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el? - w yr v : t , s v . e- - i V A,' tt tTXlOX. THE CONSTITUTION. AND THE LAWSTHE, GU ARDlANSQFTl Vol. XTI1I. FIJI DAY, 31AKC1I 10, 1837. v art o. T60. A 0 . .a u .. -S. . . . rr JtA JIcKran' I-e llrr ' n TUt UOt-UTtrBt Of mssTLVAM. J, t- flew. Srfrr rU Mm V rft-i a CaawwW U JVwacyt. t0tit ",. S.t Please to lay before the bonora- it H Mrf Rprecniau e, aer w htrh ..ii preside, ihe ate.ui.pTiBf letter ' ;, HI. .daVaae, your obedient servant SAMUEL McKEAN. f H.ruwa'ianfrtm Samutl McKtan. i.i'w i 'V4T'tf ytui kit $tiiimttt 1 f rttjmk) Utjirt fry t Sfaf f Q nU j lit f SfjiwtilfiV Pjn i a late period f extreme bodily iu;T-uj. frMi which I am but uartiilt ttA- I retired a leuer frwiB jrmjr ) th pwi-iiie o m. riernif a eipt i4 a re- t e a vnt pe, vor oatf, aairring aa a . i i'iv. the pat tec of a rranlutioii bv tne i je of the U '.d Suie, renturtng ib Froidciit i4 the United Sutca for a tin I f h di'pMttea, w aa wiae, in mJt st. and unj 1st. and that the ex f-.tt Ati ffHW the jouraalt tif the S-nate ji i ie f mtm4 rea ilutioa i, m the opi t . . ii . . . . i tnii a ni'i avatary aod . i..'iiitl rt dreaa for aa uneonatita jl nl rc.ttiion to the President of the I'tifd Xmca. and al.o one copy to each ji if Si itr (nun Pennsylvania ia the jKMte f the United Siatea. I i pr ividontially pre vented froro 5': p tri'ftjiaiioo in the recent delibera ti-, vil deacon of tlte Senate in teler tv i the uhji'rt to itter of your reo it w-ml.l now aeem to be due to m fit, si I respectful to the llounenf lie p!itatve. thai I ahoulJ ataie freely il irmtltr mv true position io relation bimatetcttin tiHjecti trusting that thoae t :-ub!e feting Hici perrade my own brc t, in awihtng nppoaite viewa to h it ta-'iivca, will he reeiltrocatd by I m tf ! vreiienuiivea; f w thoult I oiv have been -ia-iimc charge I wild Knfi!v. I am not eoniona of having heen tgwined of noli'ieal timidity. I i n well aarari that, by thoxe who try t i kep pace with the ehangea of the lit I aa chfj wtih iSae tnoioto dj p )liii'ia i who are reearded hy iV n mcrclv a the laonoiO'-n a of tun id thing woif i have exiMed. Bat, et-1 in thi oh lf te ch tt veter. I trul I aic. without ap'iring arrogant, eUiia w nvclf one n iH writ. and. th wigh h nor have been dented to me in the kti;jtn tn of ny natuie tfw power to tHf tvuh the facility and frequency of 'wv-rhWeai I mir roo grat n .n proming, when one well eha ig (I. I ill prohahly stay chaoa l aa long " iv g"mle ail. It ha been an eape i j -ct of mv life, the observance of ,i I hare fou id aaluury and protita b. to nMerve and than the errora of ai ( rcn wn rather than labor to 'Ttr irn ijiniie (IlenM or annnM t - -rr n tr;3!. aod have found it to be not ' in icconlancc w.iii inclination than J r.vea of dti:y. to erdp! y trji "beet if . wuhin my power to ascerta'a my 'tf rclitio i to t!ie great mwa of aocial ::' -!lietee whicli aurroundi me. It tt a; i,ierjlaoa to aay that my humble i a-id tuDited rneana denied to me ;lorf itiuih etnoeliiahmenia winch d "t externally hen woo deaeania leara- v n what he ia pleaded to call the ah ;mi; science of tiover itiat and Diplo '"''y. Vltue have been but ihs unaided '2i'3tt ou of nauve redectiot, and long " c ..i.Mtt.l ma ifm human CI ivera aau are b it necessary to ' in i nor evils, 'onted oiiiv bfen4e ihtv are desiraed rrc;t tiii!iceary and greater evils, . Ml hco-n intolerable when the exercise "i pier u cirrid J beyond its legitimate ui. . i, ? I' n i i.i th? rite were what they ' : i. ';. or nj it io lie, I e. nclude the i iiv.o of (J ivernnnts would never 'uv f.j iiceaary. Un men. eji i,' tin d :lecia and foibles f o'h-'r. and onscious of their own, vc r-linquished a portion of primary 3-1 individual rights to secure more per maiKaily the luterest and hajipt.iesa of 3,l. Ileoce Governments can only de- their just powers trout the consent I ih- governed, aod the aouad mixirn, iii political power ia inherent in the ? 'Vie, i nol m ire sound and (rue than ! '-. the people aUo possess the inherent r i!'ii. and power io delegate, uoder pre ' vh;,1 fuiidainenul rules, their inherent "'.ul powers for general beutsiicial ?l ,'sc. Ours is justly called agovero ? Jt of the people, yet in ours the peo '" nv!. fjr gr?t an I wi.e purposes, -.ausd and cuuaentcd to a sysicm, whi , i Tiar-cifT n me ire loi.iriMirni. rairuiatea w no nogona, anu . ptont oy, raiiter than I mi uie, their ia f flcd.y friendly to the.preaeai Cbf Ma- M -fihe Uuned Siite; M:id that t m.ght do much harm. I declared m then, t eaiitioui example? f gmtrate . f the Union. Now, if tbia wa a ..-..A . . a .t . r I : a a a, ' . v s riv i me ii nwe oi n,cpreenitivee ; anti nave never tor a m-mcni neia arua mi it ail that the reeiiloiion of the provee any thing, it orovea that the Le- N K , - . i .i-L.. v.. ,.- i in. i.ire ; iini.ii iw.wm nan aiaav oeen f 3i w viaicn. I0J1. la -iieoiiaulUHonai. s eiolature ol fenuai Itania. at Utat time K which, if the public interest required jt, ba power over tl thai ia valeahle and dear in lift, ant! rvea over life iisell: and if it be attempted by a fractioa or poniui of the people la resame m primary right tb exercise of power thus it aa itbraitof din publie pf ae na aalHr. an offrne irnmt umriv. t . . v a , (" ,T',f ,h' b,"n mJL ,lJ"M', . j,. ucucv mr output l pertM. -I underaiand the rmilutiun of the I nifce of Kc preeMttvr u aer, nqua r iiBcaiv.; ;iiat ttw eiMirfu..a from the jturaaU f the Senate l the reluthii of the 2?ih i.f Mreu IS3I, ce'nurtn the eomluct f the PreHkot of the Uot ted Statea in ralauosi to the denoaitea. ta 1 ennatitttion4. A uentiemea, altar the most ioeot ia- I -.,m ..,..-,; mm the trot, could 1 hate arrived at the asm t Htrmaino mat tu Bare, it wnnlj hive grauy relieved toy minJ. and Hien I a .1. aa ghl have oie I ith ot the appearance ! oi inrookiateocv. to exiHinge and blot it Jwiah to rlv to prove aa well the prinei. out. fortheSeatejMirnalaof thoeettmra pie a ihe'f.et. that 1 did oppo.e, and ought ta how thai I aa oppoaed u the e right ia oponiog.' the ceaaorioua re rewrfuiioo f the 28tb, i.f .March. 1834. aoluuon of Uie 28ih i-f Match. 1834! It and in lat.ir of adinming on the journala i at alter of OHNpUint that a political par of the Senate tfie Preatdeat'e proteat , ty Mijrttjr of Senate at that time ae againat it. 1 waa ct.QMcnt at the lime thtt the paa age of that revolution waa i.a.aaata . a. ready to vote fr a propoaiooo reverting thai rcaolmion. and had prepared a pro- J portion to repeal, rcarmd, revcrae and annul it. which, if health had permuted, . I w mid have, oft-red aa a eubaiiiate for the cKt.unin, , re solution whkh paed the Senate on the 16th of January last. Uot with itue dticrenee to the opinion I of others, and not qne-tioning the motives :. i .l of any, it ia my deliberate and m ot so ! lemt cooviciinn that the Sci.ue cannot fxpunge any portion of iia prrviou jour aU withoot a clear violation of that clause tif the (Jontiiution w itch eiprcas ly directs that ea -h llouae shall keep a jixirnaf of no proceeding", and from time to liiue pohlUh the same True, it has b-n said, hy way of et tenualion. that the exnutigmg resolutions prescribed by the Virginia legilature do oh propoe u actually destroy jottr nals, hut only lolr w black lines ariiund and write certain opprohrioua wor Is aciosa the off nova resolution. but the teo'd M'ut bt txpunst " This. Io my mind. prca'nted the s nhjct in its inol ex'Cpiioaahle form, for at the same ti ne me eouiitutional power to bl it uut and dc"trny the jourula waa evasively given up. Senators were a-ked to play off fan tastical prank bv draw ng iiUck lines, which seemed to be more beeomiiig the a.nuaemenl of volatile boys than the grave d"!iheration of a Senate. . ' I wnuid infinitely rather have met the question manfully, and vote at once to blot out. expunge, and literally destroy the journal. For long as I have been acensiomed to venerate end, respect the ancient dominion,' (Virginia.) her men and her principles.' I am not quite revly to adopt implicitly her aJroit and refined notions how to infringe, and not lo vio late the fundamental law of the country. ' thia and expunging doctrine is by no ' rneana new to me; it ia an old and very familiar acquaintance, and received my especial attention1 and embrace more ' than twenty years ago. aid has not been ' erp'tngeJ from my memory, or dimin ished "ta my affections from that day to the present. . v The Constitution of our own State (Pennsylvania) bat ihe same provision aa that contained in the Constitution of the United States, and reads thus: Each II ue thall keep a journal of its pro ceedings, and publish the same weekly " This J have always held to be intention ally mandatory and directory, as strong ly and clearly so as the import ol lan guage could make it, admitiing of no construction, no cavil, no doubt; too clear to be illustrated by the power - of argu ment. and to plain to be obscured by the refinement of sophistry. And so it haa beeu held, and so decided by the proper and competent tribunals of Pennsylvania. My opinion has been long settled, and my actions governed accordingly, thai, under the Constitutions of the United SUcs and the State of Pennsylvania, the journal of each preceding ihc exclusive and absolute day , is made property of the people, over which the Legislature has no further control, more than it has' over the Constitution itself, and possesses no wore power to deface, elTace. erase, blot out, expunge, add to, or diminish from oue sentence, line, or syllable, than it has to alter the Constitution, or to burn, or otherwise destroy, the entire joutnal from the commencement of the Govern ment to the preseat uaae. The reasons tie ihia eonUtatinaal injnnctioa ire u y mia4 u Hear tnt foreil!ej iht Ianas;e io nhirhlt iarspreaaed. The '"V0 nt llial aa ered intrjoient aeem to bate purpMljr fuarded thia pniul with nertilurhavnae , art.lrw. j-Eai-K Hsu aW keep i.Mrnl .r;i. ...j li. l j f nu I'umion the tanN - Ani uere me uutiea and imarer of iht lgiUture in reirreiee ui the jur nal eewe; an! thia record thail (hence re main aacred and tauUte. a per;etuaJ and abiding evulettee of the UdMa ur folia, pure or impure Ditja. of the rcprearn tali? ea of tie eple. t i it puanib!e to prete the aaUditjr or g euuineteia f the reli of legialaiioo, aarh at la,a, rn lutiiHia, aitd the Mther nuinrmua JmM inrnlenul to iegiUtire authoriiv. except bv rrferrtne to the written or original ioornalf Kuadm. ntal Uwa aa ell ta eheek. etrruniBeriS. rnnir.J and gere anaj.iritiea. aa to protect end i urinu Wo rigtiw m otiiMiritiea ana UI t I tm a right ander the CmiaUuJtioii la claim nd ex vet that nroidtio an.ai Ihaartxtrarv t xereiiwof ixtwer ia ktm I 1 the evidence oa a hich I mieht hrreafier ttd hanhJr. Would n not be wiedomin the admae io-jriiy now to eachew and . and therefore ought to be expunged.- That ia a quattoo about which great and good men may honeaUv ditlef. and anon which it ta not ttersar) to my present purpose to vyla ulcer an opinion. Admit tiag it, however, for the take nfargumenu to be unconstitutional, ean it be amend ed by doing another unouttitutioal act. by wav ot retaliation? Or where do we r ., . find the power to correct one unconsutu tional act by another unconautmioiul sett The object of the Constitution ta direct iag thai a journal shall be kept. Could not be only to pteerrve the wise and virtu, one acis of legislator; it also intended thai their anwiae and vicious transaction should be alike accessible to the public scrutiny and invrsthation: then, il the condemnatory resolution he unconstitu tional, lei its effects be blunted and an nulled by an adverse expression of the Senate, placed on the journal, an I let the objectionable resolution remain a the Constitution Intended, an abiding teu monv against its authors aod supporters We need apprehend no positive evils in legi-laiion, resulting from politic . I mi noritirs. Those only ean abuse power, who are in the possession of power. And we loight to he exceedingly can liot s how we establish douh.ful prece dents in tunes of high party excitement; for though we may have numerical potp tt now to expunge, blot out, and destroy, we ought not to forget lhat those who come atlnr us may have a mijorhy dif fering from us in seoiiment, and. with our fatal exa nole before them, may et punge us, and blot out our proceedings. Indeed, the first fluctuation which may give an adverse senatorial majority to the present, I anticipate an effort will be made to restore the iournd which waa niunl itcd on the 18. h day of January, i 1837; and thus the fatnl enor cnmmcnc rd. where is it to end! We exhibit, at the present time,; an exqtiisite refinement upon parly rancor, which, to my mind, reflects no credit on our country, and the causes ol which, at this particular period, may well occupy the serious t'loughis of the statesman and patriot. , What have our eyes seen and out ears heard in the short space of three years? The highest functionaries of our Govern ment, mutually charging upon each oth er, in official form, the corrupt violation of the sacred charter of our liberties, I claim for myself no superiority over, nor plead exception from, the common im perfections of our nature, and am as much disposed as ever to listen kindly to the suggestions of experienced friends, and will go proper and reasonable lengths to support party; but for no pretended expediency can 1 consent to lay. violeut hands ort the Constitution. " The resolution of the House of Repre sentatives, 1 presume, was originally de signed as instructions for me to vote lor Ihe expunging resolution, and as such it would be entitled to and would have re ceived my most respectful consideration; for I trust no gentleman holds in higher estimation the opinions of his Legislature than I do the opinions of mine, and 1 shall always be happy to find my opinions ac cord with theirs; but il is due to candor for me lo atale here that I recognise the force and obligation of legislative instruc lions, with some exceptions and squahfi cations,, which it is not necessary for me at present to go into. , The d.ietrine ol iuatrucUoa) toe.ti offleilMRg or it meaaa oothingt rr aaot adopt it aa paramount or indiapr naabie, or are tnut ie it a plfe aniune other oc eorrewTf, aw be ertim trd aceurdinf to ume and etrranatancea. It ill ant tt tif aa bMteat and iinellijtcut pubhe fur o t ImU instruetinna ti be aacred aud binding mAj when they anrr our pur pMe. and reject inatruetiona aa baeleaa hen they operate af aiuat our ie a and iuteret.r The LegwUture of I'rotta) Ira aia, in chuoMBi her &-natora in l-on- grea da not art io aeparate. bodiee aa senau and lloute of . Kcreeniativra, but meet in eiiti.tion and tote rMij.iiiit ly, aim a Mre majority or the membtra otiag n auBtcient io elect. , , ll, t! en. does thia natter atand. aa regMda the PeontUania Seaatora ia CoiigMf. . 14 1835. to yeara agn, reaolutioni were ptopoted in the Leeialaiura of rrnoayiranw, inatrurtiDf her Srnaura to vole to exjHinge from the journala of the Senate the retoluiioa of the 28ib of March. 1834. which were under eoni deratioa at different timea, bat never pat eed. and were finally permiiied to alcep qnieily. , f. H ' . About the aame time expunging mo t lutmn (rum the Siate of (Jmrgta. trane- milted to the Iegilture of Pennayltaiiia. were indefioiirty poatponed; and thia. too. at a lime hen both branchea of the Isgtalaiui ol Penii-ylrania were dcci etronglv Jir.toaim. were atleaal diain inclined to rounk-naiice or sanction the expunging doctrine; and what i.extf Why. during the etsion of 183ft. .bout one year ago, the House of Urpresenu Uvea of Pennsylvania pasaed a resolution, through all the parliameiitarv foraia, m atructing tier Senators in Congress, fcy namt. io vote aaainl the Vireinia. or any . . . ' aimiinr, expunging resolution, oy a vote nf sixty four to ienty fite, majority thirty-Hint; it w o not acted oa by the Sen ile; bui from the well known senti ment d thai body, then and now, it is reasoanble to suppose it would bate ad ded to ihe iuj irity o die House of Ke preseiitatite. But be that as it may. you will oi'sme that the majority in the House, who voted lo instruct their Sena tors in Conurcs to e against expung itig is decided) greater than the whole number of Senator, and a I irge, if not a larger majority ol b h House, than ei ther of the present Pennsylvania Senators io Congress had rc ed in joint ballot. Such is the true relation in w t i"h the Peiiiisylania Senile stood in reference to leilauve iii-lruru ns on The 16.h of January last. Now, if I am correct, and a refeience to your journals will test it. it clearly follows that, for ail practical pur poses, the Pet nsvlvania Senators stood essentially instructed lo vo'.e against ex punging. at the lime it passed Uie Senate of the United States. I state these facts at this time only to show that, in the plainest supposahle ease, we meet many d ffi -ullies at every step, in carrying out consisdy the practi cal operations of the doctrine of implicit and unconditional obedience lo legislative instructions. But I must not f rget thai 1 have said that the anti-expunging doctrine haa been long since ssserted. and settled by the proper and competent tribunal of renn aylvania; and as il devolves on me. I will now produce the proof. 1 he origin ol , the case is not to be found of record.' because it was informal, and grew out of a desultory aod incidental debate on the 19ih of February, 1816, upon the sngges tion of a member to expunge flora the journals of a previous day certain matters which he thought were irrelevant anai unimportant The Speaker gave it as his opinion that a majority of the House might order to be expunged prom the journal proceedings on which the yeas and nays had nol been called. 1 his opinion was controverted and. repelled bv the most talented and experienced members of the House; and declared to be clearly unconstitutional, and of dange rous precedence and tendency. Il was. contended lhat if the House asserted the right to judge in one case what it might expunge from the journal, it followed thai it had the same right lo judge in all Cases, and the journal would , not longer be safe and inviolable, as was designed by the Constitution, but would be sub jected to the political caprice or the ma jorities of each succeeding session, and ihe fluctuating and occasional majorities of each succeeding day. . The constitutional power to expunge any portion of the journal on any pretext whatever, even by Ihe unanimous consent of the House, waa utterly repudiated and denied, and the matter retted for that day. Being a new member of the House at lhat lime, an I anxtnix UuVrsWud ill) duties, the subject made a deep imprts- ioa on ay mind, atbich baa aerrr been frctea or effaeej. On the nextdar. prrfiaely tentyoae feara afi tbia tery day, eee jiun l of lit llouae of Repreenutifre .f Peaa tUama. page 339. Ibrurv 10, 1818. the Speaker informed the (lmae lint a rontitutinal qut-tion bring in uWcd ia a dtriha by hiia y tu-rdr, oa a motion t expunge rertin prcrrd ing fooi the journal, he raa i!eir'ia of having the opinion of Uie lltHie on jthat deeiaion, iz. That a miiy ! ran expunge any recediiie fioin lh ; junala on hi-h the jeaa and nT0 I hare not bera called. i . W hereupon, Mr. IItgaie and from aaid dcii..n. !r Smith appealed , And on Uie queaion la the Spekei i fif hi ia hta deciMonr , Th memtwr prramt t-oted aa follow. ' eii Jros Messrs. J Anderson. J. Btl- cher. and Deche rt 3 .Vayr M-ere. Allsbouve. Alter, S. Anderson, Baird. Black, Boyd, Brodhead, Buchanan. C. Bucher. Clarke. Cochrao, Conyngham, Coon. Denisou. Iyo Ed-arn.. Eicbelbergrr. Goodhart. Hal deman. Hallowed, Hamilton. Uri Her. rington. Hih.bman. Hiesier, lHird, Holgate, Hotienstriii. Humphrey, llu.ch- ioo. Jenka. Krlley. King. K liters. Kry der. liewis, L:ghturr. Livingston. Mae lay. Marlm. Martin. v'Clure. M'Enen, Keaw. M'Kibrin. Menuugh. Middlee rth, Miller, Morgan. Morton. Mher, orbury, Plum-r. Powell, Ralston. Read, toads. Kiuler, Koherts. Kobiio-tte. Rowland. Sawyer. Scott, T. SeiUra, ShafiVr, Smith. Sew art. Siromsn Suther land, Trvon. Vi.c. J. Wallace P, Wallace. J J. Wallis, Weston. White, 'Wind, and Wyakoop 8 1 am aware that my hunible name, recorded aboe with the tnajority agamsl the opinion of the Speakir. who aa iny personal and political friend ai'da but little in the eight of auih.-ritt. but it will alo be stru that many of the disa linguiahed lnn f our Stale of that ai4 the present day voted ou the amue ide. How many of them have since rhacgt da I know not; but one thing I km iht Constitution is yet the same. 8uch as, at lhat lime, the almost uitanmiou.npinioft of the llioise of Representatives ol 1'eiin aylvania. on the simple aud abstract quia lioo of ronstiiuiional power, unincumbea ed and unci.iiiiect' d with any i.ny coa suleralion i t ttiraneoua excitement to swerre the miud from its huesi purposa, and the House recorded its solemn decia sion, 78 lo 3. lhat a majority had no power, unci, r the Constitution, lo rt punge any portion of its journals; aud iheit derision, mau'e in 1818, is diametrtcally opposed to ihe doctrine aeru d b ih II ue in 1837, vii. that it is eoi.m.iu tinal to expunge ihe journals. And does not the Pennsylvania House nf Represen tatives of 1837 possess" ae much power ( over the journals of their predecrssora I ol 1818. as the Senate of the United Slates in 1837 poeaeases over ihe jour nals of their predecessors of 1834? Now, I respectfully ask the House ol Repress enutives whether they claim the con stitutional right and power to inks from the archives the manuscript journal of 1816. and expunge ihe proceedings to which refer, and thereby deprive me of the only evidence I have lo prove that I am iiow stating correctly what then occurred, and thai my present opinions are consistent with Uie sentiments which 1 then avowed. . But this is oo( all. There will be found on the journal of the same day. lebruary lOUi, 1810. page 361. the foU ' lowing, viz. k motion was made by Mr. Hrciu- ; nan and r. Ktu.EV.and read as follows: Kttoiuiu I hat, to we opinion oi una House, no part of the journals ran be ex. pungetl. even by unanimous consent.' : This resolution covers the whota ground. The remedy is aa broad as the malady, and the word was erpungt There waa no diversity nf opinion as to its proper meaning; and if the word ex punge had five hundred different appli cations, ihey are all met hy the resolu tion and proceedings of the House juat referred to, as both assert that the jour nal cannot be expunged. Tune passes away and men change; but principles and truth are etrrn d. And t still hope that those good old IVnnsyl vauia doctrines, asserted and acted on in the days when the venerabls Madisoo commanded the Constitution, and iht patriot Suvder Mood at the helm of the ship Pemtiylva iia. may yet survive, and, like ihe coat of Hunks, again hecomo fashionable and valuable. 1 wholly repudiate the sickly idea harped on hy those who assume to bo the keepers of his reputation, that tha existence m the journals of the resolu tion of the 2th of areh. !8:4. hat tarnished the character of the Chief Mas gistrate, and tttciefore it must be txpunf- S I fa 3 v ? it 21! j ..ft; V ! 7 )i ;.v 2. - ;
The Durham Recorder (Durham, N.C.)
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March 10, 1837, edition 1
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