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FRwt1~ t1PON'>IN A s-RIkhT OF THE PIRSDi
:HHOLD PAPERS.
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F'FituRA~Ir 25, 14..

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-Read, and laid upoxithe table;

Mr. -Coopzit, of EPennsylvania, from -th Comh1iteei 6n:IndiaWtA'fits, top
which the- subject had been referred,' submitted the holowit-g

-e oe -R
Ida
APORT:

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an
airs, to .whom is rcferred't ;
theP` siident oft/e UnMitd Saies, accompanying
sdyfr~qd&
6tiZLienz~tia'nt Colonhe' lichcock to the Depar'Iment
I'
fet
toil ed fairs oft/se Che,'oke0 iaia and certaiifraudksalled-^Sk
'6Sen 6ozam~itediujpon the/?n and J/e Govcrizmei, 'report:
r.Thwt, irncompliance with tlie; request of th'e President 'cottaibed iti"hit
they.have examined the report of Lieutenant Colonel ;liIe6&t
inessaeg
oni thcsubJect .of the frauds he was appointed to investigate; iind
fi-f
opiniioh'.thaw neither the .public interest, nor "la j'l'tregard to the chbSat
ters 4nd lrighits of-persons, apparently 'implicated, butt who have nott- hd; a
opportunity to "meet the impUtations ,oni them,"1 reqitires tha: thie rep~i*'
should be 'suppressed -or its :publication' postponed. '- It corsitains--notxiing\:
which-isi not 'proper to be commui'uicatedd to the House,' bult, on th-e other
hand, many suggestions which may rpaterially aid it zin shapirngits-lgisla`
tion on: the subject to which it'refrs. fAnd ;here the cionrimitee migeithav4r
stopped, had it not been foi the-"extraordinary' message of' the Presid;en
ivhiqh accompanies the reports' and papers transmitted to thle Hbuse. -This4
znessa2.e:.;requires'some notice, and will be more fullly understood and prfp.2
erly appreciated by a brief history of the proceeding which has furnished
'
thie'becasioni ifr;its commuinicationi.
;.-It will be 'recollected thatj'on the '18th-of May last, a -resolutionrr'wa&
adopted by, tbis 1House, calling on the' Secr'etary of Wir for the ieportsiand,.i
papeis, the principal part of!which have been transmittedalong with the -e
-neesiae which form's. the subject of thisireibrt. It will also be recollectedlA
th~it'the secretary of War,'ivith theaipprobation, and as now appears b'i
the: direction, of the President, !declibed-to communicate the reports and in.-!
formation 'called for;' that stibseqiibntly, on -the- 13th day of AUgUSt, thi.
House adopted ;certail1 resolutions declaratory of its r ghl to dema-id U( thlhO :.:
Executive and hqads-ofDepartmenutssich information as might be in their
possession,' relating to subjectsofits deliberations and within the sphere of'its constitutional powers; that,- in addition. to these-resolutions, ai~other,,.
was a'optel, rcqviestih. the Presideat to' cause to be communicated to the.
&

 2

Rep.

No. 27 1.

House the reports and information which 'the Secretary of War had declined to furnish on its former call. Of this resolution no notice was takenby the President, until a call was made upon him at the present session,
requesting him to communicate to the House when the information called.
for by the last-mentioned resolution might be expected.
This is a concise narrative of tile proceeding, which elicited the singular
communication from the President which accompanies the reports and.
Papers, transmitted by him to the House, in pursuance of its call. This
communication is in the form of a message addressed to the " House of
Representatives," and is in substance a kind of protest against the resolutions adopted by it onl the 13th day of August last. It likewise contains
an argument in justification. of the refusal of the Secretary of War to comply with the demand of the Holose for the reports of lieutenant Colonel.
Hitchcock, and other information in possession of the Department' relative
to the same subject.
<-.The resolution of 1he House to which the President takes the strongest
exception,-and to combat the conclusions of which the greater part of his.
message is devoted, is that which declares " the House of Representatives
has a right to demand from the Executive or heads of Departments such
information as may be in their possession, relating to subjects of the delib-erations of the House, and within the sphere of its legitimate powers." In'
relatibil to this resolution he says: " If, by the assertion of this claim of right
to hall 1pon the Executive for all information in its possession, relating to
any subject of the deliberations of the House and within the sphere of its
legitimate powers, it is intended to assert also that the Executive is bound
to comply with succh call withoLut the authority to exercise any discretion
on. its part in reference to the nature of the information required. or to the
interests of the country or of individuals to be affected by such compliance,.
then do I feel bound, in the discharge of the high duty imposed upon me,, to
preserve, protect, and defend the Constitution of the United States,' to deQlare, in the most respectful manner, my entire dissent from such a proposition." . If the proposition involved] in the resolution of the House depended
for. its establishment onl authority founded in the force of numbers, it would
be sufficient to state that it was adopted by an almost unanimous vote of
the House, there being for it 140 votes, against it 8 ! (See Journal House
Reps., 2d sess. 27th Cong., pt. 12S8.) But the strongest circumstance in
favor of the proposition is thot the largeness of the majority by which-it was
adopted. WNkhat is more decisive of its correctness is that a majority of
both the great political parties in the House voted for it, after it had beert
fiully discussed.
In this conflict between the House and the Executive, it is proper that
the tmolives shoiltl be canvassed. which would be likely to bias or mislead
the one or the other. ill fotrning its judgment. If this be done, it will be
found, that the E.<xecutive is assailed by many more of the motives which
have such a tendency tillt the 1-louse. TI' he information called for by the
Louse: tended directly to the inculpation of the Executive officers and
agetmts, whose delinuletncy would be naturally regarded as in some degree
a reproaCh OfiJl INt, EXeCutiVf, itself. The disgrace of those otlicers and
vp,:eeills,@w\l(r iv bellbe presumed to be favorites of tihe President who
n)poillild dtew, would le reflected more or less stron-gly upon himself.
ThZe tendency ol' this upon a vain andinfirin mind will be easilv-understood.
This is jiut by the committee as a general proposition.

 Rep. No. 271.

$

Btit motives founded on snch a consideration cannot operate upon the

liouse.' It has no hand in the appointment to office; no necessary pardiAlity for those appointed; no interest to conceal their malversations, and none
to convict them of offences of which they have not been guilty. The legis-

lative department is unbiased by the motives of fear or favor, which, ill
such a case, can hardly fail to influence the judgment of the Executive.
The opinion of the latter is therefore less likely to'be correct than that of
the former, being more likely to exhibitthe hue with which interested feelings would probably tinge it. It is true that the opinions of the legislative body, as well as those of the Executive. may be colored by prejudice.
The influence of party spirit may mislead tihe judgment and shake the in.
tegrity of the Legislature; but the concurrence of a large majority of both
the political parties of the country proves that such- a spirit had nothing to
do with the decision of the question upon which the House and Executive
are at issue in the present instance. Thus it will be seen that the opinion
of the House, as expressed in its resolutions, is entitled to more consideration than that of the President which dissents from it, because there is less
;eason to suspect that it was influenced by interested motives.
In support of'. his opinion dissenting front the resolutions of the House,
the President thus argues: "The instrumLent from which the several departments of the Government derive their authority rnakes each independ.
ent of the other in the discharge of their respective functions. The injunction of the Constitution, that the President ' shall take care that the laws be
faithfully executed,' necessarily confers an authority commensurate with
the obligation imposed, to inquire into the manner in which all public agents
perform the duties assigned them by law. To be effectual, these inquiries
mIust be often confidential. They may result in the collection of truth or
falsehood; or may be incomplete, and require further prosecution. NTo
maintain that the President can exercise no discretion as to the time in.
which the niatters thus collected shall he promulgated, or in respect to the
character of the inform-nation obtained, would deprive him at once of the
means of performing one of the most salutary duties of his office, An inquiry might be arrested at its first stage, and the officer whose conduct demanded investigation be enabled to elude and defeat it. To require from.
the Executive the transfer of this discretion to a co-ordinate branch of the
Government is equivalent to a denial of its possession by him, and renders
him dependent upon that branch in the performance of a duty purely Ex-

ecutive."
Here is a confused iningling together of value propositions, having little
or no relevancy to the subject to which it is presumed they were intended
to be applied. It is undoubtedly true, to a certain extent, that the Consti.
tution, from which the. several departments of the Government derive their
power, has made each of them independent of the other in the discharge of..
their several functions. But what are the ftunctions wichl are exercised'
independently of each other by the several departments of the Government ?
The President exercises the office or function of cornmatder-in-chief of the
army independently of Congress; his power to grant reprieves and pardon.s for offences against the United States is exercised independently of
Congress; he has the power, by and with the advice and consent of the
Senate, to make treaties independently of the House of Representatives ;'he
has the power to nominate, and, by and wvith the advice and cornsent of the
Senate, to appoint ambassadors, ministers, consuls, and Judges of the Sue

 Reps Ho. 27i.
preme Court, independently of the House of Representatives, &c. but
what' has all this to do with the right of the House to institute inquiries aud
investigate abuses? It is a function of the Hotuse of Representatives to
investigate abuses-sometimes for the purpose of legislating to prevent their
remurence-sometimes for the purpose of punishing the offenders ; but, in
either case, its po wer to examine witnesses, to compel the production of
papers, .t6 exercise all the powers of a judicial tribunal in the investigation.

4

f

of like offices, subject to certain" well-established rules, has never been
do'ubted, and is as clearly implied in the Constitution as the right of the
President'"c to inquire intO the manner in which all public agents perform
the-dlities assigned to them by law."
'Phe Rouse of Representatives has the sole power of impeachment. The
Prcsident himself, in the discharge of his most independent functions, is,
subljectto the exercise of this power-a power which implies the right of
inqiiry on the part of the HIouse to the fullest and most unlimited extent.,
T6he committee need not Qay that the right of inquiry, without the right to.
procure evidence, wold be n1ugatory. They will presently look further
into this subject; but, before proceeding. to do so, they will remark that
tlie exercise of this right does not in any wise abridge the independent discharge of the Executive functions. The exercise of the right, claimed by
the HMuse in its resolutions, to demand from the Executive such informa-.
tion as may be in his possession relative to subjects of its deliberations, and
within the sphere of its legitimate power, is not, as the President alleges,
equivalent to the denial" of a right of i quiry by him into the same mattcr. The exercise of this right by the House is not in design, and cannot
be iin effect, "to arrest inquiry by the Executive, and enable officers whose
conduct demands investigation to elude and defeat it."
Take this case of the inquiry of Lieutenant Colonel Hitchlcock in illusiratien! of the point. A change had been preferred to the Department of
WV'ar that'certain subordinale agents in the public employment had been
guilty of gross frauds upon ihe Indiatns and the Government. The SecretarS of War undertook to investigate the matter, and ap)pointed a commis.
siorner for that purpose, who, in pursuance of his instructions, proceeded
to the Indian country, and, in the best manner his limited powers would
permit; performed the duty eujoined upon him. Of his proceedings, and
the facts collected by him, lie made a report to the Department of War.
This' report, and all other Iacts concerning the frauds which he was charged
to investigate, were called for by the Ilouse. The object of the call was
to procure such information on the subject as would enable the House to
take effectual steps to correct tie abuses which were understood to exist
by the application of legislative remedies. But, in making this call, no
design was entertained of arresting the inquiry which had been ordered by
the Executive, nor would a comJ-pliance With the call have had any such
effect. The call of the Ifonlse was for a report, or copy of a report, and
certain information. I-low would compliance with this call have arrested
the prosecution. of the investigation by the Executive ? The communication to the House of a copy of the evidence and information on which the
inquiry was prosecutingg, wouldd not have restricted the powers of the
Executive in any. respect. It could not have done so ; it had no suchi
tendency. 'lher allegation that it would do so, is just as true and as sensible as it would be to assert that the copy of a record of one court, procured
bIt and used as-evidetce in atiother, would deprive the former of itsbjris-

 Thp. 0o. 2.7g.
diptiou and power. But iil fact, at the tinge the call wm made bty the
House, the inquiry in this case had been discontinued, and has never been
prosecuted from that day to this. It is probable that it had been pursued

as far as the Executive had power; but the power of the Executive, in
this respect, is very limited. No commission of inquiry set on foot by the
Executive, without the authority of'law, has power to examine witnesses
except by their oCwn consent; nor does the Executive possess any authority
to correct abuses, or punish offenders, even if they should be discovered.
The only corrective in its power is the removal from office of its agents,
and the prosecution of other offenders, by indictment in the courts, when
they have been guilty of criminal offences.
But the power of the 11ouse to pursue anl investigation of this kind is
as ample as that of any other tribunal. All the means to enforce the
attendance of witnesses, the power to issue commissions to take the testimony of those who are absent, as well as to procure all necessary instruments of evidence, relative to any subject of' inquiry in which it may be
engaged, is possessed by the House in as much plenitude as by the judicial tribunals of the cou ntry. We shall show, hereafter, that the-House
has the right to compel the production of evidence which, for reasons of
State policy, may be withheld from the courts.
Having thus shown that the exercise of the right claimed by the House
to call on -he Executive for information is not a denial or abridgment of
the power conferred upon the President by the clause of the Constitution
which requires that he " shall take care that the .laws be faithfully executed,'orior of any other po6ver conferred by that instrument, the committee proceed to examine further the groLunds upoi which the President.
dissents from the resolutions adopted by the House.
The President insists, in his message, that " it cannot be a sound position, that all papers, documents, and information of every description, which
may happen by any means to come to the possession of the President or
heads of Departments, must necessarily be subject to the call of the
House of Representatives, merely because they relate to a subject of the.
deliberations of the Grouse, although that subject may be wvithiin the sphere
of its legitimate powers. It carninot be that tbe only test is whether the
information relates to a legitimate subject of deliberation. The Executive
Departments and the citizens of this country have their rights and duties
as well as the -Iotise of Representatives; arid the maxim that the rights
of one person or body are to be so exercised as not to impair those of another is applicable in the fullest extent to this question."
This is principally but a reiteration of the assertion of the President, that
the resolution adopted by the House of jRepresentatives, declaratory of its
rights, is too broad, and would invest it with powers not conferred on it by.
the Constitution, and which, if carried into practice, would invade the rights
of the Executive. The latter part of this proposition has already been
fully disproved. It has been shown that the exercise of the, right to demand from the Executive and heads of Departments such papers, or copies.
of papers, or, other information, as may be in their possession, is no invasion
of the rights of the Executive, impairs none of its just powers, nor sasprends any of its functions.
But is the resolution adopted by the House more comprehensive than a
fair construction of the Constitution warrants ? Thle resolution, asserts
that the " House has a right to demand from the Executive and heads of

 6

Rep. No. 271.

Departments such information as may be in their possession, relating to
subjects of the deliberations of the I-louse, and within the sphere of its legitimate powers."
The question involved in this resolution is: Does the House of Representatives possess the right to investigate abuses ?-a right virtually denied
to the House if the Executive doctrines prevail. For the right to investigate abuses without full power to procure information and evidence would
present the anomaly of the existence of a right without the means of enforcing it.
By the Constitution of the United States, the President, Vice President,
and all civil officers of the Government, are liable to impeachment for
treason, bribery, or other high crimes and misdemeanors; and the sole
power to impeach is vested in the House of Representatives. If the House
possess the power to impeach, it must likewise possess all the incidents of
that power-the power to compel the attendance of witnesses and the production of all such papers as mlay be considered necessary to prove the
charges on which the impeachment is founded. If it did not, the power,
of impeachment conferred upon it by the Constitution would be nugatory.
It could not exercise it with effect. But is the power of the House to comipel the production of papers. or the attetidance of witnesses, limited to proceedings in cases of impeachment ? Has the House of Representatives no
power to inquire into offences not impeachable ? Does not the power to
impeach for great offences involve the power to inquire into all offences ?
It necessarily does so. In, its character of grand inquest of the lotion it
possesses this right; and it is in this character the 'Ilouse acts, whether it
be engaged' in the investigation of some petty fraud committed by some
subordinate officer of the Government, or in the impeachment of the President for high crimes and misdemeanors. This right to demand information belongs to its character, is one of its attributes, not merely all accidental
right which it acquires when it takes upon itself the duty of impeachment.
It is not a right which it derives from the act of proceeding to investigate
a particular kind of offence, and which it loses when-it is engaged in the
investigation of another or smaller offence. It is a permanent right inherent in it, and not an incident of some peculiar function.
The power of the House to institute inquiries and investigate abuses has
been exercised by it from the beginning of the Government to the present
day. Such inquiries and investigations have, at various times, been made
in every Department of the Government, and every branch of the public
service, civil and military, and the power of the House to inquire ilnto all
official abuses and misconduct, and into the management of public affairs
at home and abroad, as far as the knowledge of the committee extends,
has never been denied or questioned until now. Let this power to investigate the babies whih may exist in the several departments of the Government be surrendered by the House, and there will be no check upon
extravagance: the responsibility of public officers will be at an end ; profligate and corrupt agents, unawed by the fear of exposures will riot in the
spoils of a plundered Treasury; whilst Congress will have lost all power to
brine them to account, or to protect the public interest against their rapacity.
By claiming for the House " the right to demand from the Executive
and heads of Departments such information as may be in their possession,
relating to subjects of the deliberations of the House, and within the sphere
of its legitimate powers," the committee do not mean to assert that there

 Rep. No. 271.

2

may not be sometimes information and papers in their possession whiicl
should not be made public. 'Sch there no doubt are; but the Houise has
the right to inspect thern, and it, and not the Executive, is to be the judge
of the propriety of making them public. The President has all along
assurned, inhis message, that the publication of all information and papers.
is a necessary consequence of their communication to the House. In this
he is mistaken. It does not follow that all information conmmunicated to
the House rmast be made public. Confidential communications are almost
daily made by the Executive to the Senate; and secrecy is always observed
in regard to them as long as the public interest requires it. There is nothing
in the constitution of the [House to prevent it from doing the same thing.,
Information transmitted to it by the Executive, on his suggestion that it
is a of confidential character, mav be referred to a committee under a,
char e of secrecy until an examination of it can be made. when, if the
committee concur in opinion with the Executive, its publication. may
be dispensed with. This is the true parliamentary course. It furnishes,
at once, a security against secret abuses, and the irresponsibility of the
public officers and agents, which would follow the denial of the right of the
House to demand information, and at the same time protects the State
against the discovery of facts important for the time to be concealed. In
the present case, on the suggestion of the President, the-reports and other
papers were referred to the committee under at least an implied injunction of secrecy; and, if the committee had concurred with the President in.
opinion, nothing would have been easier than to have returned them to the.
Executive department, their contents remaining unknown, excepting-to the
committee. Thus it will be seen, that the resolution protested against by
the President requires nothing from the Executive wvhicli can ever. proved,
detrimental to the interests of the State, unless it be presumed that those
interests would be more'safe in his keeping than in that of the House-a.
presumption which finds no warrant in the Constitution, and as little in the.,
Executive history of the Government.
The President; however, assumes that he is the sole guardian of the interests of the country; that those interests are safe in his hands alone ; and
that the legislative department of the Government is naturally hostile both
to the Execuiive and the People. This is what is implied in the following
portion of the message and its contexts. He declares that "- the Executive
department and the citizens of this country have their rights and duties as
well as the House of Representatives, and that the maxim.. that the rights.
of one person or body are to be so exercised as not to impair those of others
is applicable in the fullest extent to this question"-the question of the
right of the House to demand from the Executive and heads of Departments the information in their possession.
These truismns, in themselves, are not objectionable; but they are made
the medium through which the legislative department of the Government is
charged with hostility to the people. The viewers of the President on the subject of the relations of the several departments of the Government towards
each other and towvards the people are confused and indefinite, and seem to
have been formed on some vague notion -that there exists a kind of constitutional or inherent antipathy between the Executive and Legislative departs
ments of the Government. The perception of some minds is limited to the circtumstances which immediately surround them; and it is probable the President has derived his notions of the relations of the different departments from

 $

Rep. No. 27:1.

his own peculiar relations to their present Congress, rather than from any well-

considered reading ofthe-Constitution or enlarged general Views. That.the
Exitim'V possesses rights as well as the Hose, is ndt deniedd,' Thit thie
",epi{'lie rigliti, is equally trie ; biut how 'those 'iihts are to lienad
right to call for information a'nd.investigate
by-tWMb'ousetinsisting upon itsof the
Abdg's in the administration
Government, is difficult to coiipreliend.
W hlhiVe; already showni that the denial of this right to the Huiise would
bbdbOtriudtive df the public interests; that the responsibility 6f, the office's
hd;&ts';bf the Government would be at an end, and corruption an'dexiafaince encouragede.
-.i't+i~pport and illustration of what he has before advanced, the Presidef i~serts that "it is certainly no new doctrine in the halls of judicatibre
eo A6l6isWatiboi, that certain communications and papersa're privileged
ihd'that thie general authority to compel testimony must give wa'in certain
aii't&ihe paramount right of individuals or' of the Government'. Thus."
h asc; no man can be compelled to accuse himself, to answer any questi6dtrHht'tends to render him infamofis, or to produce his own private&papers by occasion. rhe communications of a client to his counsel anid
f1i; adm'issions -made at the confessional iln the course of religious discipline
are: pivileged communications. Ill the courts of that country from which
'dVe derive our great principles of individual liberty and the rules of evidence it-is vellsettled, and the doctrine has been filly recognised in this
country; that ai minister of the Crown or the head of a DepartmeiIt cannotbe~e repelledd to' produce any papers, or disclose any transaction relating to
the Executitie functions of the Government which he declares are confidebtial,'or such as the public interest require should not be divulged ; and
the;Persons who have been the channels of communicat on to officers of
the StfAf are in like manner protected from the disclosure of their names..
MTl-9p principles are as applicable to evidence sought by a Legislature as
to&hat' required by a court."
T 'i gLneral rule of law is, that no one will be permitted to withhold any
comi"ih1vnication which is'important as evidence, however secret and confidential the nature of that communication may have been. There are, howthe courts exclude particular evidence, oon
eVbrV` 6onre instances where
Ofbndf' bf public policy, because greater mischief and inconvenience would
restiltt-i6 the State from the reception of it, than would overbalance the injinr\ rhich individuals might sustain by its exclusion. The interests of in.to give way to the paramount interests of the commilare
didri-dadN- btade
nitf"I-hizsa witness is not allowed to reveal facts in a court of justice,
the discIsure of which might be injurious to the State; and, of course, the
sam-dtilb prevails in relation to papers the contents of which would have a
Iike tefidericy.' The communication of evidence to a jury is a promulgati6d6f ;it ito the country. The law'so regards it, and it is so in fact. Hence
the rule which excludes evidence the disclosure of which would be detri1trfflA6' the interests of the State. But this rule is only applicable to the
to pdrliamentarv tribunals; and the error of' the President
audici 1, andsnot
cohiyist inlOf having observed the distinction.
Th6r'easo`i of the rulc which excludes certain evidence is founded on
the'fibct that' its reception bv the courts is equivalent to a publication,..
yrhich::rii ciples of public policy fofbid 'in particular cases. The reason
of thf riile, however. does not extend to parliamentary tribunals, which
their investigations in secret, without divulgiiig any evi
niakrcon"lduct
a.0

 Rep. No. 271.

9

dence which might be prejudicial to the State.. The practice of conducting .ii~xestigations-1by secret cornnfittees has constantly prevailed in- th
British House o'f Commons ever since the Revolution of 1688, anid perhaps from an earlier period and the committee are aware of tno instanice in which evidence has been excluded in pursuance of the above;
rule. There is no reason for its observance in such cases, because th.6re
is no necessity for the p)ublication of the evidence which inay be dilivered
before such a tribunal. Thus it appears there exists no rule whichi would
exclude alny evidence from the House or a committee of the House, Which
are as competent to guard the interests of thc State, and have as high motives -for doing so as the Executive can have. On the other hand, it has
already been shown, that to withhold such evidence, at thneqpre discretion
of the Executive, would be in Effect to strip the I-Jouse 5f the right to
institute inquiries and investigate abuses. The consequence of this every
one foresees. Public officers and agents will become irresponsible, pqqcla-.
tions and abuses of every kind will be perpetrated with impunity, and
fraud and corruption will walk abroad unrebukde in open day. Such
would be the practical operation of the rule laid down by the President..
But this rule, it has been shown, is applicable only to judicial and net to
legislative investigations.
There are other doctrines asserted by the President in this singular
message, the pertinency of wvhiclh to the subject tlse committee have not
been 'able to discover. He says "It is no new doctrine, in the halls of
judicature or legislation, that certain communications are privileged, anid
that the general authority to conmpel testimony must give way in, certain
cases-to the pararnouint rights-of individuals or the Government. Thus,"
he says, "no man can be compelled to accuse himself, to answer. ally
question that tends to render him infamous! or to produce his own private
papers on any occasion. The communications of a client to his counsel,
and the admissions made at the confessional in the course of religious disciptine are privileged communications."
It is certainly a sound rule of law that a witness is not bound to answer
questions when, by doing so, he would criminate himself; nor is he under
any obligation to produce his private papers when they would have a similai tendency. But in what manner does this rule conflict with the resoluitions of the House, asserting its right to call upon the Executive and heads
of Departments for such information as may be in their possession relating
to subjects of its deliberation ? The information referred to in the resolution is the official information spread upon the records of the Departmen'ts,
or contained in their archives or on their files. This information is not the
private property of the Executive or heads of Departments; nor is there any
rule of law which would exclude it from being given in evidence in the impeachment of: the President or any of the heads of Departments or other
person I; is not privileged in the sense spoken of by the President. All
the information in. the possession of the Executive and of the Departments
is subject to the demand of the courts, legally made, for purposes of evidence, except whlde it is of such a character as would be prejudicial to the
State. Tie President himself is subject to the process of the courts to. compel the attendance of witnesses. He is liable, to the writ of shrbpwLia ad
testificandurn; and in the trial of Aaron Burr it was decided hie was liable to be served with a snlbpcenUa duces tecum. It was intimated, how-.
ever, by the court, that he would not be bound to produce confidential com-

 10

Prep. No. 271.

munications, or papers the disclosure of which would be prejudicial to the
public safety. This rule of the courts, which excludes evidence on the
-grounds of State policy, the committee have already shown, is applicable
to judicial and not parliamentary proceedings. This distinction should -be
constantly borne ill mind; forgetfulness of it is believed to be a principal
cause of the errors into which the President has fallen,
The President, in declining to furnish to the House the reports of Lieutenant Colonel Hitehcock and other information relating to the frauds alleged to have been committed by the agents of the Government, was Pxtending the rule which hle has stated a good way.beyond the limits prescribed to it heWtofore. Ile not only refused to compel witnesses to criminate themselveT, but refused likewise to permit any body else to criminate
them. This was giving a very liberal construction to the rule in favor of
-criminals.
In further illustration of his views of the resolutions adopted by the
House, the President lays it down as undoubted law, that " the admissions
made at the confessional in the course of religious discipline are privileged
communications." It is a -matter Qf very little importance whether this
be correct or not. Its analogy to the subject under consideration, if it 'eas
any, is so remote that it requires nicer perception to discover it than the
committee possess; and to treat this and other propositions in the message
seriously, the committee have found it necessary to keep constantly il
view the duty of seltfrespect as well as that of official decorum. The.
proposition, however, is itself incorrect. It is not so, that what has been
revealed at the confessional cannot be disclosed. (Vide Peake, N. P.
C., 77.)
The President next proceeds to say, that " in the courts of that country
from which we derive our great principles of individual liberty and the
rules of evidence it is i. II settled, and the doctrine has been fully recogiiised in this country, tAt a minister of the Crown or a head of a Departmnent cannot be compelled to produce any papers or disclose atly transaction relating to the Executive functions of the Government, which he declares are confidential, or such as the public interest requires should not be
divulged."
Here again the President fails to observe the distinction which he lost
sight of ill the outset-namely, that the rule here laid down is a rule of the
courts, applicable to their proceedings alone, the reason of which fails
vhen~it comes to be applied to proceedings before parliamentary tribunals.
In the administration of justice between private individuals the courts will
not permit that the public safety should be endangered by the production
of evidence, having such a tendency. But in parliamentary inquiries, where
the object is generally to investigate abuses in the administration itself,
and wvhere such inquiry wvould be defeated if the chief of the administration or his subordinates wei-e privileged to withhold the information or papers in their possession, no such ruile prevails. The cases are entirely different. In the first, the public safety requires that particular evidence
should be suppressed; in the second, the public safety requires that it
should be disclosed.
It may indeed be true, as the President has asserted, that in some bf the
more despotic Governments " a minister of the Crown- is not compelled to
produce any papers or disclose any transaction relating to the Executive
functions of the Government." In France, prior to the revolution, secrecy

 Rep. No. 271.

It

was observed in almost every transaction of the administration. But in
that country there was no public liberty-no free parliaments representing
the people ; and hence millions, wrung from an oppressed population, sers
paid out to favorites o01 the drafts of mistresses, often for purposes as (disgusting to decency as repugnant to justice and the principles of civil freedoni. This was the result of secrecy in France, and such is its tendency
every where. That such practices as those just stated prevailed in that
country during the reign of Louis XV and some of his predecessors, is
renown to every one familiar %with its history. It is from such Governments
the President has drawn precedents to justify his views, and lnot as he supposes from " that country from which we derive our great principles of
individual liberty and the rules of evidence." That country, since it was
freed from the arbitrary domination of the Tudors and the Stuarts, furnishes no precedents to justify the position of the President,
But if the President has been unfortunate in the application of rules to
the question under consideration, he has been equally, if not more so, in the
cases which he has cited as authority. There is scarcely one of them, if
rightly understood, which does not support the right of the Hotise, as expressed in its resolutions, and which is not at variance with the positions
hie has assumed.
Before proceeding to examine the several cases which have been cited
by the Presidentrit will be proper to recur once more to the resolution
against which they are opposed. That resolution declares the right of the
House " to demand from the Executive and heads of Departments all information in their possession relating to subjects of its deliberations, and withinthe sphere of its legitimate powers." This, it will be remarked, does not
include any assertion of right on the part of the House to demand from the
Executive the information in his possession relating to negotiations with
foreign Governments or appointments to office. By the Constitution, the
power of making treaties is vested in the Presiaent and Senate. The
Ilouse has no participation in the treaty-making power, nor in that of
appointment to office; and the resolution, only asserting the right of the
House to demand information relative to subjects over which its power extends, will be found-not to conflict in the slightest degree with the cases
cited. On the other hand, a majority of these cases will be found not only
to admit as broad but a broader right than the resolution asserts. But although the terms of the resolution do not assert the right of the House to
demand fro m the Executive information on the subjects of negotiations and
appointments to office, the committee do not intend to disclaim its right
it will he time.enough to settle this question when it shall arise.
The first case cited by the President in support of his views is, the refusal of General Washington to lay before the House "a copy of the instructions to the minister of the United States who negotiated the treaty
(Jay's) with the King of Great Britain, together with the correspondence
and other documents relative to the said treaty, excepting such of the said
papers as any existing negotiation may render imapnroper to be Wisclosed."
It is to be remarked, in the first plaE, that the refusal of General Washington, in this instance, does niot come into conflict with the resolution of
the House, against which the President protests in his message. The ground
of the refusal to communicate the correspondence and other documents relative to the treaty, as set forth in the message of General Washington, is,

 12

Rep. No. 271.

that the House, which made the demand for the correspondence, &c., is
pst a part oftthe tr.ary-making power, which is vested by the Constittution
in the President and Senate. It was refused because it related to a subject wbich was not "within the sphere of the legitimate powers of the
apuse;" and this is what the President denominates the " test" of the
resolution. If, therefore, the resolution only assumes the right of the House
to demand " information on subjects of its deliberations, and within the
sphere of its legitimate powers," the refusal of General Washington in' this
ease is in no wise repugnant to it.
If the committee desired to do no more than vindicate the resolution of
the I-louse, they might stop here, after having shown that there is 1no conlict between it.and the case referred to. rThey feel bound, however, by
its importance, to follow this early controversy of the House and the Ex.
ecutive on the subject of their relative rights and duties to its conclusion
for upon the preservation of the constitutional limitations of the rights of
the several departments of the Government depends its stability and the
welfare of the people-the common constituents of all the departments,.
though more nearly of the legislative.
We have already seen that the solehpower of impeachment is vested by
thn Constitution in the I-House of Representatives; and General WashingV
ton, in his message already referred to, admitted, by implication, that where
the House expresses an intention to impeach, the right to demand from the
Executive all papers and information in his possession belongs to it. The
}louse, however, in this case, asserted, by a resolution founded on the message, relative to that part of it in which the President refused to communicate the correspondence because the purpose of an impeachment was not
expressed, " that it is not necessary to the propriety of any application from
this Hlouse to the Executive for information desired by them, and which
may relate to any constitutional functions of the House, that the purposes
for which such information may be applied should be stated in the application."
But the House did not stop here. It vent further, and declared, by
another resolution, that, "1 when a treaty stipulates regulations on aniv subjects submitted by the Constitution to the power, of Congress, snch treaty
must depend for its execution as to such stipulations oil a law or laws to be
passed by Congress; and it is the constitutional right and duty of the House
of Representatives, in all such cases, to deliberate on the expediency or in.
expediency of carrying such treaty into effect, and to determine or act
thereon as in their judgment may be most conducive to the public good."
(See Jour. XI. R. 3d and 4th Con. 1793-'97: for message, see p. 480; for
resolution, 49.9.)
IHere the House asserts the right to control, in some measure, the treatymaking. powers vested by the Constitlutioll in thie President and Senate.
How far it possesses such right the-committee will not stop to inquire. It
is el1ough for them to show that, if the message of the President may be
quoted in favor of a particular proposition, the resolution of the House on
the same subject may be quoted against it. This is not such a case as furnishes decisive authority on. either .We; and, in such a conflict of opinion,
it must beleft to reason and princip to decide the question.
B~ut if the resolution which declares that the purpose for which informa5101i is demanded bv the House need not be stated, be regarded as authority, it is. decisive of the whole question; for if the right to demand informaI

 Rep. No.

1.DA

tion and leapers exist, and the purpose for which they are demanded need
not, be stated, the Houise may call for such information or papers as it'
thinks proper, and, when it gets them in 'bssession, use them for whatever
purpose it pleases.But, suppose for a moment (what the. committee do riot admit) that, is
order to acquire the right to the information and papers in possession of the"
EvYee tive, it was necessary to state the purpose to which they were to bi
applied, by how slight a fiction might they be obtained in every case ? The
-louse would have nothing to do but allege forianlly its intention to'
impeach, and in this manner acquire the right to all the information arid
papers which it might choose to call for. But it cannot be that any gieat
constitutional right is acquired or lost by the mere form of words in which
it is asserted. The right of the House to information in possession of the
Executive, if it exists at all, is all original right, and not acquired by asserting that it is about to resolve itself into a court of imreachment; and
to admit that the House has the right to demand from the Executive the
information in his possession in case of an impeachment, is, in the judginent of the committee, to concede the right in all cases, at least when it
,ets in a character qiiasi judicial, as it does in all inquiries and investigations into abuses.
It has been shown, in a former part of this report, that the right of the
House to demand information from the Executive is possessed by it ill its
character of grand inquest of the nation, and that it is ill this chatracter it
-acts, whether engaged in the investigation of a petty fraud committed by
some inferior officer of. the Government, or ill the impeachment of the
President for the crime of high treason. It does not acquire the power'necessary to pursue investigations by the act of proceeding to investigate.
It does not acquire a limited amount of power when it undertakes to inv-estigate a small offence, and a larger amount of power when it p'rc6eeds
to investigate a great offence. The right to demand and compel information is not nmerels all accidental right, but an original one, inherent in its
and not an incident of some particular duty, as it would be if the position
assumed in the message be correct.
The next authority -produced by the President is the inessage of Mr.
MNonroe to the House of Representatives, January 10, 1S25, in which it isk
alleged he declined " compliance with a resolution of the House of Rbprtsentatives, calling for the correspondence between the Executive 'epartmnent of this Government and the officers of the United States navy End
others, at or near the ports of: South America in the Pacific ocean."
The resolution which was the subject of this message is in the folowi.
words: "Resolved, That the President of the United States be requbstW
to lay before Congress, sofar as he na y deeds compatible with the fipubt
interest, any correspondence between the Executive department of th&
Government and the officers of the United States navy, and other ptiO'c
agents, at or near the ports of South America in the Pacific ocean; also,
copies of any memorials or communications which may have been received
from citizens of the United States in relation to the violation of their nei-n
tral rights by either of the belligerents, and the measures adopted by th&
officers and agents of the United States for their protection." For reiolutiWi';;
see Journal of House of Representatives, 2d session 18th Congress, pi;d'
102 and 103; for message, see same Journal, page 191.
in this case. as in most others of a similar character, the House invested

 14

Rep. No. 271.

the President, by the terms of its resolution, with the discretion which he
exewiied., The call was for, the correspondence between- the Executive
department. and certain officers -of the United States navy,. so afar. as the
l'residenlt tigkt deem compatible with the: public -interest to .commun'icate it. In declining to communicate the correspondence which had been.
called for, the President did not refuse to do alany thing. which' had been*
psitively enjoined, upon him. The House had referred it to his discretion
whle-therthe correspondence should be communicated or not, and hle only
exercised that discretion when he declined to communicate it. On a review
qf thiis case, the President will probably discover that it does not furnish a
precedent to sustain his position; unless, indeed, it be presumed that the
exercise .of the discretion by President Monroe, in a case where it was conferred upon him, proves that he would have exercised it in a case where it
was not conferred. This would be a somewhat violent presumption.
But if the Constitution did not, by the clearest implication,' confer upon,
the H8ouse the rihlt -to demand from the Executive and heads of, Departmerits the information and papers in their possession, the uninterrupted
exercise of this right, acquiesced in and admitted as it has been for almost
hl a century, would give it the force and sanction of a customary law.
'The hiistory of the Government from its foundation to the present day, a
far as the committee have been able to discover, does not furnish an instance, except that already referred to, where the Executive has refused to
communicate the information required by either House of Congress, unless'
thp discretion to do so was conferred upon him by the resolution containing
the (demand. Whenever the resolution has been positive and imperativeil its terms, there has' always been a compliance. It has, however, been
the usual, perhaps the almost universal practice of both Houses of Congress,.
in demanding information from the President, to invest him with the discretion of communicating it or not, as he should judge proper. There is
often a convenience in doing so. But if, by virtue of his office or consti-'
tutional functions, he possessed this discretion, wvhy has it always been
deemed necessary to invest him with it by special grant? It.is plain, from
what has been thie practice in such cases, that both the President aud Congress have concurred in regarding this discretion as belonging to the latter.
Ifitetdoes not, both branches of Congress have been practising a continued
usurpation upon the Executive for a period of more than fifty years; and,.
what is singular, the Executive has acquiesced in it during all the time witllouitcomplaint, and probably without having discovered it! It was left for
the Warper scrutiny of the present Chief Magistrate to discover, and to
his more intrepid firmness to resist, this usurpation.
r'he President next cites, in support of the position which he has assumed, a communication from the Secretary of WVar, addressed to the chair-'
man of the Committee on Public Lands of the House of Representatives,
dated the 2d day of Mareb, 1832, in reply to a resolution of that committee,
which had been transmitted to him by its chairman. The resolution is in
the
following words:
I' Resolved, That the chairman! of this committee address a note to the
Secretary of War, respectfully requesting a copy of the treaty made with
,1830, or so
day of
the Chickasaw tribe of Indians on the
much thereof as relates to a grant of a tract of land, of four miles square,
the opinion of the Presito Messrs. William B.. Lewis and Currin, d; iMil
de'ntsucli communicalions can be trade without injury to the public ser-'

 R'p. No. 271.

16

vice; and that he also communicate a copy of the journal of the commissio~ners who ,made the treaty,,and suchiother. papes asr may begins the De-,
prtrment,.ouching thesubject of the reservation aforesaid."
,This request was accompanied by a copy of the resolution of the. House,
under which the committee were acting.
!',The' comimitteein this case, as the House in that last referred to, conferred upon the President the discretion to communicate or withhold, as he,
shouldjudge,best, the information called for. The call was for a copy. of; the
treaty, or so much thereof as related to a grant of land to certain persons,
s if,.:irthe opinion of, the President, such communication could be made
without injury to the public service." In this case, notwithstanding, the discretion which was conferred by the clause of the resolution just. quoted,
the treaty, together with the journal of the commissioners who negotiated it, and every other paper relating to the subject, were transmitted to
the committee by the Secretary of War, under the direction of the, Presiderit. Every thing asked for was communicated,, but with a kind 6fprotestando, asserting the right of the President to have withheld. it Ihad he
chosen to do so. (See Reports Committees Ho. of Reps., 1st session 22d Congress, vol.6, No. 4SS.)
It will be seen that this case does not sustain the position assunied by
the President in the message which constitutes the subject of this-report ;.
on the contrary, it assaults it. Here a treaty, not yet ratified by. the Senate, together with all the information relating to it, was, by request of the
committee, transmitted to therm. It is true that President Jackson, although
he complied with the call of the committee, thereby admitting it was right,
nevertheless furniished an argument to prove that it wvas wrong.;.- He says,..
that, " in considering the application made by the committee," he does
'c not perceive that a copy of any part of the incomplete and unratified.
treaty of 1830 can be relative to any purpose under the cognizance of the
House of Representatives, except that of an impeachment, which .the ,resolUtion has not expressed. If this quotation, which gives ithe view taken of'
this subject by General Washington in his message to the House of Representatives of' March .30, 1796, applied to the circumstances of a call for
the papers relating to a ratified treaty in the process of execution, and
for the, faithful, performance of which an appropriation was required, it
will apply, with much more force, to the present application, which palls
for a paper that will be wholly inoperative until the parties have again
met and completed their arrangements, which at present gives 'no rightsandcan 'change' none, and. which has not and ought. not yet to be sub.
initted to the co-ordinate branch of the treaty-making power for their concurrence."It is somewhat remarkable, that, regarding the subject as he appears to
have done, and with his views of the rights of the several departments,.
that President Jackson should have communicated to -the committee
the treaty and papers which had been called for. But, having done so,.
his compliance furnishes no precedent in support of the positions as-,
sumed ill the inessnge under consideration. The whole authority of thc.
case therefore is left to~consist in anl opinion of the President incidentally
expressed in a communication wade through the Secretary of War to the
committee, not in support of what he had done, but rather to show what
h.e might have done, had he followed the example of the Executive in the
instance. of the call made upon him for the correspondence relating to Jay!&

 Rep. No, 271.
N obody will assert-thatadecisive a
i an be drawit
in; 17W6.
treaty,'
ki~b~
front such a case. --Every intelli'gethidaij, ailV as erla\sr~

wo'th;
lod 4itttle thy opiiniont.of a court, lon 'an iincide'ital'quiistio'n'iscsmpared to its solemnn judgment pronoyurrceSd on 'a case prceiited diretly}6ir
itsgdbisioil. This'will be r'garded as. of-still less va ue, b'eing'the'' nqre
o'inion'-of an 'adversary department of the 'Govern'mniitn; interested' in ex-'-`
repiding its own powers at-the expense of the other departments It was,:
betidessvolunteered; there was no occasion foir it. The papers called for
wiere senitbut accompanied by this expressidni of opinion, that ,se'hding iheiri
ng'them'
]cwas a matter of 'grace, alnd not of right.
But there Jis no necessity tio pursue -the examination of this' case any fur
there. In all; its remaining aspects, it corresponds with thatfirst-referred
to, atid which has been already examined at full length. All the prmcl
to that case apply with eqtial force to this.
ples4pplicable
The last case quoted by the P±resident, is'his Owin "4 refusal, at the last
session of Congress, to comply with a resolution of the House of R6presentitivds calling for the names of the members of Congress who had applied
for office." In answer to this, it is sufficient to say thatvacquiescernce in
one usurpation does not justify, thodughl it niy' invite, another. It will be
recollected; however,-that the resolution against which the President qiiotes
himself as-authority does not assert the right of the House .to demand from
the 'Executive the information and papers in his possession relating to appointments to office.
After having. thus given to the message of thle Presideat,ri'iri the ar&iimels it' contains the most careful atid dispassionate consideration, the
committee are bound, by their viewArs of duty, to declare that its 'conclusions
are nrot only unsound, but, in their tendency, subversive of the constitutional rights of the Houlse of Representatives; that, if carried intp practice,
they would deprive the public of an indispensable" security for good government-the security which is derived from the right of a fufll ahd free
inquiry, by the Representatives of the people, into the conduct of the Administration.
Before concluding this report, it is proper the committee should state
that the delay of the President in communicating the papers ahd infor 6 a&
tion-'called for has rendered any further prosecution of thlio infestigationi
which they were charged to make, entirely impracticable. The papers and
information called for by the House on thie 18th of'M ay, IS42,,were only
-comthu'llicthted to it on the 31st of Jatinary, 1S43-a period of the session`
quite too late to auOthorize the committee to hope that any vahiaileend would be subserved by a further prosecution of the inquiry.' This
inq4ry' hats already been abandoned by the Executive, because, asthe President states ini his message, "it has been found wholly imPinp'
ticable- to pursue the investigation, in' consequence of the death and
removal lut of the country of those whio would be' called 'upon' to testify,
and in consequence of the want of adequate authority or means to render
it effectual'." This admission of inadequacy of authority and means :oft the
part of the Executive to pursue the inVestigatioin with effect is strangely
at variance With the plenaryvpowers which the President in 'a former part
of his message, claimed to derive froin the injunction of tbe Constitution
that' he " shall take care that the laws be faithfully exerted" Thlis lhe
then seemed- to regard as a source from which powers extensive enough:
for any purpose might be drawn. But nowv, when a reason is to be Aiven for

 !top.

N6. 271."

17

the: failure, of the Executive to prosecute an investigation the. ineans of,
doing which he had denied to th6 House, such reason is found in "s the
want of adequate authority and mneans to render it effectual."
The reports of Lieutenant Colonel Hitchcock, communicated by the
President, are of two kinds. The first relates to the condition of the Cherokees as a nation, the country they inhabit, its boundaries! extent, soil,
climate, and productions, their form of government, their relations tol'ther
tribes and influence over them, &c. This report exhibits a most'gratifying
picture of the rapid advance which these people have made in the arts of
industry and peace. Their religious, moral, and intellectual improvement,
as exhibited by the report, must satisfy the most skeptical, that nothing is
wanting but opportunity and a continuation of favorable circumstances to
place them on equality with the white man. Already their manners, customs, and laws, their avocations and lpursuits, are very nearly assimilated
to our own. This report of Lieutenant Colonel Hitchcock, will be read
with great pleasure by all the friends of the Indian race.
The second report relates to frauds alleged to have been committed upon
-the Government and Indians, by certain subordinate agents in the public
employment, and persons who had contracted with the Govbrnment to furnish subsistence to a number of tribes, in pursuance of stipulations in various treaties. This report presents a great amount of facts on the subject-'
showing that the most exorbitant prices were paid to the contractors who
furnished the rations. The manner in which the contracts were made is
pointed out, as well as the manner in which they were performed; and,
unless the statements are false, it is evident the Government was aefrauded
in the first instance, and the Indians in the second; and that in both the
agents of the Government participated.
The facts contained in the report are very 'valuable. They expose the
whole machinery of fraud, by which the Government and Indians have
been so often and so greatly wronged ; and cannot help but afford material
aid to Congress in adapting its legislation to prevent similar abuses in future. The inquiry by Lieutenant Colonel Hitchcock appears to have been
conducted with 'great intelligence and fairness; and the committee cannot
but express regret that they were not put in possession of the reports, which
are the results of this inquiry at an earlier period.
The non-compliance of the Executive with the call of the House for
more than eight months, and until within a few days of the close of the
session, has put it out of the power of the present Congress to take any effectual steps to prevent the recurrence of such abuses as the report exhibits.
The facts contained in the report, if they had been communicated seasonably, would probably have enabled Congress to interpose legislative obstructions to the frauds from which it is apparent the Indians and the Government have been alike sufferers.
The delay of the President in communicating the papers and information
called for by the House having made it impracticable for the committee to
pursue the investigation with which they were charged, and the advanced
stage. of the session rendering any attempt at legislation upon such an inportant subject out of the question, they beg leave to be discharged froin the
further prosecution of the investigation.
NOTE.-Mr. Harrison, one of the contractors referred to by Lieutenant
Colonel Hitchcock, and who considers himself implicated bythe statements
2

 18:

Rep. No. 271.

contained in hisueport, has asked leave of the committee to submit an explanation, which they have granted. This explanation will be found annexed to the documents accompanying this report.v
Resolved,; Thatthe Committee on Indian Affairs be discharged from the
further prosecution of the inquiry which they were ordered to make by the
resolution of the House adopted on the 215th of May, 1842.
[The -documents accompanying the foregoing report will be laid upon
the! table separately, with all practicable despatch.]