Abridgement of the Debates of Congress, from 1789 to 1856 (4 of 16 vol.)

The question was then taken to concur with the Committee of the whole House on the state of the Union in their agreement to the said sixth resolution, as reported by the Committee on Foreign Relations; and resolved in the affirmative – yeas 97, nays 22.

Saturday, December 21

Statutes of Limitation

Mr. Gholson, from the Committee of Claims, who were instructed by a resolution of the House of the 11th ultimo, to inquire into the expediency of repealing or suspending the various acts of limitation, so far as they operate to bar the payment of certain descriptions of claims, made a report thereon. – Referred to the Committee of the Whole on the report of the Committee of Claims on the petition of Rees Nanna and others. The report is as follows:

That they have bestowed on the resolution that full consideration to which it was entitled. They felt, on the one hand, sincere solicitude to devise some just and adequate method of satisfying the claims in question; while, on the other, they were forcibly struck with the unavoidable scenes of speculation and fraud which would ensue the repeal or suspension of any of the acts of limitation, whereby those claims are barred. If the old soldier, his widow, or his orphan, were alone to be benefited by such suspension, your committee would not hesitate to recommend it. Past experience, however, hath evidently shown that similar legislative indulgences have enured almost exclusively to the advantage of the unprincipled speculator, and those who avail themselves of the ignorance and subsist upon the misfortunes of others. We have innumerable examples of the truth of this position, in the consequences that resulted not only from the various suspensions of these acts which have hitherto taken place, but more especially from the adoption of the Funding System. It is deemed unnecessary to enlarge upon the consequences; they are too well known.

Although a communication received from the Treasury at a former session holds out an opinion that there are in the possession of that Department sufficient checks and guards to protect the United States from imposition and fraud in the payment of a certain part of those claims, the committee are differently impressed. They have seen a transcript from the books of the Treasury, published to the world, exhibiting the names of a certain class of claimants; and to suppose that a facility of this kind, thus offered to speculative artifice and management, would not be seized upon and used by the speculator to impose upon Government, is to suppose a thing contrary to all experience. The committee feel themselves by no means able to draw a line of distinction between a just claim liquidated and a just one unliquidated; and to attempt the invidious task of distinction in point of merit, where there can be no difference, and to open the statutes of limitation in order to relieve a part or a few favorite classes of claims, does not comport, in the view of your committee, with any principle of fairness, or with that equal system of distributive justice which ought to be dispensed toward all. When they take a retrospective view of the subject, and find that most of those statutes were first passed in the times and under the patriot counsels of the old Congress, and that the more general one which took effect in 1794 was passed under the Administration of General Washington, who was himself the chief of soldiers as he was the chief of their patrons and friends in every station; but he was equally the friend of his country, and gave that act the sanction of his name, as founded, at least, in a policy of general justice and right, which the Government had been at length obliged to resort to and maintain in self-defence; that every Congress since has invariably adhered to the general policy of those laws; and, after the lapse of so many years, when the difficulty of doing justice has increased with the increase of time, and when a partial repeal would but tend to increase the discontent and dissatisfaction of every class of claimants which should remain unprovided for, the committee cannot, from any view they have been able to take of the subject, recommend the repeal or suspension of any of those statutes. They would, therefore, beg leave to submit the following resolution:

Resolved, That it is not expedient to repeal or suspend any of the acts of limitation, whereby the aforesaid descriptions of claims are barred.18

The report was ordered to lie on the table.

Monday, December 23

Rules and Orders – Previous Question

The House resumed the consideration of the unfinished business of Saturday. The amendment proposed by Mr. Nelson being again read, as follows:

"That when the previous question is ordered to be taken, upon the main question being put, every member, who has not already spoken, shall have liberty to speak once:"

Mr. Gold said the amendment now offered to the rules of the House, secures to every member the right of speaking at least once on every question before the House. The liberty of speech, and freedom of debate, are sacred by the constitution; and to refuse all debate, to deny us the privilege of speaking at all, on the most important questions of peace and war, is a subversion of the first principles of the constitution. And what is to justify this measure of imposing silence? It is said, the right of debate has been abused. Let gentlemen beware how, for an occasional abuse of a right, they take away – destroy the right itself. What right, in the whole charter of our rights, has not at some time been abused? Man is frail, and why should not, at times of public agitation and concussion of parties, abuses arise? debate become angry and be prolonged? And for this, is the principle to be adopted, that the right shall be forever suppressed and destroyed? – the principle that absolute silence shall be imposed on a minority? Sir, Philip, the tyrant of Macedon, disliked the freedom of speech and debate in Athens: it annoyed him; for this cause, Demosthenes was pursued to the altar, where he expired. The principle contended for by the majority (supposed abuse) will be found to justify the most odious usurpations recorded in history; liberty is abused, and chains are forged to restrain it.

Gentlemen of the majority insist, that the rule will not be abused; that the majority will not execute the rule arbitrarily. The amendment, now offered to the rules, stipulates only for liberty to each member to speak once. Now, sir, if this be denied, and the rule is ever executed, the abuse is inevitable, it is necessarily involved in the very execution of the rule.

Neither the journals of our State Legislatures nor the laws of the Parliament of Great Britain afford examples for thus arbitrarily proceeding. Debate is admitted in the British Parliament on the previous question; our rules exclude it on both the previous and main question. Beside, sir, I need only refer gentlemen to the manual of parliamentary law, from the hand of the third President of the United States, to show that the previous question was confined to subjects of delicacy, which a due regard to the interests of the State or its Government forbade to be agitated. How much, sir, has this question been perverted from its proper province, to silence all debate and force the question, the passage of the law! Such measures are dangerous to freedom, and afford, in evil times, the most fatal examples.

Mr. Smilie said he was a friend to freedom of debate, but that there was a difference between this, and that abuse of it when you cannot get a decision without an exertion of physical strength. This has been our case several times. The rule now proposed to be altered is the old rule, and is only restored. We very well know, that a debate has been often prolonged merely to prevent a decision. We have been kept till ten and twelve o'clock at night, and sometimes till daylight. It is an inconvenience which he at his time of life had seriously felt. There can be no evil from the rule as now established. The responsibility of the majority is such to the people, that, if they should abuse it, as the minority have their privilege, the people will correct it, when the minority shall fairly state it to them. He said the majority were also responsible to the people to transact the public business.

Mr. Stanford, in reply to Mr. Smilie, said he did not think it proper to give this dispensing power to the majority, if they by the constitution did not possess it, as he contended they did not. He said we have heard of a sedition law, and the reign of terror. The bill, when first introduced for that law, went to prevent freedom of speech. This rule, in his opinion, much more deserved the character of a "Gag-law," than the Sedition law did.

Mr. Wright mentioned the great abuses of this privilege of the minority the last winter. He said, if we don't establish a written, decent rule, we must have a common law rule, such as they have in the British House of Commons, to shuffle and put down, when the abuse of this privilege becomes enormous.

Mr. Quincy. – Mr. Speaker, I do not regard this question in the light in which some of its advocates, as well as its opponents, have considered it; as a mere contest for power between the majority and the minority. It is of a higher character. It affects the essential principles of civil liberty, and saps its hopes at its very foundation. I rejoice that the gentleman from Virginia (Mr. Nelson) has limited his proposition, so as to preclude any mistake concerning the object of it. We are not now advocating an unrestrained privilege of debate. The inquiry is, shall a main question ever be taken in this deliberative body, until every member, who has not already spoken, shall have had an opportunity, if he wishes to avail himself of it, to speak at least once upon the question? The ground taken by those who oppose the proposition, is that of necessity and convenience. These are the very points, which, in a free country, ought most vigilantly to be guarded. For it is here that the spirit of despotism always lies in ambush. Under the cover of necessity, or convenience, it steals upon the liberties of a people, and never fails, sooner or later, to make them its prey.

It is not to be denied, that the subject is in some respects difficult to manage, with any hope of convincing. There is a state of feeling, both within this House and out of it, very unpropitious to an impartial debate. In this House it is argued as a question concerning who shall have the power, a majority, or a minority. And as it is agreed, on all hands, that, in the exercise of the power, abuse may happen, the present majority, like all other majorities, have a prevailing inclination to reserve, in their own hands, the exclusive privilege of abuse. And without doors, the subject is of less difficulty. For, of late years, the popular ear has been so vexed with speech upon speech, wind upon wind, the public patience has been so exhausted, in hunting up the solitary grain of sense, hidden in the bushels of chaff, that it is ready to submit to any limitation of a privilege, which subjects it to so irksome a labor. The people are almost ready to exclaim, "do what you will with the liberty of speech, provided you will save us from that fresh of words, with which we are periodically inundated."

Now, this is the very state of the public mind in which the corruption of essential principles commences. Through apparent necessity, or temporary convenience, or disgust at abuse, the popular sentiment is made to acquiesce in the introduction of doctrines vitally inconsistent with the perpetuity of liberty.

I ask the House to consider what is that principle of civil liberty, which is amalgamated and identified with the very existence of a legislative body. In what does it consist? And what is its character? It consists in the right of deliberation. And its character is, that it belongs not to the body, but the individual members constituting the body. The body has the power to control and to regulate its exercise. But it has not the power to take away that right altogether, by the operation of any general principle. An individual member may render himself unworthy of the privilege. He may be set down; he may be denied the right, because he has abused it. But whenever a legislative body assumes to itself the power of stopping, at its will, all debate, at any stage of deliberation, it assumes a power wholly inconsistent with the essential right of deliberation, and totally destructive of that principle of civil liberty which exists, and is identified with the exercise of that right.

The right of every individual member is, in fact, the right of his constituents. He is but their Representative. It is in their majesty, that he appears. It is their right that he reflects. The right of being heard by their Representative is the inherent and absolute right of the people. Now, it is in the essential character of such a right, that it exists, independent, and in despite of any man, or body of men, whatsoever. It is absurd to say, that any right is independent, which depends upon the will of another. It is absurd to say, that any right is absolute, which is wholly relative to the inclination of another; which lasts only as long as he chooses, and terminates at his nod. Now, whether this power be exercised by one, or many, it matters not. The principle of civil liberty is gone, when the inherent and absolute nature of the right is gone.

Apply this reasoning to the case before us. It is impossible to conceal the fact, that as our rules and orders stand, independent of the proposition now offered as an amendment, it is in the power of a majority to preclude all debate, upon any question, and force every member of the House to vote, upon any proposition, without giving him the opportunity of explaining his own reasons, or stating the interests of his constituents. This is undeniable. Is it not, then, plain and conclusive, that, as our rules and orders now stand, according to recent construction, every member of this House holds his right of speaking, not on the principle of his constituents, whose Representative he is, but upon the will of the majority of this House? For that which another may at any time take away from me, I hold not by my own right, but at his will. Can any thing be more obviously at variance with the spirit of the constitution and the first principles of civil liberty?

Let not any man say this power will not be abused. In the nature of things it must be abused. This is the favorite argument of every despotism, and, of course, will not fail to be urged when it is about to plant itself in the very temple of liberty.

I have chosen to consider this subject in relation to the right of the whole body, and of one of its individual members, rather than to that of a majority and minority. The right to speak is an individual right. Limit it as you please, consistent with a single exercise of that right. But when this is taken away, or, which is precisely the same thing so far as it respects the principle of civil liberty, when it is in the power of one or many, at its sovereign will and pleasure, to take it away, there is no longer any right. We have our tenure of speech as the slave has his – at the will of a master.

But it is said that the Legislature must sometimes "act," and that individuals, by an abuse of this liberty of speech, prevent the whole body from "acting." All I say is, limit the exercise of the right as you please, only do not assume to yourselves the power of taking away the whole right, at your pleasure.

It is in this doctrine, of "the necessity of acting," that lies the whole mystery of that error which we are now combating. Strictly speaking, a Legislative body never "acts." Its province is to deliberate and decide. "Action" is, alone, correctly attributable to the Executive. And it will be found, that all the cases in which this necessity of "action" has been urged, have been cases in which the Legislative body has departed from its appropriate duties of deliberation and decision, and descended to be an instrument, or engine, of the Executive. I hesitate not to say, that this position may be proved by almost every instance in which this necessity of action has been urged. It was an Executive haste to its own purposes, which prevailed upon the Legislative body to deny, to its own members, their privileges.

It has been asserted, that "if this amendment passes, this will be the only deliberative body in the world which cannot stop debate." On the other hand I assert, that if this amendment does not pass, this will be the only deliberative body in the world, pretending to be free, in which it is in the power of a majority to force a decision, without any deliberation. It is not true that, in the British Parliament, the previous question stops debate and forces decision on the main question without deliberation. The previous question there, if decided in the negative, suppresses debate, by postponing the main question. And until 1807, the practice and rules of this House permitted debate of the main question, after an affirmative decision of a previous question. Whoever undertakes to examine the subject will find it as I have stated.

It is not true, that this power ever was, or ever can be necessary, in a Legislative body. In every case in which the previous question, according to recent construction, has been pressed upon the House, it will be found that there was no National or State necessity for an immediate decision. That is to say, in every instance it will be found, that it was of no sort of public importance whether the main question were taken on this day, on the next, or on a third day. Always the question might have been taken in a reasonable time; and every individual member, who chose to speak, might have had the privilege, if he pleased, of speaking, at least once. As far as I observed, all these pretences of necessity have been easily resolvable into party cunning. The subject was one difficult to maintain. It had popular bearings, which it suited not the pleasure of the majority to have investigated. They pressed the minority to instant decision, by refusing adjournment. And as it happens in all such cases, reaction is equal to action. The minority were put upon their mettle, and they put to trial the mettle of the majority.

It is undoubtedly true, that this power may be sometimes convenient. And this is the whole strength of the argument of those who oppose this proposition. The weak and aged members of the majority have been kept all night from their slumbers, by a hale and sturdy minority; which slumbers they might, by the way, at any moment have enjoyed, if that very majority had yielded the point of adjournment. And is this reason of convenience sufficient, in the estimation of this House, to justify it, in depriving this people, in the person of their Representatives, of the essential right of speaking upon this floor? Is this a justification for such an atrocious and exorbitant grasp at power? Our patriotism, nowadays, can submit to no sacrifices. We are not content with sleeping, if we please, every day in our seats, unless we can sleep also every night of the session in our feather beds. And these feather-bed patriots, as I understand, are all agog for a march into Canada; and, if we believe them, are desirous of nothing so much as showing how those can meet privation and watchfulness in the field, who think of nothing but comfort and sleep upon this floor.

I know there is another argument urged in favor of the assumption of this power by the majority, and that is, the haste and clatter which always attend the end of a session. Let our session be long or short, the event is, in this respect, always nearly the same. What with speeches and postponements, and laying down one piece of business half finished, and taking up another, the latter end of a session is a political chaos. The work of this and the other House, and that of the Palace into the bargain, is in fact sometimes to be washed up, in a night – and the members of all branches are knee-deep and shoulder-deep in the suds. Now, this shows the necessity, not of this unlimited power of the previous question, but of conducting public business with more prospective intelligence. The House is just like all other spendthrifts. It first wastes what is its own, and then seeks how it may make up its deficiency out of the property of other people. We pillage the public liberty, in order to compensate for legislative negligence.

I have often been puzzled to imagine a necessity, which could even apologize for such an assumption of power as the majority, by this new construction of the previous question, are attempting; and, until lately, I did not believe that it could possibly exist. The only case, in which there seemed to me to be an apology for resorting to it, was, the other day, when the gentleman from Georgia (Mr. Troup) threatened to call the previous question upon the majority themselves. I admired both his manner and the occasion on which he introduced that idea. And really there was something like a necessity. If I understood the view of that honorable gentleman, it was, that he thought there was not fighting matter to spare in the stomachs of the majority; and he threatened them with the previous question, lest, peradventure, the whole war spirit should ooze away through the mouth. In this there was both discretion and patriotism.

Mr. Brigham said, that although he was forward in life, he was but of yesterday of this House, and that the rules and orders were not familiar with him. But he exceedingly regretted that this House, in their wisdom, ever found it expedient or proper to adopt a rule to deprive a minority, or an individual member of this House, of the freedom of debate, the freedom of speech, a privilege so much boasted of in this land of liberty. He observed that he had his rights in common with the other members of the House, and that he had his duties to perform. He was not ambitious to become a public speaker, nor would he say that he supposed he could speak to the edification or satisfaction of the House. But should he, on great questions, be denied the privilege of speaking? Suppose the question of peace or war should assume the aspect of solemnity, and it should become necessary and important that this House be made acquainted with the circumstances and disposition of the citizens of the several sections of the country – and suppose a member who is not much accustomed to speaking, silently sits until those gentlemen who are in the habit, and are fond of speaking, shall have exhausted themselves in debate – shall he, in that case, be denied the right of speaking – shall he be deprived of his constitutional privileges and his constituents of the right of representation on the floor of this House?

He said that he was bound by the oath of God to support the constitution, and to promote the welfare of his country; but, if his mouth is stopped, how can he execute his trust or perform his vows? For this House by a rule to interdict the freedom of speech, is an assumption of power, and a violation of right. He hoped, that the rule under consideration would be modified, and that the proposed amendment would be adopted. He wished that each individual member might be permitted to exercise his right of speaking to any question before the House, at least once, if he chooses.

Mr. Nelson spoke in favor of the amendment. He said he had no hesitation in declaring, that whenever right and expediency shall come in competition, that he should prefer right. He remarked, that the constitution secured the freedom of speech to the citizen. And are we, he asked, to be deprived of it when we come to this House – when we enter this temple of liberty? The attempt is not to suspend merely, but to destroy this right, and because we have experienced some inconvenience from this exercise. He agreed with the gentleman from Massachusetts, (Mr. Quincy,) that if the House would do their duty, and get the business along in the early part of the session, we should never be in the dilemma the House were in, the last session of Congress; and that an inconvenience was a very poor reason for destroying this right of offering our sentiments. He would rather recommend the turning out of doors a member who should become troublesome in speaking too long, than to suffer him to stay in the House and prevent his uttering his sentiments. Even expulsion would not be a greater infringement of his right. The right of the people is the right of their Representatives to speak, deliberate, and decide. As to the plea of necessity, he protested against it as the plea of tyrants.