1821.

Anderson

V.

Dunn.

If it be inquired, what security is there, that with an officer avowing himself devoted to their will, the House of Representatives will confine its punishing power to the limits of imprisonment, and not push it to the infliction of corporal punishment, or even death, and exercise it in cases affecting the liberty of speech and of the press? the reply is to be found in the consideration, that the constitution was formed in and for an advanced state of society, and rests at every point on received opinions and fixed ideas. It is not a new creation, but a combination of existing materials, whose properties and attributes were familiarly understood, and had been determined by reiterated experiments. It is not, therefore, reasoning upon things as they are, to suppose that any deliberative assembly, constituted under it, would ever assert any other rights and powers than those which had been established by long practice, and conceded by public opinion. Melancholy, also, would be that state of distrust which rests not a hope upon a moral influence. The most absolute tyranny could not subsist where men could not be trusted with power because they might abuse it, much less a government which has no other basis than the sound morals, moderation, and good sense of those who compose it. Unreasonable jealousies not only blight the pleasures, but dissolve the very texture of society.

But it is argued, that the inference, if any, arising under the constitution, is against the exercise of the powers here asserted by the House of Representatives; that the express grant of power to punish their

members respectively, and to expel them, by the application of a familiar maxim, raises an implication against the power to punish any other than their own members.

ap

This argument proves too much; for its direct plication would lead to the annihilation of almost every power of Congress. To enforce its laws upon any subject without the sanction of punishment is obviously impossible. Yet there is an express grant of power to punish in one class of cases and one only, and all the punishing power exercised by Congress in any cases, except those which relate to piracy and offences against the laws of nations, is derived from implication. Nor did the idea ever occur to any one, that the express grant in one class of cases repelled the assumption of the punishing power in any

other.

The truth is, that the exercise of the powers given over their own members, was of such a delicate nature, that a constitutional provision became necessary to assert or communicate it. Constituted, as that body is, of the delegates of confederated States, some such provision was necessary to guard against their mutual jealousy, since every proceeding against a representative would indirectly affect the honour or interests of the state which sent him.

In reply to the suggestion that, on this same foundation of necessity, might be raised a superstructure of implied powers in the executive, and every other department, and even ministerial officer of the government, it would be sufficient to observe, that neither analogy nor precedent would support the asser

1821.

Anderson

V.

Dunn.

1821.

Anderson

Dunn.

tion of such powers in any other than a legislative or judicial body. Even corruption any where else would not contaminate the source of political life. In the retirement of the cabinet, it is not expected that the executive can be approached by indignity or insult; nor can it ever be necessary to the executive, or any other department, to hold a public deliberative assembly. These are not arguments; they are visions which mar the enjoyment of actual blessings, with the attack or feint of the harpies of imagination.

As to the minor points made in this case, it is only necessary to observe, that there is nothing on the face of this record from which it can appear on what evidence this warrant was issued. And we are not to presume that the House of Representatives would have issued it without duly establishing the fact charged on the individual. And, as to the distance to which the process might reach, it is very clear that there exists no reason for confining its operation to the limits of the District of Columbia; after passing those limits, we know no bounds that can be prescribed to its range but those of the United States. And why should it be restricted to other boundaries? Such are the limits of the legislating powers of that body; and the inhabitant of Louisiana or Maine may as probably charge them with bribery and corruption, or attempt, by letter, to induce the commission of either, as the inhabitant of any other section of the Union. If the inconvenience be urged, the reply is obvious: there is no difficulty in observing

that respectful deportment which will render all prehension chimerical.

Judgment affirmed.

(PRIZE.)

LA CONCEPTION. The Spanish Consul, Claimant.

Where a capture is made of the property of the subjects of a nation in amity with the United States, by a vessel built, armed, equipped, and owned in the United States, such capture is illegal, and the property, if brought within our territorial limits, will be restored to the original owners.

Where a transfer of the capturing vessel in the ports of the bellige

rent State, under whose flag and commission she sails on a cruize, is set up in order to legalize the capture, the bona fides of the sale must be proved by the usual documentary evidence, in a satisfactory manner.

APPEAL from the Circuit Court of South Carolina.

This was an allegation filed in the District Court of South Carolina by the Vice Consul of his Catholic Majesty, claiming restitution of the ship La Conception and cargo, as the property of Spanish subjects to him unknown, which had been illegally captured by the armed ship La Union, sailing under the flag of Buenos Ayres, and pretending to have a commission or letter of marque from that government, but actually built, equipped, armed, and manned in the United States. A claim was interposed

The Concep

tion.

1821.

The Concep

tion.

March 8th.

by one Brown, claiming the property as having been taken by him, as commander of La Union, on the high seas, under a commission from the government of Buenos Ayres, authorizing him to capture the property of the subjects of Spain. The District and Circuit Courts decreed restitution of the property to the captors, no sufficient evidence being produced of the capturing vessel having been equipped, or having augmented her force in the ports of the United States. On appeal to this Court, farther proof was taken, showing conclusively, that the capturing vessel was originally built, owned, and equipped in this country, and after proceeding to Buenos Ayres, and sailing from that port on a cruize, had touched at the port of New-Orleans, and there illegally augmented her force, since which, the capture in question was made. This evidence was attempted to be repelled on the part of the captors, by testimony tending to show a transfer of the capturing vessel at Buenos Ayres to domiciled subjects of that country, and that the subsequent augmentation of her force at NewOrleans, if any, was very trifling, and only amounted to a replacement of her former equipment.

The Attorney-General, and Mr. Hopkinson, for the appellant and claimant, the Spanish Consul, argued, that the original owners were entitled to restitution, according to the uniform series of decisions in this Court, upon the ground that the capturing ship was built and equipped in the United States, with the intention of cruizing against the subjects of Spain, in violation of our neutrality, and actually be