as Auditor of the Treasurer's Accounts, and Judge of the County where I live.
By these things, and my standing in this House, I could prove that I have always been respected in the country I represent, and where I have lived these twenty-four years.
The free electors of my district have given me a preference to a gentleman of very great respectability, one who has served six years with unimpeachable fidelity in this House, and is now Chief Justice of the State of Vermont; yet evidence has been adduced in order to show that I am a person of disrepute.
As to my being in the habit of receiving insult with impunity--for which it seems Mr. Chipman's testimony was introduced--were I allowed to call testimony from Vermont, I could very easily prove so much on this head, as, perhaps, to prove, in the minds of some gentlemen, that respectability which, in every other respect, attaches to my character. Among other things, I could prove that the gentleman from Vermont who was called to give testimony against me, has, with the politeness peculiar to a certain country which I will not now name, insulted me and received due chastisement from me for it.
Mr. Harper called to order. The gentleman from Vermont had already spoken very improperly of witnesses, and he now spoke in a very reprehensible way of Mr. Chipman. He hoped he would be admonished.
Mr. Otis differed in opinion from the gentleman from South Carolina. If the gentleman thought it would be of service to him to inform the committee that he had chastised an officer in the face of his regiment, or beaten a Judge of the Supreme Court, he was right in stating the circumstances.
Mr. Harper said, if he wished to see the gentleman disgrace himself, and the House, he should not object to this mode of proceeding; but he did not.
Mr. Lyon. It would be folly in me to state anything to this committee, that I cannot prove. Nor should I have mentioned that circumstance, had I not been charged with receiving injuries with impunity. I never did receive injuries with impunity; nor did I come here to do so. I would sooner leave the world. Mr. L. then proceeded:
Were I to be allowed time to bring forward testimony from Vermont, I could prove that my character, as a man of spirit, stands on such ground in my country, that I had no need to defend it, by entering into a squabble with such a Chief Justice in court time.
If the proof of these things be considered of importance, I hope I shall be allowed time to send to Vermont to obtain it--for my own part, I cannot so consider it. I must think that the House of Representatives ought never to have taken up the matter of the difference between Mr. Griswold and myself, circumstanced as it was; and that if the House thought otherwise, the due submission to their authority, which I have always stood ready to pay, and the sorrow which I have expressed, and am continually expressing, for my misapprehension, might serve as some mitigation of an offence against the dignity of this House, which I never could have knowingly been guilty of.
Mr. Champlin rose and said, it was expressly declared by the Constitution, "that each House may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member," and he thought they were called upon to exercise this Constitutional power of expulsion in the present instance, by the respect due not only to themselves as legislators, but to their constituents; and as they valued the reputation of the National Legislature, both at home and abroad, as they regarded the American character, uninfluenced by the spirit of party, without taking into view the relative characters of the person who offered, and the person who received, the insult, without attending to the infinite distance there was between the one and the other--they were bound to give their votes, upon the present occasion, under the influence only of an high sense of duty and of honor. And under these impressions, he said, he had attentively and impartially considered all the circumstances of the present case, as they had appeared in evidence; and he found it was fully proved that an offence of a gross and injurious nature had been committed by the member from Vermont, (Mr. Lyon,) against the person of the member from Connecticut, (Mr. Griswold;) that the conversation which produced the altercation between them, originated with the member from Vermont; that it was a violent and groundless attack upon the public character of the member from Connecticut; inasmuch as he was represented to be regardless of the public good, and actuated entirely by selfish, sordid views; that this indecent attack upon his political integrity was repelled by a retort, that the occasion fully justified; that in consequence of this retort, the member from Vermont committed, within those walls, and whilst the House was sitting, the gross indecency stated by the Committee of Privileges, and of which the very Speaker of the House was an eyewitness; and that the member from Connecticut, whose cheek glowed with indignation, and whose arm was nerved by the desire of vengeance, recollecting the place in which he stood, and the respect due from him to that House, repressed his resentment. Mr. C. then observed, that the passions of some men, had their feelings been thus outraged by the member from Vermont, would have made him expiate the injury upon the spot. For the outrage committed by him bid defiance to order and decorum, tended to degrade the members of that House from the rank of men, and to reduce them to a level with the meanest reptile that crawled upon the earth. He was therefore compelled to declare, that, in his opinion, nothing short of a vote that would deprive the member from Vermont of a seat in it could vindicate the honor of that House, which had been deeply wounded through one of its members. He was aware, he said, that the punishment of expulsion was a severe one. And there was no man, who had the feelings appropriate to that character, and whose mind was formed of common materials, but would be deeply affected by it. It must fix a stain upon the man who suffered it, for a gross and scandalous offence, that the waters of the ocean could not wash away. It should, however, be recollected that it was no further disgraceful, than as an unquestionable evidence of the gross indecency that gave occasion to it. And if a sacred regard to justice, to the representative character they sustained, and to their own honor, required that they should inflict that punishment upon a member of that House, they ought not to start at the effects of it. For if the member from Vermont should be compelled to return to his constituents, loaded with the opprobrium necessarily attached, in the present instance, to the punishment contemplated, they would have only to regret the disgraceful circumstance, the painful necessity, that had led to it. They would have discharged their duties, and the honor and dignity of the House would be preserved.
Mr. S. Smith said, he did not wish to enter into a discussion of the subject before them. The committee had heard the evidence upon this subject very fully, and he doubted not every one was in full possession of the facts relative to it, and competent to come to a decision. To go into a discussion of the subject, therefore, would only be an unnecessary consumption of time, as it would not, he apprehended, change the opinion of any one. He hoped, therefore, the question would be taken without debate.
Mr. R. Williams did not mean to introduce a debate upon this subject, but merely to state the reasons which had induced him in the select committee, and which would induce him in this committee, and in the House, to vote against this report. He was as fully impressed as any gentleman with the necessity of preserving the dignity and honor of the House, and perfectly agreed with gentlemen as to the propriety of an attention to order and decorum in all their proceedings. But it appeared to him that there was a previous consideration necessary.
It was necessary first to consider how far the powers of the House extended with respect to punishing its members, and whether certain acts should be considered as done in the House or out of it. When these general principles were settled, it would be easily ascertained how far this power would extend in the present case. He was of opinion that the powers of the House should be cautiously extended. This, he thought, would be the opinion of every member of the committee, when they considered the nature and principles upon which our laws were founded, amongst which it is a principal feature that the makers of a law shall not have the execution of it; another is, that all offences shall be declared by law, before any person shall be charged with committing them. The laws are published, and judges are bound down by rule, and every man knows the law; but how is it in the present case? The House of Representatives is the injured party, the members are the judges, the jurors, and the executioners. He did not mention this because he thought the power of punishing its members was improperly placed in their own body; he mentioned it only to show that the power was liable to abuse from giving too much way to passion in their proceedings.
Having made these remarks, he would state why he thought the House had not the power to expel the member from Vermont. He did not believe that a member of the Legislature could be expelled for any act done out of the House, except it rendered him infamous. Mere lewdness, and breaches of morality committed out of the House, the House could not take cognizance of. A member, out of the House, may do things which may render him very disagreeable society, yet he may come into the House and behave very orderly. His constituents might have known, when they elected him, that he was subject to such behaviour, yet they might have sufficient confidence in him as a representative on that floor; but if any member acted so as to disturb the peace and order of the House, they had, doubtless, a right to turn him out.
Having mentioned what he conceived to be the powers of the House, he would consider whether the act done by the member from Vermont could be considered as done in the House, or in violation of its rules. If he could persuade himself that it was done when the House was in order, in violation of its rules, he should have no hesitation in saying that the member ought to be expelled; since he should take no notice of the offensive words which had been mentioned in justification, for though this circumstance might have considerable weight with some gentlemen, it would have none with him. In the rules for the regulation of the proceedings of the House, it was declared that, whenever the House meets, the Speaker should take the Chair at the hour to which the House adjourned. But where, he asked, was the Speaker, when the act complained of was committed, and what was the situation of the House at the time? He did not mean to say that the Speaker or any other member was not doing his duty, but to show that the House was not in order. The Speaker had left his seat, and was in that of another member; and the members were passing to and from different parts of the House. So that if even it could be considered in such a situation as that the rules of the House would apply to it, some allowance ought to be made to members who might think differently. But certainly no motion could have been stated to the House in this situation.
If the House had been organized, the Speaker could not have suffered such conversation as has been stated to have taken place before him. A breach of order, in such a situation of things, therefore, could not deserve expulsion. Besides, this transaction happened without the bar of the House, which, according to the practice which had existed since he had a seat there, was never considered as within the House, as no member who was standing there, when any question was taken, was permitted to vote. And he thought there was a great difference between a disorderly act done in the House and one done out of it. Two members walking without the bar of the House might insult each other in a variety of ways without disturbing the business of the House, and, in such a case, he did not think they would be liable to be expelled. If this were so, it might be said members could not walk together; he did not see this, for though he would not agree to an expulsion in such a case, he should think it proper to punish the offender.
Mr. W. thought the Constitution was clear on this subject. A bare majority may punish a member but the Constitution has declared that two-thirds of the members present are necessary to expel a member. The power of expulsion is the highest punishment the House can inflict; indeed, it is a punishment which not only goes to the person and character of the member himself, but it also affects all the citizens of a large district of country--his constituents. Being, therefore, so serious a power, as he before stated, it ought not to be extended. The House had no power over members out of the House. If two members were to quarrel and insult each other out of the House, the House could take no cognizance of the affair, except on a complaint made, and, in that case, the offender could not be expelled but might be punished. Suppose, for instance, a member of the House and an individual who is not a member were to quarrel out of the House, could the member come to the House and complain of the individual who is not a member? Certainly not, since the House had no power over that individual. Nor would a member be protected from arrest and process, were he to commit any violent act out of the House which should make him liable to such a process. He mentioned these instances to show that the House had not a right to extend their privileges, but only to protect them.
These were the reasons, Mr. W. said, which induced him to think the member from Vermont ought not to be expelled; not because he approved of his conduct, or that the insult which he states to have been offered to him, as warranting the improper manner in which he resented it; not because the House had not the power to expel its members, but because it was not in such a situation at the time as to authorize an expulsion for the offence, and that, therefore, the person offending did not know that any such consequence as an expulsion could be the punishment to which he was liable. But, though he was against an expulsion, he should be in favor of such a punishment as the House would have deemed proper, if the offence had been committed without the walls of the House.
Mr. W. said, there was another circumstance which ought to be noticed. No application was made for the punishment of this offence by the person offended; but it was taken up as a breach of the order of the House.
. . . . .
The question on the resolution as amended was about to be put, when
Mr. Gallatin said he knew how late in the day it was, and therefore his remarks should not be long; but as he considered there was a point of view in which the subject had not been placed, he wished to say a few words before the question was taken.
Of the fact itself he had no remarks to make; the evidence was direct, and all could draw their inferences from it. Nor did he consider it very material whether the insult arose from provocation or not, because he did not think that any provocation could justify an indecency of that nature.
But it appeared to him that gentlemen who expressed so much sensibility on the occasion, had confined themselves wholly to the indecency committed within the walls of the House, without taking any notice of the nature of the punishment proposed to be inflicted. It was on that part of the subject, and on that alone, he meant to make some observations.
Our Government, he said, was a Government by representation. The people of the United States had not vested power with a sparing hand; they had given all power out of their hands, but they had guarded against the abuse of it. They had said this power shall not be exercised but by persons appointed by ourselves. This being the case, said Mr. G., we, the representatives of the people, have only a limited power over individual representatives in our body. It is true the Constitution has given us the power of expulsion, but under as much caution as power could be given. It is guarded by making it necessary to have a vote of two-thirds of the members present--the same caution which was laid upon the Senate with respect to treaties. He conceived that the power of expulsion had not been given for the purpose of indulging our sensibility; for the purpose of impairing the principle of representation, but for the purpose of enforcing that principle; and two cases might exist in which the power of expulsion, lodged in that House, might be considered as a safeguard to the principle of representation. These two cases were, when the House discovered a person to be disqualified by some infamous conduct from voting, and when a member pertinaciously interrupted and prevented public business from being carried on.
As to the first case, he could not suppose that any man would ever be sent to that House who had been guilty of any crime that would disqualify him from holding his seat, if the people who sent him knew it at the time; but if any such crime should be afterwards committed, or be discovered to have been heretofore committed, then the House has a right to expel and send such a member back to his constituents. The present case, every one will allow, does not fall within this rule. The charge against the member from Vermont is a gross indecency, which shows a want of manners--a want of good breeding. There could be no doubt the act was highly indecent; but it did not show a corruption of heart. It may disqualify him from associating with some gentlemen on this floor; but, said Mr. G., we do not come here to associate as individuals, but to deliberate upon legislative subjects in our representative capacity. We may, if we please, associate together, or we may let it alone. He did not think himself compelled to associate with any member of this House whose society he did not like.
This was not then one of those cases which discovered a corruption of heart, that would disqualify a man from giving a vote on a legislative subject, though it might show the person to be disqualified for polite society. He would go on to the other case, which was said to be a good reason for expulsion. He allowed that cases might exist, in which a man might so far persist in interrupting the business of that House, by his disorderly behaviour, as to render it necessary, in order that the business might proceed, that he should be expelled. This led him to inquire whether this was the case under consideration, and whether the business of the House had been interrupted by the act in question.
When he put questions to the witnesses in relation to the order of the House, at the time the act complained of took place, he did it not with a view of lessening the offence itself. He did not mean to inquire whether the member from Vermont had committed a less degree of indecency, because the House was in one situation, than it would have been if it had been in another; but his object was to show, that the public business had not been interrupted, and that the House was in a situation in which it could not have been interrupted. It was true the Speaker had, in the morning, taken the Chair, and the House had not adjourned; but it must also be allowed, that the House was not at that time organized. What was the business before the House? A committee of two members were counting the votes for managers of an impeachment. Were they interrupted; or could they be interrupted by an incident of this kind? He was sure they were not interrupted. If, then, the public business was not interrupted, and if the fact was not of that nature which showed a corruption of heart, he did not think it would be proper to expel the member from Vermont.
He saw, indeed, that it was unpleasant for some gentlemen to sit in the House with the member from Vermont. He allowed it was an evil; but what is the evil, he asked, on the other side? It is this: They all knew that a new election could not take place in the State of Vermont for several weeks. He remembered, from the contested election which was formerly before the House from that State, that twelve days notice is requisite before writs can be issued; a certain time would be required to bring the votes to the Governor; the necessary notice, a new election, ascertaining the return, the notification to the member elected, and the time necessary for his journey hither, would take up many weeks; and by the laws of that State, if there be not a majority on the first vote, a new election will be necessary; so that it may be pretty certainly said, that if the present member was expelled, one-half of the State of Vermont would be deprived of a representation on that floor for the remainder of the session. And shall we, said Mr. G., in order to gratify our sensibilities, deprive one-half of that State, for a number of weeks, and perhaps for the whole session, of its representation? He was not willing to do so, and therefore should vote against the resolution.
He knew that other gentlemen on that floor had as great regard for the principle of representation as he; therefore, he supposed, they had considered this subject already, and made up their minds upon it. When he stated these reasons he did not doubt they had weight upon the minds of other gentlemen. For his part, however, he was more apprehensive of depriving Vermont of its representation, than of any other consideration arising from the subject.
He thought gentlemen had laid too much stress on this indecency, as it affected the Legislature of the United States. However disagreeable the act was in itself, he did not think because a member sent there by the people of Vermont does an improper act, that it could attach disgrace and indelible infamy to the House itself, nor did he see how it could affect any other person besides the member from Vermont himself.
There seemed to be a great desire, very loudly expressed, that the question should be taken before the committee rose; but Mr. Sewall and Mr. Rutledge, both appearing to have a desire to speak on the subject, and it being near four o'clock, the committee rose and had leave to sit again.
Just before the committee rose, the Chairman informed the committee he had received a letter from Mr. Chipman, of the Senate, in consequence of what had fallen from Mr. Lyon, in his defence of yesterday. The letter was requested to be read, and was as follows:
And am, with respect, &c.,
Mr. Rutledge denied that any similar outrage had ever been committed in that House like the present, though the gentleman from Virginia had spoken of something analogous. It was true, a challenge had been sent by a member of the Senate to a member of that House; but this was not at all comparable to the present offence. Mr. R. thought the punishment by expulsion was the only punishment which could be adopted, as nothing short of it would be effectual.
Mr. Findley said, the question before the committee was a question of indecency, and not of crime; and he wished, for the sake of decency, so much had not been said upon it. In forming the Constitution there had been a distinction made between punishment and expulsion. Expulsion was evidently the highest punishment which the House could inflict, but no one could say indecency was the highest crime. He never understood, either at the time the Constitution was formed, or since, that expulsion was intended to be applied to anything but crimes--for what would be a subject of impeachment in other bodies where impeachments could be brought. This was not, therefore, an opinion formed upon the spur of the occasion. Mr. F. said, he knew of an instance of this kind, which happened in another Legislative body, upon which a committee was appointed to consider it; but they never made a report, but held their decision in terrorem over the offending member. He thought, if a similar course had been taken in this matter, it would have been preferable to spending so much time in debate upon it.
Mr. Sewall rose to reply to what fell from Mr. Gallatin on Friday, with respect to the two cases which he pointed out, as coming under the rule for expulsion, and referred to the law of Parliament in England to show that this doctrine was ill founded. He said no district of country ought to have it in its power to send a man among them as a legislator for the United States, who should be hateful to two-thirds of the House. The Constitution had defined no particular cases in which the power of expulsion should be exercised; the House was therefore left at liberty to use it according to its discretion. And, if it were to be abused, instead of punishment, it might become the highest honor to the person expelled, as, if the House were become so corrupt as to expel a person without just cause, it might awaken the people to a sense of the necessity of changing their representatives.
Mr. S. said, it was a new doctrine that the business of the House should actually be interrupted, before a person should be deemed an offender against its rules. It was necessary to look at the consequence of actions, and refer to what might have been the case if Mr. Griswold had resented the affront upon the spot.
Mr. S. spoke of the importance of this decision as a precedent; and of the danger to be apprehended from the conduct of Mr. Lyon in future, if the present outrage was suffered to pass without exemplary punishment, and that it would be necessary to come armed to the House, in order to guard themselves against him.
Mr. Shepard spoke again upon this subject. If the member from Vermont were not expelled, he supposed it would break up the present session, without doing any business; that it would divide the States against each other, and finally end in a civil war.
Mr. Pinckney said, in order to insure perfect freedom of debate, it was necessary to repress every personal violence in the first instance. In considering this question, he considered it as fixing a rule for their government in future; and he thought, if it were so considered, (and no reference had to the dispute which had produced the discussion,) there would be a pretty unanimous opinion that an offence of this kind ought to be punished by expulsion. He thought a member thus violently offending the rules of the House, should be immediately deprived of the power of the people in that House; and it was on this ground that he moved for the immediate commitment of the member from Vermont to the care of the Sergeant-at-Arms, when the offence was first made known to the House, not only for the security of his person, but for immediate punishment. As the Constitution gave the House a power to expel a member for disorderly conduct, he thought this case came clearly within the rule. In some cases of offence there might appear mitigating circumstances, but there were none in this. The conduct of the member since the transaction was committed had been such as to convince the House that he felt no compunction for what he had done.
Mr. Livingston rose to entreat gentlemen, as they valued the respectability of the House, the good opinion of their constituents, and the public Treasury, that they would suffer this business to come to a conclusion. Their constituents, he was certain, had long been tired of the discussion. Nearly twenty days, which had cost as many thousand dollars to the country, had been consumed in this business. Gentlemen rose to express their abhorrence of abuse in abusive terms, and their hatred of indecent acts with indecency. The simple question before the House was, what degree of punishment was proper to be inflicted upon the member from Vermont. [The Chairman informed Mr. L. he was mistaken in saying twenty days had been consumed in this business; it had been before the House only fourteen.] Mr. L. said it was in a fair way for being twenty.
Mr. Coit was sorry to hurt the feelings of the gentleman last up by saying anything on the subject, but having been considered as an advocate of Mr. Lyon, he would make a few observations upon the subject. He did not himself think that this vote ought to have been taken without discussion. If, indeed, it had only been necessary to have inquired how does this man generally vote? then no discussion was necessary; but he could not consider that this was the only inquiry necessary to be made. With respect to the fact, nothing need be said; every one allowed it to be brutal, indecent, and unmannerly. The Constitution gave the House the power of expulsion for disorderly conduct. It has been said, this disorder must be committed within the House; but he found nothing of this sort in the Constitution. He had no doubt himself that the House was in session at the time. It had been attempted to show that there was a provocation for the offence; but an inquiry into this matter turned wholly against the gentleman from Vermont, as his previous abuse of the whole representation of Connecticut was a sufficient ground for the retort which was drawn from his colleague. It appeared, therefore, to him, that to retain amongst them a man of this description was to retain a man who would produce nothing but disorder and confusion in their proceedings. His letter of apology did not say that this was a transaction of heat, and that he was sorry for it, but that he was sorry the House had thought it necessary to take cognizance of it; and his defence before the Committee of the Whole was far from being contrite; it was, indeed, an attack upon the witnesses, in order to invalidate their testimony. He hoped the resolution would be agreed to.
Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.
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