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Wednesday, January 23, 2013

The rout complete; too shocking to think of...

I see a bunch of men with overdeveloped senses of grievance and entitlement grilled our Secretary of State today about Benghazi.  So here is today's constitutional trivia: the very first congressional investigation ever was undertaken by the Second Congress in the wake of another massacre.

St Clair's Defeat was the worst military debacle in US history.  People, including President Washington, wanted answers (their concerns at one point referred to as "prejudices...in the minds of many of the citizens of the United States.") 

In March, 1792, the House addressed the incident:

On a motion made and seconded that the House do come to the following resolution:

Resolved, That the President of the United States be requested to institute an inquiry into the causes of the late defeat of the army under the command of Major General St. Clair; and also into the causes of the detentions or delays which are suggested to have attended the money, clothing, provisions, and military stores, for the use of the said army, and into such other causes as may, in any manner, have been productive of the said defeat :"

Mr. VINING inquired what was the object of the resolution? In what way was it to be carried into execution? For, if the House is not furnished with some answer to these inquiries, he did not see how gentlemen could vote for it. He conceived that this indefinite mode of procedure would only embarrass the President, without producing the desired efect. He was in favor of a full and complete investigation of the subject; and, if there has been any deficiency, let those who are to blame be impeached. He was not disposed to screen any officer from justice, let him be of what rank he may; but he was not satisfied with the mode now proposed. He did not consider it as constitutional or practicable.

 Debate continued:

Mr. W. SMITH observed, that this was the first istance of a proposition on the part of the House to inquire into the conduct of officers who are immediately under the control of the Executive. In this view of the subject, the resolution proposed could not but be considered as an lmpeachment of the conduct if the First Magistrate. Mr S. then adverted to the division of powers of the Government expressly provided for in the Constitution.

Gentlemen have discovered great solicitude to keep the branches separate and distinct; but, on this occasion, from the consideration that this House is the grand inquest of the nation, they seem to discover a disposition to go into a similar mode of conduct with the National Assembly of France, who spent a whole night in examining a drum major. He would not say that they had not a right to do, but he believed no gentleman would justiy such a line of conduct on the part of this House.

He then particularized the several objects of inquiry to the present subjust.  He showed that the Consitutions had made provision in all the several cases. And as it was the duty of the President of the United States to carry the laws into execution, it ought to be shown that he has been remiss in his duty, before he is called on in this way. He noted the account published by the Secretary of War, by direction of the Prestdent, and considered as has act...in any case where it shall appear that the Supreme Executive has not done his duty, he should be in favor of an inquiry; but, till that was done, he trusted the measure would not so adopted, without at least a previous and full discussion. 

Mr. WILLIAMSON said, he doubted the propriety of the resolution, in its present form ; but was fully of opinion that an inquiry into the expenditure of all public money was the indispensable duty of this House. He proposed the appointment of a select committee to inquire and report.

Ultimately the resolution was rejected and instead:

Another motion was then made and seconded, that the House do come to the following resolution :

Resolved, That a committee be appointed to inquire into the causes of the failure of the late expedition under Major General St. Clair; and that the said committee be empowered to call for such persons, papers, and records, as may be necessary to assist their inquiries." And the question being put that the House do agree to the same, it was resolved in the affirmative—yeas 44, nays 10...

Washington then assembled his Cabinet a few days later (as recorded by Jefferson):

March 31st. A meeting st the President's; present, Thomas Jefferson, Alexander Hamilton, Henry Knox and Edmond Randolph. The subject was the resolution of the House of Representatives, of March 27th, to appoint a committee to inquire into the causes of the failure of the late expedition under Major General St. Clair with the power to call for such persons, papers and records as may be necessary to assist their inquiries. The committee had written to Knox for the original letters, instructions, &c.

The President had called us to consult, merely because it was the first example, and he wished that so far as it should become precedent, it should be rightly conducted. He neither acknowledged nor denied, nor even doubted the propriety of what the House were doing for he had not thought upon it, nor was acquainted with subjects of this kind: he could readily conceive there might be papers of so secret a nature, as that they ought not to be given up. We were not prepared, and needed time to think and enquire.

April 2d. Met again at the President's, on the same subject; We had all considered, and were of one mind, first, that the House was an inquest, and therefore might institute inquiries. Second, that it might call for papers generally. Third, that the executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public. Consequently were to exercise a discretion...

Hamilton agreed with us in all these points, except as to the power of the House to call on Heads of departments. He observed, that as to his department, the act constituting it had made it subject to Congress in some points, but he thought himself not so far subject, as to he obliged to produce all the papers they might call for. They might demand secrets of a very mischievous nature.

And Executive Privilege was born (sorta)!

Anyway, the committee's report came back a couple months later, largely in support of General St Clair and finding fault with the War Department (particularly Secretary Knox and the Quartermaster).  Discussion was deferred until the next session, and in November there was a great deal of objection in the House so they effectively voted to kill the findings.  In the meantime, however, the two Militia Acts of 1792 became law.

It's interesting to me that back then Congress was very concerned about separation of powers, not embarrassing the President, and actually doing something in response to a problem.  I'm sure we'll see the same level of resolve as our legislators dig deeper into what happened in Libya...

ntodd

January 23, 2013 in Constitution, Schmonstitution | Permalink

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